NUNATUKAVUT COMMUNITY COUNCIL INC v. TODD RUSSELL, ON THEIR OWN BEHALVES AND ON BEHALF, 2015 FC 981

Date: 20150818 Docket: T-1339-13 Citation: 2015 FC 981 Ottawa, Ontario, August 18, 2015 PRESENT: The Honourable Madam Justice Strickland BETWEEN: NUNATUKAVUT COMMUNITY COUNCIL INC AND TODD RUSSELL, ON THEIR OWN BEHALVES AND ON BEHALF OF THE MEMBERS OF NUNATUKAVUT COMMUNITY COUNCIL INC Applicants and THE ATTORNEY GENERAL OF CANADA AND NALCOR ENERGY Respondents JUDGMENT AND REASONS Background . 3 Consultation Framework . 5 Phase 1 – Initial Engagement and consultation on the draft JRP Agreement, the appointment of the JRP Panel members and the development of EIS Guidelines . 6 Phase 2 – JRP Process leading to Hearings . 10 Phase 3 – Hearings and Preparation of the JRP Report 12 Phase 4 – Consultation of the JRP Report 15 Phase 5 – Regulatory Permitting . 18 Issues . 28 Issue 1: What is the standard of review? . 29 The NCC’s Position . 29 Canada’s Position . 29 Nalcor’s Position . 30 Analysis . 31 Issue 2: What was the content of the duty to consult and accommodate? . 38 The NCC’s Position . 38 Canada’s Position . 39 Nalcor’s Position . 41 Analysis . 42 (

a) UNDRIP . 42 (

b) Content of the Duty to Consult 44 Issue 3: Did Canada satisfy its duty to consult and accommodate? . 52 The NCC’s Position . 52 Canada’s Position . 54 Nalcor’s Position . 57 Analysis . 58 (

a) Funding – Aboriginal Traditional Knowledge and Land and Resource Use . 62 (

b) Funding – Phase 5 . 71

(

c) Funding – Phase 5, Legitimate Expectations . 82 (

d) Funding – Phase 5, Review of FHC and EEM Plans . 84 (

e) Lack of Meaningful Consultation and Bad Faith . 91 Issue 4: Was the decision to issue the Authorization reasonable? . 97 The NCC’s Position . 97 Canada’s Position . 98 Nalcor’s Position . 99 Analysis . 101 (

a) Recommendations 6.7 and 4.5 . 101 (

b) Reservoir Clearing – Recommendation 4.5 . 113 (

c) Effectiveness of the FHC Plan . 119 (

d) Miscellaneous Issue . 127 (

i) Impoundment 127 (ii) Treatment of Innu . 128 Conclusion . 129 [ 1 ] This is an application for judicial review brought pursuant to ss 18 and 18.1 of the Federal Courts Act , RSC, 1985, c F-7, by which the Applicants challenge the decision of the Minister (“Minister”) of the Department of Fisheries and Oceans (“DFO”) to issue Authorization No. 13-01-005 (“Authorization”) to Nalcor Energy (“Nalcor”). The Authorization was issued on July 9, 2013 and, pursuant to ss 32(2)(

c) and 35(2)(

b) of the Fisheries Act , RSC 1985, c F-14 (“ Fisheries Act ”), permits impacts to fish and fish habitat arising from the construction of the Muskrat Falls hydro-electric generating station proposed by Nalcor for the lower Churchill River as part of the Lower Churchill Hydroelectric Generation Project in Labrador. [ 2 ] The Applicants claim that they were not adequately consulted or accommodated, that the Minister breached her duty of procedural fairness; and, that her decision to issue the Authorization was incorrect or unreasonable and an improper use or an abuse of her discretion.

Background [ 3 ] The NunatuKavut Community Council Inc. describes itself as the self-governing organization representing the interests of the Inuit descendants (sometimes referred to as Inuit-Metis) of central and southern Labrador. The NCC was formed in 2010 and at all relevant times Mr. Todd Russell (“Russell”) was its President. The Applicants will be referred to, collectively, as “NCC” in this decision. [ 4 ] In 1991, the NCC’s predecessor, the Labrador Metis Association (later known as the Labrador Metis Nation), filed a land claim document with the government of Canada (“Canada”).

It filed additional research in 1996 and did so again in 2010 in the form of a document entitled “ Unveiling NunatuKavut , Describing the Lands and People of South/Central Labrador, document in Pursuit of Reclaiming a Homeland, NunatuKavut, 2010 ” (“ Unveiling NunatuKavut ”).

Although the NCC has asserted a land claim in the region it describes as overlapping the project area, this has not currently been accepted for negotiation by either Canada or the government of the Province of Newfoundland and Labrador (“Province”). [ 5 ] Nalcor was incorporated pursuant to the Energy Corporation Act , SNL 2007, c E-11.01, its predecessor being Newfoundland and Labrador Hydro.

Nalcor was created to engage in and carry out activities pertaining to the energy resources of the Province, which is its sole shareholder. [ 6 ] Nalcor proposed to develop two hydro-electric generation facilities on the lower Churchill River in central Labrador with a combined capacity of 3,047 megawatts (“MW”).

The project (“Project”) would consist of dams located at Muskrat Falls (824 MW) and at Gull Island (2,250 MW), and would include reservoirs, transmission lines, access roads, temporary bridges, construction camps, borrow pits and quarry sites, diversion facilities and spoil areas as described in the Report of the Joint Review Panel Lower Churchill Hydroelectric Generation Project , dated August 2011 (“JRP Report”). [ 7 ] Given the nature of the NCC’s claim, it is necessary to set out, in some detail, the factual background of this matter. [ 8 ] On November 30, 2006, Nalcor registered the Project with the Newfoundland and Labrador Department of Environment and Conservation (“NL DEC”) and the Canadian Environmental Agency (“Agency”) to initiate the provincial and federal environmental assessment processes pursuant to the Newfoundland and Labrador Environmental Protection Act , SNL 2002, c E-14.2 (“ NL EPA ”) and the Canadian Environmental Assessment Act , SC 1992, c 37 (“ CEAA ”). [ 9 ] In January 2007, Nalcor was advised by NL DEC that, pursuant to the NL EPA , an Environmental Impact Study (“EIS”) was

required for the Project. In February 2007, the Minister advised the Minister of the Environment that DFO had determined that an environmental assessment (“EA”) was required because, to proceed, the Project would require approval of Transport Canada (“TC”) pursuant to s 5(1) of the Navigable Waters Protection Act , RSC 1985, c N 22 (“ NWPA ”) as it involved dam construction, and, an authorization by DFO pursuant to s 35(2) of the Fisheries Act , as it would likely result in the harmful alteration, disruption or destruction of fish habitat, thereby triggering s 5(1)(

d) of the CEAA . The Minister requested that the Project be referred to a review panel in accordance with s 25(

a) of the CEAA . [ 10 ] TC and DFO each identified themselves as a “responsible authority” (“RA”) as defined in the CEAA , that is, a federal authority that is required to ensure that an environmental assessment is conducted ( CEAA , ss 2(1) and 11).

Consultation Framework [ 11 ] Canada, in its written submissions, divides the consultation process into five phases, based on the Federal Aboriginal Consultation Framework for the Lower Churchill Hydroelectric Generation Project , dated August 13, 2010 (“ Consultation Framework ”). [ 12 ] The Consultation Framework sets out additional details as to how the federal government would rely on the joint review panel (“JRP” or “Panel”) process, to the extent possible, to assist it in fulfilling its legal duty to consult Aboriginal groups with respect to the proposed Project.

The JRP process was identified as the primary mechanism for Aboriginal groups to learn about the Project and present their views, including with respect to their traditional knowledge, the environmental effects of the Project, effects on their land use, the nature and scope of their potential or established treaty rights, the impact the Project would have on them, and appropriate measures to mitigate. It identified the Agency as being responsible for coordinating federal Aboriginal consultation during the EA.

As such, the Agency would ensure that the activities described in the Consultation Framework were carried out and that the Aboriginal groups were kept well informed.

It divided the consultation process into five phases, which are adopted below for convenience: • Phase 1 – Initial engagement and consultation on the draft Joint Review Panel Agreement (“JRP Agreement”), the appointment of the JRP panel members and the development of EIS Guidelines; • Phase 2 – JRP process leading to hearings; • Phase 3 – Hearings and preparation of the JRP Report; • Phase 4 - Consultation on the JRP Report; and • Phase 5 - Regulatory permitting.

Phase 1 – Initial Engagement and consultation on the draft JRP Agreement, the appointment of the JRP Panel members and the development of EIS Guidelines [ 13 ] On October 19, 2006, DFO representatives met with representatives of the NCC, and other Aboriginal groups, in Goose Bay to discuss DFO’s role with respect to the EA for the Project and to ascertain their early positions and perspectives. The NCC, amongst other things, stated that it looked forward to formal consultation and noted its land claim.

On August 8, 2007, DFO and TC wrote to the NCC advising that the Project would require an EA pursuant to the CEAA and that DFO and TC would be arranging consultation with Aboriginal groups concerning how they may be affected by the granting of authorizations and approvals permitting harmful alteration, disruption or destruction of fish habitat. [ 14 ] In October 2007, the Agency and NL DEC jointly issued draft Environmental Impact Statement Guidelines (“EIS Guidelines”) to Aboriginal groups, including the NCC, for comment. The draft EIS Guidelines were made available to the public for review on December 19, 2007.

More than fifty interested parties responded, including the NCC, which provided comments on February 27, 2008. [ 15 ] The NCC’s Comments on the Lower Churchill EIS Guidelines , addressed various issues including reservoir preparation (tree stump removal to reduce methylmercury accumulation), cumulative effects, downstream effects on the entire downstream environment, timing and adequacy of fish habitat compensation programs, and, Aboriginal rights or title.

It also addressed the gathering and funding of this information, the consultation or accommodation process, the use of Aboriginal Traditional Knowledge and a comprehensive environmental agreement. The NCC noted its limited time and funding in preparation of its comments. [ 16 ] The final EIS Guidelines were issued by Canada and the Province in July 2008.

The purpose of the EIS Guidelines was described as a process for identifying the Project’s potential interactions with the environment, predicting environmental effects, identifying mitigation measures and evaluating the significance of residual environmental effects.

The document also stated that if the Project proceeded, the EA process would provide the basis for setting out the requirements for monitoring and reporting to verify compliance with the terms and conditions of approval and the accuracy and effectiveness of predictions and mitigation measure (EIS Guidelines, s 2.1). [ 17 ] Further, Aboriginal and public participation, Aboriginal traditional and community knowledge, the precautionary principle (EIS Guidelines, ss 2.2, 2.3 and 2.5) and other matters were identified as basic principles of an EA.

Regarding consultation with Aboriginal Groups, the EIS Guidelines stated: 4.8 Consultation with Aboriginal Groups and Communities The EIS shall demonstrate the Proponent’s understanding of the interest, values, concerns, contemporary and historic activities,

Aboriginal traditional knowledge and important issues facing Aboriginal groups, and indicate how these will be considered in planning and carrying out the Project.

The Aboriginal groups and communities to be considered include, in Newfoundland and Labrador, the Innu Nation, the Labrador Metis Nation and the Nunatsiavut Government and, in Quebec, the Innu communities of Uashat Mak Mani- Utenam, Ekuanitshit, Nutaskuan, Unamen Shipu, Pakua Shipi and Matimekush-Lake John. [ 18 ] On May 7, 2008, the Province, with the consent of the Agency, provided the NCC with the draft JRP Agreement and its Terms of Reference (“TOR”) in advance of making these publicly available for comment.

The NCC was invited to provide comments and advised that these would be given full and fair consideration and that a written response would be provided prior to the execution of the JRP Agreement and TOR. The NCC could also request a meeting in an effort to resolve any related issues. The NCC did not provide comments on the draft JRP Agreement and TOR. [ 19 ] The JRP Agreement and TOR were finalized and released in January 2009.

The JRP Agreement was subsequently amended to extend the consultation period for Aboriginal groups and to provide for translation of certain JRP documents into Aboriginal languages. [ 20 ] The JRP Agreement and TOR required the Panel to conduct the EA in a manner that discharged the requirements of the CEAA and the NL EPA . All JRP hearings were to be public and to provide for the participation of Aboriginal groups, the public, governments, Nalcor and other interested parties.

Upon completion of the EA, the JRP was required to prepare a report which would address the factors to be considered under s 16 of the CEAA and s 65 of the NL EPA , set out the rationale, conclusions and recommendation of the JRP relating to the EA, including any mitigation measures and follow up programs, and include a

summary of issues raised by the Aboriginal groups, the public, governments and other interested parties (JRP Agreement, ss 4.2, 4.3 and 6.3). [ 21 ] The TOR specifically addressed Aboriginal rights as follows: Aboriginal Rights Considerations The Panel will have the mandate to invite information from Aboriginal persons or groups related to the nature and scope of potential or established Aboriginal rights or title in the area of the Project, as well as information on the potential adverse impacts or potential infringement that the Project/Undertaking will have on asserted or established Aboriginal rights or title.

The Panel shall include in its Report: 1. information provided by Aboriginal persons or groups related to traditional uses and strength of claim as it relates to the potential environmental effects of the project on recognized and asserted Aboriginal rights and title. 2. any concerns raised by Aboriginal persons or groups related to potential impacts on asserted or established Aboriginal rights or title. The Panel will not have a mandate to make any determinations or

interpretation of: • the validity or the strength of any Aboriginal group’s claim to aboriginal rights and title or treaty rights; • the scope or nature of the Crown’s duty to consult Aboriginal persons or groups; • whether Canada or Newfoundland and Labrador has met its respective duty to consult and accommodate in respect of potential rights recognized and affirmed by s. 35 of the Constitution Act, 1982 ; and • the scope, nature or meaning of the Labrador Inuit Land Claims Agreement. Phase 2 – JRP Process leading to Hearings [ 22 ] On February 17, 2009, Nalcor submitted its EIS to the JRP.

The EIS comprised over 10,000 pages, including over sixty supporting component studies. On March 9, 2009, the JRP initiated a 75 day public consultation process on the EIS. [ 23 ] In April 2009, the Science Branch of DFO reviewed sections of the EIS and component studies related to the aquatic environment for the purpose of offering advice with respect to the scientific reliability of the EIS, including an opinion on the accuracy of Nalcor’s predictions regarding environmental impacts. The NCC was invited to attend the review, conducted by way of a Regional Advisory Process, but did not participate.

In June 2009, the Science Advisory report (entitled Science Evaluation of the Environmental Impact Statement for the Lower Churchill Hydroelectric Project to identify Deficiencies with respect to Fish and Fish Habitat ) identified deficiencies in the EIS, including the exclusion of the environment below Muskrat Falls, including Lake Melville, from the study area; a lack of detail in the monitoring programs; and, that additional effort was required to document local knowledge of fish habitat, especially in the area below Muskrat Falls. [ 24 ] The JRP invited the public, Aboriginal groups and governments to review the EIS received from Nalcor and to provide comments as to the adequacy of the additional information, as measured against the EIS Guidelines, and the technical merit of the information presented.

Based on the comments received and the JRP’s own questions, between May 1, 2009 and January 7, 2011, the JRP issued one hundred and sixty-six information requests (“IR”) to Nalcor regarding the EIS. The IRs required Nalcor to provide additional information or analysis in respect of the questions raised. In response, Nalcor submitted approximately 5000 pages of additional documentation by way of information request replies (“IRR”). [ 25 ] On January 14, 2011, the JRP announced that it had sufficient information to proceed to public hearings. Phase 3 – Hearings and Preparation of the JRP Report

[ 26 ] The hearings commenced on March 3, 2011. Between then and April 15, 2011, the JRP held thirty days of hearings in nine locations in Newfoundland and Labrador and in Quebec.

DFO participated in the various sessions of the hearings. [ 27 ] On March 4, 2011, the NCC advised the JRP that it would be seeking an injunction to enjoin the public hearings based on its belief that there were unanswered questions that must be resolved before the JRP Panel hearings could continue. [ 28 ] By letter of March 10, 2011, the JRP expressed its disappointment that the NCC would not participate in the hearings but stated, if an injunction were not granted, that there would be time and opportunity in the remaining portion of the hearings for the JRP to hear from the NCC regarding its asserted claim to Aboriginal rights and title and how the Project may impact these.

This information could supplement the information already provided by the NCC, including the “ Unveiling NunatuKavut ” report. [ 29 ] The injunction was brought in the Supreme Court of Newfoundland and Labrador.

In addressing the NCC’s claims “that despite the frequent contacts it has had with the two levels of government, with Nalcor, with the CEA and with the JRP, it has never been meaningfully consulted or accommodated about the Lower Churchill Project” , the Court stated that it did “not accept that Nunatukavut was not consulted appropriately” ( NunatuKavut Community Council Inc v Newfoundland and Labrador Hydro-Electric Corporation (Nalcor Energy) , 2011 NLTD(G) 44 at paras 21 and 41 [ NCC I ]).

The Court further found that the NCC would not suffer irreparable harm if the hearings proceeded, and that the NCC could face harm if it did not engage in the remaining phases of the EA process ( NCC I at paras 50 and 52-53). The injunction was denied on March 24, 2011. [ 30 ] In October 2012, the NCC conducted a protest which blocked access to a preliminary work site for the Project. The NCC asserted that Nalcor and the Province had failed to comply with their obligations to consult with it in respect of the Project.

An interim injunction sought by Nalcor was initially granted, followed, in November 2012, by a permanent injunction ( Nalcor Energy v Nuntukavut Community Council Inc , 2012 NLTD(G) 175). However, this was subsequently vacated on appeal ( NunatuKavut Community Council Inc v Nalcor Energy , 2014 NLCA 46 ). [ 31 ] On April 5, 2011, the NCC made a presentation to the JRP.

This addressed consultation with Nalcor, a lack of funding to gather and present Aboriginal Traditional Knowledge, land use data gaps and issues with IR# JRP-151 (Aboriginal Consultation and Traditional Land and Resource Use), concerns about the status of Nalcor’s work on downstream effects, cumulative effects, and methylmercury contamination. Two PowerPoint presentations were made, one including reference to “ Unveiling NunatuKavut ”.

On April 13, 2011, the NCC submitted a paper entitled “ A brief paper to the Joint Review Panel on the Lower Churchill Hydroelectric Generation Project ” which also addressed its concerns. [ 32 ] The JRP Report was issued on August 25, 2011. It is a comprehensive, 392 page document (including the appendices) which describes the process leading to its issuance, and, for each topic addressed in the report, sets out Nalcor’s views, the views of the participants and the JRP’s conclusions and recommendation(

s) concerning that topic. In total, the JRP made 83 recommendations, should the Project be approved. Of particular note to this matter is

Chapter 6, Aquatic Environment. There, the JRP identified the key issues that emerged from the review process which included: the effects of reservoir preparation; the fate of methylmercury in reservoirs; downstream effects below Muskrat Falls and the likelihood that Project effects, including the bioaccumulation of mercury, would be seen in Goose Bay or Lake Melville; and, follow-up monitoring. [ 33 ] In the concluding comments of

Chapter 17, and as summarized in the executive

summary, the JRP reported that it had determined that the Project would be likely to have significant adverse effects on: fish habitat and fish assemblage in reservoirs; terrestrial, wetland and riparian habitat; the Red Wine Mountain caribou herd; fishing and seal hunting in Lake Melville, should consumption advisories be required; and, culture and heritage.

It also identified a range of potential benefits including economic, social and cultural benefits to future generations, and, identified crucial additional information required before the Project should proceed in the areas of long-term financial return, energy alternatives to serve island needs, and, to reduce the uncertainty about downstream effects.

The JRP noted that it did not make the final decision about whether the Project should proceed but that government decision-makers would have to weigh all effects, risks and uncertainties in order to decide whether the Project was justified in the circumstances and should proceed in light of the significant adverse environmental effects identified by the JRP. Phase 4 – Consultation of the JRP Report [ 34 ] Phase 4 concerned consultation on the JRP Report. [ 35 ] On September 16, 2011, the Agency met with the NCC to discuss the JRP Report and Aboriginal consultation.

On November 9, 2011, the NCC submitted its comments on the JRP Report. Among these comments, the NCC submitted that the JRP had discriminated against NCC communities, that it did not exercise its TOR as it had failed to insist that Nalcor or government(

s) provide funding for studies so that the proper information from the NCC was forthcoming and that proper work be carried out with respect to Aboriginal Traditional Knowledge.

Further, that more consultation was needed to address land and resource work in the footprint area, that Nalcor had not been candid with the NCC throughout the process, and that the JRP had failed to address the cumulative effects of the Project. [ 36 ] On January 24, 2012, the Agency prepared an internal report entitled Lower Churchill Hydro Electric Generation Project: Report on Aboriginal Consultation Associated with the Environmental Assessment (“ Aboriginal Consultation Report ”) which states that it describes how the federal government consulted with Aboriginal groups in the context of the EA, in particular, how it had relied on the JRP process, to the extent possible, to assist in discharging its legal duty to consult.

The report states that it describes the positions of the Aboriginal groups with respect to how the potential adverse environmental effects of the proposed Project may impact their potential or established Aboriginal or treaty rights, which was derived from presentations the Aboriginal groups made to the JRP and from comments made by the groups directly to federal government department officials. [ 37 ] By Order-in-Council dated March 12, 2012, the Governor-in-Council, on the recommendation of the Minister, pursuant to s 37(1.1)(

a) of the CEAA , approved Canada’s response to the JRP Report.

[ 38 ] The “ Government of Canada Response to the Report of the Joint Federal-Provincial Review Panel for Nalcor’s Lower Churchill Generation Project in Newfoundland and Labrador ” (“Canada’s Response”) describes the Project, the federal regulatory approvals and involvement, the EA process, the JRP Report and Canada’s conclusions.

Canada’s Response states that DFO and TC, as the RAs under the CEAA , as well as other interested parties, such as Natural Resources Canada (“NRC”), reviewed the JRP Report, a subsequent independent supply report commissioned by Nalcor, an economic analysis of the Project that was conducted by Canada, and comments submitted by Aboriginal groups and other stakeholders during and following the JRP process. [ 39 ] In considering whether the significant adverse environmental effects of the Project could be justified in the circumstances, Canada’s Response stated that it accounted for the potential adverse effects of the Project and the commitments that had been made by the federal government related to the recommendations provided in the JRP Report, and those made by Nalcor in its EIS and during the panel hearings.

Canada would require certain mitigation measures, environmental effects monitoring and adaptive management be undertaken by Nalcor, as well as additional studies on downstream effects. This would be done through inclusion of requirements in federal authorizations and approvals.

Canada’s Response stated that ensuring that those commitments were carried out would minimize the negative effects of the Project and reduce the risks associated with the uncertainty about the success of mitigation measures. [ 40 ] Further, that the potential social, economic and environmental benefits for the Province, communities and Aboriginal groups, as well as benefits beyond the Province that are associated with the Project, were also considered, as was an economic analysis of the Project by Canada. [ 41 ] Canada determined that the expected significant energy, economic, socio-economic and environmental benefits outweighed the “significant adverse environmental effects” of the Project that were identified in the JRP Report: Therefore the Government of Canada concludes that the significant adverse environmental effects of the Lower Churchill Hydroelectric Generation Project are justified by the benefits of the Lower Churchill Hydroelectric Generation Project. (Canada’s Response, p 8) [ 42 ] On March 16, 2012, in conformity with the Governor-in-Council’s approval of Canada’s Response, TC and DFO issued their course of action decision pursuant to ss 37(1) and 37(1.1) of the CEAA (“Course of Action Decision”).

The Course of Action Decision noted that a follow-up program to verify the accuracy of the EA and/or determine the effectiveness of any mitigation measures was required for the Project, and that the estimated dates of the follow-up program were October 1, 2012 to October 1, 2037. Phase 5 – Regulatory Permitting [ 43 ] Phase 5 of the consultation process concerned regulatory permitting leading to the issuance of the Authorization. [ 44 ] By letter of April 23, 2012, the Agency advised the NCC that the consultation process was moving into Phase 5, regulatory permitting, as set out in the Consultation Framework .

Accordingly, responsibility for leading and coordinating the consultation for the federal government was being transferred from the Agency to DFO.

DFO sent a similar letter on July 9, 2012. [ 45 ] Around this time, the NCC, Grand Riverkeeper, Labrador Inc. and the Sierra Club of Canada, sought judicial review of the JRP Report and Canada’s Response and “to prohibit the various federal Respondents from issuing permits, authorizations or financial assistance relating to the Project, and to quash the Governor in Council’s Response to the Report” ( Grand Riverkeeper, Labrador Inc v Canada (Attorney General) , 2012 FC 1520 at para 1 [ Grand Riverkeeper ]).

Justice Near (then of this Court) found that Canada’s Response was not properly before the Court, as it had been released after the notice of application had been filed. As such, the judicial review in Grand Riverkeeper was limited to the JRP Report ( Grand Riverkeeper at para 17 ).

Ultimately, Justice Near dismissed the application for judicial review on December 20, 2012, concluding that the JRP reasonably considered the need for and alternatives to the Project ( Grand Riverkeeper at para 54 ), reasonably recommended that the Province and an independent study panel augment the information gathered ( Grand Riverkeeper at paras 59 and 62 ), and turned its mind to questions regarding the cumulative effects of the Project ( Grand Riverkeeper at paras 59 and 64 ). [ 46 ] By letter of May 4, 2012, the NCC wrote to the Minister stating that because of the ongoing judicial review, any participation by it in Phase 5 would be under protest.

Further, that it had not been provided with sufficient information regarding the regulatory permits that were to be granted and, therefore, it could not identify which of its Aboriginal rights and title may be impacted by the permitting process. The NCC also stated that it had a number of outstanding concerns not dealt with during the EA process and that it had not been provided with information regarding the process that DFO intended to follow in fulfilling its constitutional duty to consult.

The NCC described what it considered that duty to entail, which included funding for participation in the consultation process, for research on cultural and environmental impacts of the Project and for relevant scientific, technical and, if necessary, legal advice. [ 47 ] On May 9, 2012, at the NCC’s request, its representatives met with DFO representatives to discuss the regulatory permits. [ 48 ] On May 12, 2012, the NCC wrote to DFO describing the May 9, 2012 meeting.

The NCC stated that DFO had advised that permitting would be by way of authorizations under ss 32 and 35 of the Fisheries Act ; that a Letter of Advice had been issued on a portion of the Project; and, that DFO could provide the NCC with no funding for the Phase 5 consultations.

The NCC stated that it had previously been advised that a Consultation Framework was being developed; that it had no resources to review or respond to permitting and that DFO had advised that it could not provide such resources; that the NCC wanted to be consulted in a meaningful way regarding mitigation, compensation and accommodation; that the permitting process had begun without consultation; that the NCC should be provided with a copy of the Letter of Advice, which should be rescinded; and, that all further authorizations should be held in abeyance until an adequate consultation process was effected.

The NCC formally requested a copy of the Letter of Advice on May 28, 2012. [ 49 ] On June 1, 2012, DFO provided copies of two Letters of Advice issued to Nalcor concerning stream fording and explained that these were not regulatory permits. Further, that prior to the issuance of a Fisheries Act authorization, DFO would consult with Aboriginal groups, including the NCC, and that an Aboriginal consultation protocol governing that process was under development and

would be provided to the NCC for comment. [ 50 ] By letter of June 4, 2012, the NCC stated that the EA did not account for Aboriginal Traditional Knowledge of the NCC and that its members might hold very site-specific knowledge that would inform better decisions as to the placement of the culverts and stream fording which were addressed by the Letters of Advice.

Further, that the NCC had sought resources to present that knowledge, but had been refused by Nalcor. [ 51 ] DFO responded on June 14, 2012, noting that Letters of Advice are not regulatory instruments, encouraging the NCC to share information they may have on any site-specific stream and review crossings in the area at issue, and, stating that DFO would be formally consulting with the NCC, and other Aboriginal groups, with respect to Fisheries Act authorizations for the Project. [ 52 ] On July 9, 2012, DFO wrote to the NCC stating that, pursuant to the Consultation Framework , the federal government was entering the regulatory permitting phase (Phase 5) for the Project and wished to continue consultations respecting specific regulatory decisions, approvals or actions that may have potential adverse impacts on their asserted Aboriginal rights or title.

DFO advised that the federal government anticipated issuing three kinds of approvals: the s 35(2) and s 32(2) Fisheries Act authorizations from DFO and, the s 5 approval under the NWPA from TC. DFO proposed to conduct consultations during the regulatory phase in accordance with an attached proposed Protocol for Regulatory Phase Aboriginal Consultation Lower Churchill Generation Project (“ Regulatory Phase Protocol ”) and sought comments on that process within 14 days. [ 53 ] The NCC responded by way of email of August 8, 2012.

This requested that a protocol be put in place to share the NCC’s Aboriginal Traditional Knowledge, that more emphasis be placed on Aboriginal Traditional Knowledge and that a clear definition of the Project footprint area be provided.

By letter of February 21, 2013 DFO stated that comments not directly related to the draft protocol would be addressed by follow-up letter and that the comments on the protocol had been fully and fairly considered and were reflected in the final version of the protocol, which was attached. [ 54 ] The final Regulatory Phase Protocol stated that in Step 1, upon receipt of the Fish Habitat Compensation Plan (“FHC Plan”) or the Environmental Effects Monitoring Program (“EEM Program” or “EEM Plan”), both conditions of the Fisheries Act authorization, a condensed Fish Habitat Compensation Report or condensed Environmental Effects Monitoring Program Report with a link to the full plan/program would be provided to the NCC.

The NCC would then have 45 days for review and comment. [ 55 ] In Step 2, within 10 days of receiving the application, the NCC could request a meeting with the RA, to be held within the 45 day period, to discuss the application/document. If no comments were received, then the RA would notify the NCC that the 45 day timeframe had ended and that the approval or authorization would be considered and, if appropriate, granted. If comments were received, then the RA would give them full and fair consideration and provide a written response.

In Step 4, the RA would incorporate changes as appropriate and, in Step 5, within 5 days of issuance to Nalcor, copies of the Fisheries Act Authorization and the NWPA Approval would be provided to the NCC. [ 56 ] Nalcor provided the FHC Plan to the NCC on December 21, 2012, and invited it to a public information session, which would provide a technical briefing on the FHC and EEM Plans, to be held in Goose Bay on January 16, 2013. Representatives of the NCC attended that session. The letter also extended an offer to meet with representatives of the NCC to brief them on the FHC and the EEM Plans.

The NCC did not respond to Nalcor’s offer of a meeting. [ 57 ] A February 5, 2013 DFO memorandum for the DFO Regional Director General addressed the status of Aboriginal consultations for Phase 5. Amongst other things, it noted that comments received on the proposed protocol indicated that some Aboriginal groups still had concerns about the EA that they felt had not been addressed.

The majority of these related to impacts on Aboriginal rights and title, caribou, cumulative impacts, and the lack of land and resource use studies. “Close the loop” letters to the groups were being drafted addressing the outstanding issues prior to finalizing the Regulatory Phase Protocol . [ 58 ] A February 21, 2013 memorandum for the Deputy Minister for DFO again summarized the status of Aboriginal consultations for Phase 5.

It anticipated the DFO would complete the consultations by mid-May and should be in a position to issue a Fisheries Act authorization by June 2013. [ 59 ] On February 28, 2013, DFO wrote to the NCC advising that it was preparing to issue a Fisheries Act authorization and provided the draft FHC and EEM Plans, as received from Nalcor, and sought comments on the two plans within 45 days as per the Regulatory Phase Protocol . The letter also noted that the NCC could, within the first 10 days of receiving the plans, request a meeting with DFO to discuss the documents.

DFO stated that it would give full and fair consideration to the comments and respond in writing. A follow-up reminder letter was sent to the NCC on April 5, 2013. [ 60 ] The NCC responded on April 15, 2013. Its letter did not provide comments on the FHC Plan or the EEM Plan.

It stated that there had been an absence of procedural engagement with the NCC in preparing the plans; that the Regulatory Phase Protocol was unacceptable; that a meeting was sought with the official most directly involved in advising the Minister, or the Minister’s delegate, regarding the Authorization to discuss non-compliance by Nalcor and the inadequacies of consultation and accommodation to date; that the 45 day review period of the Regulatory Phase Protocol was not acceptable; that the NCC’s concerns on impoundment remained unaddressed; that no resources had been provided for the Phase 5 consultation and accommodation efforts; that there had been no direct consultation with the NCC in relation to the proposed authorizations; and, that a 60 day extension was required.

The letter attached a table listing JRP Recommendations 6.6, 6.7, 6.9, 7.1, 7.2, 7.3, 8.4 and 9.3, the governments’ responses, and the steps taken by Nalcor and the regulator which the NCC deemed deficient. [ 61 ] On May 31, 2013, DFO responded to the NCC’s letter of April 15, 2013 addressing twelve issues. These included that Nalcor had advised DFO that the NCC was provided with an opportunity to meet with Nalcor to discuss the FHC Plan, but that such a meeting did not take place. DFO stated that this fulfilled Canada’s commitment in this regard.

As to the advisory letters, because DFO had determined that the proposed activities would not cause harmful impacts and did not require the issuance of a Fisheries Act authorization, it was not required to consult with the NCC. As to Recommendation 6.7, Canada’s Response stated that Nalcor would be required to collect additional baseline data on methylmercury accumulation in fish and on fish habitat downstream of Muskrat Falls in advance of

reservoir impoundment. The EEM Plan provided for review of the detailed information that Nalcor would collect. Finalization and implementation of the EEM Plan as a condition of the Authorization would fulfil commitments of Canada in this regard. As to Recommendation 6.9, DFO referred to Canada’s Response agreeing with the intent of the Recommendation and stated that Nalcor had carried out public information sessions in Goose Bay on January 16, 2013 and had advised DFO that the NCC had been provided with an opportunity to meet with Nalcor to discuss the FHC Plan and EEM Plan, which meeting had not taken place.

Canada had accordingly fulfilled its commitments in this regard. [ 62 ] By email of May 31, 2013, DFO provided Nalcor with a draft of the Authorization and advised that it had completed its Aboriginal consultation related to the conditions of the Authorization, specifically the FHC and EEM Plans, and would be sending a letter outlining minor changes/clarifications needed prior to plan approval.

On June 7, 2013, DFO sent Nalcor an email advising that there would be a requirement for some additions to the plans, in particular to EEM Plan, based on DFO’s consultation. [ 63 ] On June 17, 2013, AMEC Environmental and Infrastructure (“AMEC”), as consultants for and on behalf of Nalcor, provided DFO with a revised EEM Plan. The accompanying email stated that the method sections of the 2011 and 2012 baseline studies had been incorporated, where applicable, into the EEM document. Sample sizes had also been added, particularly pertaining to mercury.

An addendum on sampling locations within Lake Melville was also added. [ 64 ] Following further discussions, the EEM Plan was revised by AMEC and resubmitted to DFO on June 21, 2013. DFO responded on June 25th stating that the additional details added went a long way to clarifying specifics of the EEM Plan to address concerns raised during consultations.

Two further clarifications were requested along with some edits. [ 65 ] Nalcor submitted its revised, final EEM and FHC Plans on June 26, 2013 and DFO advised Nalcor the next day that these were acceptable to DFO and would be attached as conditions to the Authorization. [ 66 ] On June 28, 2013, DFO responded to the NCC’s submissions of November 9, 2011 and email of August 8, 2012 addressing the concerns raised therein on a point by point basis. These included the NCC’s concern that more emphasis should be put on Aboriginal Traditional Knowledge and that a protocol should be put in place to share such knowledge.

In response, DFO noted that the Regulatory Phase Protocol had been developed in collaboration with Aboriginal groups and provided the opportunity for meetings at which Aboriginal groups could share Aboriginal Traditional Knowledge for review and consideration in the issuance of permits or approvals. DFO had offered such meetings to the NCC on February 28, 2013 for the authorizations being prepared for Muskrat Falls.

Further, prior to submitting a FHC Plan and EEM Plan, Nalcor may offer to meet with Aboriginal groups, at which time such knowledge could be shared for incorporation into the plans. [ 67 ] As to the concern that a clear definition of the Project and the footprint area had not been provided, DFO stated that this was done during the EA.

As to the NCC’s concern that the federal and provincial governments had a duty to engage separately with the NCC before the JRP process which had not been done, nor had there been adequate consultation or accommodation of the NCC’s interests, DFO stated that the JRP provided various opportunities for participation during the JRP process. The public hearings provided Aboriginal persons and groups with the opportunity to be heard and for the JRP to gather such information.

Further, DFO and TC had been and would continue to consult with the NCC in accordance with the Regulatory Phase Protocol , which would give the NCC the opportunity to provide input and have discussions with those departments on related conditions. [ 68 ] On July 9, 2013, the Authorization for the Project was issued to Nalcor pursuant to ss 32(2)(

c) and 35(2)(

b) of the Fisheries Act , for the harmful alteration disruption or destruction of fish habitat, and the killing of fish. The Authorization was provided to the NCC on the same date. It is this Authorization that the NCC has sought to have judicially reviewed. [ 69 ] The Authorization is ten pages in length and lists six detailed Conditions of Authorization.

These include Condition 1.1, which states that if, in DFO’s opinion, the authorized impacts to fish and fish habitat are greater than previously assessed, then DFO may suspend any works, undertakings, activities and/or operations associated with the proposed development to avoid or mitigate adverse impacts to fish and fish habitat. DFO can also direct Nalcor to carry out any modifications, works or activities necessary to avoid or mitigate further such adverse impacts.

If DFO is of the view that greater impacts may occur than were contemplated by the parties, then it may also modify or rescind the Authorization. [ 70 ] Nalcor is also required to undertake the Project in accordance with the EIS, the Project Wide Environmental Protection Plan and the FHC Plan (1.4), and, to implement mitigation techniques set out in such plans (2.1). It also requires that Nalcor monitor mitigation measures (3.0) and lists conditions concerning compensation for the authorized impacts to fish and fish habitat (4) and relating to monitoring and reporting of compensation habitat.

Condition 6 requires Nalcor to undertake an EEM Program, as outlined in the EEM Plan, to monitor and verify the predicted impacts of the Project from a fish and fish habitat perspective, including Project- related downstream effects, methylmercury bioaccumulations in fish, and fish entrainment at the Muskrat Falls facility, in accordance with Conditions 6.1-6.5.

This includes annual monitoring of methylmercury bioaccumulation to determine levels in resident fish species, including seals, both within the reservoir and downstream as per the established monitoring schedule, to record and report peak levels and subsequent decline to background levels (6.3). Issues [ 71 ] In my view the issues can be framed as follows: 1. What is the standard of review? 2. What is the content of the duty to consult and accommodate? 3. Did Canada satisfy its duty to consult and accommodate?

4. Was the decision to issue the Authorization reasonable? Issue 1: What is the standard of review? The NCC’s Position [72] As to consultation and accommodation, the NCC argues that both the standards of correctness and reasonableness may apply.

The NCC relies on Ahousaht First Nation v Canada (Fisheries and Oceans), 2012 FCA 212 at paras 33-34, referring to Haida Nation vBritish Columbia (Minister of Forests), 2004 SCC 73 at paras 61-62 [Haida], for the proposition that the determination of the existenceand extent of the duty to consult or accommodate is a question of law and reviewable on a standard of correctness.

Once the extent of theduty to consult or accommodate has been satisfactorily determined by the Crown, its decision will only be set aside if the ensuingprocess of consultation and accommodation is unreasonable. [73] For the grounds of review relating to the abuse of the Minister’s discretion, the NCC submits that the standard of review isreasonableness (Baker v Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 SCR 817 at para 62[Baker]).

Canada’s Position [74] Canada agrees with the Applicant that the standard of review for the content of the duty to consult is correctness (Conseil desinnus de Ekuanitshit c Canada (Procureur général), 2013 FC 418 at para 97 [Ekuanitshit FC]; Beckman v Little Salmon/Carmacks FirstNation, 2010 SCC 53 at para 48 [Little Salmon]).

The question of whether Canada’s efforts satisfied its duty to consult is reviewable onthe reasonableness standard (Ekuanitshit FC at para 97; Katlodeeche First Nation v Canada (Attorney General), 2013 FC 458 at paras126-127 [Katlodeeche]; Cold Lake First Nations v Alberta (Tourism, Parks and Recreation), 2013 ABCA 443 at paras 37-38 [ColdLake]). [75] As to the Minister’s decision to issue the Authorization, Canada submits that the Court is to determine whether theAuthorization rests on a reasonable basis, and not whether its measures will be effective.

The standard of review on this question is,therefore, reasonableness (Ekuanitshit FC at para 94; Grand Riverkeeper at paras 27-39). Nalcor’s Position [76] Nalcor’s view is that questions regarding the extent of the duty are reviewable on the correctness standard only if they arequestions of pure law. Where the extent of the duty depends on findings of fact within the expertise of a decision-maker, thereasonableness standard applies (Haida at para 61).

The Crown has discretion as to the structure of the consultation process and whetherthe consultation process was adequately discharged involves determinations of mixed fact and law. These determinations are entitled todeference and are reviewed on a standard of reasonableness (Cold Lake at para 39; Taku Tlingit First Nation v British Columbia (ProjectAssessment Director), 2004 SCC 74 at para 40 [Taku River]; Ka’a’Gee Tu First Nation v Canada (Attorney General), 2007 FC 763 atparas 91 and 92 [Ka’a’Gee Tu #1]).

Further, the applicable standard of review for the adequacy of accommodation is alsoreasonableness (Haida at paras 47-50, 62 and 63; Mikisew Cree First Nation v Canada (Minister of Canadian Heritage), 2005 SCC 69 atpara 66 [Mikisew Cree]; Native Council of Nova Scotia v Canada (Attorney General), 2007 FC 45 at para 60, aff’d 2008 FCA 113). [77] As to the Minister’s decision to issue the Authorization, Nalcor submits that considerations involving the destruction of fishhabitat and relevant mitigative measures fall within DFO’s expertise and that discretionary decisions under s 35 are to be reviewed on areasonableness standard.

This is consistent with the general principle that discretionary decision-making powers of the Minister underthe Fisheries Act are reviewable on that standard (Prairie Acid Rain Coalition v Canada (Fisheries and Oceans), 2006 FCA 31 at para11; Malcolm v Canada (Fisheries and Oceans), 2013 FC 363 at para 57 [Malcolm]). [78] To further this point, Nalcor contends that the NCC attacks the reasonableness of the decision by questioning the quality ofthe evidence relied upon by the Minister, therefore, no question of law arises and the decision demands deference.

Otherwise the Courtwould usurp the role of the Minister and become an “academy of science”. Similarly, qualitative decisions should not be disturbedunless they are made in bad faith or on the basis of irrelevant considerations (Vancouver Island Peace Society v Canada (TD), (FC), [1992] 3 FC 42 at paras 7 and 12; Alberta Wilderness Assn v Express Pipelines Ltd, (FCA), 137DLR (4th) 177 at para 10; Alberta Wilderness Assn v Cardinal River Coals Ltd, (FC), [1999] 3 FC 425 at paras 24-26). Analysis [79] A standard of review analysis need not be conducted in every instance.

Instead, where the standard of review applicable to aparticular question before the Court is well-settled by past jurisprudence, the reviewing court may adopt that standard (Dunsmuir v NewBrunswick, 2008 SCC 9, [2008] 1 SCR 190 [Dunsmuir] at para 57; Kisana v Canada (Minister of Citizenship and Immigration), 2009FCA 189 at para 18; Council of the Innu of Ekuanitshit v Canada (Attorney General), 2014 FCA 189 at para 38 [Ekuanitshit FCA]). [80] The standard of review applicable to the duty to consult was addressed by the Supreme Court of Canada in Haida which statedthat: [61] On questions of law, a decision-maker must generally be correct: for example, Paul v.

British Columbia (Forest AppealsCommission), [2003] 2 S.C.R. 585, 2003 SCC 55. On questions of fact or mixed fact and law, on the other hand, a reviewing body mayowe a degree of deference to the decision-maker. The existence or extent of the duty to consult or accommodate is a legal question in thesense that it defines a legal duty. However, it is typically premised on an assessment of the facts. It follows that a degree of deference tothe findings of fact of the initial adjudicator may be appropriate. The need for deference and its degree will depend on the nature of the

question the tribunal was addressing and the extent to which the facts were within the expertise of the tribunal: Law Society of NewBrunswick v. Ryan, [2003] 1 S.C.R. 247, 2003 SCC 20; Paul, supra. Absent error on legal issues, the tribunal may be in a better positionto evaluate the issue than the reviewing court, and some degree of deference may be required. In such a case, the standard of review islikely to be reasonableness. To the extent that the issue is one of pure law, and can be isolated from the issues of fact, the standard iscorrectness.

However, where the two are inextricably entwined, the standard will likely be reasonableness: Canada (Director ofInvestigation and Research) v. Southam Inc., (SCC), [1997] 1 S.C.R. 748. [62] The process itself would likely fall to be examined on a standard of reasonableness. Perfect satisfaction is not required; thequestion is whether the regulatory scheme or government action “viewed as a whole, accommodates the collective aboriginal right inquestion”: Gladstone, supra, at para. 170. What is required is not perfection, but reasonableness.

As stated in Nikal, supra, at para.110, “in . . . information and consultation the concept of reasonableness must come into play. . . . So long as every reasonable effort ismade to inform and to consult, such efforts would suffice.” The government is required to make reasonable efforts to inform andconsult. This suffices to discharge the duty. [63] Should the government misconceive the seriousness of the claim or impact of the infringement, this question of law would likelybe judged by correctness.

Where the government is correct on these matters and acts on the appropriate standard, the decision will be setaside only if the government’s process is unreasonable.

The focus, as discussed above, is not on the outcome, but on the process ofconsultation and accommodation. [81] Until the Supreme Court’s subsequent decision in Little Salmon, the above reference in Haida was consistently interpreted asmeaning that the scope or extent of the duty to consult (its content) should be reviewed on the standard of correctness whereas theadequacy of the process of consultation requires an analysis of the factual context and should be reviewed on a standard ofreasonableness (Katlodeeche at paras 126-127; Ka’a’Gee Tu #1 at paras 92-93; Ka’A’Gee Tu First Nation v Canada (Attorney General),2012 FC 297 at para 89 [Ka’a’Gee Tu #2]). [82] In Little Salmon the Supreme Court addressed the standard of review in one paragraph: [48] In exercising his discretion under the Yukon Lands Act and the Territorial Lands (Yukon) Act, the Director was required torespect legal and constitutional limits.

In establishing those limits no deference is owed to the Director. The standard of review in thatrespect, including the adequacy of the consultation, is correctness. A decision maker who proceeds on the basis of inadequateconsultation errs in law. Within the limits established by the law and the Constitution, however, the Director’s decision should bereviewed on a standard of reasonableness: Dunsmuir v. New Brunswick, 2008 SCC 9 , [2008] 1 S.C.R. 190, and Canada(Citizenship and Immigration) v. Khosa, 2009 SCC 12 , [2009] 1 S.C.R. 339.

In other words, if there was adequateconsultation, did the Director’s decision to approve the Paulsen grant, having regard to all the relevant considerations, fall within therange of reasonable outcomes? [Emphasis added] [83] In discussing the content of the duty to consult, the Supreme Court stated in part: [72] The adequacy of the consultation was the subject of the First Nation’s cross-appeal.

The adequacy of what passed (or failed topass) between the parties must be assessed in light of the role and function to be served by consultation on the facts of the case andwhether that purpose was, on the facts, satisfied. [84] At the hearing of this matter, I asked the parties to address the standard of review with respect to the adequacy of the processin light of Little Salmon and the Federal Court of Appeal’s finding in Ekuanitshit FCA, as described below. The NCC submitted that theCourts appear to be struggling with the question.

While the bulk of the jurisprudence contemplates a reasonableness standard, theFederal Court of Appeal in Ekuanitshit FCA appeared to accept the correctness standard. Canada submitted that while the Federal Courtof Appeal’s reasons appear confusing, they must be read in context. Further, that Little Salmon did not change the Haida test. Haidaheld that if constitutional or legal matters were at issue then the correctness standard applied. However, within the limits of the law, theadequacy of consultation is reviewable on the reasonableness standard. This has not changed (Cold Lake at para 39).

And, approachedon a principled basis, as the Minister’s decision is discretionary, the standard must be reasonableness.

Nalcor submitted that theMinister’s decision is a discretionary one, accordingly, the standard is reasonableness (Malcolm at para 35). [85] In my view, although it has been suggested that the effect of these paragraphs from Little Salmon is to alter the standard ofreview with respect to the adequacy of the consultation process from reasonableness to one of correctness, for the reasons I have set outin detail in Nunatsiavut Government v Attorney General of Canada (DFO), 2015 FC 492 at paras 105-120 [Nunatsiavut], I do notunderstand this to be the case. [86] There, I noted that in Ekuanitshit FC at para 126, and with respect to this Project, this Court has previously dealt with achallenge to the lawfulness of the March 12, 2012 Order-in-Council approving Canada’s Response to the JRP Report and the relatedMarch 15, 2012 Course of Action Decision.

In addressing the question of whether the Innu of Ekuanitshit had been properly consultedand accommodated, Justice Scott, relying on Haida, found that the consensus in the case law was that a question regarding the existenceand content of the duty to consult is a legal question that attracts the standard of correctness.

A decision as to whether the efforts of theCrown satisfied its duty to consult in a particular situation involves assessing the facts of the case as against the content of the duty whichis a mixed question of fact and law to be reviewed on the standard of reasonableness (Ka’a’Gee Tu #1 at para 91).

The standard ofreasonableness was not stated to be in error by the Federal Court of Appeal in Ekuanitshit FCA. [87] Further, in White River First Nation v Yukon (Minister of Energy, Mines and Resources), 2013 YKSC 66 [White River], theYukon Supreme Court referenced paragraphs 61 to 63 of Haida, as well as paragraph 48 of Little Salmon, and concluded: [92] The standard of review may be correctness if the issue relates to the legal and constitutional obligations of the Director, i.e., theexistence and extent of the duty to consult and accommodate.

On the other hand, the process of consultation, because it depends on thegovernment’s reasonable efforts to inform and consult, is reviewed on a reasonableness standard.

[ 88 ] And, the Alberta Court of Appeal in Cold Lake , leave to appeal to the Supreme Court of Canada refused, 35733 (May 15, 2014), considered the above provisions of Little Salmon but concluded that the standard of review applicable to the issue of adequacy of the consultation process was to be reviewed on a reasonableness standard (at paras 36-40).

The British Columbia Court of Appeal came to a similar conclusion in West Moberly First Nations v British Columbia (Minister of Energy, Miners and Petroleum Resources) , 2011 BCCA 247 [ West Moberly ], leave to appeal to the Supreme Court of Canada refused, 34403 (February 23, 2012), although the three separate judgments reached this conclusion in different manners (at paras 141, 174, 196-198) (see also Dene Tha First Nation v British Columbia (Minister of Energy and Mines) , 2013 BCSC 977 at paras 104-108 ; and Adam v Canada (Minister of Citizenship and Immigration) , 2014 FC 1185 at paras 65-66 , 87 [ Adam ]). [ 89 ] It is clear from the above jurisprudence that the existence and extent of the duty to consult or accommodate is to be assessed on the correctness standard.

However, even there, where the extent of the duty is premised on an assessment of the facts, deference may be owed and the standard of review is likely to be reasonableness ( Haida at para 61 ). [ 90 ] As to the adequacy of the process, based on Haida , Ekuanitshit FCA , White River and Cold Lake , I am not convinced that Little Salmon was intended to alter, in every case, the standard of review with respect to the question of whether the Crown adequately consulted and accommodated to one of correctness. [ 91 ] In determining the extent of the duty to consult, the Crown is obliged to identify the applicable legal and constitutional limits, such as the specific treaty rights, legislative rights, common law rights and the administrative and constitutional law applicable to that case.

That is, the Crown must correctly identify the legal parameters of the content of the duty to consult in order to also properly identify what will comprise adequate consultation. To proceed without having done so would be an error of law. However, if those parameters are correctly identified, then the adequacy of the subsequent process of consultation employed would remain a question of reasonableness.

This view can be seen as consistent with both Haida and Little Salmon . [ 92 ] Where the standard of review is correctness, as is the case with respect to the extent of the duty, no deference is owed to the Crown ( Dunsmuir at para 34 ; Little Salmon at para 48 ). [ 93 ] Where the standard of review is reasonableness, as is the case with respect to the adequacy of the consultation and accommodation, this Court’s review is concerned with the existence of justification, transparency and intelligibility within the decision making process.

It is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law ( Dunsmuir at paras 47-48 ; Canada (Minister of Citizenship and Immigration) v Khosa , 2009 SCC 12 , at para 59 ). As stated by Justice de Montigny in Ka’a’Gee Tu #2 , perfection is not required when assessing the conduct of Crown officials.

If reasonable efforts have been made to consult and accommodate and the result is within the range of possible, acceptable outcomes which are defensible in respect of the facts and the law, there will be no justification to intervene.

Further, the focus should not be on the outcome but rather on the process of consultation and accommodation ( Ka’a’Gee Tu #2 at paras 90- 92; Haida at para 42 ). [ 94 ] As to the Minister’s decision to issue the Authorization, in Ekuanitshit FCA , the Federal Court of Appeal held that while reviewing courts must ensure that the exercise of power delegated by Parliament remains within the bounds established by the statutory scheme, “a reviewing court must show deference when reviewing the exercise of power delegated by the Act to the Governor in Council or to a Minister” ( Ekuanitshit FCA at paras 41 and 44 ) (see also Malcolm at paras 30-34 ; Agraira v Canada (Public Safety and Emergency Preparedness) , 2013 SCC 36 at para 50 [ Agraira ]; Canada (Citizenship and Immigration) v Kandola , 2014 FCA 85 at paras 40-42 [ Kandola ]).

While the reasonableness review in Ekuanitshit FCA related to a challenge to the lawfulness of the Order-in-Council approving Canada’s Response and the related Course of Action Decision, made pursuant to s 37(1.1) and s 37(1) of the CEAA respectively, I see no reason why a different standard should apply to the decision to issue the Authorization under s 35(2)(

b) of the Fisheries Act . Further, there is a presumption that decisions of Ministers and their delegates are to be reviewed deferentially ( Agraira at para 50 ; Kandola at para 42 ). And, the reasonableness standard has previously been applied to the decisions of the Minister of Fisheries ( Malcolm v Canada (Fisheries and Oceans) , 2014 FCA 130 at para 30 ). Accordingly, in my view, the decision to issue the Authorization is a matter to be reviewed on the standard of reasonableness. Issue 2: What was the content of the duty to consult and accommodate?

The NCC’s Position [ 95 ] In its written submission, the NCC referred to Haida , stating that the Supreme Court of Canada held that the duty to consult is proportionate to a preliminary assessment of the strength of the case supporting the existence of the right or title and to the seriousness of the potentially adverse effects on the right or title claimed (at para 39). The NCC did not put forward a view as to where the content of the duty to consult fell in this case in terms of a spectrum analysis.

However, when appearing before me, counsel for the NCC stated that their position was that this matter falls from the middle to the high end of the spectrum. [ 96 ] The NCC also submitted that the Minister’s duty to consult and accommodate should be read in light of the United Nations Declaration on the Rights of Indigenous Peoples , GA Res 61/295, UN GAOR, 61st Sess., Supp. No. 49 Vol. III, UN Doc. A/61/49 (2007) (“UNDRIP”), which Canada endorsed on November 12, 2010. Values reflected in international human rights law may help inform the contextual approach to statutory

interpretation and judicial review ( Baker at para 70 ) and, although not binding, international law informs the

interpretation of domestic law pursuant to the presumption of conformity ( R v Hape , 2007 SCC 26 at paras 53-55 ). The Supreme Court has relied on UNDRIP to interpret Aboriginal rights ( Mitchell v Minister of National Revenue , 2001 SCC 33 at paras 80- 83 [ Mitchell ]) and, since its endorsement, this Court has accepted that UNDRIP applies to the

interpretation of domestic human rights legislation and the

interpretation of administrative manuals directed at Aboriginal peoples ( Canada (Human Rights Commission) v Canada (Attorney General) , 2012 FC 445 at paras 350-354 ; aff’d 2013 FCA 75 ; Simon v Canada (Attorney General) , 2013 FC 1117 at para 121 [ Simon ]). Canada’s Position

[97] Canada refers to the Haida spectrum analysis which it submits depends, in part, on the strength of the potential claim and theseriousness of the potential adverse impact of the proposed activity on the claimed Aboriginal right. In this case, the NCC’s claim fallsat the low end of the consultation spectrum as their claim to the Project area is not strong and the adverse impact on them was found bythe JRP to be adverse but not significant.

Thus, the only duty on the Crown was to give notice, disclose information and discuss anyissues raised in response to the notice (Haida at para 43). [98] Alternatively, if the Court should find the NCC’s claim to be more compelling but accepts the JRP’s impacts finding, then amid-range consultation standard would be appropriate.

This would require notice of the matter to be decided, an opportunity to discusswith decision-makers the potential adverse impacts of the decision and how they might be mitigated, and, that the decision-maker takethe expressed concerns into account when making the decision (Katlodeeche at para 95; Yellowknives Dene First Nation v Canada et al,2013 FC 1118 at para 59; Cold Lake at para 33).

In any event, the NCC was consulted in a manner that far exceeded either the low ormid-range consultation requirements. [99] As to UNDRIP, Canada submits that it was adopted by a non-binding resolution of the United Nations General Assembly andhas no legal effect in Canada; it does not override or alter Canada’s existing constitutional and domestic legal framework; and, questionsof whether an alleged duty to consult is owed are to be determined solely in relation to the test enunciated by the Supreme Court ofCanada in Rio Tinto Alcan Inc v Carrier Sekani Tribal Council, 2010 SCC 43 at para 31 [Rio Tinto] (see also Hupacasath First Nation vCanada (Foreign Affairs), 2013 FC 900 at para 51 [Hupacasath]).

UNDRIP does not, therefore, assist the NCC in defining the duty toconsult. Nalcor’s Position [100] Nalcor submits that three factors trigger the Crown’s duty to consult and accommodate –

i) the existence of an Aboriginal claimor potential right; ii) the Crown’s knowledge of the claim or right, and iii) the proposed Crown action that may adversely affect the claimor right (Haida at para 35; Taku River at para 25; Rio Tinto at para 31).

Consultation can be fulfilled through an appropriately executedstatutory or regulatory review process and failure on the part of an Aboriginal group to participate in such a process does not justify aclaim of inadequate consultation (Taku River at para 40; Ka’a’Gee Tu #2 at paras 91, 121; Brokenhead Ojibway First Nation v Canada(Attorney General), 2009 FC 484 at para 42).

The Aboriginal group to whom the duty is owed has a reciprocal duty to co-operate withthe Crown’s efforts (Mikisew Cree at para 65; Halfway River First Nation v British Columbia (Ministry of Forests), 1999 BCCA 470 atpara 161 [Halfway River First Nation]; Nalcor Energy v NunatuKavut Community Council Inc, 2012 NLTD 175 at para 97), to maketheir concerns known, respond to attempts to meet those concerns and to try to come to a mutually satisfactory solution (CheslattaCarrier Nation v British Columbia (Environmental Assessment Act, Project Assessment Director), (BC SC), 53BCLR (3d) 1 (SC) at paras 71 and 73; Upper Nicola Indian Band v British Columbia (Environment), 2011 BCSC 388 at para 128).

Further, the duty to consult does not imply a duty to agree and is not an outcome dependent obligation (Haida at para 42; Ekuanitshit FCat para 126). Nalcor does not dispute that the duty to consult exists in this case, but argues that it has been met. [101] The Authorization is not an approval of the Project, which Nalcor had already obtained. Rather, it establishes conditions thataddress the anticipated harm to fish and fish habitat.

The consultation process must focus on the terms of the Authorization, not onbroader issues related to the Project or prior approvals. [102] Nalcor submits that UNDRIP was not ratified by Parliament and does not create substantive rights. The question of whether aduty to consult has been discharged must be determined solely by application of the test set out in Haida and Rio Tinto. This Court hasrejected the application of UNDRIP in the context of the duty to consult (Hupacasath at para 51). And, although UNDRIP may informthe contextual approach to statutory

interpretation, there is no issue of statutory

interpretation in this case. Analysis (

a) UNDRIP [103] I agree with the NCC’s general premise that UNDRIP may be used to inform the

interpretation of domestic law. As JusticeL’Heureux Dubé stated in Baker, values reflected in international instruments, while not having the force of law, may be used to informthe contextual approach to statutory

interpretation and judicial review (at paras 70-71). In Simon, Justice Scott, then of this Court,similarly concluded that while the Court will favour

interpretations of the law embodying UNDRIP’s values, the instrument does notcreate substantive rights. When interpreting Canadian law there is a rebuttable presumption that Canadian legislation is enacted inconformity to Canada’s international obligations. Consequently, when a provision of domestic law can be ascribed more than onemeaning, the

interpretation that conforms to international agreements that Canada has signed should be favoured. [104] That said, in Hupacasath, Chief Justice Crampton of this Court stated that the question of whether the alleged duty to consult isowed must be determined solely by application of the test set out in Haida and Rio Tinto. I understand this to mean that UNDRIP cannotbe used to displace Canadian jurisprudence or laws regarding the duty to consult, which would include both whether the duty to consult isowed, and, the content of that duty. [105] While the NCC refers to Mitchell, it is of little relevance.

There Justice Binnie, in concurring reasons, at para 81 referred toArticle 35 of a draft of UNDRIP to illustrate the difficulties Aboriginal peoples had in freedom of movement across borders, however,the declaration did not play a significant part of the

interpretational analysis in that case. [106] Most significantly, in this matter the NCC does not identify an issue of statutory

interpretation. Rather, it submits that UNDRIPapplies not only to statutory

interpretation but to interpreting Canada’s constitutional obligations to Aboriginal peoples. No authority forthat proposition is provided. Nor does the NCC provide any analysis or application of its position in the context of its submissions. Inmy view, in these circumstances, the NCC has not established that UNDRIP has application to the issues before me, or, even if it has,how it applies and how it impacts the duty to consult in this case.

(

b) Content of the Duty to Consult [107] In this matter there is no dispute as to whether the Crown owed a duty to consult to the NCC with respect to the Project, this isacknowledged by Canada and Nalcor. [108] The seminal decision concerning the scope of the duty to consult remains Haida. There the Supreme Court of Canada held thatthe content of the duty to consult and accommodate varies with the circumstances.

Generally speaking, the scope of the duty isproportional to a preliminary assessment of the strength of the case supporting the existence of the right or title claimed, and theseriousness of the potential adverse effects on that right or title (Haida at para 39). At all stages, good faith is required by both sides. The Crown must have the intention of substantially addressing Aboriginal concerns as they are raised through a meaningful process ofconsultation, however, there is no duty to agree.

Further: [43] … the concept of a spectrum may be helpful, not to suggest watertight legal compartments but rather to indicate what the honourof the Crown may require in particular circumstances. At one end of the spectrum lie cases where the claim to title is weak, theAboriginal right limited, or the potential for infringement minor. In such cases, the only duty on the Crown may be to give notice,disclose information, and discuss any issues raised in response to the notice. “‘[C]onsultation’ in its least technical definition is talkingtogether for mutual understanding”: T. Isaac and A.

Knox, “The Crown’s Duty to Consult Aboriginal People” (2003), 41 Alta. L. Rev.49, at p. 61. [44] At the other end of the spectrum lie cases where a strong prima facie case for the claim is established, the right and potentialinfringement is of high significance to the Aboriginal peoples, and the risk of non-compensable damage is high. In such cases deepconsultation, aimed at finding a satisfactory interim solution, may be required.

While precise requirements will vary with thecircumstances, the consultation required at this stage may entail the opportunity to make submissions for consideration, formalparticipation in the decision-making process, and provision of written reasons to show that Aboriginal concerns were considered and toreveal the impact they had on the decision. This list is neither exhaustive, nor mandatory for every case.

The government may wish toadopt dispute resolution procedures like mediation or administrative regimes with impartial decision-makers in complex or difficultcases. [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 process goes on and newinformation comes to light.

The controlling question in all situations is what is required to maintain the honour of the Crown and toeffect reconciliation between the Crown and the Aboriginal peoples with respect to the interests at stake. Pending settlement, the Crownis bound by its honour to balance societal and Aboriginal interests in making decisions that may affect Aboriginal claims. The Crownmay be required to make decisions in the face of disagreement as to the adequacy of its response to Aboriginal concerns.

Balance andcompromise will then be necessary. [46] Meaningful consultation may oblige the Crown to make changes to its proposed action based on information obtained throughconsultations… [47] When the consultation process suggests amendment of Crown policy, we arrive at the stage of accommodation. Thus the effectof good faith consultation may be to reveal a duty to accommodate.

Where a strong prima facie case exists for the claim, and theconsequences of the government’s proposed decision may adversely affect it in a significant way, addressing the Aboriginal concernsmay require taking steps to avoid irreparable harm or to minimize the effects of infringement, pending final resolution of the underlyingclaim. Accommodation is achieved through consultation, as this Court recognized in R. v.

Marshall, (SCC), [1999] 3S.C.R. 533, at para. 22: “. . . the process of accommodation of the treaty right may best be resolved by consultation and negotiation”. [48] This process does not give Aboriginal groups a veto over what can be done with land pending final proof of the claim. TheAboriginal “consent” spoken of in Delgamuukw is appropriate only in cases of established rights, and then by no means in every case. Rather, what is required is a process of balancing interests, of give and take. [49] This flows from the meaning of “accommodate”.

The terms “accommodate” and “accommodation” have been defined as to“adapt, harmonize, reconcile” . . . “an adjustment or adaptation to suit a special or different purpose . . . a convenient arrangement; asettlement or compromise”: Concise Oxford Dictionary of Current English (9th ed. 1995), at p. 9. The accommodation that may resultfrom pre-proof consultation is just this — seeking compromise in an attempt to harmonize conflicting interests and move further downthe path of reconciliation. A commitment to the process does not require a duty to agree.

But it does require good faith efforts tounderstand each other’s concerns and move to address them. (See also Taku River at para 29). [109] Thus, the first step in this case is to consider the strength of the NCC’s claim. [110] The Affidavit of Todd Russell sworn on December 6, 2013 in support of the NCC’s application for judicial review (“RussellAffidavit”) states that in 1991 the NCC filed a comprehensive land claim document with Canada. Additional research information wasfiled in 1996 and in 2010 additional substantive research on its claims was submitted by way of “Unveiling NunatuKavut”.

Further, thatin The Labrador Metis Nation v Her Majesty in Right of Newfoundland and Labrador, (2006) 2006 NLTD 119 , 258 Nfld &PEIR 257; aff’d 2007 NLCA 75 , 272 Nfld & PEIR 178; leave to appeal to the Supreme Court of Canada refused, 32468 (May29, 2008) [Labrador Metis Nation], the Newfoundland and Labrador Court of Appeal found that NunatuKavut had a credible rights claimin the area of the Trans-Labrador Highway and that the Government of Newfoundland and Labrador had a duty to consult withNunatuKavut in respect of the construction of the highway. [111] In Labrador Metis Nation the Newfoundland and Labrador Court of Appeal stated: [51] A “preliminary evidence-based assessment” of the strength of the respondents’ claim, such as discussed in Haida, at paras. 37and 39, supports the view in the present case that the claim is more than a “dubious” or “peripheral” or “tenuous” one, which would

attract merely a duty of notice. The respondents have established a prima facie connection with precontact Inuit culture and a continuing involvement with the traditional Inuit lifestyle.

They have presented sufficient evidence to establish that any aboriginal rights upheld will include subsistence hunting and fishing. [52] The scope of consultation requested by the respondents was set out in a letter to the Minister of Environment and Conservation on October 26, 2004: We now request that your office forward to us any and all applications for water crossings and other relevant permit requirements under your legislated mandate during the construction phase of the Trans Labrador Highway – Phase III. We also request adequate time to revi

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