2021 FC, 2021 FC 1367

Date: 20211213 Dockets: T-541-20 T-679-20 Citation: 2021 FC 1367 Ottawa, Ontario, December 13, 2021 PRESENT: The Honourable Mr. Justice Bell BETWEEN: ECOLOGY ACTION CENTRE, SIERRA CLUB FOUNDATION, WORLD WILDLIFE FUND CANADA Applicants and MINISTER OF ENVIRONMENT AND CLIMATE CHANGE REPRESENTED BY THE ATTORNEY GENERAL OF CANADA Respondent and LE CONSEIL DES INNU DE EKUANITSHIT Intervener JUDGMENT AND REASONS I.

Overview [ 1 ] The governments of Canada and Newfoundland and Labrador are cognizant of both the economic benefits and the potential long- term impact on our ecosystem of off shore oil and gas exploration in Canadian waters to the east of the Province of Newfoundland and Labrador. To this end, the government of Canada implemented a regulatory scheme in an effort to avoid duplication of the management of that exploration and to ensure that the highest standards of environmental protection continue to be applied and maintained.

The Sierra Club Canada Foundation, World Wildlife Fund Canada and Ecology Action Centre (the " “Applicants” " ) oppose the regulatory scheme and the means by which it was implemented by the government of Canada. [ 2 ] The Applicants seek judicial review pursuant to sections 18 and 18.1 of the Federal Courts Act , R.S.C. 1985, c. F-7 [ Federal Courts Act ], of the Regional Assessment of Offshore Oil and Gas Exploratory Drilling East of Newfoundland and Labrador (the " “Regional Assessment” " ) which was made available to the public and to the Applicants on March 4, 2020.

The Regional Assessment Committee (the " “Committee” " ) prepared the Regional Assessment, which constitutes part of the Committee’s report ( " “Final Report” " ) to the Minister of Environment and Climate Change Canada (the " “Minister” " ). The Applicants additionally seek judicial review of the Regulations Respecting Excluded Physical Activities (Newfoundland and Labrador Offshore Exploratory Wells) (the " “Regulation” " ) made by the Minister pursuant to paragraph 112(1)(a.2) of the Impact Assessment Act , S.C. 2019, c. 28, s. 1 [ IAA ]. The Regulation came into force on June 4, 2020.

Both judicial reviews have been consolidated. [ 3 ] At the outset of these reasons it is important to set out what the Final Report is not. It is not a report related to the production of oil and gas reserves. It is a report related to exploration. Exploration has been ongoing in the area under study for many years. Prior to the commencement of the Regional Assessment, the then Minister of Natural Resources for the Province of Newfoundland and Labrador described " “exploration” " , in part, as a " “low impact” " activity for which " “potential impacts and standard mitigations are well known” " .

The then Minister of Indigenous Services, Seamus O’Regan, in speaking about the Regional Assessment, opined that the government of Canada is " “working with the Province to improve the efficiency of the environmental assessment process for offshore projects, while continuing to maintain the highest standards of environmental protection” " .

Minister O’Regan’s comments were directed at the issue of duplication of the management of off shore oil and gas exploration in the east coast of the Province of Newfoundland and Labrador, an issue that the regulatory scheme put in place by the government of Canada was meant to eliminate. [ 4 ] A second important point to be made is that each of the three applicants were active participants, funded in part by Canadian taxpayers, in the Regional Assessment process.

I can do no better than quote from the Applicants’ Notice of Application, where they collectively say, in part: The Applicants were active participants in the Regional Assessment process leading to the Report. Each was named to the Technical Advisory Group (“TAG”) assembled pursuant to the Agreement. The TAG was composed of government departments and agencies, indigenous groups, environmental and industry organizations with interests, information and expertise related to the Regional Assessment.

Under the Agreement, the TAG was responsible for gathering information, conducting analysis, and providing advice to the Committee. All were recipients of participant funding within the Regional Assessment process and within other environmental review processes regarding offshore oil and gas development.” [Emphasis added] [ 5 ] Finally, I would note that in the course of its work, the Committee consulted broadly, including with indigenous communities.

The list of those communities is found at page 46 of the Applicant’s Application Record: The Innu Nation (Labrador Innu); Nunatsiavut Government (Labrador Inuit); NunatuKavut Community Council; Miawpukek First Nation; Qalipu First Nation; Kwilmu’kw Maw-klusuaqn Negotiation Office representing Acadia First

Nation, Annapolis Valley First Nation, Bear River First Nation, Eskasoni First Nation, Glooscap First Nation, Membertou First Nation, Paqtnkek Mi’kmaw Nation, Pictou Landing First Nation, Potlotek First Nation, Wagmatcook First Nation, and We’koqma’q First Nation; Mi’gmawe’l Tplu’taqnn Inc representing Fort Folly First Nation, Eel Ground First Nation, Pabineau First Nation, Esgenoôpetitj First Nation, Buctouche First Nation, Indian Island First Nation, Eel River Bar First Nation, and Metepnagiag Mi’kmaq First Nation; Wolastoqey Nation of New Brunswick representing Kingsclear First Nation, Madawaska Maliseet First Nation, Oromocto First Nation, Saint Mary’s First Nation, Tobique First Nation and Woodstock First Nation; Mi’kmaq Confederacy of PEI representing Abegweit First Nation and Lennox Island First Nation; Mi’gmawei Mawiomi Secretariat representing Micmacs of Gesgapegiag, La Nation Micmac de Gespeg, and Listuguj Mi’gmaq Government; Conseil des Innu de Ekuanitshit; Première Nation des Innus de Nutashkuan; Unama’ki Institute of Natural Resources; Mi’kmaq Conservation Group; and Atlantic Policy Congress. [ 6 ] For the reasons set out below, I dismiss the Applications for judicial review.

II. Facts and Decisions under Review A. Legislative Context surrounding the IAA [ 7 ] The IAA came into force on August 28, 2019, its predecessor legislation being the Canadian Environmental Assessment Act, 2012 , S.C. 2012, c. 19, s. 52 [ CEAA, 2012 ]. Impact assessments are conducted by the Impact Assessment Agency of Canada (the " “Agency” " ), a federal body accountable to the Minister. The Agency, among other things, conducts or administers the impact assessment process for " “designated projects” " subject to the IAA .

Designated projects are set out in the Physical Activities Regulations , SOR/2019-285 [ PAR ] or by ministerial order. Offshore exploratory drilling projects are one type of designated project subject to the requirements of the IAA . [ 8 ] Regional assessments, while not defined in the IAA , permit the Government of Canada to study and examine issues beyond project- focused impact assessments for a specific designated project. They are intended to assist governmental decision-making by providing a more comprehensive analysis than a site-specific assessment.

They are multi-faceted, covering vast areas and aimed broadly at understanding the effects of existing or future physical activities assessable under the IAA . Importantly, paragraph 112(1)(a.2) of the IAA empowers the Minister to make a regulation, after considering a regional assessment, that would exclude activities from the impact assessment process set out in the IAA .

The exclusion occurs if the activity is proposed in an area for which a regional assessment has been carried out and the project meets the conditions set out in the relevant regulation. [ 9 ] Sections 92 - 103 of the IAA set out various requirements related to the conduct of a regional assessment.

Those requirements include, but are not limited to: - The Agency has an obligation to offer to consult and cooperate with any jurisdiction that has powers, duties or functions in relation to the physical activities in respect of which the assessment is conducted (s. 94); - The Minister must respond to any request that an assessment be conducted (s. 97(1)); - The Agency – or the committee if one has been established under ss 92 or 95 - must take into account any scientific information and Indigenous knowledge provided when conducting an assessment (s. 97(2)); - The Agency or the committee must ensure that information it uses when conducting an assessment is made available to the public, and must ensure that the public is afforded an opportunity to participate meaningfully in an assessment (ss. 98-99). [ 10 ] Pursuant to subsections 93(2) , 93(3) and

section 96 of the IAA , the Minister has broad discretion to establish the terms of reference for a regional assessment, including the establishment of the assessment’s purpose and objectives. On completion of the regional assessment, the relevant assessment committee must provide a report to the Minister pursuant to subsection 102(1) of the IAA . The Regional Assessment currently under attack is the first such assessment conducted under the IAA . B.

Regional Assessment of Offshore Oil and Gas Exploratory Drilling East of Newfoundland and Labrador [ 11 ] The Regional Assessment applies to offshore exploratory drilling and associated activities in a defined " “study area” " off Eastern Newfoundland and Labrador. The Regional Assessment was undertaken as a collaborative effort among the Agency, the Canada- Newfoundland and Labrador Offshore Petroleum Board ( " “C-NLOPB” " ), Natural Resources Canada, and the Newfoundland and Labrador Department of Natural Resources pursuant to an agreement signed in March 2019 (the " “Agreement” " ).

The Agreement is attached hereto as

Schedule A to these reasons. The Regional Assessment was commenced under the CEAA, 2012 and completed under the IAA . [ 12 ] The Agreement established a five-member Committee as well as a Task Team and a Technical Advisory Group ( " “TAG” " ) who supported the Committee. The TAG included participants from relevant government departments and agencies, Indigenous groups, industry and stakeholder organizations and others.

Appendix A of the Agreement sets out the factors to be considered by the Committee, and Appendix D sets out the Committee’s Terms of Reference. [ 13 ] Once the Agreement and Committee were in place, the Regional Assessment process began. The following is a brief timeline of the

events and opportunities provided to the public to participate in the Regional Assessment: A . May 2019 – the Committee conducted a series of initial planning and issues-scoping meetings with stakeholders and Indigenous groups, including the Applicants and the Intervener; B . August 8, 2019 – the Committee wrote to the Minister advising that it may be necessary to have additional time to complete the Regional Assessment, beyond the Fall 2019 deadline; C .

September 24, 2019 – the Agency President responded to the Committee on behalf of the Minister, advising that the timeline was " “aggressive and challenging” " but there was a desire to complete the Regional Assessment in a timely manner. No extension was granted at that time; D . September 2019 – the Committee held a number of TAG sessions on various themes. The Applicants’ representatives attended these sessions and provided submissions. One of the TAG sessions focussed on the development of the Geographical Information System ( " “GIS” " ) tool; E .

October 2019 – the Committee invited TAG participants, including the Applicants, to provide input into various literature reviews related to the potential environmental effects of offshore exploratory drilling; F . November 13, 2019 – The Intervener participated in a TAG process entitled " “ " " Connaissances autochtones et double perspective ” " ; G . December 4-6, 2019 – the Committee conducted workshops with stakeholders and Indigenous groups to discuss and seek input on its draft recommendations prior to the release of the draft Report and formal public review period.

The public, including the Applicants, were first sent a draft of the Committee’ recommendations on the eve of the workshops; H . December 17, 2019 – the Applicants’ wrote to the Minister communicating their concerns regarding the process, including the insufficient time afforded to the Committee to complete the Regional Assessment. The Minister did not reply to the Applicants’ concerns; I . January 10, 2020 – the Minister approved an amendment to the Agreement, allowing for the delivery of the Committee’s final report no later than the end of February 2020; J .

January 23, 2020 – the draft Report was released to the public, including the Applicants. They were provided with a 30-day period to review and comment on the report’s draft recommendations; K . February 23-29, 2020 – the Committee had five business days to review the submissions and finalize the Report; L . March 4, 2020 – the Committee’s Final Report was made public; M . May 31, 2020 – the GIS tool was finalized. The GIS tool consisted of the description and evaluation of the technical and factual information upon which the Final Report and recommendation were said to be based.

The Committee referred to the GIS tool as " “an integral component of the Regional Assessment” " . [ 14 ] The Applicants repeatedly expressed their concerns, principal among them being that the time allotted for the Regional Assessment was much too short to allow for a fulsome assessment. [ 15 ] The Final Report, while much too lengthy to include in these reasons, contained a number of recommendations. Those recommendations are attached hereto as

Schedule B . C. Regulations Respecting Excluded Physical Activities (Newfoundland and Labrador Offshore Exploratory Wells) (the " “Regulation” " ) [ 16 ] On March 4, 2020, the same day the Final Report was made public, the Minister sought comments on a Discussion Paper on a Ministerial Regulatory Proposal to Designate Offshore Exploratory Drilling East of Newfoundland and Labrador for Exclusion under the Impact Assessment Act (the " “ Discussion Paper ” " ).

The Discussion Paper proposed creating a regulation exempting exploratory oil and gas drilling projects from assessment requirements under the IAA . [ 17 ] On April 7, 2020, Ms. Gretchen Fitzgerald of the Sierra Club Canada Foundation wrote to the Minister’s office requesting a meeting between the Minister and the Applicants to discuss concerns regarding the proposed regulation. Ms.

Fitzgerald received no response to her request and no meeting took place. [ 18 ] Due to interruptions caused by Covid-19, the Minister extended the deadline for providing comments regarding the Discussion Paper to April 30, 2020. [ 19 ] Recall, the Regulation was declared in force on June 4, 2020. It provides, among others, that new offshore exploratory drilling projects that meet the conditions imposed by the Regulation , are excluded from the PAR and are not considered " “designated projects” " under the IAA . [ 20 ] I would note that the Regulation is not listed in the Canada Gazette.

Section 112(4) of the IAA provides that a regulation made under paragraph 112(1)( a.2 ), such as the Regulation , is exempt from the Statutory Instruments Act, R.S.C., 1985, c. S-22 ( " “ SIA ” " ). The SIA is the legislative instrument which provides, amongst other requirements, that regulations must be published in the Canada Gazette (s. 11). For that reason, and for ease of reference, the Regulation is attached hereto as

Schedule C .

III. Relevant Provisions [ 21 ] The relevant provisions of the IAA are ss. 92 , 93 , 96 , 97 , 98 , 99 , 102(1) , 112(1)( a.2 ) and 112(4). They are set out in

Schedule D attached to these reasons. IV. Issues [ 22 ] The Court is called upon to consider the following issues in these consolidated applications for judicial review: A . Is the Final Report, and hence the Regional Assessment, a justiciable decision? B . If the Final Report is justiciable, was the Regional Assessment:

i) Reasonable; and ii) Procedurally fair? C . Does the Regulation meet the test of reasonableness as it has been defined in Portnov v. The Attorney General of Canada 2021 FCA 171 [ Portnov ]. That is to say, does it constitute, in the circumstances, reasonable subordinate legislation as contemplated by the IAA ? [ 23 ] Because I conclude the Final Report is not a justiciable decision, I need not address the second issue, other than as it relates to the reasonableness of the Regulation . V.

Is the Final Report a justiciable decision? [ 24 ] The Applicants contend that the Final Report, including the Regional Assessment, is justiciable in its own right because of its legal and practical effects. They argue that the Final Report is distinguishable from the review panel reports under the CEAA, 2012 , which, admittedly, were not justiciable.

They say that the effects of the Final Report reach far beyond the regional assessment process and its influence will extend decades into the future. [ 25 ] The Applicants submit that judicial review extends to " “decisions or orders that determine a party’s right, even if the decision at issue is not the ultimate decision” " ( Larny Holdings Ltd. v.

Canada (Minister of Health) , 2002 FCT 750 , [2003] 1 FC 541 at para 18 ). [ 26 ] Moreover, the Applicants submit that regardless of what this Court decides on the justiciability of the Final Report, it must determine whether the Committee discharged its mandate and delivered a Regional Assessment capable of allowing the Minister to satisfy the statutory preconditions for making the Regulation . The question therefore becomes whether the Final Report is materially deficient.

If the Final Report is determined to be materially deficient, the decision, or Regulation in the within matter, may be set aside on that basis ( Tsleil-Waututh Nation v. Canada (Attorney General) , 2018 FCA 153 , [2019] 2 FCR 3 at para 201 [ Trans Mountain ]. [ 27 ] The Respondent contends that the Final Report is not justiciable since it is not a " “decision” " subject to judicial review pursuant to the Federal Courts Act . It merely provides information and advice to the Minister. The Respondent cites recent jurisprudence from the Federal Court of Appeal in support of its contention. In Gitxaala Nation v.

Canada , 2016 FCA 187 , [2016] 4 FCR 418 [ Gitxaala ], the Court considered a report of a joint review panel under the CEAA, 2012 and the National Energy Board Act , R.S.C., 1985, c. N-7 . The panel conducted an environmental assessment under the CEAA, 2012. It prepared a report providing recommendations to the Governor in Council. The Court concluded that the only meaningful decision-maker is the Governor in Council. The Report was not subject to judicial review. ( Gitxaala at para 125 ).

In Trans Mountain , supra , the Federal Court of Appeal was invited to overturn Gitxaala as " “manifestly wrong” " on this issue. It declined to do so. Following a thorough analysis, the Court held, as it did in Gitxaala , that the report was not justiciable. [ 28 ] Taseko Mines Ltd. v. Canada (Environment) , 2019 FCA 319 [ Taseko Mines ], concerned an application for judicial review of the final report of a federal review panel under the CEAA, 2012 . The three-member panel had been appointed under the former Canadian Environmental Assessment Act , S.C. 1992, c. 37 , and continued under the CEAA, 2012 .

Taseko Mines involved an appeal from a decision of the Federal Court in which the trial judge had dismissed Taseko Mines’ application for judicial review. The trial judge concluded the panel had not breached any procedural fairness principles and it made reasonable findings of fact ( Taseko Mines at para 33 ). On appeal, both the appellant and the governmental respondents distinguished Gitxaala and Trans Mountain on the basis that the legislative scheme in place in each of those cases provided an effective internal remedy (at para 42). The Federal Court of Appeal rejected that assertion.

It held that that distinction did not change the fact that the final report, in itself, affects no legal rights and carries no legal consequences. It held that the final report only serves to assist the Minister (or the GIC) in making their decision (at para 43). [ 29 ] In each of the decisions rendered by the Federal Court of Appeal in Gitxaala , Trans Mountain and Taseko Mines, a party sought judicial review of a report prepared by a committee or panel under the CEEA, 2012 or jointly under another statute.

Those committees or panels produced a number of recommendations to assist the Governor in Council when making decisions. In all three appeals, the Federal Court of Appeal arrived at the same conclusion, that the reports affect no legal rights and carry no legal consequences. If follows they were not amenable to judicial review. At paragraph 43 of Taseko Mines , the Court states: [43] Having duly considered that argument, I feel bound to reject it essentially for the reasons articulated in Trans Mountain .

The distinction between the two schemes highlighted by the parties does not change the fact that the Final Report, in itself, affects no legal rights and carries no legal consequences ( Trans Mountain , at paras. 179-180 ; Gitxaala , at paras. 121-123, 125 ). Whether or not the Panel can be requested to review its conclusions and recommendations, the Final

Report only serves to assist the Minister (or the GIC) in making their decisions . In light of the above-noted precedents and of this Court’s holding in Jada Fishing Co. Ltd. v. Canada , 2002 FCA 103 , 41 Admin L.R. (3d) 281, at paragraph 12 , I find that the Final Report is not amenable to judicial review. [Emphasis Added] [ 30 ]

Section 92 of the IAA , states that the Minister may establish a committee to conduct a regional assessment of the effects of existing or future physical activities carried out in a region that is entirely on federal lands. Subsection 102(1) of the IAA provides that, on completion of a regional assessment, a report be prepared by the Committee and delivered to the Minister. The Final Report is not a " ‘decision’ " . It is an advisory report to the Minister that informs potential future decisions.

It is not justiciable. [ 31 ] The Respondent agrees that the Final Report’s contents are relevant in considering the validity of the Regulation . I agree with the parties on this issue. See, Trans Mountain at para 201 : [201] […] As this Court noted in Gitxaala at paragraph 125 , the Governor in Council is required to consider any deficiency in the report submitted to it. The decision of the Governor in Council is then subject to review by this Court under

section 55 of the National Energy Board Act . The Court must be satisfied that the decision of the Governor in Council is lawful, reasonable and constitutionally valid. If the decision of the Governor in Council is based upon a materially flawed report the decision may be set aside on that basis. Put another way, under the legislation the Governor in Council can act only if it has a “report” before it; a materially deficient report, such as one that falls short of legislative standards, is not such a report.

In this context the Board’s report may be reviewed to ensure that it was a “report” that the Governor in Council could rely upon. The report is not immune from review by this Court and the Supreme Court. [Emphasis Added] [ 32 ] Given my conclusion that the report is not justiciable, I need not consider its reasonableness independently of the question on the validity of the Regulation . I now turn to the challenge to the Regulation . VI.

What is the standard of review for determining the validity of the Regulation [ 33 ] The Applicants contend that the validity of the Regulation must be reviewed on the standard of reasonableness. Gone, they say, is the vires test and anything akin to the correctness standard of review. They contend that this Court must ask " “whether the decision bears the hallmarks of reasonableness – justification, transparency and intelligibility – and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision” " ( Canada (Minister of Citizenship and Immigration v.

Vavilov , 2019 SCC 65 , 441 DLR (4th) 1 [ Vavilov ] at para 99 ). [ 34 ] The Applicants also rely upon the recently released decision in Portnov . In Portnov the Court was called upon to consider the validity or vires of a regulation made pursuant to the Freezing Assets of Corrupt Foreign Officials Act, S.C. 2011, c.10 ( Freezing of Assets Act ). Under s. 4 of the Freezing of Assets Act the Governor in Council may, upon a request from a foreign state, issue an order or regulation restricting or prohibiting any dealings with certain property held by designated individuals.

In 2014, following a request by Ukraine, the Governor in Council enacted a regulation titled Freezing Assets of Corrupt Foreign Officials (Ukraine) Regulations , S.O.R./2014-44 (the 2014 Regulations ). [ 35 ] The 2014 Regulations designated eighteen individuals. It restricted and prohibited their dealings with certain property for up to five years. Mr. Portnov was one of the eighteen. Under s. 6 of the Freezing of Assets Act , the Governor in Council may make a regulation extending the previous regulation. The Governor in Council did just that in 2019 in relation to 16 of the 18 individuals previously identified.

Mr. Portnov was one of those 16. Mr. Portnov applied to the Federal Court for an order quashing the Extending Order and the Regulations Amending the Freezing Assets of Corrupt Foreign Officials (Ukraine) Regulations , SOR/2019-68. In a decision reported at 2019 FC 1648 , a judge of the Federal Court dismissed Mr. Portnov’s application. On appeal, Mr. Portnov contested the Federal Court’s choice of reasonableness as set out in Vavilov as the standard of review applicable to a judicial review of a Governor in Council regulation. He contended that a special rule existed for attacking a regulation.

That rule is, according to him, found in Katz Group Canada Inc. v. Ontario (Health and Long-Term Care) , 2013 SCC 64 , 2013 3 S.C.R. 810 ( Katz Rule). I can do no better than describe the Katz Rule in the language employed by Justice Stratas in Portnov : [19] There are three parts to the Katz rule: (1) when a party challenges the validity of regulations, the party bears the burden of proof; (2) to the extent possible, regulations must be interpreted so that they accord with the statutory provision that authorizes them; and (3) the party must overcome a presumption that the regulations are valid.

On the third part, Katz suggests (at paras. 24 and 28) that the presumption is overcome only where the regulations are “irrelevant”, “extraneous” or “completely unrelated” to the objectives of the governing statute. A leading commentator on Canadian administrative law calls this “hyperdeferential”: Paul Daly, “Regulations and Reasonableness Review” in Administrative Law Matters , (29 January 2021), <www.administrativelawmatters.com/blog/2021/01/29/regulations-and-reasonableness-review/>.

I agree. [ 36 ] In the course of abandoning the Katz Rule, the Federal Court of Appeal made four principal observations: 1. that Vavilov now instructs that " true questions of jurisdiction will necessarily have less precedential force " ( Portnov at para 26 ); 2. that Vavilov acknowledges there are cases where the legislature has delegated broad authority to administrative decision-makers that allow them to make regulations in pursuit of the objects of the enabling statute but does not " “carve out a special rule for regulations” " ( Portnov at para 26 ); 3. that Vavilov instructs us to conduct reasonableness review of all administrative decision-making unless one of three exceptions leading to correctness review applies ( Portnov at para 27 ); and, 4.

" “the Katz rule applies across the board to all regulations regardless of their content or context. This sits uneasily with Vavilov which adopts a contextual approach to reasonableness review” " ( Portnov at para 27 ).

[37] I am of the view there is a huge distinction between orders or regulations enacted by, for example, one of hundreds of administrativetribunals such as the various agricultural marketing boards in the provinces and subordinate legislation enacted by the Governor inCouncil. I also ask rhetorically, why, if the Supreme Court of Canada wished to abandon the Katz Rule, it did not clearly do so, as it hasdone in other situations? For example, in Rio Hotel Ltd. v.

New Brunswick (Liquor Licensing Board), (SCC), [1987] 2SCR 59, 44 DLR (4th) 663 [Rio Hotel], the Supreme Court specifically concluded that, to the extent decisions of the Ontario Court ofAppeal in Re Koumoudouros et al. and Municipality of Metropolitan Toronto, (ON CA), 52 OR (2d) 442, 24 DLR(4th) 638; Re Nordee Investments Ltd. and City of Burlington, (ON CA), 48 OR (2d) 123, 13 DLR (4th) 37; and ReSherwood Park Restaurant Inc. et al. and Town of Markham, (ON CA), 48 OR (2d) 449, 14 DLR (4th) 287, wereincompatible with their reasons in Rio Hotel, those cases were wrongly decided (at para 38).

The Supreme Court took a similar approachin Vavilov at paragraph 37 when it concluded that the standard of review for appeals from statutory decision makers would be theappellate standard and not reasonableness. Finally, when the Federal Court of Appeal notes that Vavilov did not carve out any special rulefor regulations, it could be that the Supreme Court justices were acknowledging there already existed a special rule, that being the KatzRule. Regardless, I am duty bound to follow the opinion of the Federal Court of Appeal.

Stare decisis demands nothing less. [38] The Regulation will be reviewed based upon the standard of reasonableness as set out in the Vavilov/Portnov framework. VII. Have the Applicants met the onus upon them ofestablishing that the Regulation is unreasonable? A. Was the Regulation based upon a valid Final Report? [39] The Applicants contend the Committee, in preparing the Final Report, was constrained by the requirements of the IAA and its Termsof Reference. Moreover, the Applicants contend that a factor is only "“properly considered”", if the review panel or committee hasapplied a "“high standard of care”".

While the Court is not expected to "“reweigh the methodology and conclusions of an expert panel”",the Applicants contend that the Court plays a critical role in ensuring that each factor the panel is required to consider is indeedconsidered (Ontario Power Generation Inc. v. Greenpeace Canada, 2015 FCA 186, 388 DLR (4th) 685 [Ontario Power Generation] atparas. 129-130). [40] The Applicants raise numerous issues challenging the reasonableness of the Final Report and hence the reasonableness of theRegulation. In essence, they claim the Final Report is not a report as required by the IAA.

There is therefore nothing upon which to basethe Regulation.

Included among their many complaints about the Final Report are the following: i. the Final Report does not identify and consider changes to the environment, effects of malfunctions or accidents and cumulativeeffects, contrary to the Committee’s Terms of Reference; ii. the Committee chose to report on "“enhanced mitigation and follow-up measures”;" iii. the cumulative effects set out in the Final Report are superficial, as it reviewed only the potential sources of effects rather than theeffects themselves; iv. the Committee did not consider the evidence of "“risk”", since the only means by which they could arrive at their conclusions wasby ignoring the Applicants’ contentions; v. the Committee suppressed submissions and recommendations from the Canadian Science Advisory Secretariat (“CSAS”) reportthat did not align with the Minister’s predetermined objective.

The Applicants say that the Supreme Court in Vavilov was clear thatfailure to account for evidence, much less, the suppression of evidence, is fatal (Vavilov at para. 126); vi. the Committee ignored the relevant policy guidance on cumulative effects; specifically a policy guidance document entitledAssessing Cumulative Environmental Effects under the [CEEA, 2012]; vii. the Committee improperly applied its mandate on cumulative effects by adopting a planning or remediation approach rather thanidentifying the cumulative effects fromoffshore exploratory drilling in combination with other physical activities that have been orwill be carried out; viii. the Committee reverse-engineered a desired outcome by adopting an unreasonable

interpretation of its mandate by excludingassessment of risk and cumulative effects; ix. the Committee failed to follow the process sequence set out in the Agreement and "“secretly changed its recommendations at thebehest of officials who feared the recommendations would interfere with the pre-determined Regulation”;" x. s. 4.22 of the Agreement sets out the four phases of the process as: Engagement, Analysis, Report writing and Providing forcomments. Moreover, the Terms of Reference require the Final Report to be the last step.

The Applicants’ contend that Committeebegan the process by drafting recommendations in violation of the process set out in the Agreement and the Terms of Reference; xi. the Committee changed at least one of its recommendations at the direction of Natural Resources Canada to support prior"“political commitments to the provinces”. "Recommendation 20 of the Potential Recommendations of the Regional AssessmentCommittee suggested that certain portions of the Study Area be excluded from future exploratory drilling activities. Faced withNRC’s serious concerns, the Committee changed this recommendation.

The Committee’s Draft and Final Report do notrecommend that certain portions of the Study Area be excluded from future exploratory drilling activities. xii. In

summary, all of the above demonstrate a failure on the part of the Committee to give impartial consideration to any views that

contradicted a pre-determined result. The Committee did not exercise its discretion independently. [41] The Respondent contends that the Applicants are simply inviting this Court to re-weigh the Final Report and the information andexpertise that went into the Regional Assessment. The Respondent contends the Applicants invite this Court to become the arbiter ofscience and policy. The Respondent says that this Court is not a referee on such policy matters.

The Federal Court of Appeal hasexpressed the view that the court "“must ensure that steps in the Act are followed, but it must defer to the responsible authorities in theirsubstantive determinations”" (Bow Valley Naturalists Society v. Canada (Minister of Canadian Heritage), (FCA),[2001] 2 FC 461, 27 Admin LR (3d) 229 at para 78). The Respondent submits that the function of the reviewing court is to ensure thatthe Regulation accords with the governing legislation and that it is a reasonable decision in light of the evidence and informationavailable.

As for the adequacy of the decision-maker’s consideration of scientific evidence, the Federal Court of Appeal has stated theCourt’s role is to assess, in a formal rather than substantive sense, whether there has been some consideration of the factors which thestatute requires the study to address (Ontario Power Generation, at para. 126). [42] The Respondent submits that the Regional Assessment was conducted pursuant to the IAA, the Agreement and the Terms ofReference.

The Agreement defines the Regional Assessment as a "“study or assessment of the effects of existing or future physicalactivities carried out in a region”" and lays out various requirements related to its conduct, including its objectives, geographicboundaries and factors for the Committee to consider.

The Respondent submits that the Committee fully addressed those requirements inthe conduct of the Regional Assessment, as evidenced in the Final Report. [43] Moreover, given the complexities inherent in the study, as described in the Final Report, the "“decision”" must be affordedsignificant deference. [44] The Respondent contests the assertion that the Committee’s findings and recommendations were pre-determined or "“reverse-engineered”" or that the Committee was pressured into changing its draft recommendations by external parties.

The Respondent notesthat the Committee’s draft recommendations were first presented in early December 2019, when the Committee held a series of publicworkshops. The Respondent notes that this occurred nearly nine months after the Committee was first appointed.

The Respondentsubmits that it is inconceivable that the Committee developed its recommendations as an initial step of the Regional Assessment. [45] Moreover, given that the draft recommendations were publicly available in early December 2019, the Respondent submits that itwas appropriate for Agency staff to consider those draft recommendations in developing draft regulations.

The Respondent says that theAgreement is perfectly clear that the enactment of regulations governing exploratory drilling, and the mitigation of its impact on theenvironment, was always a possibility. [46] The Respondent submits that the Committee fully complied with its mandate and made 41 recommendations respecting futureprojects, mitigation and follow-up measures. The Respondent submits that the Applicants’ concerns regarding the precautionaryprinciple, cumulative effects, risks and scientific expertise are appropriately and reasonably canvassed in the Final Report.

TheCommittee considered the precautionary principle. It dedicated an entire

section on the topic. As for cumulative effects, the Respondentacknowledges the concerns raised by the Applicants but notes that the Committee gave them considerable attention in its analysis. TheRespondent says the Applicants misplace their argument regarding policy guides related to cumulative effects since those policies relateprincipally to project-specific environmental assessments, as opposed to regional assessments.

Those policy guides are therefore largelyirrelevant to the analysis being undertaken by the Court. [47] Furthermore, a reviewing court is entitled to presume that an administrative decision-maker considered the entire record before it.The burden rests on the challenging party to rebut that presumption (Sagkeeng First Nation v. Attorney General of Canada and Ministerof Environment and Climate Change, 2021 FC 344 at para. 65). [48]

Section 5.4 of the Agreement states that the Final Report will contain information as outlined in the Factors to be considered in theRegional Assessment (Appendix A of the Agreement) and the Committee’s Terms of Reference (Appendix D of the Agreement).Concerning the adequacy of the decision-maker’s consideration of scientific evidence, the Federal Court of Appeal, in Ontario PowerGeneration, supra, at para. 126, stated that its role is to assess, in a formal rather than substantive sense, whether there has been someconsideration of the factors which the statute requires the study to address.

The Factors to be considered in the Regional Assessmentstate that the Committee "“will include a consideration”" of the listed factors. Given the wording, I am of the opinion that the Applicantscan only establish a failure to consider factors if the Committee failed to give them any consideration (Ontario Power Generation, atpara. 130). [49] Appendix 1.A of the Final Report is a Table of Concordance: Factors to be Considered and Other Requirements of the Agreement.The table outlines each factor and corresponding

section in the Regional Assessment. Having reviewed the Final Report, I am of theopinion that the Committee gave some consideration to each of the factors listed in the Agreement. [50] I agree with the Applicants that the Committee failed to strictly follow the process sequencing set out in the Agreement. The GISTool, which the Committee heavily relied upon, was submitted a few months after the Final Report. It is unclear to me why the GIS Toolwas only finalized on May 31, 2020, when the Final Report was finalized on March 4, 2020.

However, that being said, there is nothingto indicate the delay in finalizing the GIS Report negatively impacted the Final Report.

It appears the Committee incorporated the dataused to prepare the GIS Report contemporaneously into the Final Report. [51] Generally, with respect to sequencing, when I consider the number of departments, agencies, indigenous communities,environmental groups, industry spokespersons and others who played a role in this process, or were consulted by the Committee, it isevident the process could not unfold in a linear fashion and still respect deadlines. [52] The Applicants also challenge the Final Report on the basis that they were denied participatory rights and that information was notmade publicly available in a timely fashion as required by the Agreement.

These allegations challenge the procedural fairness of theCommittee’s work. [53] The Applicants say that the duty of fairness is presumed to apply in any administrative context that is not of a legislative nature and

which affects the rights, privileges or interests of an individual (Canada (Attorney General) v. Mavi, 2011 SCC 30, [2011] 2 SCR 504 atpara 38). The degree of fairness is determined on the factors set out in Baker v. Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 S.C.R. 817, 174 DLR (4th) 193. Even on the low end of the spectrum, the ultimate question is whether theparty "“knew the case they had to meet, had an opportunity to respond and had an impartial decision maker consider their case fully andfairly”" (Canada Pacific Railway Company v.

Canada (Attorney General), 2018 FCA 69, [2019] 1 FCR 121 at para. 41). [54] The Applicants further submit that the right of disclosure by the administrative decision maker is a requirement of proceduralfairness (Quebec (Attorney General) v. Canada (National Energy Board), (SCC), [1994] 1 S.C.R. 159, 112 DLR (4th)129 at pages 181-182). They submit that the right to be informed of undisclosed adverse material facts being considered by a decision-maker and to make submissions about them is the minimum level of fairness owed to anyone whose rights, privileges or interests arebeing impacted (Gladman v.

Canada (Attorney General), 2017 FCA 109 at para. 40). This common law principle of audi alteram partemis codified in s. 98 of the IAA, and is reflected in the Committee’s Terms of Reference. [55] The Applicants contend that the Committee breached its disclosure obligations by supressing certain key documents. For example,the CSAS" "report was never disclosed.

They say that failure undermined their ability to meaningfully participate in the RegionalAssessment. [56] The Applicants contend that the failure to post the direction from David McGovern, President of the Impact Assessment Agency,dated September 24, 2019 revising the Agreement to develop the GIS Tool and the amendment to the Agreement, dated January 10,2020, are contrary to s. 114 of the IAA, which requires that all agreements be made available to the public. Furthermore, s. 97(2) of theIAA requires that the Committee take into account all scientific information provided in respect of the assessment.

The Applicantssubmit that the Committee failed to do so, breaching their right to procedural fairness. [57] The Respondent contends that s. 99 of the IAA specifies that the Committee must provide an opportunity for the public to participatemeaningfully, in a manner that the Committee considers appropriate.

The Respondent further submits that the Applicants are not"“parties to a decision”" and they are not parties to the Agreement between the governments that established the Committee’s mandate.The Respondent submits that there is no credible basis for the Applicants’ argument that they were denied meaningful participation asthey had numerous meetings with the Committee. The Committee took their submissions into consideration and paid them to make thosesubmissions.

The Applicants acknowledged in their Notice of Application that they "“participated significantly”" in the RegionalAssessment. [58] With respect to the allegation that the Committee suppressed evidence, the Respondent says that the Record demonstrates that theCommittee was independent and objective and did not alter its view to satisfy anyone. Concerning the consult with NRC, the Respondentnotes that the department was a party to the Agreement and a member of the task team. There was nothing untoward about the parties tothe Agreement expressing their views and interfacing directly with the Committee.

Concerning the CSAS report, the Respondent submitsthat there was no obligation to make the report public because the Committee did not consider it. The Respondent submits that theversion received by the Committee was an incomplete draft and the CSAS report was not finalized until after the Committee completedthe Final Report. The Department of Fisheries and Oceans advice considered by the Committee was made public on the Registry. As forthe Committee’s posting omission, the Respondent contends this constituted an administrative error.

However, given the thousands ofpostings, the error was clearly innocent and had no impact upon the Final Report. The Respondent contends that the standard for acommittee conducting a regional assessment cannot be perfection (Vavilov at para. 91). The Respondent says that the Final Report, theGIS Tool and the public registries housing comments on the Regional Assessment and Final Report collectively demonstrate thecomprehensive, transparent and immense nature of the Committee’s work. [59] I agree with all of the Respondent’s submissions. The Applicants had ample opportunity to participate.

There was nothing untowardin the Committee consulting NRC, a party to the Agreement. To the extent material was not posted on the public registry, it was anoversight and nothing turned on that oversight. The jurisprudence of the Supreme Court is clear that a prejudicial effect on a party isessential to establish a breach of procedural fairness (Taseko Mines at para 62; Toshiba Corp v. Anti-Dumping Tribunal (1984), 8 Admin.C.R. 173 (FCA); Schaaf v. Minister of Employment and Immigration, (FCA), [1984] 2 FC 334, 52 NR 54, at page442; Uniboard Surfaces Inc. v.

Kronotex Fussboden GmbH & Co., 2006 FCA 398, [2007] 4 FCR 101 at paras 21-22). I am unable toconclude that the failure to make public the CSAS report resulted in a prejudice – or even entailed a possibility of prejudice – for theApplicants. The report was at the draft stage and, in any event, was not considered by the Committee in making the Final report.

In anyevent, a determination of whether procedural fairness was met in any given case is context specific (Taseko Mines at para 30).Considering the minimal degree of procedural fairness that was owed to the Applicants and the large scope of the project, I am not ableto conclude that the failure to post the CSAS report – or other material – on the public registry justifies the intervention of this Court.Although nothing turns on this, I would also state that I do not consider the Applicants to have been parties to anything. [60] Overall, I am of the view the Applicants are asking this Court to conduct a line by line analysis of the Final Report in a hunt for atreasure trove of error, something against which the Supreme Court has cautioned: see Vavilov at para 102; Communications, Energy andPaperworkers Union of Canada, Local 30 v.

Irving Pulp & Paper, Ltd., 2013 SCC 34, [2013] 2 SCR 458 at para 54; Newfoundland andLabrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 SCR 708 at para 14. [61] I conclude Governor in Council enacted a Regulation that was based upon a reasonable Final Report. There is nothing about thatreport, or the manner in which it was prepared, that would tend to militate against the reasonableness of the Regulation. B.

Is the Regulation reasonable in that it meets the test set out in Vavilov andPortnov? [62] The Applicants submit that the Regulation is to be reviewed on the standard of reasonableness. To be reasonable, the Minister’sdecision to make the Regulation must be based on an internally coherent and rational chain of analysis, as revealed by the record as awhole, and be justified in relation to the facts and law that constrain the Minister (Vavilov at para 85).

The Applicants submit that theMinister erred in law and acted without jurisdiction by failing to meet the mandatory condition precedent in section 112(2) of the IAA.

They say the Minister must consider a complete assessment under s. 92 that fully complies with the IAA and the assessment’s mandate.The Applicants contend that the Final Report and associated GIS tool do not constitute an assessment under s. 92 of the IAA. I havealready indicated I do not accept that contention. The Minister was in possession of a report upon which she could act. [63] The Applicants also contend the Committee failed to consider mandatory factors and failed to give the public an opportunity toparticipate meaningfully. Again, I disagree with that contention.

The recommendations in the Final Report demonstrate that all of thefactors in the Terms of Reference were addressed. That said, the authors of the Final Report did acknowledge they did not have access tocertain scientific data and that timelines were very short. The short timelines obviously had a negative impact upon the quality of theirwork. However, the Applicants have not demonstrated that the Final Report was so materially deficient and incomplete that it could notbe considered a report capable of being relied upon.

The Final Report concerns a massive geographic area, covers large tracts ofmaterial, addresses all of the factors it was supposed to and, in addition, provides a very useful GIS tool, which was not part of itsoriginal mandate. The original mandate only required the Committee to, "“provide its advice on the feasibility of developing and howbest to develop and structure such a system”". [64] The Applicants further argue that the Regulation is inconsistent with the purpose of the IAA.

The Applicants argue that theRegulation is an attempt by the Minister to circumvent the IAA’s public participation-driven impact assessment scheme for offshoreexploratory drilling projects, by supplanting it with a closed-door process. They argue that the Regulation is in stark contrast to the IAA’sobjectives. They contend that "“improve[ing] the efficiency of the assessment processes”" for offshore exploratory drilling projects isnot an objective of the IAA. I disagree. Improving efficiencies must be an objective of all government actions.

If conducting a regionalassessment obviates the need for many site specific assessments, or reduces their cost, with the same benefits, then, of course, such aprocess constitutes parts of the objective of the statute. [65] Moreover, the Applicants argue that the Regulation does not require that the general public receive any notice of projects that seekapproval nor do they ensure any meaningful participation in the process leading to a decision.

The Applicants argue that the Regulationis unreasonable since it purports to establish a process which is contrary to the IAA’s central purpose. [66] The Intervener agrees with the Applicants that the results of the Final Report were predetermined, based on a "“secretmemorandum”" dated December 10, 2018. It says that the Minister suggested that the regional assessment could be used to exemptprojects within the study area form a project-specific impact assessment.

The Intervener submits that this pre-determined outcomeprevented the Committee from appropriately considering Indigenous knowledge on the impacts of exploratory offshore drilling. Theycontend this secret memorandum amounted to a breach of procedural fairness. [67] The Intervener also contends the Respondent failed to consider Indigenous knowledge of cumulative effects and precautionaryprinciples of salmon migration.

It contends the text of the Regulation militates against collaboration and reconciliation and minimizes therole of Indigenous groups during consultations. [68] The Respondent acknowledges that Vavilov dictates that the standard of review is reasonableness; however, Katz illustrates whatconstitutes reasonableness review in a challenge to the validity of regulations.

In Katz, as noted earlier, the Supreme Court held that asuccessful challenge to regulations requires the applicant to show that the regulation is inconsistent with the statutory grant of power orthe purpose of the parent statute, including where the decision-maker failed to comply with any statutory condition precedent. [69] Regulations are presumed to be valid (Katz, at para. 25). This presumption has two effects: first, it places the burden on thechallenger to demonstrate the invalidity of the regulations and second, it favours an interpretative approach that reconciles the regulationwith its enabling statute.

Both the challenged regulation and the enabling statute should be interpreted using a broad and purposiveapproach, consistent with the approach to statutory

interpretation generally (Katz at paras. 25-26)). [70] It is not the role of the Court to assess the policy merits of the regulations, or to determine whether regulations are "“necessary, wiseor effective in practice”" (Jafari v. Canada (Minister of Employment & Immigration), (FCA), [1995] 2 FC 595, 125DLR (4th) 141 at p. 604; and Ontario Federation of Anglers & Hunters v. Ontario (Ministry of Natural Resources), (ON CA), 211 D.L.R. (4th) 741, 158 OAC 255). [71] To meet the test of reasonableness, a regulation must be consistent with the statutory purpose.

A regulation will be inconsistent if itis "“irrelevant, extraneous or completely unrelated to the statutory purpose”" (Wildland League v. Ontario (Lieutenant Governor inCouncil, 2016 ONCA 741, 402 DLR (4th) 738 [Wildland League] at para. 46; Katz Group at para. 28; and West Fraser Mills Ltd. v.British Columbia (Worker’s Compensation Appeal Tribunal), 2018 SCC 22, [2018] 1 SCR 635 at paras. 10-12). I conclude theRegulation respects the statutory purpose. [72] In assessing reasonableness of a regulation, one must also consider the regulation-making authority in the statute.

This authoritymust then be considered in the context of the IAA as a whole (Wildlands League at para. 88). In the within matter, the Regulation wasmade pursuant to subsection 112(1)(a.2) of the IAA, which empowers the Minister to designate physical activities in an area for which aregional assessment has been carried out and establish the conditions that must be met for the purpose of the designation. If theprescribed conditions are met, such physical activities are excluded from the PAR and are no longer "“designated projects”" subject tothe impact assessment scheme. [73]

Section 6 of the IAA outlines the purpose of the act, which lists a number of legislative goals. It is clear that the dominant purpose ofthe IAA is to protect against adverse effects within federal jurisdiction and adverse direct or incidental effects that may be caused bydesignated projects. Environmental protection is not the only goal of the IAA. It also is intended to create opportunities for sustainableeconomic development. The Regulation clearly meets the statutory purpose in this case. [74] The IAA expressly empowers the Minister, at

section 112.1, to make a regulation establishing conditions that must be met for a"“designated project”" proposed in an area for which a regional assessment has been carried out, to be excluded from the PAR. TheRegulation was made pursuant to this grant of authority and meets the very objective envisioned by subsection 112(1)(a.2). Moreover,the Regulation is consistent with the overall purpose and scheme of the IAA.

[ 75 ] The Regulation does not allow designated projects to proceed without any type of oversight. The Regulation imposes upon proponents a set of conditions. It also establishes a process wherein a proponent seeking an exemption must provide information to the Agency demonstrating how it meets the conditions. All of the information provided is made public. [ 76 ] A reasonableness challenge may also succeed if the decision-maker failed to comply with a statutory condition precedent.

The relevant condition precedent is found in subsection 112(2) of the IAA , which provides that the Minister may make a regulation designating physical activities under paragraph 112(1)(a.2) only after considering a regional assessment. The condition precedent set out in subsection 112(2) of the IAA is worded in broad terms. The Minister need only consider a regional assessment prior to making a regulation for the regulation to be valid.

The IAA does not provide criteria that must be met in the context of the condition precedent, nor does it set out requirements as to what the report following a regional assessment must contain. The relevant provision merely states that the Committee or Agency " “must provide a report to the Minister” " . In my view, the Committee fully addressed all aspects of its Terms of Reference and the factors to be considered by the Committee in the Regional Assessment.

The Ministerial Response to the Final Report shows that the Minister considered, responded to, and generally accepted all of the recommendations in the Final Report. [ 77 ] Where a condition precedent requires a decision-maker consider certain factors before making a decision, and the evidence shows that the decision-maker considered those factors in good faith, the condition precedent will generally be satisfied ( Canadian Council for Refugees v. Canada , 2008 FCA 229 , [2009] 3 FCR 136 at para 78 ).

The condition precedent was met in this case. [ 78 ] Where a statute requires a decision-maker to consider a report prepared by another body as a condition precedent to its decision, deficiencies in the report may render the decision unreasonable. The deficiencies must be material, such that the report falls short of legislative standards ( Trans Mountain at para. 201 ). The relevant report was considered in this case. I have already concluded the Final Report does not contain material deficiencies. [ 79 ]

Section 98 of the IAA states that the Agency or Committee must ensure that the information it uses when conducting the assessment is made available to the public. The Respondent correctly asserts that the CSAS report was not used or considered by the Committee as it was incomplete. Consequently, I am of the opinion that there was no obligation to disclose the document. As for any posting omission by the Committee, given the thousands of comments received, I am of the opinion that the standard is not perfection.

Although it is a legislative obligation, I believe that omissions can sometimes occur due to administrative errors. Unless such errors are material, they should not result in a declaration that a regulation is unreasonable. [ 80 ]

Section 99 of the IAA specifies that the Committee must provide an opportunity for the public to participate meaningfully, in a manner that the Committee considers appropriate. I am of the opinion that the Regional Assessment process included meaningful opportunities for the Applicants and Intervener to participate and engage with the Committee.

They were also given the opportunity to provide feedback and participate in person. [ 81 ] As the Terms of Reference indicate, there is an important distinction between the Committee’s obligation with respect to consultations with Indigenous peoples for its purposes and the constitutional duty of the Crown to consult. The former is at issue in this application. [ 82 ] Subsection 97(2) of the IAA states that the Committee, when conducting an assessment, must take into account any scientific information and Indigenous knowledge, including the knowledge of Indigenous women, provided with respect to the assessment.

The Intervener submits that their Indigenous knowledge was not taken into consideration, specifically regarding salmon migration. However, a review of the Final Report shows that salmon migration was considered. There is no evidence before this Court that the Committee failed to take into account scientific information or Indigenous knowledge. [ 83 ] Subsection 114(4) of the IAA provides that " “Any guidelines, codes of practice, agreements, arrangements or criteria must be made available to the public” " . The Respondent made no written submissions regarding the September 24, 2019 letter from Mr.

McGovern, nor the January 10, 2020 amendment to the Agreement, which the applicants claim were never publicly posted. The Applicants claims these omissions were contrary to subsection 114(4) of the IAA . [ 84 ] The January 10, 2020 amendment to the agreement was minor; the time limit to submit the Final Report was extended from the end of December 2019 to the end of February 2020. [ 85 ] The September 24, 2019 letter from David McGovern can be qualified as a letter in support of the Committee’s work.

It does not provide any substantive information or directions, nor does it provide any scientific data that could have influenced the outcome of the regional assessment or the Final Report. What can be taken from this letter is that Mr. McGovern supports the activities that have been undertaken be the Committee (including the development of the GIS tool).

Also, he encourages the Committee to bear in mind the realities of the timelines established. [ 86 ] I fail see how the McGovern letter can be categorized as a “direction”, as asserted by the Applicants. [ 87 ] The record shows that the amendment to the agreement and the letter were made public; but, after the conclusion of the Regional Assessment. The IAA does not specify when the documents referred to in s. 114(4) must be made public.

Regardless, presuming such material must be made public before the publication of the Final Report, as mentioned previously, the degree of procedural fairness owed to the Applicants was minimal. I fail to see how the failure to make public a minor amendment and a support letter prejudiced the Applicants. [ 88 ] Two of the Applicants contend they were prevented from making separate submissions regarding the GIS Tool. However, they fail to show how this adversely affected their interests.

With so many moving parts involved in this large-scale project, it would be wrong for this Court to impose a procedural standard of perfection on the Committee. [ 89 ] Considering the above, I reject the assertion the Committee acted contrary to s. 114(4) of the IAA or committed a breach of procedural fairness.

VIII. Conclusion [ 90 ] The Applicants have not met their burden. The Regulation does exactly what is anticipated by subsection 112(1)(a.2) of the IAA and is entirely consistent with the overall purpose and scheme of the IAA .

When I consider the Terms of Reference, the factors to be considered, the Final Report, the GIS Tool, the Ministerial pronouncements, the participation by the various interest groups, the objectives of the IAA , the deference owed to decision-makers, the onus upon the Applicants to establish that the Regulation is unreasonable, the Minister’s regulation making power and the language of the Regulation , I conclude the Regulation meets the test of reasonableness. It meets the hallmarks of transparency, justification and intelligibility as set out in Dunsmuir v.

New Brunswick , 2008 SCC 9 [2008] 1 SCR 190 at para 47 and is justified in light of the relevant factual and legal constraints, as required by Vavilov (at para 85 ). [ 91 ] The application for judicial review is dismissed. The parties agreed that costs in the amount of $6 000, all-inclusive, would be payable to the successful party. JUDGMENT in T-541-20 and T-679-20 THIS COURT’S JUDGMENT is that the application for judicial review is dismissed, with costs of $6 000 payable jointly and severally by the Applicants to the Respondent. "B. Richard Bell" Justice " "

Schedule A Agreement to Conduct a Regional Assessment of Offshore Oil and Gas Exploratory Drilling East of Newfoundland and Labrador Between Her Majesty the Queen in Right of Canada as represented by the federal Minister of the Environment and the federal Minister of Natural Resources and Her Majesty the Queen in Right of Newfoundland and Labrador, as represented by the provincial Minister of Natural Resources and the provincial Minister for Intergovernmental and Indigenous Affairs

PREAMBLE WHEREAS the federal Minister of t he Environment has statutory responsibilities pursuant to the Canadian Environmental Assessment Act, 2012 ; WHEREAS the federal Minister of Natural Resources and the provincial Minister of Natural Resources have statutory responsibilities pursuant to the Canada- Newfoundland and Labrador Atlantic Accord Implementation Act, and the Canada-Newfoundland and Labrador Atlantic Accord Implementation Newfoundland and Labrador Act (Accord Acts); WHEREAS the Canada-Newfoundland and Labrador Offshore Petroleum Board is established by the Accord Acts and their respective regulations, including in relation to health, safety and

environmental matters respecting petroleum-related work or activities which may include the exploration, development, production, and transportation of petroleum in the Canada- Newfoundland and Labrador Offshore Area; WHEREAS the federal Minister of the Environment may establish a Committee to conduct a study of the effects of existing or future physical activities carried out in a region t hat is within the exclusive economic zone of Canada or the continental shelf of Canada; WHEREAS the area where the study would be conducted is the site of current and proposed multiple oil and gas exploration and production activities; WHEREAS the Government of Newfoundland and Labrador recently announced initiatives to encourage a significant level of increased exploratory activity in the Canada-Newfoundland and Labrador Offshore Area by the year 2030; and WHEREAS the Governments of Canada and Newfoundland and Labrador are interested in improving the efficiency of the environmental assessment process as it applies to oil and gas exploration drilling while at the same time ensuring the highest standards of environmental protection continue to be applied and maintained.

THEREFORE, the federal Minister of the Environment, the federal Minister of Natural Resources, the provincial Minister of Natural Resources and the provincial Minister for Intergovernmental and Indigenous Affairs together hereby establish a Committee to conduct a Regional Study, to be referred to hereafter as a Regional Assessment in accordance with the provisions of this Agreement and the Terms of Reference, attached as Appendices A and D to this Agreement.

Definitions For the purpose of this Agreement and of the Appendices attached to it, "Agency" means the Canadian Environmental Assessment Agency established by the Canadian Environmental Assessment Act and continued under the Canadian Environmental Assessment Act, 2012. "CEAA 2012" means the Canadian Environmental Assessment Act, 2012 . "C-NLOPB " means the Canada-Newfoundland and Labrador Offshore Petroleum Board. "Designated project" has the same meaning as in CEAA 2012. "Federal authority'' has the same meaning as in CEAA 2012. "Committee" means the Committee established to conduct the Regional Assessment.

"Ministers" means, collectively, the federal Minister of the Environment, the federal Minister of Natural Resources, the provincial Minister of Natural Resources for Newfoundland and Labrador and the provincial Minister for Intergovernmental and Indigenous Affairs. "Mitigation measures" means measures to eliminate, reduce, control or offset the adverse effects of a project or designated project, and include restitution for any damage caused by those effects through replacement, restoration, compensation or any other means. "Offshore area'' has the same meaning as in the Accord Acts.

"Regional Assessment" means a Regional Study pursuant to CEAA 2012 and is a study or assessment

of the effects of existing or future physical activities carried out in a region. "Report" means the report produced by the Committee pursuant to

section 75 of CEAA 2012 . 1.

Interpretation 1.1. For greater certainty, the provisions of this agreement shall not be interpreted as providing a basis for any claim by or on behalf of Canada or Newfoundland and Labrador in respect of any interest in or legislative jurisdiction over any offshore area or any living or non-living resources of any offshore area. 1.2. The agreement has been designed to meet the requirements of CEAA 2012 as well as those of the proposed Impact Assessment Act . 1.3. Should CEAA 2012 be repealed and replaced by new legislation, this agreement remains valid. 2. Establishment of the Committee 2.1.

A process is hereby established to create a Committee, pursuant to CEAA 2012. 2.2. The Committee will be a joint committee between the Governments of Canada and Newfoundland and Labrador. 3. Constitution of the Committee 3.1. The Committee will consist of five members. There will be two co-chairs appointed by the federal Minister of the Environment. One of the co-chairs will be jointly recommended by the federal Minister of Natural Resources and the provincial Minister of Natural Resources for Newfoundland and Labrador.

The remaining three members will be appointed by the federal Minister of the Environment in consultation with the other Ministers. 3.2. The Committee will have all the powers and obligations set out under

section 77 of CEAA 2012. 3.3. The Committee members will have knowledge or experience relevant to the Regional Assessment. 4. Conduct of the Regional Assessment Task Team 4 .1. The Task Team will be the joint responsibility of the Ministers and will be co-chaired by the Agency and the C-NLOPB. 4.2. The Agency, the C-NLOPB, Natural Resources Canada and the Newfoundland and Labrador Department of Natural Resources will make available technical staff to be part of the Task Team as appropriate. 4.3. The Task Team will report to the Agency and the C-NLOPB until the Committee is established.

Once the Committee is established, the Task Team will then report to the Committee instead of the Agency and C·NLOPB. The Task Team will be structured so as to allow the Committee to conduct its review in an efficient and cost-effective manner. 4.4. The Task Team will prepare the Regional Assessment design, including objectives, work plan, process steps, knowledge and information requirements, resource needs and measures for public and Indigenous engagement, consistent with the Factors to be considered in the Regional

Assessment, outlined in Appendix A. 4.5. The Task Team will assemble the existing information and knowledge relating to offshore exploratory drilling, including the existing environmental conditions in the Regional Assessment Area (proposed in Appendix B), the project works and activities associated with exploratory drilling, the environmental effects of such works and activities, the mitigation measures applied to those effects and monitoring and follow-up requirements and any other existing information to address the Factors to be considered in the Regional Assessment (Appendix A). 4.6.

Existing information and knowledge includes, but is not limited to, any Strategic Environmental Assessments conducted or ongoing by the C-NLOPB, past or ongoing environmental assessments under CEAA 2012, the former CEAA and/or the Accord Acts, information held by government, industry, academia, Indigenous groups or the public. 4.7. The Task Team will also be responsible for administrative, technical, and procedural support to the Committee and/or the Agency and the C-NLOPB as well as duties related to public and Indigenous information and engagement sessions. 4.8.

The Task Team will undertake its work in accordance with the budget established under

article 7.1. Technical Advisory Group 4.9. The Task Team will establish the Technical Advisory Group and seek its input on the existing information and knowledge related to offshore exploration drilling. 4.10. A Technical Advisory Group will support the Task Team and the Committee, once established, to gather relevant data and information, conduct technical analysis, and provide expertise in relation to the Regional Assessment. 4.11.

The Technical Advisory Group will carry out Its duties in a manner that discharges the requirements set out in the Terms of Reference attached as Appendix C to this Agreement and that were approved by the Ministers. 4.12. The Technical Advisory Group members may be from within or outside of government and are to have knowledge or experience relevant to the Regional Assessment. 4.13. The Technical Advisory Group members may change, as appropriate, in relation to the work or expertise required during the course of the Regional Assessment. Committee 4.14.

The Committee will conduct a Regional Assessment of the effects of existing and anticipated exploratory drilling in the eastern Newfoundland and Labrador offshore, generally outlined in Appendices A and D. 4.15. The Committee will document the results of the Regional Assessment in a Report. The content of which is described in

article 5.4 of this Agreement. 4.16. The Committee will conduct the Regional Assessment in a manner that discharges the requirements set out in CEAA 2012 and satisfies the requirements set out in the Factors to be considered in the Regional Assessment and Terms of Reference attached as Appendices A and D to this Agreement.

4.17. The Committee will engage with Indigenous groups and any others that have knowledge relevant to the Regional Assessment or whose interests and uses may be affected by exploratory drilling. 4.18. The Committee may receive information from Indigenous peoples of Canada on the nature and scope of any rights protected by

section 35 of the Constitution Act, 1982 , in the area of the Regional Assessment, as well as information on the potential adverse environmental effects that exploratory drilling may have on these rights. Information provided to the Committee will be used by the Crown for consultation purposes. 4.19. The Crown will consult with Indigenous peoples on the Committee's draft Report. The foregoing does not preclude the federal or provincial Crown from conducting consultation activities from the time the Committee is appointed until a draft report is prepared. 4.20.

The Committee is not mandated or empowered by this Agreement to make any determination as to the existence or validity of Aboriginal rights, the probability of adverse impacts upon any such rights, the level of Aboriginal consultation required, or whether the duty to consult has arisen and been discharged. 4.21. The Committee will provide opportunity for the public to participate in the Regional Assessment. This will include at a minimum, face-to-face meetings in the province of Newfoundland and Labrador to discuss Regional Assessment requirements, and a public comment period on the draft Report. 4.22.

The Committee will be resp9nsible for planning its work in accordance with the following phases : • Engagement o Engaging on information gathered by the Task Team o Conducting public and Indigenous engagement sessions • Analysis o Identifying and addressing knowledge gaps and, as appropriate, making recommendations to address gaps • Report writing o Including describing how the results of the Regional Assessment could be used to guide and inform future environmental assessment and regulatory decisions related to proposed offshore exploration drilling in the region. • Providing for comments o Including from the public and Indigenous groups on the draft Report prior to the submission of the Final Report to the Ministers . 4.23.

The Committee may request clarification of its Terms of Reference or the Factors to be considered in the Regional Assessment by sending a letter signed by the co-chairpersons to the federal Minister of t he Environment, setting out the request. Upon receiving such a request, the federal Minister of the Environment, in collaboration with the federal Minister of Natural

Resources and the provincial Ministers, will provide the Committee such clarification in a timely manner. 4.24. The Committee may seek an amendment to its Terms of Reference or the Factors to be considered in the Regional Assessment by sending a letter signed by the co-chairpersons to the federal Minister of the Environment setting out the request. As appropriate, the federal Minister of the Environment, in collaboration with the federal Minister of Natural Resources and the provincial Ministers, will respond in writing to any request to amend the Terms of Reference in a timely manner. 4.25.

Subject to articles 4.23 and 4.24 above, the Committee will continue with the Regional Assessment to the extent possible while waiting for a response in order to adhere to the timelines of this agreement and its Terms of Reference. 5. Record of Process and Report 5.1. A public registry will be maintained by the Task Team during the course of the Regional Assessment in a manner that provides for convenient public access. 5.2. The public registry will be hosted on the Agency's Internet Site. 5.3.

The public registry will include information used to develop the Regional Assessment, including submissions or reports as well as comments received by the Task Team or the Committee from the public or Indigenous groups during the Regional Assessment. It will also include information produced by the Task Team or Committee. 5 .4. The Report will contain information as outlined in the Factors to be considered in the Regional Assessment (Appendix

A) and in the Terms of Reference (Appendix D). 5.5. The Report will take into account and reflect the views of all Committee members. 5.6. After the Report is submitted, the information used during the Regional Assessment would remain publicly available on the Agency's Internet site. 5.7. The Committee will submit its Report to the Ministers no later than fall, 2019. 5.8. Upon receiving the Report, the federal Minister of the Environment will make the Report available to the public and will advise the public that the Report is available. 5.9.

Recognizing the value of a digital, spatially-based system to house and make best use of the information generated during the Regional Assessment, the Committee will also provide its advice on the feasibility of and how best to develop and structure such a system. 5.10. The Committee will report to the Ministers within four months of being established concerning the efficacy of developing such a system. 6. Other Government Departments and Agencies 6.1.

The Task Team or the Committee may request federal authorities and provincial authorities having specialized information or knowledge with respect to the Regional Assessment to make that Information or knowledge available to the Task team or the Committee in an acceptable manner and within a specified period. 6.2. The Committee and Task Team in working with federal departments should aim to work

collaboratively and optimize efforts currently underway that are relevant to the work required fo

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