Date: 20171205 Docket: T-744-14 Citation: 2017 FC 1100 Ottawa, Ontario, December 5, 2017 PRESENT: The Honourable Mr. Justice Phelan BETWEEN: TASEKO MINES LIMITED Applicant and THE MINISTER OF THE ENVIRONMENT and THE ATTORNEY GENERAL OF CANADA and THE TSILHQOT'IN NATIONAL GOVERNMENT AND JOEY ALPHONSE, on his own behalf and on behalf of all other members of the Tsilhqot’in Nation Respondents JUDGMENT AND REASONS I. INTRODUCTION [ 1 ] This is an application by Taseko Mines Limited [Taseko] for judicial review of a February 25, 2014 Decision Statement, which communicated the decisions of the Minister of the Environment [Minister] and the Governor in Council [GIC] made pursuant to

section 52 of the Canadian Environmental Assessment Act, 2012 , SC 2012, c 19, s 52 [ CEAA 2012 ]. The Minister decided that the New Prosperity Gold-Copper Mine Project was likely to cause significant adverse environmental effects, and the GIC decided that these effects were not justified in the circumstances. [ 2 ] The background to this judicial review is the attempt by Taseko to secure environmental approval of the New Prosperity Gold- Copper Mine [the Project], an open pit gold and copper mine southwest of Williams Lake, British Columbia.

The mine site was within the traditional territory of the Tsilhqot’in peoples. [ 3 ] The Project underwent an environmental assessment at the end of which the Review Panel [Panel] charged with the assessment issued its Report. The Report concluded that the seepage of toxic water from the tailings storage facility [TSF] at the mine site would be greater than Taseko estimated.

The Panel was also not satisfied with Taseko’s proposal to deal with mediation steps after it received project approval. [ 4 ] The above was the genesis of the judicial review in the related file T-1977-13 which is an application for judicial review of the Review Panel Report. The decision on that matter was issued on December 5, 2017. [ 5 ] In the present case, the judicial review concerns allegations of breaches of procedural fairness and jurisdictional errors, as well as a constitutional challenge to sections 5(1)(c), 6 and 7 of the CEAA 2012 . (Section 7, however, was not strongly advanced.) [ 6 ] In

summary, this application for judicial review will be dismissed. At this stage of the process the Applicant was owed some degree of procedural fairness, and this was satisfied in the circumstances. Further, as to the constitutionality of sections 5(1)(c), 6 and 7 of the CEAA 2012 , the matter need not be decided at this time and on this record and in the alternative, the provisions are constitutional. [ 7 ] Taseko seeks the following relief: 1 . An order quashing the Minister’s decisions under sub-sections 52(1)(

a) and (

b) of the CEAA 2012 that the Project is likely to cause significant adverse environmental effects, and referring those decisions back to the Minister for reconsideration in accordance with the directions of the Court. 2 . An order quashing the GIC’s decision that the significant adverse environmental effects that the Project is likely to cause are not justified in the circumstances, and referring that decision back to the GIC for reconsideration in accordance with the directions of the Court. 3 . A declaration that sections 5(1)(c), 6 and 7 of CEAA 2012 are ultra vires the federal government's legislative powers under

section 91 of the Constitution Act, 1867 and are thus of no force and effect. 4 . In the alternative, a declaration that sections 5(1)(c), 6 and 7 of the CEAA 2012 impair the core of provincial legislative powers under

section 92 of the Constitution Act, 1867 and must be read down or declared inapplicable. 5 . Costs of this application. 6 . Such further and other relief as this Honourable Court deems just. II. BACKGROUND [ 8 ] The pertinent legislation is set out below:

Canadian Environmental Assessment Act, 2012 , SC 2012, c 19, s 52 " 5

(1) For the purposes of this Act, the environmental effects that are to be taken into account in relation to

an act or thing, a physical activity, a designated project or a project are " " 5 (1) " " Pour l’application de la présente loi, les effets environnementaux qui sont en cause à l’égard d’une mesure, d’une activité concrète, d’un projet désigné ou d’un projet sont les suivants : " " (

a) a change that may be caused to the following components of the environment that are within the legislative authority of Parliament: " " a) " " les changements qui risquent d’être causés aux composantes ci-après de l’environnement qui relèvent de la compétence législative du Parlement : " " (

i) fish and fish habitat as defined in subsection 2(1) of the Fisheries Act , " " (i) " " les poissons et leur habitat, au sens du paragraphe 2(1) de la

Loi sur les pêches , " " (ii) aquatic species as defined in subsection 2(1) of the Species at Risk Act , " " (ii) " " les espèces aquatiques au sens du paragraphe 2(1) de la

Loi sur les espèces en péril , " " (iii) migratory birds as defined in subsection 2(1) of the Migratory Birds Convention Act, 1994 , and " " (iii) " " les oiseaux migrateurs au sens du paragraphe 2(1) de la Loi de 1994 sur la convention concernant les oiseaux migrateurs , " " (iv) any other component of the environment that is set out in

Schedule 2; " " (iv) " " toute autre composante de l’environnement mentionnée à l’annexe 2; " " (

b) a change that may be caused to the environment that would occur " " b) " " les changements qui risquent d’être causés à l’environnement, selon le cas : " " (

i) on federal lands, " " (i) " " sur le territoire domanial, " " (ii) in a province other than the one in which the act or thing is done or where the physical activity, the designated project or the project is being carried out, or " " (ii) " " dans une province autre que celle dans laquelle la mesure est prise, l’activité est exercée ou le projet désigné ou le projet est réalisé, " " (iii) outside Canada; and " " (iii) " " à l’étranger; " " (

c) with respect to aboriginal peoples, an effect occurring in Canada of any change that may be caused to the environment on " " c) " " s’agissant des peuples autochtones, les répercussions au Canada des changements qui risquent d’être causés à l’environnement, selon le cas : " " (

i) health and socio-economic conditions, " " (i) " " en matière sanitaire et socio- économique, " " (ii) physical and cultural heritage, " " (ii) " " sur le patrimoine naturel et le patrimoine culturel, " " (iii) the current use of lands and resources for traditional purposes, or " " (iii) " " sur l’usage courant de terres et de ressources à des fins traditionnelles, " " (iv) any structure, site or thing that is of historical, archaeological, paleontological or architectural significance. " " (iv) " " sur une construction, un emplacement ou une chose d’importance sur le plan historique, archéologique, paléontologique ou architectural. " "

(2) However, if the carrying out of the physical activity, the designated project or the project requires a federal authority to exercise a power or perform a duty or function conferred on it under any Act of Parliament other than this Act, the following environmental effects are also to be taken into account: " " (2) " " Toutefois, si l’exercice de l’activité ou la réalisation du projet désigné ou du projet exige l’exercice, par une autorité fédérale, d’attributions qui lui sont conférées sous le régime d’une loi fédérale autre que la présente loi, les effets environnementaux comprennent en outre : " " (

a) a change, other than those referred to in paragraphs (1)(

a) and (b), that may be caused to the environment and that is directly linked or necessarily incidental to a federal authority’s exercise of a power or performance of a duty or function that would permit the carrying out, in whole or in part, of the physical activity, the designated project or the project; and " " a) " " les changements — autres que ceux visés aux alinéas

(1) a) et b) — qui risquent d’être causés à l’environnement et qui sont directement liés ou nécessairement accessoires aux attributions que l’autorité fédérale doit exercer pour permettre l’exercice en tout ou en

partie de l’activité ou la réalisation en tout ou en

partie du projet désigné ou du projet; " " (

b) an effect, other than those referred to in paragraph (1)(c), of any change referred to in paragraph (

a) on " " b) " " les répercussions — autres que celles visées à l’alinéa (1)c) — des changements visés à l’alinéa a), selon le cas : " " (

i) health and socio-economic conditions, " " (i) " " sur les plans sanitaire et socio- économique, " " (ii) physical and cultural heritage, or " " (ii) " " sur le patrimoine naturel et le patrimoine culturel, " " (iii) any structure, site or thing that is of historical, archaeological, paleontological or architectural significance. " " (iii) " " sur une construction, un emplacement ou une chose d’importance sur le plan historique, archéologique, paléontologique ou architectural. "

" … " " […] " " 6 The proponent of a designated project must not do any act or thing in connection with the carrying out of the designated project, in whole or in part, if that act or thing may cause an environmental effect referred to in subsection 5(1) unless " " 6 " " Le promoteur d’un projet désigné ne peut prendre une mesure se rapportant à la réalisation de tout ou

partie du projet et pouvant entraîner des effets environnementaux visés au paragraphe 5(1) que si, selon le cas : " " (

a) the Agency makes a decision under paragraph 10(

b) that no environmental assessment of the designated project is required and posts that decision on the Internet site; or " " a) " " l’Agence décide, au

titre de l’alinéa 10b), qu’aucune évaluation environnementale du projet n’est requise et affiche sa décision sur le site Internet; " " (

b) the proponent complies with the conditions included in the decision statement that is issued under subsection 31(3) or

section 54 to the proponent with respect to that designated project. " " b) " " le promoteur prend la mesure en conformité avec les conditions qui sont énoncées dans la déclaration qui lui est remise au

titre du paragraphe 31(3) ou de l’article 54 relativement au projet. " " 7 A federal authority must not exercise any power or perform any duty or function conferred on it under any Act of Parliament other than this Act that could permit a designated project to be carried out in whole or in part unless " " 7 " " L’autorité fédérale ne peut exercer les attributions qui lui sont conférées sous le régime d’une loi fédérale autre que la présente loi et qui pourraient permettre la réalisation en tout ou en

partie d’un projet désigné que si, selon le cas : " " (

a) the Agency makes a decision under paragraph 10(

b) that no environmental assessment of the designated project is required and posts that decision on the Internet site; or " " a) " " l’Agence décide, au

titre de l’alinéa 10b), qu’aucune évaluation environnementale du projet n’est requise et affiche sa décision sur le site Internet; " " (

b) the decision statement with respect to the designated project that is issued under subsection 31(3) or

section 54 to the proponent of the designated project indicates that the designated project is not likely to cause significant adverse environmental effects or that the significant adverse environmental effects that it is likely to cause are justified in the circumstances. " " b) " " la déclaration remise au promoteur du projet au

titre du paragraphe 31(3) ou de l’article 54 relativement au projet donne avis d’une décision portant que la réalisation du projet n’est pas susceptible d’entraîner des effets environnementaux négatifs importants ou que les effets environnementaux négatifs importants que la réalisation du projet est susceptible d’entraîner sont justifiables dans les circonstances. " " … " " […] " " 47

(1) The Minister, after taking into account the review panel’s report with respect to the environmental assessment, must make decisions under subsection 52(1). " " 47 (1) " " Après avoir pris en compte le rapport d’évaluation environnementale de la commission, le ministre prend les décisions prévues au paragraphe 52(1). " "

(2) The Minister may, before making decisions referred to in subsection 52(1), require the proponent of the designated project to collect any information or undertake any studies that, in the opinion of the Minister, are necessary for the Minister to make decisions. " " (2) " " Il peut, avant de les prendre, faire procéder par le promoteur du projet désigné en cause aux études et à la collecte de renseignements qu’il estime nécessaires à la prise des décisions. " " … " " […] " " 52

(1) For the purposes of sections 27, 36, 47 and 51, the decision maker referred to in those sections must decide if, taking into account the implementation of any mitigation measures that the decision maker considers appropriate, the designated project " " 52 (1) " " Pour l’application des articles 27, 36, 47 et 51, le décideur visé à ces articles décide si, compte tenu de l’application des mesures d’atténuation qu’il estime indiquées, la réalisation du projet désigné est susceptible : " " (

a) is likely to cause significant adverse environmental effects referred to in subsection 5(1); and " " a) " " d’une part, d’entraîner des effets environnementaux visés au paragraphe 5(1) qui sont négatifs et importants; " " (

b) is likely to cause significant adverse environmental effects referred to in subsection 5(2). " " b) " " d’autre part, d’entraîner des effets environnementaux visés au paragraphe 5(2) qui sont négatifs et importants. " "

(2) If the decision maker decides that the designated project is likely to cause significant adverse environmental effects referred to in subsection 5(1) or (2), the decision maker must refer to the Governor in Council the matter of whether those effects are justified in the circumstances. " " (2) " " S’il décide que la réalisation du projet est susceptible d’entraîner des effets environnementaux visés aux paragraphes 5(1) ou (2) qui sont négatifs et importants, le décideur renvoie au gouverneur en conseil la question de savoir si ces effets sont justifiables dans les circonstances. "

"

(3) If the decision maker is a responsible authority referred to in any of paragraphs 15(

a) to (c), the referral to the Governor in Council is made through the Minister responsible before Parliament for the responsible authority. " " (3) " " Si le décideur est une autorité responsable visée à l’un des alinéas 15a) à c), le renvoi se fait par l’entremise du ministre responsable de l’autorité devant le Parlement. " "

(4) When a matter has been referred to the Governor in Council, the Governor in Council may decide " " (4) " " Saisi d’une question au

titre du paragraphe (2), le gouverneur en conseil peut décider : " " (

a) that the significant adverse environmental effects that the designated project is likely to cause are justified in the circumstances; or " " a) " " soit que les effets environnementaux négatifs importants sont justifiables dans les circonstances; " " (

b) that the significant adverse environmental effects that the designated project is likely to cause are not justified in the circumstances. " " b) " " soit que ceux-ci ne sont pas justifiables dans les circonstances. " " … " " […] " " 54

(1) The decision maker must issue a decision statement to the proponent of a designated project that " " 54 (1) " " Le décideur fait une déclaration qu’il remet au promoteur du projet désigné dans laquelle : " " (

a) informs the proponent of the designated project of the decisions made under paragraphs 52(1)(

a) and (

b) in relation to the designated project and, if a matter was referred to the Governor in Council, of the decision made under subsection 52(4) in relation to the designated project; and " " a) " " il donne avis des décisions qu’il a prises relativement au projet au

titre des alinéas 52(1)

a) et

b) et, le cas échéant, de la décision que le gouverneur en conseil a prise relativement au projet en vertu du paragraphe 52(4); " " (

b) includes any conditions that are established under

section 53 in relation to the designated project and that must be complied with by the proponent. " " b) " " il énonce toute condition fixée en vertu de l’article 53 relativement au projet que le promoteur est tenu de respecter. " "

(2) When the decision maker has made a decision under paragraphs 52(1)(

a) and (

b) in relation to the designated project for the purpose of

section 47, the decision maker must issue the decision statement no later than 24 months after the day on which the environmental assessment of the designated project was referred to a review panel under

section 38. " " (2) " " Dans le cas où il a pris les décisions au

titre des alinéas 52(1)

a) et

b) pour l’application de l’article 47, le décideur est tenu de faire la déclaration dans les vingt- quatre mois suivant la date où il a renvoyé, au

titre de l’article 38, l’évaluation environnementale du projet pour examen par une commission. " "

(3) The decision maker may extend that time limit by any further period – up to a maximum of three months – that is necessary to permit cooperation with any jurisdiction with respect to the environmental assessment of the designated project or to take into account circumstances that are specific to the project. " " (3) " " Il peut prolonger ce délai de la période nécessaire pour permettre toute coopération avec une instance à l’égard de l’évaluation environnementale du projet ou pour tenir compte des circonstances particulières du projet. Il ne peut toutefois prolonger le délai de plus de trois mois. " "

(4) The Governor in Council may, on the recommendation of the Minister, extend the time limit extended under subsection (3). " " (4) " " Le gouverneur en conseil peut, sur la recommandation du ministre, prolonger le délai prolongé en vertu du paragraphe (3). " "

(5) The Agency must post a notice of any extension granted under subsection (3) or (4) on the Internet site. " " (5) " " L’Agence affiche sur le site Internet un avis de toute prolongation accordée en vertu des paragraphes (3) ou (4) relativement au projet. " "

(6) If the Agency, the review panel or the Minister, under

section 39 or subsection 44(2) or 47(2), respectively, requires the proponent of the designated project to collect information or undertake a study with respect to the designated project, the calculation of the time limit within which the decision maker must issue the decision statement does not include: " " (6) " " Dans le cas où l’Agence, la commission ou le ministre exigent du promoteur, au

titre de l’article 39 ou des paragraphes 44(2) ou 47(2), selon le cas, qu’il procède à des études ou à la collecte de renseignements relativement au projet, ne sont pas comprises dans le calcul du délai dont dispose le décideur pour faire la déclaration : " " (

a) the period that is taken by the proponent, in the opinion of the Agency, to comply with the requirement under

section 39; " " a) " " la période prise, de l’avis de l’Agence, par le promoteur pour remplir l’exigence au

titre de l’article 39; " " (

b) the period that is taken by the proponent, in the opinion of the review panel, to comply with the requirement under subsection 44(2); and " " b) " " la période prise, de l’avis de la commission, par le promoteur pour remplir l’exigence au

titre du paragraphe 44(2); "

" (

c) the period that is taken by the proponent, in the opinion of the Minister, to comply with the requirement under subsection 47(2). " " c) " " la période prise, de l’avis du ministre, par le promoteur pour remplir l’exigence au

titre du paragraphe 47(2). " " … " " […] " " 126

(1) Despite subsection 38(6) and subject to subsections (2) to (6), any assessment by a review panel, in respect of a project, commenced under the process established under the former Act before the day on which this Act comes into force is continued under the process established under this Act as if the environmental assessment had been referred by the Minister to a review panel under

section 38. The project is considered to be a designated project for the purposes of this Act and

Part 3 of the Jobs, Growth and Long-term Prosperity Act , and " " 126 (1) " "

Malgré le paragraphe 38(6) et sous réserve des paragraphes (2) à (6), tout examen par une commission d’un projet commencé sous le régime de l’ancienne loi avant la date d’entrée en vigueur de la présente loi se poursuit sous le régime de la présente loi comme si le ministre avait renvoyé, au

titre de l’article 38, l’évaluation environnementale du projet pour examen par une commission; le projet est réputé être un projet désigné pour l’application de la présente loi et de la

partie 3 de la

Loi sur l’emploi, la croissance et la prospérité durable et : " " (

a) if, before that day, a review panel was established under

section 33 of the former Act, in respect of the project, that review panel is considered to have been established — and its members are considered to have been appointed — under subsection 42(1) of this Act; " " a) " " si, avant cette date d’entrée en vigueur, une commission avait été constituée aux termes de l’article 33 de l’ancienne loi relativement au projet, elle est réputée avoir été constituée — et ses membres sont réputés avoir été nommés — aux termes du paragraphe 42(1) de la présente loi; " " (

b) if, before that day, an agreement or arrangement was entered into under subsection 40(2) of the former Act, in respect of the project, that agreement or arrangement is considered to have been entered into under

section 40 of this Act; and " " b) " " si, avant cette date, un accord avait été conclu aux termes du paragraphe 40(2) de l’ancienne loi relativement au projet, il est réputé avoir été conclu en vertu de l’article 40 de la présente loi; " " (

c) if, before that day, a review panel was established by an agreement or arrangement entered into under subsection 40(2) of the former Act or by document referred to in subsection 40(2.1) of the former Act, in respect of the project, it is considered to have been established by — and its members are considered to have been appointed under — an agreement or arrangement entered into under

section 40 of this Act or by document referred to in subsection 41(2) of this Act. " " c) " " si, avant cette date, une commission avait été constituée en vertu d’un accord conclu aux termes du paragraphe 40(2) de l’ancienne loi ou du document visé au paragraphe 40(2.1) de l’ancienne loi relativement au projet, elle est réputée avoir été constituée — et ses membres sont réputés avoir été nommés — en vertu d’un accord conclu aux termes de l’article 40 de la présente loi ou du document visé au paragraphe 41(2) de la présente loi. " A.

Facts [ 9 ] The background facts concerning the Project, the Panel, and the Report are laid out in Taseko Mines Limited v Canada (Environment) , 2017 FC 1099 [ Taseko Mines ]. The relevant events in the present case commenced following the close of the Panel hearings on August 23, 2013. [ 10 ] The Project’s environmental assessment can be summarized into six steps. As noted in Taseko Mines , the environmental issues for the Project transpired under the previous Canadian Environmental Assessment Act , SC 1992, c 37, in respect to steps one and two.

The remainder transpired under the current CEAA 2012 legislation. 1. The Minister appointed a Panel; 2. Taseko provided an Environmental Impact Statement [EIS] setting out its position on whether the project would be likely to cause certain environmental effects. The EIS met federal EIS Guidelines, and the Panel set up a public hearing process; 3. The Panel officiated public hearings; hearing expert and lay evidence, cross-examinations and submissions from all interested parties, at its discretion; 4.

The Panel submitted its Report to the Minister stating whether it believed the Project was likely to cause any of the listed significant adverse environmental effects, and its rationale, conclusions and recommendations; 5. After taking into account the Report, the Minister determined that the project was likely to cause the listed significant adverse environmental effects, and she referred the matter to the GIC to decide whether those effects were justified in the circumstances; 6. The Minister issued a Decision Statement on February 26, 2014 setting out the decisions.

This judicial review concerns steps five and six of this

summary.

(1) Consultation between the Tsilhqot’in National Government and Canada after the Review Panel Hearing [ 11 ] The following outlines aspects of post-hearing contact between the federal government and the Tsilhqot’in National Government [TNG].

A similar factual review in respect of Taseko and the federal government is set out later. [ 12 ] Consultation between the TNG and Canada regarding the Project encompassed both the Panel process and subsequent consultations, which were conducted according to a publicly available 5-stage consultation framework: Phase I : Initial engagement and consultation on the establishment of a review panel. … Phase II : Review panel process leading up to public hearings. … Phase III : Public hearing process. … Phase IV : Consultation on the review panel report. … Phase V : Regulatory permitting. … [ 13 ] Following the close of the Project’s Panel hearings, representatives of the TNG requested to consult directly with federal officials.

On September 30, 2013, the Canadian Environmental Assessment Agency [CEAA] advised against a meeting between the Minister of the Environment and the TNG, stating: " “Declining the meeting request will demonstrate that the Canadian Environmental Assessment Agency (the Agency) has confidence that the Panel’s report will accurately reflect the views of the participants as expressed in the review process.” " [ 14 ] Despite the CEAA’s advice, on October 8, 2013 the Minister met with five TNG representatives in Ottawa for a period of one hour.

During this meeting, the Minister " “did not speak about any specifics of the project and she did not reveal any opinion or bias or view about the project and whether it ought to go forward or not.” " [ 15 ] Taseko became aware of this meeting almost immediately through photographs posted on Facebook. [ 16 ] On the same day, October 8, 2013, representatives of TNG met with Mr. Hallman, President of the CEAA, and several Deputy Ministers. The TNG representatives then met with other government officials.

Taseko learned of these meetings soon afterward, through information posted on websites including Facebook. [ 17 ] Upon becoming aware, Taseko did not object to any of these meetings. [ 18 ] On October 31, 2013, the Report was released. This was the beginning of the Phase IV consultations between the Crown and impacted First Nations. [ 19 ] On November 1, 2013, Ms. Candace Anderson, Consultation Coordinator at the CEAA, forwarded the Report to the TNG, and requested comments on the Report and responses to the following questions: 1.

In the report, did the Panel appropriately characterize the concerns raised by the TNG during the review process? 2. Do the recommendations made by the Panel address your concerns? 3. Do you have any outstanding concerns that are not addressed in the Panel’s report that require mitigation/accommodation? 4. Are there any additional recommendations that you feel would address these concerns? [ 20 ] On November 21, 2013, the TNG made submissions to the CEAA in response to Taseko’s November submissions (discussed under the heading related to Taseko).

Taseko had a copy of this letter as of December 1, 2013. [ 21 ] On January 9, 2014, the TNG provided a 59-page submission to the CEAA responding to the Panel Report. These submissions were not provided to Taseko. [ 22 ] On January 16, 2014, the TNG wrote to the CEAA to express frustration and concern regarding the adequacy of the Phase IV consultation. This letter referenced an earlier telephone call, during which CEAA representatives had expressed procedural fairness concerns with respect to potential meetings between the TNG and Deputy Ministers.

The letter stated: Finally, you advised on our phone call that Deputy Ministers could not attend the meeting scheduled for January 23, as we had requested, in part because of concerns about “procedural fairness” while the federal decision is pending.

This in itself raises serious concerns about procedural fairness, given media reports that the Proponent and provincial Minister Bennett have had extensive access to federal Ministers after the release of the Panel report, for the avowed purpose of influencing the federal decision. [ 23 ] At this time the TNG also sent letters to several federal Ministers to express " “deep concern” " about the meetings that they had engaged in with the British Columbia Minister of Energy and Mines, Mr.

Bill Bennett. [ 24 ] On January 23, 2014, a meeting took place between representatives of the TNG and the CEAA regarding the Project. [ 25 ] On February 12, 2014, representatives of the TNG met again with Mr. Hallman and the Deputy Ministers. On this same day, the CEAA sent a letter to the TNG that explained the decision making process. The letter indicated that the TNG’s concerns were " “reflected in the materials provided to the Minister to inform her decisions,” " but that a copy of the materials provided to the Minister

could not be shared with the TNG as this information was confidential. [ 26 ] The next day, the TNG sent a letter to the CEAA expressing concern (based on news reports) about Taseko’s access to federal Ministers. [ 27 ] On February 14, 2014, as part of the consultation process, the CEAA provided " “potential conditions” " for inclusion in a Decision Statement upon which the CEAA asked for TNG’s comments in the event that the Project was approved. [ 28 ] On February 21, 2014, the Minister received the Crown Consultation Report. [ 29 ] On February 24, 2014, the Minister received the TNG’s submissions in response to the draft conditions sent by the CEAA.

(2) Taseko’s Post-Hearing Engagement [ 30 ] On a somewhat parallel track, Taseko was also engaged in contact with federal and other officials after the CEAA hearing. This was not done under any " “consultation duty” " as the TNG’s contact was styled. [ 31 ] On August 29, 2013, and October 3, 2013, Taseko wrote to the Minister regarding the Project.

In the second of these letters, Taseko indicated it would be " “happy to meet” " with the Minister. [ 32 ] On September 1, 2013, the President and CEO of Taseko, Russ Hallbauer, published an opinion piece in the Vancouver Sun, wherein he stated that " “[s]ome of the panel testimony, however, much of it from outside special interests, has unfortunately been designed to misinform and divide.” " Much of the language from this

article was mirrored in the August 29 letter to the Minister. [ 33 ] In October of 2013, a representative of Taseko met with government officials including Mr. Hallman. There was at least one telephone call between Hallman and another Taseko representative in November.

In addition, Taseko employed a government relations consultant to assist in securing meetings with officials. [ 34 ] On November 4, 2013, following the Report’s October 31 release, counsel for Taseko wrote to the Minister to advise her that Taseko was preparing submissions regarding the Report and that the Minister should not make any determinations under the CEAA 2012 until receiving those submissions " “as a matter of administrative fairness.” " [ 35 ] On November 5, 2013, Taseko issued a press release wherein it stated that Natural Resources Canada and the Panel had relied on the wrong project design in making determinations on seepage from the TSF. [ 36 ] In keeping with its promise outlined in paragraph 31, on November 8, 2013, Taseko sent a submission to the Minister " “regarding her pending decision and responding to the Panel Report, which referenced administrative fairness and requested that Taseko be notified of any adverse submissions made to the Minister arising out of aboriginal consultation.” " This letter also indicated that the Project had the support of Mr.

Ervin Charleyboy, a former TNG chief. Taseko had paid Mr. Charleyboy’s expenses to travel to Ottawa, where he spoke briefly with the Prime Minister outside of Parliament. [ 37 ] Some issue was made at this Court about Taseko’s activities, and the identity of Mr. Charleyboy, with a request that he not be named in the Court’s decision. Identity is a matter of public record. Whether these activities constituted " “lobbying” " is not for the Court to decide. It is sufficient to describe them as political/government relations.

However, court proceedings are open to the public except in very limited exceptions – this is not one of those exceptions. [ 38 ] Around this time, Taseko engaged in meetings with Minister Bennett. An internal e-mail dated November 8, 2013, indicated the purpose of these meetings: " “We need them as allies and as importantly we somehow need Bill [Bennett] and Christy [Clark] to do things that they may not otherwise undertake.” " Meetings, letters, and a telephone call took place or were exchanged between Taseko and Minister Bennett.

In a December 11, 2013 news article, Minister Bennett indicated that he was " “going to seek to influence the decision, of course,” " and that while it would be inappropriate to meet with the statutory decision maker he intended to meet with a number of other federal Ministers. [ 39 ] On November 13, 2013, the CEAA requested that Taseko provide a response to two matters that it had raised concerning the Panel Report. The TNG was also informed of this request. [ 40 ] On November 15, 2013, Taseko provided further submissions in response to the CEAA’s request.

Taseko then issued a press release on November 18, 2013, in which it publicized these further submissions.

The CEAA forwarded this correspondence to a member of the Minister’s political staff. [ 41 ] On November 29, 2013, Taseko filed a Notice of Application in T-1977-13 seeking judicial review of the Report. [ 42 ] In January 2014, Taseko sent correspondence to federal Ministers including Minister Joe Oliver, Minister James Moore, and Prime Minister Stephen Harper. [ 43 ] On February 20, 2014, Taseko was provided with a copy of a letter written by Minister Bennett to the Minister of the Environment, which argued that unresolved concerns could be addressed in provincial government approval processes subsequent to approval under the CEAA 2012 .

B. Pertinent Decision(s) [ 44 ] On January 29, 2014, Mr. Hallman sent a memorandum to the Minister [the Hallman Memo]. He recommended that the Minister decide that the Project was likely to cause significant adverse environmental effects pursuant to sections 5(1) and (2) of the CEAA 2012 .

The Hallman Memo included three attachments: a memo on the issue of " “Wrong Project Design” " (under solicitor-client privilege), a document on mitigation measures, and the January 9, 2014 TNG submissions. [ 45 ] On January 30, 2014, the Minister made her decision under section 52(1) in which she agreed with the CEAA recommendation and decided that the Project was likely to cause significant adverse environmental effects according to sections 52(1)(

a) and (

b) of the CEAA 2012 [Minister’s Decision]. [ 46 ] In February of 2014, the Minister sent a memorandum that included a Ministerial recommendation to the GIC for its decision [GIC Decision]. [ 47 ] On February 26, 2014, the Decision Statement was communicated to Taseko. The Decision Statement, pursuant to

section 54 of the CEAA 2012 , contained the Minister’s Decision and the GIC’s Decision under section 52(4). It did not include reasons. A press release stated: " “In making its decision, the federal government considered the report of the independent Review Panel which conducted a rigorous review of the New Prosperity Mine project, and agreed with its conclusions about the environmental impacts of the project.” " [ 48 ] The CEAA advised Taseko that sections 6 and 5(1) of the CEAA 2012 prevented Taseko from taking any action that may cause environmental effects. III.

ISSUES [ 49 ] Taseko challenges both the Minister’s Decision and the GIC Decision on grounds of breach of procedural fairness and jurisdictional error including the Canadian Bill of Rights . It also raises a constitutional challenge to section 5(1)(

c) and

section 6 of the CEAA 2012 arguing that these provisions are, by the doctrine of interjurisdictional immunity, inapplicable to the Project. [ 50 ] While the government Respondents - the Minister and Attorney General [AG] - both see no issue as to a fair process at either decision, they also ask the Court not to decide the jurisdictional issue at this time. [ 51 ] The Respondents TNG and Tsilhquot’in Nation take a slightly different position than the government Respondents.

They raise issues as to Taseko’s right to be involved in Crown-Aboriginal consultation, fairness and delay in raising fairness concerns as well as what is tantamount to a " “clean hands” " argument given Taseko’s own conduct. They also raise the adequacy of the reasons for the decisions and the alleged hypothetical nature of the constitutional issue. [ 52 ] I find the principal issues are: 1 . Was Taseko afforded a fair process during the Minister's decision making process? 2 . Was Taseko afforded a fair process during the GIC's decision making process? 3 .

Did the Minister and the GIC breach the Bill of Rights ? 4 . Are sections 5(1)(

c) and 6 of the CEAA 2012 unconstitutional? IV. STANDARD OF REVIEW [ 53 ] It is well established and not argued here that the standard of review with respect to procedural fairness is correctness: Canada (Citizenship and Immigration) v Khosa , 2009 SCC 12 , [2009] 1 SCR 339; Arsenault v Canada (Attorney General) , 2016 FCA 179 , 486 NR 268. [ 54 ] The standard of review for constitutional issues is also correctness: Dunsmuir v New Brunswick , 2008 SCC 9 ; [2008] 1 SCR 190. V. ANALYSIS A. Issue 1: Was Taseko afforded a fair process during the Minister’s decision making process?

(1) Procedural Fairness [ 55 ] The parties agree that there was a duty of procedural fairness owed to Taseko in this process.

Contrary to Taseko’s assertions, the Respondents are not arguing that the duty to consult ousts the duty of fairness owed to a proponent. [ 56 ] However, the parties are sharply divided as to the content of the duty of fairness owed to Taseko at this stage of the process. [ 57 ] The Respondents argue that Taseko was owed a high degree of procedural fairness at the Panel stage and a minimal degree of procedural fairness at the Minister’s decision making stage (Taseko calls this an " “asymmetrical process” " ) particularly as it afforded the TNG greater access to decision makers.

Taseko argues that it was owed a high degree of procedural fairness at all stages of the process (and, essentially, that it was owed the same process as the TNG – i.e., a symmetrical process). [ 58 ] In my view, Taseko was owed a duty of procedural fairness throughout the whole process, but it was not owed a high degree of

procedural fairness at this stage of the environmental review process. When the environmental assessment scheme at issue is understoodas a whole, it is clear that the Panel process is the venue through which the parties are to be afforded a high degree of proceduralfairness.

That process involves oral hearings, the submission of evidence (including expert evidence) by interested persons, cross-examination, fact finding, and a number of other trappings associated with a quasi-judicial process. [59] The Minister’s decision making process, by contrast, did not involve any elements that would indicate that Taseko was owed a highdegree of procedural fairness. [60] I conclude that Taseko was owed a duty of procedural fairness in this environmental approval process but that the degree and typeof procedural fairness varies at different stages of the whole process.

The "“process”" encompasses from application through to the GICdecision. [61] A review of the Baker v Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 SCR 817, 174 DLR(4th) 193 [Baker] factors supports the finding that Taseko was owed a minimal degree of procedural fairness at this stage of the process: The Minister’s decision making process did not resemble judicial decision making (i.e., the process was not established to beadversarial, and the Minister was not required to receive submissions).

The Minister was making findings of fact (as argued byTaseko), but these findings were based on the findings in the Report during the stage of the process in which Taseko had beenafforded a high degree of procedural fairness. Therefore, as discussed in Jada Fishing Co v Canada (Minister of Fisheries andOceans), 2002 FCA 103, 288 NR 237 [Jada Fishing], the duty of fairness in this case was not as rigorous as it would have been inan adversarial, judicial, or quasi-judicial process.

As discussed below, and in line with Pacific Booker Minerals Inc v BritishColumbia (Minister of the Environment), 2013 BCSC 2258, 82 CELR (3d) 195 [Pacific Booker], Taseko may have had additionalrights if the Minister had decided not to follow the recommendations in the Report - but this is not the circumstance in the instantcase. Furthermore, the statutory scheme indicates that the proponent would only provide submissions if requested to do so by theMinister (s 47(2)).

This indicates that the proponent does not have a right to provide such submissions, and it is entirely at theMinister’s discretion whether such submissions are warranted in the circumstances. The importance of the decision, indicated by Taseko’s investment in the Project, was reflected in the extensive process provided infront of the Panel. Further, in my view, the importance of the decision does not require that each step of the process take on aquasi-judicial character, particularly when a party’s procedural rights have been comprehensively addressed at an earlier stage ofthe process.

In addition, Taseko’s claim that it had legitimate expectations with respect to the Minister’s decision making process must berejected.

It was explicitly informed that its own post-Panel submissions would not be posted on the online registry (and thatreasoning could easily be extended to cover any other submissions) and the CEAA’s silence in response to Taseko’s queries doesnot justify its assumptions with respect to process as silence does not constitute "“established practices, conduct or representationsthat can be characterized as clear, unambiguous and unqualified”" per Mount Sinai Hospital Center v Quebec (Minister of Healthand Social Services), 2001 SCC 41 at para 29, [2001] 2 SCR 281. [62] Nonetheless, even if Taseko were owed a significant degree of procedural fairness, the record in this case indicated that Taseko wasin fact afforded that degree of procedural fairness.

Taseko made submissions on the Report in November of 2013, and then providedclarifications of its positions; the evidence indicates that this was forwarded to the Minister’s office. The material that was before theMinister (i.e. the Hallman Memo) included discussions of the main contention raised in Taseko’s post-Report submissions, particularlythe memorandum on the "“wrong project design”" claim and the TNG’s responses to Taseko’s submissions. [63] Therefore, the Minister went "“above and beyond”" the procedural fairness requirements in this case.

The facts indicate that bothTaseko and the TNG were working hard to ensure that their views were considered by the relevant decision makers and they were. [64] On this matter of advancing the parties’ views, both sides viewed the process as less procedurally strict than at the Panel stage.Each adopted the mode of using government relations and political contacts to advance their case – a mode inconsistent with a quasi-judicial process. [65] Taseko was active in engaging political contacts to advance their cause. This in itself leads to an asymmetrical process.

The TNGseems to have been more successful than Taseko at this "“politicized”" course of action but that forms no basis for concluding thatTaseko was denied the level of procedural fairness that the process required. [66] Taseko’s central complaint is that it should have been informed of any submissions received by the Minister in opposition to theProject, and that it should have been afforded an opportunity to respond prior to the final decision. This is arguably grounded in theprinciple of audi alteram partem.

The events at issue are therefore the October 8, 2013 meeting between the TNG and the Minister, andthe Minister’s receipt of the January 9, 2014 submissions.

In Canadian Cable Television Assn v American College Sports Collective of Canada, Inc, (FCA), [1991] 3 FC 626at 639, 81 DLR (4th) 376 (CA) [Canadian Cable], MacGuigan JA for the Federal Court of Appeal defined the principle of audi alterampartem thus: The common law embraces two principles in its concept of natural justice, both usually expressed in Latin phraseology: audialteram partem (hear the other side), which means that parties must be made aware of the case being made against themand given an opportunity to answer it. [Emphasis added.] [67] In my view, Taseko was aware of the case being made against it and was given an opportunity to answer it, both before the Panel

and by making written submissions to the Minister.

The jurisprudence does not support the contention that Taseko had the right to beinformed of any and all meetings with the Minister or the TNG’s submissions to the Minister. [68] Taseko has not identified any information submitted by the TNG to the Minister as being new or different from that which waspreviously before the Panel (and to which Taseko had the opportunity to respond). [69] In Pfizer Company Limited v Deputy Minister of National Revenue for Customs and Excise, (SCC), [1977] 1 SCR456 at 463, 68 DLR (3d) 9 [Pfizer], relied on by Taseko, the decision maker in question - the Tariff Board - had relied on twopublications that had not been put into evidence or even referred to at the hearing.

This was found to be improper, and the Supreme Courtof Canada [SCC] indicated that the parties ought to have had this information disclosed and been accorded the opportunity to respond. Inthat case, there was clearly new information before the Tariff Board of which the parties were unaware. [70] However, the present case is easily distinguished because the TNG did not provide any new information to the Minister of whichTaseko was unaware or to which Taseko had not previously had the opportunity to respond.

Similarly, Jada Fishing indicates that aremedy is not required where post-Panel "“evidence”" does not go beyond subject matter of which the parties had prior knowledge andwhich was not prejudicial (para 17). I concur with that reasoning. [71] Moreover, Taseko has not identified any prejudice or possibility of prejudice arising from the impugned meeting or thesubmissions.

The jurisprudence indicates that, contrary to Taseko’s submissions, a party must show that a possibility of prejudice arosefrom such a meeting or submission in order to constitute a breach of the audi alteram partem principle (Canadian Cable at 650). [72] Although Taseko relies on Kane v Board of Governors of University of British Columbia, (SCC), [1980] 1 SCR1105, 110 DLR (3d) 311 [Kane], for the proposition that a bare breach of the audi alteram partem principle is sufficient to require aremedy, this proposition was fully discussed and debunked in Canadian Cable wherein the Court stated at 650: In my opinion, this review of the case law indicates the fallacy of the applicant's argument.

Contrary to its contention thata court will not inquire into the question of prejudice, all of the authorities which focus on the matter show that thequestion of the possibility of prejudice is the fundamental issue: Kane, Consolidated Bathurst, Cardinal Insurance, CivicEmployees Union, and Hecla Mining. [Emphasis added.] [73] The question of the possibility of prejudice is therefore critical, and a breach of the audi alteram partem principle without such apossibility of prejudice will not warrant a remedy. [74] In Kane, the SCC did not state that any breach of the audi alteram partem principle would justify a remedy, but instead indicatedthat a possibility of prejudice was required.

Because of Taseko’s inability to so much as speculate on prejudice, it relies on this Court tofind that any (alleged) breach of the audi alteram partem principle will mandate a remedy.

Such a general statement of the law runscounter to decisions such as Kane, Pfizer, Canadian Cable, CEP Union of Canada v Power Engineers, 2001 BCCA 743, 209 DLR (4th)208, and Coldwater Indian Band v Canada (Minister of Indian Affairs and Northern Development), 2016 FC 595, [2016] 3 CNLR 1,rev’d on other grounds 2017 FCA 199. [75] Furthermore, Taseko admits that it knew about the October 8, 2013 meeting shortly after it took place, yet raised no complaintsregarding procedural unfairness at that time (despite "“internal discussions”").

This is contrary to decisions such as Hennessey v Canada,2016 FCA 180, 484 NR 77, which indicates that procedural complaints should be made at the first opportunity. Since Taseko did not object at the first opportunity, it waived its right to that procedural fairness, and cannot raise this issue now beforethis Court (High-Crest Enterprises Limited v Canada, 2017 FCA 88 at para 102, 2017 DTC 5057). [76] Moreover, Taseko has not shown any reason for the Court to make an adverse inference against the TNG regarding the informationdiscussed at the October 8, 2013 meeting. [77] The evidence of Mr.

Hallman, who attended the meeting, is that the TNG representatives’ "“comments about the New ProsperityProject were variations of what they had previously indicated about the project in their public comments, namely, regarding what theycharacterized as Taseko’s failure to develop a relationship with the community, and what they characterized as Taseko’s failure toadequately demonstrate that Fish Lake would be protected if the project proceeded”". [78] The TNG did not file further evidence of the content of this meeting because it was satisfied with this account.

Taseko seeks to havethis Court draw an adverse inference against the TNG, and in doing so conclude that the Facebook postings are admissible and accuratelyreflect what occurred in the meeting (the Facebook postings stated "“[w]e made it very clear that Fish Lake Teztan Biny is not an option,she heard us and understood our stand.

She and her Community & Nation have dealt with similar situation with Mining in her area”"). [79] Even if this post were accepted as an accurate description of what occurred at the meeting, it is not clear what Taseko stands to gain– this does not represent a departure from the TNG’s previous position and the post only indicates that the Minister understood theTNG’s position. [80] In sum, the TNG had already made its position clear before the Panel and there was no new information adduced before theMinister to which Taseko could properly have responded.

Therefore, any additional submissions by Taseko at that stage would either beinformation that ought to have been adduced before the Panel, the submission of which would be improper; or a re-hashing of its positionalready summarized within the Report – a redundancy.

(2) Duty to Consult – The interaction between the duty of fairness to a proponent and the duty ofconsultation to First Nations?

[ 81 ] The parties appear to agree that engagement between the TNG and the Crown following the Report’s release was required as part of the Crown’s duty to consult. Even if it was not agreed, I have concluded that such engagement was required. [ 82 ] The consultation framework was publicly available and Taseko was aware that there would be consultation following the release of the Report. Taseko argues that this consultation process should not result in unfairness to the proponent of a project – a proposition with which the Respondents would likely agree.

As the TNG admits, there are certain circumstances wherein fairness would require a proponent to be made aware of submissions made by a First Nation in the course of consultation. [ 83 ] The duty of consultation can exist harmoniously with the duty of fairness. The essential issues are - what type of submissions must a proponent be made aware of, and were these present in the instant case? [ 84 ] The issue of the duty of consultation with a decision maker is not a simple matter.

It requires a balancing of meaningful consultation with aboriginal peoples against the principle of fairness to each participant – a tension between competing " “good principles.” " [ 85 ] A very similar consultation process was utilized during an environmental assessment under the CEAA 2012 described in Prophet River First Nation v Attorney General of Canada , 2017 FCA 15 at para 16 , 408 DLR (4th) 165 [ Prophet River ]. Prophet River concerned a judicial review of the GIC’s decision that certain significant adverse environmental effects, found by the Minister to exist, were justified in the circumstances.

The trial judge had found that the duty to consult was satisfied by the deep consultation between the Crown and First Nations, similar to that which occurred in this case, and that finding was not challenged on appeal ( Prophet River at para 48 ). [ 86 ] In this case, the TNG acknowledged that certain circumstances will require a proponent to be made aware of submissions made in the course of consultation: the TNG suggest that a proponent should be informed if the Crown intends to alter its position or make a decision that is contrary to the Panel Report due to new concerns raised by a First Nation.

Similarly, at the hearing, the TNG suggested that the proponent’s procedural fairness rights are engaged when the Crown is considering information arising in the course of consultation that is substantially new, that the Crown intends to rely on, and that materially effects the proponent. [ 87 ] This is in line with the decision in Gitxaala Nation v Canada , 2016 FCA 187 , [2016] 4 FCR 418 [ Gitxaala ], wherein the FCA found that new recommendations arising in the course of consultations ought to be shared with a project proponent, and with the decision in Pacific Booker which indicated that recommendations against accepting the positive result of a review panel process ought to be provided to a proponent. [ 88 ] In my view, this is a fair, practical and principled rule that ensures the rights of project proponents are protected, while also recognizing the importance of the duty to consult. [ 89 ] Further, Gitxaala indicates that post-report consultation ( " “Phase IV” " consultation) is not only appropriate, but may be necessary.

In Gitxaala , the FCA stated: [279] Based on our view of the totality of the evidence, we are satisfied that Canada failed in Phase IV to engage, dialogue and grapple with the concerns expressed to it in good faith by all of the applicant/appellant First Nations . Missing was any indication of an intention to amend or supplement the conditions imposed by the Joint Review Panel, to correct any errors or omissions in its Report, or to provide meaningful feedback in response to the material concerns raised. Missing was a real and sustained effort to pursue meaningful two-way dialogue .

Missing was someone from Canada's side empowered to do more than take notes, someone able to respond meaningfully at some point. [Emphasis added.] [ 90 ] In this case, there is a very strong argument that the requirements of Phase IV consultation as discussed in Gitxaala were not satisfied. The Court need not decide that point but it provides a useful context to the exercise of the duty to consult in this case.

As the TNG complained, this was not a two-way dialogue; although the Minister and the CEAA appear to have assured the TNG that their concerns would be considered (as evidenced by the " “endless summarizing” " process), these parties did not give the TNG any indication of their intentions prior to the release of the final decision. [ 91 ] In Mikisew Cree First Nation v Canada (Minister of Canadian Heritage) , 2005 SCC 69 at para 64 , [2005] 3 SCR 388, the SCC recognized that the duty to consult may (in a given context) require " “both informational and response components.” " If the Minister had not met with the TNG on October 8, 2013 or received the January 9, 2014 submissions, the TNG would have had a very strong case for overturning any negative decision on the basis of inadequate consultation. (The TNG would also have had a strong argument along the lines of Pacific Booker , as any negative decision would have run counter to the Report’s recommendations.) [ 92 ] This litigation concerns a First Nation that has proven aboriginal rights and title to its land.

The strength of those rights is an important context for the duty to consult. The land in question is land over which the First Nation has proven aboriginal rights, but is not included in the land over which it has proven title ( Tsilhqot’in Nation v British Columbia , 2014 SCC 44 , [2014] 2 SCR 257 [ Tsilhqot’in Nation ]). This is illustrated in the following images – on the left is the image from the SCC decision, showing the proven title land, and on the right is an image (obtained from Google Maps) showing the location of the Project:

Teztan Biny (Fish Lake) and the Project are in the area covered by the " “Balance of Claim in Action No. 90 0913.” " The decision of the British Columbia Supreme Court governs, wherein Vickers J. found that the Tsilhqot’in Nation had proven aboriginal rights to the land in question (see Tsilhqot’in Nation v British Columbia , 2007 BCSC 1700 at paras 893-911 , 1213-68, [2008] 1 CNLR 112). The First Nation has proven hunting and trapping rights to the immediate area in question (Teztan Biny/Fish Lake).

[93] In Prophet River, the FCA indicated that the title rights of the Tsilhqot’in Nation lie at "“one end of the spectrum”" (the high end ofprotection) for constitutionally protected indigenous rights as they are "“proven rights”" (para 36).

In the present case, the Panel foundthat the land at issue (particularly Teztan Biny and the surrounding areas), which would be largely destroyed by the Project (i.e. in termsof water quality), holds a great deal of cultural and spiritual significance for the Tsilhqot’in people. [94] However, despite its responsibilities with respect to consultation, the consultation that the Crown engaged in with the TNG duringPhase IV amounted to, as the TNG complained, requiring the TNG to endlessly summarize its position and ensure that the Reportaccurately reflected its position.

The TNG engaged in this labour-intensive task without receiving any real information in return from theMinister or other relevant officials regarding the decision to be made, at a time when news reports and/or press releases indicated thatTaseko had access to decision makers. [95] In my view, a proponent does not have a right to take

part in the consultations between the Crown and a First Nation. However, thisis not to say that a proponent may never have a role in consultations. [96] A proponent may play an active role, for example, in ensuring that a First Nation’s concerns are appropriately accommodated. It isan open question as to whether the Crown’s heavy reliance on industry and on quasi-judicial panels to satisfy its duties of consultationadequately reflects the principles discussed in Gitxaala with respect to "“meaningful two-way dialogue”"; nonetheless, some"“delegation”" of the duty to consult has been accepted by the SCC.

In Haida Nation v British Columbia (Minister of Forests), 2004SCC 73, [2004] 3 SCR 511, the SCC stated: [53] It is suggested (per Lambert J.A.) that a third party's obligation to consult Aboriginal peoples may arise from the abilityof the third party to rely on justification as a defence against infringement. However, the duty to consult andaccommodate, as discussed above, flows from the Crown's assumption of sovereignty over lands and resourcesformerly held by the Aboriginal group. This theory provides no support for an obligation on third parties to consult oraccommodate.

The Crown alone remains legally responsible for the consequences of its actions and interactions with thirdparties, that affect Aboriginal interests. The Crown may delegate procedural aspects of consultation to industryproponents seeking a particular development; this is not infrequently done in environmental assessments. Similarly,the terms of T.F.L. 39 mandated Weyerhaeuser to specify measures that it would take to identify and consult with"aboriginal people claiming an aboriginal interest in or to the area" (Tree Farm Licence No. 39, Haida Tree Farm Licence,para. 2.09(g)(ii)).

However, the ultimate legal responsibility for consultation and accommodation rests with theCrown. The honour of the Crown cannot be delegated. [Emphasis added.] [97] In Taku River Tlingit First Nation v British Columbia (Project Assessment Director), 2004 SCC 74, [2004] 3 SCR 550, the SCCstated: [25] As discussed in Haida, what the honour of the Crown requires varies with the circumstances. It may require the Crownto consult with and accommodate Aboriginal peoples prior to taking decisions: R. v. Sparrow, (SCC),[1990] 1 S.C.R. 1075, at p. 1119, R. v. Nikal, (SCC), [1996] 1 S.C.R. 1013; R. v.

Gladstone, (SCC), [1996] 2 S.C.R. 723; Delgamuukw v. British Columbia, (SCC), [1997] 3 S.C.R. 1010, at para.168. The obligation to consult does not arise only upon proof of an Aboriginal claim, in order to justify infringement. Thatunderstanding of consultation would deny the significance of the historical roots of the honour of the Crown, and deprive itof its role in the reconciliation process. Although determining the required extent of consultation and accommodation beforea final settlement is challenging, it is essential to the process mandated by s. 35(1).

The duty to consult arises when a Crownactor has knowledge, real or constructive, of the potential existence of Aboriginal rights or title and contemplates conductthat might adversely affect them. This in turn may lead to a duty to change government plans or policy to accommodateAboriginal concerns. Responsiveness is a key requirement of both consultation and accommodation. [Emphasis added.] [98] Finally, in Rio Tinto Alcan Inc v Carrier Sekani Tribal Council, 2010 SCC 43, [2010] 2 SCR 650 [Rio Tinto], the SCC consideredthe duty to consult and the role of tribunals in consultation.

Although the review panel in the present case was not a tribunal, thisdiscussion may offer some insight into the delegation of the duty to consult in general. The SCC stated: [55] The duty on a tribunal to consider consultation and the scope of that inquiry depends on the mandate conferred by thelegislation that creates the tribunal. 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 consultationdepends 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.

As noted in Haida Nation, it is opento governments to set up regulatory schemes to address the procedural requirements of consultation at differentstages 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 adequateconsultation has taken place, as a condition of its statutory decision-making process. In this case, the tribunal is not itselfengaged in the consultation.

Rather, it is reviewing whether the Crown has discharged its duty to consult with a given FirstNation about potential adverse impacts on their Aboriginal interest relevant to the decision at hand. [Emphasis added.] [99] Therefore, although the SCC has accepted some delegation of this duty, the duty to consult remains a duty of the Crown, and if aproponent or other entity (such as, in this case, a review panel) were found not to satisfy the requirements of the duty to consult, thisfailure would be the Crown’s responsibility. [100] In cases such as this where the relationship between a First Nation and a proponent is "“acrimonious,”" reconciliation may be

adversely impacted by a requirement that every interaction between the Crown and a First Nation be provided to a proponent for comment. As noted by the SCC in Tsilhqot’in Nation (in the context of land claims disputes), " “[t]he governing ethos is not one of competing interests but of reconciliation” " (para 17). In Rio Tinto , the SCC stated: " “The honour of the Crown is therefore best reflected by a requirement for consultation with a view to reconciliation” " (para 34). This same sentiment ought to apply in the present case.

(3) Brief Comments on Lobbying [ 101 ] As a subtext to this acrimonious relationship, during the course of this Court’s hearing, a concern was raised with respect to the " “lobbying efforts” " made by the parties. This matter was discussed briefly earlier in these Reasons. [ 102 ] " “Lobbying” " is a term that does not lend itself to academic or governmental consensus. However, the Lobbying Act , RSC 1985, c 44 (4th Supp), mandates a person must file a return if that person engages in certain conduct generally considered as " “lobbying.” " " 5

(1) An individual shall file with the Commissioner, in the prescribed form and manner, a return setting out the information referred to in subsection (2), if the individual, for payment, on behalf of any person or organization (in this

section referred to as the “client”), undertakes to " " 5 (1) " " Est tenue de fournir au commissaire, en la forme réglementaire, une déclaration contenant les renseignements prévus au paragraphe (2) toute personne (ci-après « lobbyiste-conseil ») qui, moyennant paiement, s’engage, auprès d’un client, d’une personne physique ou morale ou d’une organisation : " " (

a) communicate with a public office holder in respect of " " a) " " à communiquer avec le titulaire d’une charge publique au sujet des mesures suivantes : " " (

i) the development of any legislative proposal by the Government of Canada or by a member of the Senate or the House of Commons, " " (i) " " l’élaboration de propositions législatives par le gouvernement fédéral ou par un sénateur ou un député, " " (ii) the introduction of any Bill or resolution in either House of Parliament or the passage, defeat or amendment of any Bill or resolution that is before either House of Parliament, " " (ii) " " le dépôt d’un projet de loi ou d’une résolution devant une chambre du Parlement, ou sa modification, son adoption ou son rejet par celle-ci, " " (iii) the making or amendment of any regulation as defined in subsection 2(1) of the Statutory Instruments Act , " " (iii) " " la prise ou la modification de tout règlement au sens du paragraphe 2(1) de la

Loi sur les textes réglementaires , " " (iv) the development or amendment of any policy or program of the Government of Canada, " " (iv) " " l’élaboration ou la modification d’orientation ou de programmes fédéraux, " " (

v) the awarding of any grant, contribution or other financial benefit by or on behalf of Her Majesty in right of Canada, or " " (v) " " l’octroi de subventions, de contributions ou d’autres avantages financiers par Sa Majesté du chef du Canada ou en son nom, " " (vi) the awarding of any contract by or on behalf of Her Majesty in right of Canada; or " " (vi) " " l’octroi de tout contrat par Sa Majesté du chef du Canada ou en son nom; " " (

b) arrange a meeting between a public office holder and any other person. " " b) " " à ménager pour un tiers une entrevue avec le titulaire d’une charge publique. " " … " " […] " " 7

(1) The officer responsible for filing returns for a corporation or organization shall file with the Commissioner, in the prescribed form and manner, a return setting out the information referred to in subsection (3) if " " 7 (1) " " Est tenu de fournir au commissaire, en la forme réglementaire, une déclaration contenant les renseignements prévus au paragraphe (3) le déclarant d’une personne morale ou d’une organisation si : " " (

a) the corporation or organization employs one or more individuals any part of whose duties is to communicate with public office holders on behalf of the employer or, if the employer is a corporation, on behalf of any subsidiary of the employer or any corporation of which the employer is a subsidiary, in respect of " " a) " " d’une part, celle-ci compte au moins un employé dont les fonctions comportent la communication, au nom de l’employeur ou, si celui-ci est une personne morale, au nom d’une filiale de l’employeur ou d’une personne morale dont celui-ci est une filiale, avec le titulaire d’une charge publique, au sujet des mesures suivantes : " " (

i) the development of any legislative proposal by the Government of Canada or by a member of the Senate or the House of Commons, " " (i) " " l’élaboration de propositions législatives par le gouvernement fédéral ou par un sénateur ou un député, " " (ii) the introduction of any Bill or resolution in either House of Parliament or the passage, defeat or amendment of any Bill or resolution that is before either House of Parliament, " " (ii) " " le dépôt d’un projet de loi ou d’une résolution devant une chambre du Parlement, ou sa modification, son adoption ou son rejet par celle-ci, " " (iii) the making or amendment of any regulation as defined in subsection 2(1) of the Statutory Instruments Act , " " (iii) " " la prise ou la modification de tout règlement au sens du paragraphe 2(1) de la

Loi sur les textes réglementaires , "

"(iv) the development or amendment of anypolicy or program of the Government ofCanada, or " "(iv)"" l’élaboration ou la modificationd’orientation ou de programmes fédéraux, " "(

v) the awarding of any grant, contributionor other financial benefit by or on behalf ofHer Majesty in right of Canada; and " "(v)"" l’octroi de subventions, decontributions ou d’autres avantages financierspar Sa Majesté du chef du Canada ou en sonnom; ""(

b) those duties constitute a significant partof the duties of one employee or wouldconstitute a significant part of the duties ofone employee if they were performed by onlyone employee. " "b)"" d’autre part, les fonctions visées àl’alinéa a) constituent une

partie importantede celles d’un seul employé ouconstitueraient une

partie importante desfonctions d’un employé si elles étaientexercées par un seul employé. " [103] During the hearing, Taseko clarified its position was that no "“lobbying”" had occurred. A review of the lobbyist registriesindicates that there are no registered lobbyists acting on behalf of Taseko. Nonetheless, a number of individuals in this case wereattempting to communicate with public office holders or organize meetings with public office holders.

One such individual, Mr.Charleyboy, was in fact paid to attempt to influence public office holders and to hold meetings with them – but he did not file a returnpursuant to the legislation. [104] However, it is unclear from the evidence whether Taseko ought to have filed a return pursuant to section 7(1) of the Lobbying Act,as the evidence has not been put forward to establish that "“those duties constitute a significant part of the duties of one employee orwould constitute a significant part of the duties of one employee if they were performed by only one employee.”" [105] Following the close of the Panel process, Taseko and the TNG both attempted to ensure that their viewpoints were heard andunderstood by the ultimate decision makers.

The parties both believed that the other had greater access to decision makers and neitherparty was concerned with the potential procedural fairness rights of the other. [106] The TNG submits that Taseko’s efforts to lobby or advocate for its position disentitle it to relief, even if the Court should find thatmeetings and submissions to federal government officials are inappropriate in all cases if not disclosed for comment: "“Taseko iscomplaining today that the TNG had unfair access to government decision-makers, when Taseko was doing all it could to influence thegovernment’s decision through private communications and lobbying.”" [107] Therefore, in the TNG’s view, Taseko does not have "“clean hands”" and the Court has the discretion to refuse relief.

It isunnecessary to decide this matter of clean hands but it does illustrate that in terms of the overall process, both parties had their methodsof access, direct and indirect, to the Minister. [108] The assessment of procedural fairness is made more difficult in the absence of any formal process before the Minister.

In a quasi-judicial context, the hidden approaches to the decision maker and staff would be abhorrent; in a public policy development contextperhaps less so. [109] As to this first issue, Taseko was afforded a fair process before the Minister given the factors discussed earlier, including but notlimited to: the nature of the communication at issue, the expectations and conduct of the parties, the absence of new issues or evidenceraised by the TNG before the Minister, and the obligation to consult the First Nation. B.

Issue 2: Was Taseko afforded a fair process during the Governor in Council’sdecision making process? [110] Taseko submits that the GIC owed a duty of procedural fairness to Taseko and that it was breached in this case. Consistent withJustice O’Reilly’s decision in Hospitality House Refugee Ministry Inc v Canada (Attorney General), 2013 FC 543, 433 FTR 118[Hospitality House]: [18] Generally speaking, the duty of fairness does not apply to legislative activities, such as the promulgation of Orders inCouncil (Attorney General of Canada v Inuit Tapirisat et al, (SCC), [1980] 2 SCR 735).

While certaindecisions of the Governor in Council will attract a duty of fairness, the scope of any such duty depends on a numberof factors, including the subject matter of the decision, the consequences for those affected by it, and the number ofpeople involved (at pp 755-758). [Emphasis added.] [111] Furthermore, Taseko says that the GIC breached their duty of procedural fairness "“by failing to provide Taseko with the TNGSubmissions made to the Minister, the Consultation Report, and comments on the Minister’s draft conditions.”" [112] Taseko further argues that the GIC’s decision was invalid because it was made without jurisdiction. [113] Lastly, Taseko contends that the decisions of both the Minister and the GIC breached the duty to give reasons, which is requiredunder the duty of fairness in certain circumstances.

Taseko also contends that although it had the right to know why the GIC did not findthe adverse environmental effects to be justified, the Decision Statement did not provide reasons.

(1) Procedural Fairness [114] In Attorney General of Canada v Inuit Tapirisat of Canada, (SCC), [1980] 2 SCR 735, 115 DLR (3d) 1 [Inuit

Tapirisat ], the SCC indicated that the duty of fairness does not generally apply to legislative activities, but noted that " “the mere fact that a statutory power is vested in the Governor in Council does not mean that it is beyond review” " (at 748).

If, for example, a condition precedent to the exercise of that power was not observed, then the Court may declare the exercise of that power a nullity. [ 115 ] In Hospitality House , O’Reilly J. indicated that the scope of any duty of fairness before the GIC would depend on factors such as the subject matter of the decision, the number of people involved, and the consequences for people impacted by the decision.

In that case, Justice O’Reilly found that an Order restricting governmental health care coverage of 1,940 privately sponsored refugees did not place a duty to consult with the applicants on the GIC, given the " “modest” " amounts of money and relatively few people involved.

Further, he noted that consultations with sponsors had taken place, in the form of a conference with sponsorship agreement holders. [ 116 ] Although the Minister argued that it is questionable whether a duty of procedural fairness will ever attach to the GIC’s decision making process, in my view the jurisprudence (such as that cited by Taseko) does not support such a broad statement.

Rather, the case law indicates that it may be possible for the duty of procedural fairness to attach to the GIC, but that such circumstances will be rare. [ 117 ] In the present case, no duty of procedural fairness attached to the GIC. The importance and finality of the decision alone cannot justify imposing the sort of procedural fairness requirements that Taseko seeks. In Prophet River , the Federal Court of Appeal stated the GIC’s decisions " “are the result of a highly discretionary, policy-based and fact driven process” " (para 30).

Jurisprudence such as Inuit Tapirasit and Canada (Attorney General) v Canadian Wheat Board , 2009 FCA 214 , [2010] 3 FCR 374, indicates that the GIC is generally free to exercise its power without Court interference provided that there is no absence of good faith and statutory preconditions have been met.

Taseko has not argued that the GIC’s decision was made in bad faith or statutory preconditions not met. [ 118 ] Further, even if the GIC did owe Taseko a duty of fairness, the content of such a duty would be minimal (for similar reasons as those discussed above with respect to the Minister) and it was satisfied in this case. [ 119 ] The legislation does not contemplate submissions to the GIC.

Furthermore, the legislation indicates that the proponent is not informed of the Minister’s decision on significant adverse effects until the Decision Statement is released – this indicates that not only would the proponent not have the opportunity to make submissions to the GIC, but the proponent would not even be aware that the GIC is deliberating. Moreover, the Panel Report adequately canvassed the issue of justification. [ 120 ] Finally, Taseko had no right to the materials it claims. These are a confidence of the Queen’s Privy Council pursuant to sections 39(2) (

a) and 39(2)(

c) of the Canada Evidence Act, RSC, 1985, c C-5.

(2) Jurisdiction [ 121 ] The GIC had jurisdiction to make this decision. As noted above, the Report complied with the requirements of the CEAA 2012 and all relevant factors were considered. The statutory process was followed, there are no indications of bad faith, and the decisions were made in accordance with the purposes of the CEAA 2012 ( Conseil des Innus de Ekuanitshit v Canada (Procureur général) , 2013 FC 418 , 431 FTR 219).

(3) Duty to Give Reasons [ 122 ] Lastly, there was no duty on the Minister or the GIC to give reasons in this case. As discussed in Newfoundland and Labrador Nurses’ Union v Newfoundlan

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