2014 FC, 2014 FC 1244

Date: 20141219 Docket: T-43-13 Citation: 2014 FC 1244 Toronto, Ontario, December 19, 2014 PRESENT: The Honourable Mr.

Justice Hughes BETWEEN: CHIEF STEVE COURTOREILLE ON BEHALF OF HIMSELF AND THE MEMBERS OF MIKISEW CREE FIRST NATION Applicant and THE GOVERNOR GENERAL IN COUNCIL, MINISTER OF ABORIGINAL AFFAIRS AND NORTHERN DEVELOPMENT, MINISTER OF FINANCE, MINISTER OF THE ENVIRONMENT, MINISTER OF FISHERIES AND OCEANS, MINISTER OF TRANSPORT, AND MINISTER OF NATURAL RESOURCES Respondents JUDGMENT AND REASONS [ 1 ] The Mikisew Cree First Nation has historically occupied and harvested lands located within the Peac e-Athabasca Delta and Lower Athabasca River regions, now forming part of north-eastern Alberta and neighbouring areas.

In 1899, the Mikisew and other First Nations entered into a treaty with Her Majesty, Treaty No. 8, wherein the First Nations ceded to Her Majesty certain lands in exchange for certain guarantees. The rights of the First Nations and guarantees made under Treaty No. 8 have been the subject of several decisions of the Canadia n Courts. INDEX [ 2 ] The following is an Index to these Reasons: HEADING PARAGRAPH NUMBER I. OVERVIEW 3 to 7 II. THE PARTIES 8 to 9 III. THE EVIDENCE 10 to 12 IV. THE FACTS 13 V. ISSUES 14 to 15 VI. NATURE OF THE PROCEEDINGS 16 to 19 VII.

DOES SUBSECTION 2(2) OF THE FEDERAL COURTS ACT PRECLUDE THESE PROCEEDINGS? 20 to 22 VIII. DO THESE PROCEEDINGS PRESENT A JUSTICIABLE ISSUE? 23 to 29 IX. FEDERAL LAW – MAKING PROCESS AND ASSOCIATED SUPPORT ACTIVITIES 30 to 36 X. JURISPRUDENCE AS TO THE POINT AT WHICH THE COURT MAY ORDER INTERVENTION IN THE LAW-MAKING PROCESS 37 to 72 XI. DUTY TO CONSULT 73 to 82 XII. IS THE DUTY TO CONSULT TRIGGERED IN THIS CASE? 83 to 99 XIII. WHAT IS THE EXTENT OF THE DUTY TO CONSULT? 100 to 104 XIV. WHAT RELIEF, IF ANY, SHOULD THE COURT PROVIDE? 105 to 109 XV. CONCLUSIONS AND COSTS 110 to 111

I. OVERVIEW [3] On April 26, 2012, the federal Minister of Finance introduced Bill C-38, often called the first Omnibus Bill, in Parliament. Itreceived Royal Assent on June 29, 2012. A second Omnibus Bill, Bill C-45, was introduced by the Minister of Finance in Parliament onOctober 18, 2012. It received Royal Assent on December 14, 2012. The Mikisew were not consulted prior to the introduction of eitherBill in Parliament. [4] The Omnibus Bills introduced new and amended legislation, some, but not all, of which dealt with financial matters.

For thepurpose of this application, the Omnibus Bills made significant changes to Canada’s environmental laws. The Omnibus Bills amendedthe Fisheries Act, RSC 1985, c F-14, the Species At Risk Act, SC 2002, c 29, the Navigable Waters Protection Act, RSC 1985, c N-22,including renaming the latter act as the Navigation Protection Act, RSC, 1985, c N-22 and finally. repealing the Canadian EnvironmentalAssessment Act, 1992, SC 1992, c 37, and replacing it with the Canadian Environmental Assessment Act, 2012, SC 2012, c 19.

Theeffect of the amendments to those Acts is arguably to reduce the number of bodies of water within Canada which are required to bemonitored by federal officials thereby affecting fishing, trapping and navigation. Some of these waters are located within the Mikisew’sTreaty No. 8 territory. [5] Accordingly, the Mikisew, as represented by their Chief, Steve Courtoreille, have instituted these proceedings, seekingvarious forms of declaratory relief.

The relief sought is summarized at paragraph 1 of the Applicant’s Reply Memorandum: …this Court is not being asked to intervene in the Process of Parliament, which may engage the separation of powers, but to superintendthe duties of the crown and executive before legislation is introduced into Parliament. That is, Mikisew’s claim does not seek to impose aduty to consult on Parliament, but on the Crown. Mikisew’s claim does not require an inquiry into the conduct of Parliament, but of theexecutive. [6] In particular, the relief requested by the Applicant as set out in his Memorandum of Argument is: a.

A declaration that all or certain of the Ministers have a duty to consult with Mikisew regarding the development of the FederalEnvironmental Laws reflected in the Omnibus Bills; b. A declaration that all or certain of the Ministers had and continue to have a duty to consult with Mikisew regarding thedevelopment and introduction of the Omnibus Bills, to the extent that the Bills had the potential to affect Mikisew’s treaty rights throughchanges to the Federal Environmental Laws; c.

A declaration that all or certain of the Ministers breached, and continue to breach, their duty to consult Mikisew regarding theFederal Environmental Laws, including those advanced in the Omnibus Bills; d. A declaration that the Ministers and the Governor General in Council are required to consult with Mikisew regarding thematters set out above to ensure that Canada implements whatever measures are necessary to fulfill its obligations under Treaty 8; e.

An order that the Ministers not take any further steps or actions that would reduce, remove, or limit Canada’s role in anyenvironmental assessment that is being carried out, or that may be carried out in the future, in Mikisew’s traditional territory untiladequate consultation is complete; f. Any such directions as may be necessary to make this order effective; g. An order that any party may apply to the Court for further directions with respect to the conduct of the consultation as may benecessary; h. An order for costs of and incidental to this application; and i.

Such further and other relief as this Honourable Court deems appropriate and just. [7] For the Reasons that follow, I have determined that I will give a Direction in specific terms. II. THE PARTIES [8] The Applicant, Chief Steve Courtoreille, represents himself and the members of the Mikisew Cree First Nation. I willsometimes refer to the Applicant as the Mikisew. [9] The Respondents are the Governor General in Council and various Ministers of the federal government. They arerepresented collectively by Counsel from the Deputy Attorney General’s office of the Department of Justice.

The Mikisew’s Counselstated that they named the various Respondents in their Notice of Application in order to capture those persons in government whodevelop the policy behind the relevant legislation before it is formulated and introduced into Parliament. The Respondents argue that, inthe law-making process, these Ministers were acting in their legislative capacity and, as such, their actions or decisions are excluded fromjudicial review.

In the alternative, the Respondents argue that if the Court has jurisdiction over the issues brought before it, theApplicant failed to meet the test set out by the Supreme Court of Canada in Haida Nation v British Columbia (Minister of Forests), 2004SCC 73 , [2004] 3 SCR 511 and explained in Rio Tinto Alcan Inc v Carrier Sekani Tribal Council, 2010 SCC 43 ,[2010] 2 SCR 650 to establish the existence of a duty to consult in this case. The Respondents’ Counsel suggested that they could bereferred to collectively as the Crown.

III. THE EVIDENCE [ 10 ] Since this is an application, the evidence was provided in the form of affidavits with exhibits. There was cross-examination on some of these affidavits and the transcripts were filed in the record. [ 11 ] The Applicant provided the affidavit evidence of: • Arthur J. Ray , Fellow of the Royal Society of Canada and professor emeritus of history, University of British Columbia, who provided a report as to the negotiations leading up to Treaty No. 8. • Donald J. Savoie , Canada Research Chair in Public Administration and Governance, Université de Moncton.

He provided a Report on Public Consultation in the law-making process in Canada. He was cross-examined. • Rita Marten , former chief of the Mikisew. She provided history and background for the Mikisew claim. • Keith Stewart , an employee of Greenpeace Canada as co-ordinator of its climate and energy campaign. Only his cross- examination is in the record. Counsel for the parties agreed that they are not relying upon his evidence. • Steve Courtoreille , Chief of Mikisew First Nation and the named Applicant.

He provided two affidavits setting out the history of the Mikisew and the basis for their claim in these proceedings. He was cross-examined. • Trish Merrithew-Mercredi , who has worked with the Mikisew in various capacities for more than 20 years. She provided history and background respecting the Mikisew and their claim. • Rachel Sara Forbes , staff counsel for West Coast Environmental Law Association. She provided evidence as to environmental impact of the Bills and legislation at issue.

She was cross-examined. [ 12 ] The Respondents filed the affidavit evidence of: • Terrence Hubbard , Director General of Strategic Policy and Planning at the Major Projects Management Office of the federal government. He provided background as to the various statutes at issue. He was cross-examined. • Douglas Nevison , General Director of the Economic and Fiscal Policy Branch of the Department of Finance Canada. He gave evidence as to Canada’s budget process and other economic and financial matters.

He was cross-examined. • Stephen Chapman , Associate Director, Regional Operations with the Canadian Environmental Agency. He gave background evidence as to environmental assessments. He was cross-examined. • Kevin Stringer , Acting Senior Assistant Deputy Minister with the Ecosystems and Fisheries Management Sector of the Department of Fisheries and Oceans. He gave evidence as to fisheries management by the federal government.

He was cross-examined. • Teresa Martin , paralegal with the Department of Justice Canada, Edmonton Regional Office who provided information about the current state of Alberta’s consultation policy as well as its environmental assessment and regulatory process. • Lauren Kirk : Counsel have agreed that neither party will rely on her evidence. The same agreement is made in respect of the evidence of Gillian Cantello. IV. THE FACTS [ 13 ] Despite the volume of evidence, the underlying facts necessary in considering the issues are few and not in dispute.

I will go into more detail in respect of some of these facts later in these Reasons. For the moment, these are some of the facts: 1. The Mikisew are a First Nations Aboriginal band whose traditional lands are located within the Peace-Athabasca Delta and Lower Athabasca River regions located in north eastern Alberta and neighbouring regions. 2. These traditional lands are well watered with rivers and lakes which have provided the Mikisew with abundant fishing, trapping and navigation. 3.

The Mikisew, along with other First Nations, entered into a treaty with Her Majesty in 1899, whereby land claims to the territory by those First Nations were ceded to the Crown in exchange for certain guarantees from the Crown. 4.

This treaty, called Treaty No. 8, included the following provision: And Her Majesty the Queen HEREBY AGREES with the said Indians that they shall have right to pursue their usual vocations of hunting, trapping and fishing throughout the tract surrendered as heretofore described, subject to such regulations as may from time to time be made by the Government of the country, acting under the authority of Her Majesty, and saving and excepting such tracts as may be required or taken up from time to time for settlement, mining, lumbering, trading or other purposes. 5.

Since the 1900’s, the Mikisew lands have been subjected to changes caused by non-Mikisew persons, including those caused by the construction of the W.A.C. Bennett Dam in British Columbia, and those caused by oil exploration. 6. Over the past several decades, Canada has, through its various environmental laws and agencies, done much to protect

fishing, trapping and navigation in the Mikisew’s traditional territory. 7. Canada has, from time to time, consulted with the Mikisew about proposed development in the Mikisew’s territory. 8. Canada has developed and published the Aboriginal Consultation and Accommodation, updated Guidelines for FederalOfficials to Fulfill the Duty to Consult (March 2011), which is to be followed in respect of consultation by federal departments withAboriginal communities. 9.

Canada has also developed and published the Cabinet Directive on Law-making setting out Cabinet’s expectations ofMinisters, departments and public servants with respect to the legislative process. 10. Canada has also developed and published the Guide to Making Federal Acts and Regulations issued by the Privy Council’sOffice providing detailed guidance to implement the above-referenced Cabinet Directive as to Canada’s law-making process. That Guideincludes a schematic map which sets out the steps involved in law-making. 11.

On April 26, 2012, the federal Minister of Finance introduced Bill C-38 (Jobs, Growth and Long Term Prosperity Act),which was given Royal Assent on June 29, 2012. The Minister introduced a further bill, Bill C-45 (Jobs and Growth Act), on October18, 2012, which received Royal Assent on December 14, 2012. These Bills are referred to in these proceedings as the Omnibus Bills and,as enacted, as the Acts. 12.

The Omnibus Bills introduced and amended various federal statutes – some, but not all of which, dealt with financial matters.Among the statutes affected were the Fisheries Act, RSC 1985, c F-14 and the Navigable Waters Protection Act, RSC 1985, c N-22,renamed as the Navigation Protection Act, RSC 1985, c N-22 which, among other things, implemented a reduction in the inlandwaterways monitored by federal agencies. I discuss the relevant provisions of the Omnibus Bills later in these Reasons. 13.

The Mikisew were not consulted prior to the introduction of either of the Omnibus Bills in Parliament, nor during the processin Parliament resulting in the Bills receiving Royal Assent. 14. The Mikisew fear that the reduction of monitoring by federal agencies of several waterways within their territory will have aserious impact on fishing, trapping and navigation. 15. The Respondents dispute the Mikisew’s fears, saying that they are speculative and that, in fact, in some respects the Actsprovide benefits not previously enjoyed. V. ISSUES [14] The Applicant has raised the following issues: 1.

Whether there is a duty to consult in respect of the development of the changes to the Federal Environmental Lawsintroduced through the Omnibus Bills; 2. If so, whether the duty to consult was breached; and 3. If so, what is the appropriate remedy? [15] The Respondents have cast their issues somewhat differently: 1. Is this a proper judicial review with respect to:

a) The constitutional role of the Courts in the law-making process?

b) The judicial review jurisdiction of the Federal Court pursuant to the Federal Courts Act, RSC 1985, c F-7? 2. If the answer to both questions is yes, did the law-making process that culminated in the Acts trigger the duty to consult? 3. If the duty to consult has been triggered by the law-making process and the Court finds a breach of said duty, what is theappropriate remedy? VI. NATURE OF THE PROCEEDINGS [16] This is an application brought under the provisions of Sections 18 and 18.1 of the Federal Courts Act, RSC 1985, c F-7.

Thisis not a review of any decision or order of a federal board, etc., rather, it is an application for declaratory relief and an injunction againstthe various Ministers of the Crown and Governor General in Council respecting legislation and proposed legislation. [17] As stated by Stratas JA in Air Canada v Toronto Port Authority (2011), 2011 FCA 347 , [2013] 3 FCR 605 (CA),Sections 18 and 18.1 of the Federal Courts Act go beyond simply reviews of decisions or orders of a federal board, and extend toanything that triggers a right to a judicial review.

I repeat what he wrote at paras 24 to 30: 24 Subsection 18.1(1) of the Federal Courts Act provides that an application for judicial review may be made by the AttorneyGeneral of Canada or by anyone directly affected by "the matter in respect of which relief is sought." A "matter" that can be subject ofjudicial review includes not only a "decision or order," but any matter in respect of which a remedy may be available under

section 18 ofthe Federal Courts Act: Krause v. Canada, (FCA), [1999] 2 F.C. 476 (C.A.). Subsection 18.1(3) sheds further light

on this, referring to relief for an "act or thing," a failure, refusal or delay to do an "act or thing," a "decision," an "order" and a"proceeding." Finally, the rules that govern applications for judicial review apply to "applications for judicial review of administrativeaction," not just applications for judicial review of "decisions or orders": Rule 300 of the Federal Courts Rules. 25 As far as "decisions" or "orders" are concerned, the only requirement is that any application for judicial review of them must bemade within 30 days after they were first communicated: subsection 18.1(2) of the Federal Courts Act. 26 Although the parties and the Federal Court judge focused on whether a "decision" or "order" was present, in substance theywere addressing something more basic: whether, in issuing the bulletins and in engaging in the conduct described in the bulletins, theToronto Port Authority had done anything that triggered any rights on the part of Air Canada to bring a judicial review. 27 On this, I agree with the respondents' submissions and the Federal Court judge's holding: in issuing the bulletins and inengaging in the conduct described in the bulletins, the Toronto Port Authority did nothing to trigger rights on the part of Air Canada tobring a judicial review. 28 The jurisprudence recognizes many situations where, by its nature or substance, an administrative body's conduct does nottrigger rights to bring a judicial review. 29 One such situation is where the conduct attacked in an application for judicial review fails to affect legal rights, impose legalobligations, or cause prejudicial effects: Irving Shipbuilding Inc. v.

Canada (Attorney General), 2009 FCA 116, [2010] 2 F.C.R. 488;Democracy Watch v. Conflict of Interest and Ethics Commission, 2009 FCA 15, (2009), 86 Admin. L.R. (4th) 149. 30 The decided cases offer many illustrations of this situation: e.g., 1099065 Ontario Inc. v. Canada (Minister of Public Safety andEmergency Preparedness), 2008 FCA 47, 375 N.R. 368 (an official's letter proposing dates for a meeting); Philipps v. Canada(Librarian and Archivist), 2006 FC 1378, [2007] 4 F.C.R. 11 (a courtesy letter written in reply to an application for reconsideration);Rothmans, Benson & Hedges Inc. v.

Minister of National Revenue, (FC), [1998] 2 C.T.C. 176, 148 F.T.R. 3 (T.D.)(an advance ruling that constitutes nothing more than a non-binding opinion). [18] Counsel for the Applicant suggested that these proceedings can be considered as if they were questions of law, since there arefew facts in controversy. [19] The issue is not one of a standard of review of a decision, rather, it is a de novo consideration of the circumstances andapplicable law in this particular case. VII.

DOES SUBSECTION 2(2) OF THE FEDERALCOURTS ACT PRECLUDE THESE PROCEEDINGS? [20] Subsection 2(1) of the Federal Courts Act, RSC 1985, c F-7, provides a definition of “federal board”, commission or othertribunal” and subsection 2(2) qualifies that definition: 2.

(1) In this Act, “federal board, commission or othertribunal” means any body, person or personshaving, exercising or purporting to exercisejurisdiction or powers conferred by or underan Act of Parliament or by or under an ordermade pursuant to a prerogative of the Crown,other than the Tax Court of Canada or any ofits judges, any such body constituted orestablished by or under a law of a province orany such person or persons appointed underor in accordance with a law of a province orunder

section 96 of the Constitution Act, 1867; 2.

(2) For greater certainty, the expression“federal board, commission or othertribunal”, as defined in subsection (1), doesnot include the Senate, the House ofCommons, any committee or member ofeither House, the Senate Ethics Officer or theConflict of Interest and Ethics Commissionerwith respect to the exercise of the jurisdictionor powers referred to in sections 41.1 to 41.5and 86 of the Parliament of Canada Act. 2.

(1) Les définitions qui suivent s’appliquentà la présente loi. « office fédéral » Conseil, bureau,commission ou autre organisme, ou personneou groupe de personnes, ayant, exerçant oucensé exercer une compétence ou despouvoirs prévus par une loi fédérale ou parune ordonnance prise en vertu d’uneprérogative royale, à l’exclusion de la Courcanadienne de l’impôt et ses juges, d’unorganisme constitué sous le régime d’une loiprovinciale ou d’une personne ou d’ungroupe de personnes nommées aux termesd’une loi provinciale ou de l’article 96 de laLoi constitutionnelle de 1867.

(2) Il est entendu que sont également exclusde la définition de « office fédéral » le Sénat,la Chambre des communes, tout comité oumembre de l’une ou l’autre chambre, leconseiller sénatorial en éthique et lecommissaire aux conflits d’intérêts et àl’éthique à l’égard de l’exercice de sacompétence et de ses attributions visées auxarticles 41.1 à 41.5 et 86 de la

Loi sur leParlement du Canada. [21] To the extent that these proceedings could be said to engage the Parliamentary process engaged in by the Respondents, the

parties are agreed that subsection 2(2) of the Federal Courts Act would be preclusive.

However, Applicant’s Counsel argues that it isnot the legislative duties of the Respondents that are at issue, rather, it is the policy consideration, formation and proposal to undertakethe legislative functions of the Respondents that are at issue. [22] While I take issue with the Applicant’s characterization of the decisions as executive rather than legislative in nature later inthese Reasons, the Applicant does not seek judicial review of (1) the content of the Omnibus Bills before they became law, (2) anydecision of a Member of Parliament or Parliamentary committee upon the Omnibus Bills’ introduction into Parliament or (3) anyparticular decision of a Minister or Minister’s officials in implementing legislation.

The Applicant is seeking to engage the process thatMinisters of the Crown undertake before legislation has been drafted and presented to Parliament. As such, I conclude that theseproceedings are not precluded by subsection 2(2) of the Federal Courts Act. VIII.

DO THESE PROCEEDINGS PRESENT AJUSTICIABLE ISSUE? [23] The Courts have been assiduous in respecting the different roles of the legislative, executive and judicial roles of government.Justice Karakatsanis, of the Supreme Court of Canada, in Ontario v Criminal Lawyers’ Association of Ontario, 2013 SCC 43 ,[2013] 3 SCR 3, clearly distinguished between these separate executive, legislative and judicial functions stating that one branch shouldnot unduly interfere with another branch of government.

She explained the principle of separation of powers at paragraphs 26 to 30: 26 [T]he powers recognized as part of the courts’ inherent jurisdiction are limited by the separation of powers that exists among thevarious players in our constitutional order and by the particular institutional capacities that have evolved from that separation. 27 This Court has long recognized that our constitutional framework prescribes different roles for the executive, legislative andjudicial branches (see Fraser v. Public Service Staff Relations Board, (SCC), [1985] 2 S.C.R. 455, at pp. 469-70).

Thecontent of these various constitutional roles has been shaped by the history and evolution of our constitutional order (see Reference reSecession of Quebec, (SCC), [1998] 2 S.C.R. 217, at paras. 49-52).

(2) Separation of Powers 28 Over several centuries of transformation and conflict, the English system evolved from one in which power was centralized in theCrown to one in which the powers of the state were exercised by way of distinct organs with separate functions. The development ofseparate executive, legislative and judicial functions has allowed for the evolution of certain core competencies in the variousinstitutions vested with these functions. The legislative branch makes policy choices, adopts laws and holds the purse strings ofgovernment, as only it can authorize the spending of public funds.

The executive implements and administers those policy choices andlaws with the assistance of a professional public service. The judiciary maintains the rule of law, by interpreting and applying these lawsthrough the independent [page20] and impartial adjudication of references and disputes, and protects the fundamental liberties andfreedoms guaranteed under the Charter. 29 All three branches have distinct institutional capacities and play critical and complementary roles in our constitutionaldemocracy. However, each branch will be unable to fulfill its role if it is unduly interfered with by the others.

In New BrunswickBroadcasting Co. v.

Nova Scotia (Speaker of the House of Assembly), (SCC), [1993] 1 S.C.R. 319, McLachlin J.affirmed the importance of respecting the separate roles and institutional capacities of Canada's branches of government for ourconstitutional order, holding that "[i]t is fundamental to the working of government as a whole that all these parts play their proper role.It is equally fundamental that no one of them overstep its bounds, that each show proper deference for the legitimate sphere of activity ofthe other" (p. 389).3 30 Accordingly, the limits of the court's inherent jurisdiction must be responsive to the proper function of the separate branches ofgovernment, lest it upset the balance of roles, responsibilities and capacities that has evolved in our system of governance over thecourse of centuries. [24] Thus respect for the principle of separation of powers ensures the preservation of the integrity of Canada’s constitutionalorder.

Disrespect for this principle can upset the constitutional balance of these roles. [25] The question as to whether an issue was justiciable so as to give the Court jurisdiction to address the matter was consideredearlier by the Supreme Court of Canada in Reference re Canada Assistance Plan, (SCC), [1991] 2 SCR 525. Sopinka Jwrote the Reasons of the Court. [26] The issues before the Court in that case were two questions put by way of a reference to the British Columbia Court ofAppeal.

Sopinka J set these questions out at page 534 of the reported version: On February 27, 1990, Order in Council No. 287 was approved and ordered by the Lieutenant Governor of British Columbia. Via thisOrder, the Government of British Columbia referred the following questions to the British Columbia Court of Appeal:

(1) Has the Government of Canada any statutory, prerogative or contractual authority to limit its obligation under the CanadaAssistance Plan Act [sic], R.S.C. 1970, c. C-1 and its Agreement with the Government of British Columbia dated March 23, 1967, tocontribute 50 per cent of the cost to British Columbia of assistance and welfare services?

(2) Do the terms of the Agreement dated March 23, 1967 between the Governments of Canada and British Columbia, thesubsequent conduct of the Government of Canada pursuant to the Agreement and the provisions of the Canada Assistance Plan act [sic],R.S.C. 1970, c. C-1, give rise to a legitimate expectation that the Government of Canada would introduce no bill into Parliament to limitits obligation under the Agreement or the Act without the consent of British Columbia?

[27] Sopinka J wrote at page 545 to 546 that the Court must determine whether the question is purely political or whether it has asufficient legal component to warrant judicial intervention: While there may be many reasons why a question is non-justiciable, in this appeal the Attorney General of Canada submitted that toanswer the questions would draw the Court into a political controversy and involve it in the legislative process.

In exercising itsdiscretion whether to determine a matter that is alleged to be non-justiciable, the Court’s primary concern is to retain its proper rolewithin the constitutional framework of our democratic form of government. See Canada (Auditor General) v. Canada (Minister ofEnergy, Mines and Resources), (SCC), [1989] 2 S.C.R. 49, at pp. 90-91, and Borowski v. Canada (Attorney General), (SCC), [1989] 1 S.C.R. 342, at p. 362.

In considering its appropriate role the Court must determine whether thequestion is purely political in nature and should, therefore, be determined in another forum or whether it has a sufficient legalcomponent to warrant the intervention of the judicial branch. … Applying the foregoing to this appeal, I am of the view that both of the questions posed have a significant legal component. The firstquestion requires the

interpretation of a statute of Canada and an agreement. The second raises the question of the applicability of thelegal doctrine of legitimate expectations to the process involved in the enactment of a money bill. Both these matters are in contentionbetween the so-called "have provinces" and the federal government. A decision on these questions will have the practical effect ofsettling the legal issues in contention and will assist in resolving the controversy. Indeed, there is no other forum in which these legalquestions could be determined in an authoritative manner.

In my opinion, the questions raise matters that are justiciable and should beanswered. [28] Recently, the Federal Court of Appeal in Coldwater Indian Band v Canada (Minister of Indian and Northern Development),2014 FCA 277, has cautioned against the Court intervening in a process where the Minister has yet to make a determination.

Nadon JAfor the Court wrote at paragraphs 8 to 12: [8] We are of the view that the judicial review application is premature and that there is no basis for the Federal Court or for thiscourt to interfere with the administrative process which requires the Minister to decide whether he should consent to the twoassignments sought by Kinder Morgan. [9] In Canada (Border Services Agency) v. C.B. Powell Ltd., 2010 FCA 61, [2011] 2 F.C.R. 332 and 400 N.R. 367 (C.B.

Powell), ourCourt at paragraphs 30 to 33 made it clear that we were not to interfere with an ongoing administrative process until all adequateremedial recourses in the administrative process had been exhausted unless there were “exceptional circumstances”. We went on to sayin C.B. Powell that such exceptional circumstances were few and that the threshold for “exceptional” was high. In particular, StratasJ.A., writing for the Court, said at paragraph 33: Courts across Canada have enforced the general principle of non-interference with ongoing administrative processes vigorously.

This isshown by the narrowness of the "exceptional circumstances" exception. Little need be said about this exception, as the parties in thisappeal did not contend that there were any exceptional circumstances permitting early recourse to the courts. Suffice to say, theauthorities show that very few circumstances qualify as "exceptional" and the threshold for exceptionality is high: see, generally, D.J.M.Brown and J.M. Evans, Judicial Review of Administrative Action in Canada (looseleaf) (Toronto: Canvasback Publishing, 2007) at3:2200, 3:2300 and 3:4000 and David J.

Mullan, Administrative Law (Toronto: Irwin Law, 2001) at pages 485-494. Exceptionalcircumstances are best illustrated by the very few modern cases where courts have granted prohibition or injunction againstadministrative decision-makers before or during their proceedings.

Concerns about procedural fairness or bias, the presence of animportant legal or constitutional issue, or the fact that all parties have consented to early recourse to the courts are not exceptionalcircumstances allowing parties to bypass an administrative process, as long as that process allows the issues to be raised and aneffective remedy to be granted: see Harelkin, supra; Okwuobi, supra at paragraphs 38-55; University of Toronto v. C.U.E.W, Local 2(1988), (ON SC), 52 D.L.R. (4th) 128 (Ont. Div. Ct.).

As I shall soon demonstrate, the presence of so-calledjurisdictional issues is not an exceptional circumstance justifying early recourse to courts. [10] Coldwater argues that its application was justified in the circumstances as the Minister will be acting contrary to his fiduciaryduty and thus outside his jurisdiction. Moreover, the constitutional nature of the Minister’s fiduciary obligations make this Court’sintervention appropriate.

Coldwater also says that the Minister’s consent would function as a waiver of Terasen Inc.’s failure to havethe indentures properly signed, that it may “invigorate the potentially expired [second] indenture” and that it may grant to KinderMorgan a legal interest in the reserve that could not later be undone. [11] Mr. Kirchner, counsel for Coldwater, was quite candid before us when he said that he was, in effect, seeking a remedy akin to adirected verdict in a jury trial.

In his view, the Minister could not, in law, decide the consent issue other than in the way proposed byColdwater. [12] In our view, the circumstances put forward by Coldwater to justify its pre-emptive strike are not exceptional circumstances.Further we cannot see any irreparable harm or prejudice arising from having the Minister decide the question which is before him.

Tothis we would add that we are satisfied that the Minister can provide the remedy sought by Coldwater, i.e. that the indentures not beassigned to Kinder Morgan. [29] I conclude that, in the circumstances of this case, there is a sufficient legal basis for the Court to review the matter judicially:namely, whether the legal and enforceable duty to consult applies to the decisions at issue. I will address these matters subsequently inthese Reasons. It is not premature to consider the matter. IX. FEDERAL LAW – MAKING PROCESS ANDASSOCIATED SUPPORT ACTIVITIES

[ 30 ] The federal law making process and associated support activities are not something that is fixed in stone, whether by legislature or jurisprudence. It is a fluid political process that is continually adapting to the particular circumstances of the moment. [ 31 ] The Canadian Privy Council Office has published a Guide to Making Federal Acts and Regulations , the second edition of which was published in 2001. Hubbard, in his cross-examination at page 17, said that this was strong policy statement. Nevison provided a copy with his affidavit.

In part, this document said at pages 7 and 8: Deciding Whether a Law is Needed Making a new law, whether by obtaining Parliament's assent to a bill or by making regulations, is just one of several ways of achieving governmental policy objectives. Others include agreements and guidelines or, more generally, programs for providing services, benefits, or information. In addition, a law may include many different kinds of provisions, ranging from simple prohibitions through a wide variety of regulatory requirements such as licensing or compliance monitoring. Law should be used only when it is the most appropriate.

When a legislative proposal is made to the Cabinet, it is up to the sponsoring Minister to show that this principle has been met, and there are no other ways to achieve the policy objectives effectively. The decision to address a matter through a bill or regulation is made by Cabinet on the basis of information developed by a Minister's departmental officials. The information must be accurate, timely and complete.

To provide it, a department should: • analyze the matter and its alternative solutions; • engage in consultation with those who have an interest in the matter, including other departments that may be affected by the proposed solution; • analyze the impact of the proposed solution; and • analyze the resources that the proposed solution would require, including those needed to implement or enforce it. In the case of a bill, the principal means for conveying this information is a Memorandum to Cabinet, which a minister must present to obtain Cabinet approval for the bill to be drafted by the Legislation

Section of the Department of Justice. When a legislative initiative is being considered, and where it is appropriate and consistent with legislative drafting principles, related matters should be combined in one bill, rather than being divided among several bills on similar subjects. A single bill allows parliamentarians to make the most effective and efficient use of their time for debate and study in committee.

Finally, caution should be taken when considering whether to include a "sunset" or expiration provision in a bill, or a provision for mandatory review of the Act within a particular time or by a particular committee. Alternatives to these provisions should be fully explored before proposing to include them in a bill. [ 32 ] On pages 67 and 68, the Guide states:

Summary of the Cabinet Policy Approval Process Memorandum to Cabinet and drafting instructions After a proposed bill is included in the Government's legislative program, the next step is to prepare a submission to Cabinet to seek policy approval and authority to draft the bill. This is done by way of a Memorandum to Cabinet (MC), prepared in accordance with the guidance documents issued by the Privy Council Office. MC drafters should refer to Memoranda to Cabinet: A Drafter's Guide, the Good Governance Guidelines and the MC Preparation Planning Calendar.

When a bill is being proposed, the MC includes an annex of drafting instructions, which provides the framework for drafting the bill. This is a critical component of the MC that demands much care and attention (see also Preparing Bill-drafting Instructions for a Memorandum to Cabinet in this chapter). Main Steps in Cabinet Approval Process The main steps in preparing an MC are: • The sponsoring department writes the MC, including the drafting instructions, in cooperation with departmental legal advisers. The Privy Council Office (PCO) should be consulted as early as possible in the process.

As set out in the MC Preparation Planning Calendar, the sponsoring department must alert PCO to the draft MC at least 6 weeks before the Cabinet Committee meeting at which it is to be presented. Other departments and central agencies should be consulted as issues arise during the preparation of the MC. • The sponsoring department hosts a substantive interdepartmental meeting at least 3 weeks before the Cabinet committee meeting to discuss the policy implications of the MC.

The meeting includes PCO and the other central agencies as well as all departments whose ministers sit on the Cabinet policy committee that will consider the MC, and other interested departments. The sponsoring department then revises the MC taking into account comments from departments and ensures that it has the support of central agencies and other departments. • As the central agency that serves as the secretariat to the Cabinet and its committees, PCO performs a challenge function on matters of process, most notably on what consultations are appropriate and on how public interest is determined.

It also looks at issues of horizontality and the appropriate level of government intervention, particularly in terms of efficiency, affordability, federalism and partnerships. • Once finalized, the sponsoring minister signs the MC and it is sent to PCO. PCO is responsible for distributing the MC to deputy ministers and ministers, for scheduling the item on the agenda of the appropriate Cabinet policy committee and for briefing the committee chair.

• The Cabinet policy committee considers the MC. • If approved, PCO issues a Cabinet Committee Report (CR), which is then considered by the full Cabinet. • If there are financial implications, a source of funds must be identified before full Cabinet considers the CR. If the CR is ratified, PCO issues a Record of Decision (RD). Both the CR and the RD are based on the recommendations and drafting instructions contained in the original MC. • The policy committee or full Cabinet may require changes to the proposal.

In such cases, the sponsoring minister may be asked to return with a revised MC, depending on the nature and scope of the changes. A revised CR and RD may also be issued to reflect the changes. • Once the RD is issued, PCO sends copies to all ministers and deputy ministers (in practice usually to the departments' cabinet affairs units) and to the Legislation

Section of the Department of Justice. • At this stage, drafting may begin. In exceptional circumstances, where it is necessary to meet the priorities of the Government, drafting may begin before the Cabinet authorization has been formally obtained if the Leader of the Government in the House of Commons so authorizes. This authorization is granted on the advice of the Director of the Legislation

Section and the Assistant Secretary to the Cabinet (Legislation and House Planning/Counsel) in consultation with the relevant PCO policy secretariat. Who does what in the Cabinet Approval Process? The Cabinet makes policy decisions, including decisions about how policies will be implemented in legislation. These decisions are communicated through the Cabinet's approval of drafting instructions in a memorandum to Cabinet. [ 33 ] A useful but very large chart is available to be printed by checking on the appropriate version at page 64 of the Guide if one is looking at the electronic version.

It is too large to reproduce in these Reasons. By way of highlight, the chart divides the law-making process into six major categories, in sequence: • Policy Development; • Cabinet Approval of Policy; • Drafting; • Cabinet Approval of Bill; • House of Commons (where the appropriate Minister first gives notice of introduction of a Bill and subsequently takes the Bill for first reading); • Senate. [ 34 ] In relying on this Guide, the Applicant, in its written submissions, organized the law-making process into five steps: Step 1 : Policy development, including the decision to make laws.

Step 2 : Subsequent to the decision to make a law, the responsible department develops a legislative proposal and submits the same to Cabinet for approval. Step 3 : Drafting the Bill: upon cabinet approval of the legislative proposal, it forms part of the Government’s legislative program, the responsible department prepares a memorandum to Cabinet seeking authorization to draft the bill. Step 4 : Parliamentary Process: upon drafting the Bill, Cabinet approves the latter and introduces the same into Parliament for debate and three readings in the House of Commons and Senate.

Step 5 : Royal Assent gives the act the force of law unless it provides otherwise. [ 35 ] At question 230 of the cross-examination of the witness Hubbard, Counsel for the Applicant suggested that the further one goes along in the process, it becomes harder and harder to change the policy recommendations. In his answers to questions 237 to 241, Hubbard agreed with that proposition: 237 Q. But all I want to get at is this, is that if we compare the earlier stages to the later stages, at the later stages we have steps that are being implemented with the approval and direction of Cabinet; correct? A. Yes. 238 Q.

And to change direction at that point would actually require direction from Cabinet; correct? A. Typically, yes. 239 Q. Right. Whereas if we were at the left-hand side of the process, so the process before it's gone through Ministerial approval, committee approval, PCO approval, Cabinet approval, changes can be made -- subject to whatever larger policy direction has been given -- without, for example, the approval of Cabinet.

MS. YURKA: On policy? Changes on policy? MR. JANES: Changes on the policy that's being THE DEPONENT: On the policy advice and recommendations? BY MR. JANES: 240 Q. Right. A. Those are fairly fluid until they're approved, yes. 241 Q. Right. And so all I'm getting at is that as we move further to the right on the process described in Exhibit 1 before theintroduction in the House of Commons, you require -- to implement significant changes in the policy direction that's been approved, youneed more and more approvals.

So if something's been approved by Cabinet, lower level officials cannot just ignore that directionbecause they would like to go in a different direction, for example. A. Once Cabinet has approved something and public service will follow direction, yes. [36] In oral argument, the Applicant’s Counsel submitted that, at the very least, a duty to consult arises during the PolicyDevelopment and Cabinet Approval of Policy stages of the law-making process in this case, and at the very least, the duty to consultcould attach to all steps up to the review and sign off of the sponsoring Minister.

This means that the duty to consult would arise beforeCabinet provides notice to Parliament, and thus before the introduction of the Omnibus Bills into Parliament. X.

JURISPRUDENCE AS TO THE POINT ATWHICH THE COURT MAY ORDER INTERVENTION INTHE LAW-MAKING PROCESS [37] A classic position as to Court intervention in the law-making process was stated by Major J in his decision for the SupremeCourt of Canada in Authorson v Canada (Attorney General), 2003 SCC 39 , [2003] 2 SCR 40 at paragraph 37. 37 The respondent claimed a right to notice and hearing to contest the passage of s. 5.1(4) of the Department of Veterans AffairsAct. However, in 1960, and today, no such right exists.

Long-standing parliamentary tradition makes it clear that the only procedure dueany citizen of Canada is that proposed legislation receive three readings in the Senate and House of Commons and that it receive RoyalAssent. Once that process is completed, legislation within Parliament's competence is unassailable. [38] This classic position however may not apply when aboriginal rights, whether created by treaty or not, and the Crown’sresponsibilities related to the same are concerned.

Section 35 of the Constitution Act, 1982 provides: 35.

(1) The existing aboriginal and treatyrights of the aboriginal peoples of Canadaare hereby recognized and affirmed.

(2) In this Act, “aboriginal peoples ofCanada” includes the Indian, Inuit and Métispeoples of Canada.

(3) For greater certainty, in subsection (1)“treaty rights” includes rights that now existby way of land claims agreements or may beso acquired.

(4) Notwithstanding any other provision ofthis Act, the aboriginal and treaty rightsreferred to in subsection (1) are guaranteedequally to male and female persons. 35.

(1) Les droits existants — ancestraux ouissus de traités — des peuples autochtones duCanada sont reconnus et confirmés. Définition de « peuples autochtones duCanada »

(2) Dans la présente loi, « peuplesautochtones du Canada » s’entendnotamment des Indiens, des Inuit et des Métisdu Canada. Note marginale :Accords sur desrevendications territoriales

(3) Il est entendu que sont compris parmi lesdroits issus de traités, dont il est fait mentionau paragraphe (1), les droits existants issusd’accords sur des revendications territorialesou ceux susceptibles d’être ainsi acquis. Note marginale :Égalité de garantie desdroits pour les deux sexes

(4) Indépendamment de toute autredisposition de la présente loi, les droits —ancestraux ou issus de traités — visés auparagraphe (1) sont garantis également auxpersonnes des deux sexes. [39] The Supreme Court of Canada found that the constitutional principle of the honour of the Crown informs the purposiveinterpretation of

section 35 of the Constitution Act, 1982 and gives rise to the binding and enforceable constitutional duty to consult when

Crown conduct has the potential to adversely affect an Aboriginal claim or right of which the Crown has actual or constructiveknowledge (Manitoba Metis Federation Inc v Canada (Attorney General), 2013 SCC 14 , [2013] 1 SCR 623 at paras 66, 73; R vKapp, 2008 SCC 41 , [2008] 2 SCR 483 at para 6; Rio Tinto Alcan Inc v Carrier Sekani Tribal Council, [2010] 2 SCR 103 atparas 31, 51, 63 and Beckman v Little Salmon/Carmacks First Nation, 2010 SCC 53 , [2010] 3 SCR 103 at para 42). [40] Therefore, the question as to whether the Courts should intervene into law-making process without upsetting Canada’sconstitutional order of government, is bound up with the constitutional duty to consult. [41] In Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73 , [2004] 3 SCR 511, the Supreme Court ofCanada held that there was a duty to consult even in the absence of a treaty where a land claim was involved, in which case the Courtcould intervene, if appropriate.

In that case, the duty arose at the strategic planning stage for resource utilization. The Chief Justice wroteat paragraph 76: 76 I conclude that the Province has a duty to consult and perhaps accommodate on T.F.L. decisions. The T.F.L. decision reflects thestrategic planning for utilization of the resource. Decisions made during strategic planning may have potentially serious impacts onAboriginal right and title.

The holder of T.F.L. 39 must submit a management plan to the Chief Forester every five years, to includeinventories of the licence area's resources, a timber supply analysis, and a "20-Year Plan" setting out a hypothetical sequence ofcutblocks. The inventories and the timber supply analysis form the basis of the determination of the allowable annual cut ("A.A.C.") forthe licence. The licensee thus develops the technical information based upon which the A.A.C. is calculated.

Consultation at theoperational level thus has little effect on the quantity of the annual allowable cut, which in turn determines cutting permit terms. Ifconsultation is to be meaningful, it must take place at the stage of granting or renewing Tree Farm Licences. [42] The Supreme Court of Canada, in Misikew Cree First Nation v. Canada, 2005 SCC 69 , [2005] 3 SCR 388considered the duty to consult in the treaty context.

Binnie J., for the Court, wrote that the duty to consult would be triggered at variablepoints and that duty could be exercised in various ways such as simply giving notice: 34 In the case of a treaty the Crown, as a party, will always have notice of its contents. The question in each case will therefore be todetermine the degree to which conduct contemplated by the Crown would adversely affect those rights so as to trigger the duty toconsult. Haida Nation and Taku River set a low threshold. The flexibility lies not in the trigger ("might adversely affect it") but in thevariable content of the duty once triggered.

At the low end, "the only duty on the Crown may be to give notice, disclose information, anddiscuss any issues raised in response to the notice" (Haida Nation, at para. 43). The Mikisew say that even the low end content was notsatisfied in this case. … 55 The Crown has a treaty right to “take up” surrendered lands for regional transportation purposes, but the Crown is neverthelessunder an obligation to inform itself of the impact its project will have on the exercise by the Mikisew of their hunting and trapping rights,and to communicate its findings to the Mikisew.

The Crown must then attempt to deal with the Mikisew “in good faith, and with theintention of substantially addressing” Mikisew concerns (Delgamuukw, at para. 168). This does not mean that whenever a governmentproposes to do anything in the Treaty 8 surrendered lands it must consult with all signatory First Nations, no matter how remote orunsubstantial the impact. The duty to consult is, as stated in Haida Nation, triggered at a low threshold, but adverse impact is a matterof degree, as is the extent of the Crown’s duty.

Here the impacts were clear, established and demonstrably adverse to the continuedexercise of the Mikisew hunting and trapping rights over the lands in question. [43] Thus, where duty is triggered and breached, the Court could presumably intervene to enforce or make declarations as to thatduty.

Binnie J wrote at paragraph 59 of Mikisew that the Court could order a remedy for a breach of the duty to consult withoutundertaking a R v Sparrow, (SCC), [1990] 1 SCR 1075 justification analysis: Where, as here, the Court is dealing with a proposed “taking up” it is not correct (even if it is concluded that the proposed measure ifimplemented would infringe the treaty hunting and trapping rights) to move directly to a Sparrow analysis. The Court must firstconsider the process by which the “taking up” is planned to go ahead, and whether that process is compatible with the honour of theCrown.

If not, the First Nation may be entitled to succeed in setting aside the Minister’s order on the process ground whether or not thefacts of the case would otherwise support a finding of infringement of the hunting, fishing and trapping rights. [44] The question is whether the Court should find that a duty to consult arises at any point during the above-referenced law-making process.

The Alberta Court of Appeal visited this issue in R v Lefthand, 2007 ABCA 206, 77 Alta LR (4th) 203 where Slatter JA,writing for the Court, at paragraphs 37 to 39 said: 37 The exact content of the duty to consult is in its formative stages, and is still being hammered out on the anvils of justice. Thethree leading cases on the duty to consult are Haida Nation, Taku River and Mikisew Cree. They are all cases involving a challenge toadministrative (as opposed to legislative) acts that had an impact on aboriginal rights: i.e. road construction or forestry permits.

Theyare all "taking up" cases, that is cases where a government decision would result in the exploitation or occupation of previouslyunoccupied lands, effectively resulting in the permanent removal of those lands from a treaty or laTnd claim area, or permanent changeto the land in the area. The duty to consult is at its highest in those cases.

Consultation has also been recognized as one factor to beconsidered in other contexts, for example in the "justification" analysis when aboriginal rights are breached (infra, para. 139). 38 The duty to consult is of course a duty to consult collectively; there is no duty to consult with .any individual. There can howeverbe no duty to consult prior to the passage of legislation, even where aboriginal rights will be affected: Authorson v. Canada (AttorneyGeneral), 2003 SCC 39 , [2003] 2 S.C.R. 40. It cannot be suggested there are any limits on Parliament's right to amend theIndian Act.

It would be an unwarranted interference with the proper functioning of the House of Commons and the ProvincialLegislatures to require that they engage in any particular processes prior to the passage of legislation. The same is true of the passageof regulations and Orders in Council by the appropriate Executive Council. Enactments must stand or fall based on their compliancewith the constitution, not based on the processes used to enact them.

Once enactments are in place, consultation only becomes anissue if a prima facie breach of an aboriginal right is sought to be justified: Mikisew Cree at para. 59 [emphasis added].

39 Beyond the passage of legislation and regulations, the matter becomes less well defined. Administrative tribunals often do have aduty to consult when their orders will have an impact on aboriginal rights. There may also be a duty on study groups that are formed bygovernments to report on matters that may affect aboriginal rights. For example, in this case the Eastern Slopes Regulation ReviewCommittee was established in 1997 to make regulations respecting the fisheries covered by Treaty No. 7.

When it is anticipated that sucha study group might recommend amendments to a regulatory regime, consultation is generally appropriate. This does not mean that thelegislative body is bound to follow the recommendations of such a committee, nor that the legislative body is required to consult furtherwith the aboriginal groups if it decides not to follow all the recommendations of the committee. The right to be consulted is not a right toveto: Haida Nation at para. 48.

The integrity of the traditional methods of enacting legislation and regulations is not affected by the dutyto consult. [45] The Supreme Court of Canada addressed the Lefthand decision in Rio Tinto Alcan Inc v Carrier Sekani Tribal Council, 2010SCC 43 , [2010] 2 SCR 650. The Chief Justice, writing for the Court, left for another day the question of whether governmentconduct includes legislative action. At paragraphs 43 and 44, she wrote: 43 This raises the question of what government action engages the duty to consult.

It has been held that such action is not confinedto government exercise of statutory powers: Huu-Ay-Aht First Nation v. British Columbia (Minister of Forests), 2005 BCSC 697, [2005]3 C.N.L.R. 74, at paras. 94 and 104; Wii'litswx v. British Columbia (Minister of Forests), 2008 BCSC 1139, [2008] 4 C.N.L.R. 315, atparas. 11-15. This accords with the generous, purposive approach that must be brought to the duty to consult. 44 Further, government action is not confined to decisions or conduct which have an immediate impact on lands and resources. Apotential for adverse impact suffices.

Thus, the duty to consult extends to "strategic, higher level decisions" that may have an impact onAboriginal claims and rights (Woodward, at p. 5-41 (emphasis omitted)). Examples include the transfer of tree licences which wouldhave permitted the cutting of old-growth forest (Haida Nation); the approval of a multi-year forest management plan for a largegeographic area (Klahoose First Nation v. Sunshine Coast Forest District (District Manager), 2008 BCSC 1642, [2009] 1 C.N.L.R.110); the establishment of a review process for a major gas pipeline (Dene Tha' First Nation v.

Canada (Minister of Environment), 2006FC 1354, [2007] 1 C.N.L.R. 1, aff'd 2008 FCA 20, 35 C.E.L.R. (3d) 1); and the conduct of a comprehensive inquiry to determine aprovince's infrastructure and capacity needs for electricity transmission (An Inquiry into British Columbia's Electricity TransmissionInfrastructure & Capacity Needs for the Next 30 Years, Re, 2009 CarswellBC 3637 (B.C.U.C.)). We leave for another day the question ofwhether government conduct includes legislative action: see R. v. Lefthand, 2007 ABCA 206, 77 Alta.

L.R. (4th) 203, at paras. 37-40. [46] Groberman JA, for the Yukon Court of Appeal, in Ross River Dena Council v Government of Yukon, 2012 YKCA 14, 358DLR (4th) 100, leave to appeal to the Supreme Court of Canada dismissed, [2013] SCCA No 106, commented on this part of Rio Tinto.Ross River Dena Council dealt with whether the Government of Yukon had a duty to consult when pursuant to the Quartz Mining Act ,SY 2003, c 14, it allowed the recording of mineral claims on land which the plaintiff claimed Aboriginal title and rights.

Once anindividual acquires mining rights under the Quartz Mining Act, he or she can claim and conduct certain exploration activities on the landwithout further authorization from or notice to the Government of Yukon.

In finding that a duty to consult existed, the Yukon Court ofAppeal distinguished between the Court’s jurisdiction to find existing statutory regimes defective for failing to allow accommodationand consultation and the Court’s reticence in imposing procedural consultation requirements on the legislature during the formulationand introduction of a bill: 37 The duty to consult exists to ensure that the Crown does not manage its resources in a manner that ignores Aboriginal claims. Itis a mechanism by which the claims of First Nations can be reconciled with the Crown’s right to manage resources.

Statutory regimesthat do not allow for consultation and fail to provide any other equally effective means to acknowledge and accommodate Aboriginalclaims are defective and cannot be allowed to subsist [emphasis added]. 38 The honour of the Crown demands that it take into account Aboriginal claims before divesting itself of control over land.

Farfrom being an answer to the plaintiff’s claim in this case, the failure of the Crown to provide any discretion in the recording of mineralclaims under the Quartz Mining Act regime can be said to be the source of the problem. 39 I acknowledge that in Rio Tinto the Supreme Court of Canada left open the question of whether “government conduct” includeslegislative action. I read that reservation narrowly, however.

It may be that the doctrine of parliamentary sovereignty precludes theimposition of a requirement that governments consult with First Nations before introducing legislation (see Reference Re CanadaAssistance Plan (B.C.), (SCC), [1991] 2 S.C.R. 525 at 563) [emphasis added].

Such a limitation on the duty to consultwould, however, only apply to the introduction of the legislation itself, and could not justify the absence of consultation in the carryingout of a statutory regime [emphasis added]. 40 In my view, therefore, the chambers judge was correct in finding that the regime for the acquisition of a quartz mineral claim inYukon is deficient in that it fails to provide any mechanism for consultation with First Nations. … 45 It is not necessary or appropriate for the Court, in this proceeding, to specify precisely how the Yukon regime can be brought intoconformity with the requirements of Haida.

Those requirements are themselves flexible. What is required is that consultations bemeaningful, and that the system allow for accommodation to take place, where required, before claimed Aboriginal title or rights areadversely affected. [47] The triggering of Court intervention at the point where a duty to consult arises has been clearly established subsequently bythe Supreme Court of Canada in Tsilhqot’in Nation v British Columbia, 2014 SCC 44, 374 DLR (4th) 1. The Chief Justice wrote thedecision of the Court.

At paragraph 89, she wrote, building on Rio Tinto: [89] Prior to establishment of title by court declaration or agreement, the Crown is required to consult in good faith with anyAboriginal groups asserting title to the land about proposed uses of the land and, if appropriate, accommodate the interests of suchclaimant groups. The level of consultation and accommodation required varies with the strength of the Aboriginal group’s claim to theland and the seriousness of the potentially adverse effect upon the interest claimed. If the Crown fails to discharge its duty to consult,

various remedies are available including injunctive relief, damages, or an order that consultation or accommodation be carried out: RioTinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43, [2010] 2 S.C.R. 650, at para. 37. [48] The question then becomes whether the Court may intervene where it appears that a duty to consult arises at a point in thelegislative process that is before a bill is introduced into Parliament.

Sopinka J., in Reference re Canada Assistance Plan at page 559,clearly drew a line saying that, except possibly in Charter cases, the Court should not impose a legal impediment upon government so asto require further procedural steps to be taken before a bill is introduced. He said, at pages 559 - 560: The formulation and introduction of a bill are part of the legislative process with which the courts will not meddle. So too is the purelyprocedural requirement in s. 54 of the Constitution Act, 1867. That is not to say that this requirement is unnecessary; it must be compliedwith to create fiscal legislation.

But it is not the place of the courts to interpose further procedural requirements in the legislativeprocess. I leave aside the issue of review under the Canadian Charter of Rights and Freedoms where a guaranteed right may beaffected. The respondent seeks to avoid this proposition by pointing to the dichotomy of the executive on the one hand and Parliament on theother. He concedes that there is no legal impediment preventing Parliament from legislating but contends that the government isconstrained by the doctrine of legitimate expectations from introducing the Bill to Parliament.

This submission ignores the essential role of the executive in the legislative process of which it is an integral part. The relationship wasaptly described by W. Bagehot, The English Constitution (1872), at p. 14: A cabinet is a combining committee -- a hyphen which joins, a buckle which fastens, the legislative part of the state to the executive partof the state. [Emphasis in original.] Parliamentary government would be paralyzed if the doctrine of legitimate expectations could be applied to prevent the government fromintroducing legislation in Parliament.

Such expectations might be created by statements during an election campaign. The business ofgovernment would be stalled while the application of the doctrine and its effect was argued out in the courts. Furthermore, it isfundamental to our system of government that a government is not bound by the undertakings of its predecessor. The doctrine oflegitimate expectations would place a fetter on this essential feature of democracy. I adopt the words of King C.J. of the Supreme Courtof South Australia, in banco, in West Lakes Ltd. v.

South Australia (1980), 25 S.A.S.R. 389, at p. 390, a case strikingly similar to this one: Ministers of State cannot, however, by means of contractual obligations entered into on behalf of the State fetter their own freedom, orthe freedom of their successors or the freedom of other members of parliament, to propose, consider and, if they think fit, vote for laws,even laws which are inconsistent with the contractual obligations. While the statement deals with contractual obligations, it would apply, a fortiori to restraint imposed by other conduct which raises alegitimate expectation.

A restraint on the Executive in the introduction of legislation is a fetter on the sovereignty of Parliament itself. This is particularly truewhen the restraint relates to the introduction of a money bill. By virtue of s. 54 of the Constitution Act, 1867, such a bill can only beintroduced on the recommendation of the Governor General who by convention acts on the advice of the Cabinet. If the Cabinet isrestrained, then so is Parliament. The legal effect of what the respondent is attempting to impugn is of no consequence to the obligationsbetween Canada and British Columbia.

The recommendation and introduction of Bill C-69 has no effect per se, rather it is its impact onthe legislative process that will affect those obligations.

It is therefore the legislative process that is, in fact, impugned. [49] Similar situations, with similar results, have arisen in Authorson Major J’s unanimous decision in Wells v Newfoundland, (SCC), [1999] 3 SCR 199; Penikett v Canada, (YK CA), [1987] BCJ No 2543, 45 DLR (4th) 108 (CA)and Stayer J’s decision in Native Women’s Assn of Canada v Canada, (FC), [1993] 1 FC 171, 57 FTR 115 (TD). [50] The Applicant made the following arguments in an attempt to avoid the application of these authorities to this case: (1) theSupreme Court of Canada in Tsilhqot’in Nation v British Columbia, 2014 SCC 44, 374 DLR (4th) 1 and Grassy Narrows First Nation vOntario (Natural Resources), 2014 SCC 48, 372 DLR (4th) 385 “establish, contrary to the Crown’s arguments that the duty to consultapplies to the imposition of legislation” (Paragraph 13 of the Applicant’s Reply), (2) the separation of powers cases at issue wereexecutive rather than legislative decisions, and (3) most of those decisions concerned common law rights and none of those decisionsconcerned the constitutional duty to consult. [51] On the Applicant’s first argument, I find that neither case stands for the proposition that the conduct at issue constitutesCrown conduct for the purpose of triggering the duty to consult.

Paragraph 77 of Tsilhqot’in Nation dealt explicitly with thegovernment’s burden to demonstrate that it discharged its procedural duty to consult and accommodate in the context of the Court’sapplication of the R v Sparrow, (SCC), [1990] 1 SCR 1075 justification test in the Aboriginal title context, and not astand-alone inquiry for the duty to consult.

Grassy Narrows affirmed that application of the justification test in the treaty context, andalso held that the Ontario government has a duty to consult whenever it intends to take up Treaty 3 lands for the purposes of a projectwithin its jurisdiction (Paragraph 52); the decision contains no language whatsoever on whether the Crown must consult during thedevelopment of legislation.

Therefore, the Supreme Court of Canada has yet to revisit the question that it left for another day in RioTinto, whether legislative decisions constitutes Crown conduct that can trigger a duty to consult. [52] Moreover, existing Supreme Court of Canada jurisprudence supports the proposition that Courts should refrain from findingthat the law-making process at issue in this case constitutes Crown conduct that could give rise to a duty to consult that would allow theCourt to intervene in said law-making process.

At paragraph 51 of Haida Nation the Chief Justice held: 51 It is open to governments to set up regulatory schemes to address the procedural requirements appropriate to different problemsat different stages, thereby strengthening the reconciliation process and reducing recourse to the courts. As noted in R. v. Adams, (SCC), [1996] 3 S.C.R. 101, at para. 54, the government "may not simply adopt an unstructured discretionary administrativeregime which risks infringing aboriginal rights in a substantial number of applications in the absence of some explicit guidance". It

should be observed that, since October 2002, British Columbia has had a Provincial Policy for Consultation with First Nations to direct the terms of provincial ministries' and agencies' operational guidelines.

Such a policy, while falling short of a regulatory scheme, may guard against unstructured discretion and provide a guide for decision-makers. [ 53 ] At paragraphs 55 to 58 of Rio Tinto , the Chief Justice substantiated on paragraph 51 of Haida Nation by specifically including the legislative branch of government within this principle of the Courts deferring to governments to set up a regulatory scheme for the purpose of discharging the duty to consult: 55 The duty on a tribunal to consider consultation and the scope of that inquiry depends on the mandate conferred by the legislation that creates the tribunal [emphasis added].

Tribunals are confined to the powers conferred on them by their constituent legislation: R. v. Conway, 2010 SCC 22 , [2010] 1 S.C.R. 765 . It follows that the role of particular tribunals in relation to consultation depends on the duties and powers the legislature has conferred on it. 56 The legislature may choose to delegate to a tribunal the Crown's duty to consult [emphasis added].

As noted in Haida Nation , it is open to governments to set up regulatory schemes to address the procedural requirements of consultation at different stages of the decision-making process with respect to a resource. 57 Alternatively, the legislature may choose to confine a tribunal's power to determinations of whether adequate consultation has taken place, as a condition of its statutory decision-making process [emphasis added]. In this case, the tribunal is not itself engaged in the consultation.

Rather, it is reviewing whether the Crown has discharged its duty to consult with a given First Nation about potential adverse impacts on their Aboriginal interest relevant to the decision at hand. 58 Tribunals considering resource issues touching on Aboriginal interests may have neither of these duties, one of these duties, or both depending on what responsibilities the legislature has conferred on them. Both the powers of the tribunal to consider questions of law and the remedial powers granted it by the legislature are relevant considerations in determining the contours of that tribunal's jurisdiction: Conway.

As such, they are also relevant to determining whether a particular tribunal has a duty to consult, a duty to consider consultation, or no duty at all. [ 54 ] Although the Supreme Court of Canada did not mention the principle of separation of powers in this reasoning, I interpret these passages as the Supreme Court of Canada’s attempt to balance the principle of separation of powers with the duty to consult.

Courts will not intervene to dictate a particular regulatory scheme for Parliament to impose upon the Crown because Parliament is best placed to make the policy choice for creating the procedure for which the Crown administers in discharging the duty to consult. [ 55 ] This has the effect of preventing the triggering of the duty to consult for the development of those legislative provisions that made procedural changes to the Acts . These provisions include: • Sections 4.1 and 4.2 of the Fisheries Act and sections 32 to 37 of the Canadian Environmental Assessment Act, 2012 .

These are provisions that could lead to the offloading of federal responsibilities to the provincial Crown. This reflects Parliament’s choice to create the possibility for the Crown to discharge its duty to consult at the provincial level. The Court must respect this choice. • The Mikisew raised sections 28(5) of the Navigation Protection Act as reducing opportunities for public participation and consultation with Aboriginal peoples.

However, by the Mikisew’s own admission, sections 5(6) and 7 leaves to the discretion of the Minister the ability to take measures to ensure that proponents of a project notified the public. • The Mikisew raised a similar concern regarding the Canadian Environmental Assessment Act, 2012 ’s restriction of public participation under section 43(1)(

c) only to an “interested party” defined under subsection 2(2) (b). It also raised sections 9(

c) and 27 and 38’s imposition of time-limits throughout the process as potentially limiting consultation opportunities. However, on this point, I agree with the Respondent that it is premature for the Court to speculate on a process that Parliament chose to change where the quality of the same will become apparent.

We have yet to see how these procedures will occur in tandem with the federal government’s existing Consultation Guideline referenced earlier. • The Mikisew also took issue with sections 58.301 and 111 of the National Energy Board Act , RSC 1985, c N-7’s removal of power lines and pipelines from the term “work” under the Navigation Protection Act for the purpose of the requirement for authorization. Yet the Court should not read those provisions in isolation. Reading sections

section 58.301 with 58.302,

section 111 with 111.1 demonstrates that these sections transfer the regulatory authority over pipelines and powerlines from the jurisdiction of the Navigation Protection Act and to the Governor in Council pursuant to his or her regulation making authority under sections 58.302(1) and 111.1(1) of the National Energy Board Act .

Indeed, while in the past the Minister of Transport had jurisdiction under the Navigation Protection Act to approve works, now the relevant Minister under the National Energy Board Act and the Minister of Transport can make a joint recommendation to the Governor in Council to make regulations on works passing in, on, over, under, through or across a navigable water under the National Energy Board Act .

It is not for this Court to intervene here to instruct Parliament on the statute under which the federal government regulates pipelines and powerlines that could affect navigable waters. • Similar reasoning applies to section 77(1.1) of the Species At Risk Act which exempts certificates of public convenience and necessity issued by the National Energy Board from a direction of the Governor in Council pursuant to section 54(1)(

a) of under the National Energy Board Act from section 77(1) of the Species At Risk Act . However, that Board only makes a recommendation to the relevant Minister under section 52(1) of the National Energy Board Act and subsection 52(2) (

e) requires the Board to have regard to “any public interest that in the Board’s opinion may be affected by the issuance of the certificate or the dismissal of the application”. Moreover, the Governor in Council can send the recommendation back to the Board for reconsideration.

As with the Navigation Protection Act , this reflects a policy choice by Parliament to reserve decisions relating to certificates of public convenience to the National Energy Board, the relevant Minister and the Governor in Council under the National Energy Board Act . [ 56 ] I deal with those provisions that allegedly reduce environmental protection in my discussion of the third element of the test for triggering the duty to consult below.

[57] On the Applicant’s second argument, the Applicant submitted that it does not seek to place any limits on Parliament’s abilityto formulate and introduce a bill into Parliament but rather on the Executive branch’s development of policies behind the bills during theearlier stages of the law-making process. Hence, putting a restraint on the Executive branch’s policy making role would not put arestraint on Parliament itself. [58] The Applicant attempts to reconcile this proposition with Reference re Canada Assistance Plan and Criminal Lawyers’Association of Ontario.

On the former, the Applicant argues that Sopinka J’s statement that “The formulation and introduction of a billare part of the legislative process with which the courts will not meddle” does not apply to this case since Sopinka J did not explicitlycategorize the policy development behind the formulation and introduce of a bill as part of that process (Page 559). Therefore, accordingto the argument of the Applicant, the duty to consult can attach to the policy development stage behind the Omnibus Budget Bills sincethe conduct only became legislative once the drafting of the Bills occurred. [59] To support this

interpretation of Reference re Canada Assistance Plan, the Applicant relies upon Mahoney J’s unanimousdecision in Native Women’s Association of Canada v Canada (FCA), [1992] FCJ No 715, 95 DLR (4th) 106 (CA)wherein the Court found the term formulation and introduction of a bill “does not refer to policy development, a political process, but toaction, after the policy has been decided, necessary to legislative implementation” (Para 41). The dispute in that case arose from theconstitutional discussions leading up to the Charlottetown Accord. The Applicant in that case argued that the Government of Canadaviolated its

section 2(

b) and 15 Charter rights as well as their rights under section 35(1) of the Constitution Act, 1982 by failing toprovide them with equal funding and opportunities to participate in the constitutional discussions as allegedly male-dominatedAboriginal groups. The Federal Court of Appeal declared that the Government of Canada restricted the freedom of expression ofAboriginal women in a manner that violated

section 2(

b) and 28 of the Charter. [60] In their written submissions, the Applicant notes the Supreme Court of Canada in Native Women’s Assn of Canada v Canada, (SCC), [1994] 3 SCR 627 reversed Mahoney J’s decision on other grounds. Indeed, Sopinka J for the majority did notmake an explicit finding on Mahoney J’s

interpretation of Reference re Canada Assistance Plan. [61] Yet, in overturning Mahoney J’s finding on

section 2(

b) of the Charter, Sopinka J for the majority provided the followingreasons: 54 Although care must be taken when referring to American authority with respect to the First Amendment, the American version offreedom of expr

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