2023 MBKB 107, 2023 MBKB 107

Date: 20230630 Docket: CI 22-01-34789 (Winnipeg Centre) Indexed as: Spence et al. v. Manitoba et al. Cited as: 2023 MBKB 107 COURT OF KING’S BENCH OF MANITOBA B E T W E E N: chief doreen spence, on her own behalf ) Tim Dickson AND ON BEHALF OF THE TATASKWEYAK CREE ) Matthew Boulton NATION AND ALL ITS MEMBERS, ) for the applicants ) applicants, ) ) - and - ) ) THE MINISTER OF ENVIRONMENT, CLIMATE ) Maureen Killoran, K.C.

AND PARKS, THE GOVERNMENT OF MANITOBA, ) Sean Sutherland AND THE MANITOBA HYDRO-ELECTRIC BOARD, ) Brodie Noga ) for the respondents respondents. ) the Minister of Environment, ) Climate and Parks and ) the Government of Manitoba ) ) Joseph M. Langan ) Gwen L. Muirhead ) Gavin LeBeau ) for the respondent ) Manitoba Hydro-Electric Board ) ) Judgment delivered ) June 30, 2023 JOYAL, C.J.K.B. I.

Introduction [ 1 ] In the context of its underlying application for judicial review, Tataskweyak Cree Nation (“TCN”) has brought this motion relating to what TCN identifies as certain deficiencies in the record thus far produced by the Government of Manitoba (“Manitoba”). TCN also seeks certain documents that it says have not been disclosed to it. [ 2 ] The underlying application for judicial review brought by TCN seeks to quash the decision of the Minister of Conservation and Climate (the “Minister”) issuing to the Manitoba Hydro-Electric Board (“Manitoba Hydro”), a “Final Licence” pursuant to

section 43 of the Waterpower Regulation , M.R. 25/88 R to The Water Power Act , C.C.S.M. c. W60 , for the Churchill River Diversion (“CRD”) project.

TCN alleges the decision was made in breach of the Crown’s duty to consult and is accordingly, unreasonable. [ 3 ] The broader context for this judicial review involving the allegations by TCN of inadequate consultation and accommodation by Manitoba, is rooted in concerns about the CRD, a project that diverts much of the ordinary flow of the Churchill River into another river system (the Nelson River system) in order to feed hydro-electric dams. [ 4 ] In its motion, TCN seeks three orders. [ 5 ] The first order that TCN seeks relates to what TCN identifies as unjustified redactions in the Final Licence Record.

This first

order would require Manitoba to produce a copy of the Final Licence Record that is unredacted except where necessary to protect solicitor-client privilege. The redactions that TCN now seeks are more narrow than those that were first identified in its notice of motion. Specifically, TCN submits that the following redactions should not be permitted and that Manitoba should be ordered to produce a Final Licence Record without them: (

i) the redactions to the table at pages 22 – 23 that summarizes information relating to Indigenous community participation in the consultation process; (ii) the redactions to the table at pages 23 – 25 of the Final Licence Record that outlines the consultation budget or funding agreement that Manitoba offered to each consulted Indigenous community; (iii) the redaction of information obtained from Indigenous communities and groups not party to this proceeding at pages 18, 19, 25 – 26, 95 – 96, and 98 – 108 of the Consultation Report, to the extent such information would shed light on the adequacy of Manitoba’s consultation with TCN; and (iv) the redaction of the three bullet points at page 55 of the Consultation Report. [ 6 ] The second order that TCN seeks involves materials that TCN says were sent to Manitoba during the consultation process and which expressed concerns about, amongst other things, the CRD and the Augmented Flow Program (“AFP”). [ 7 ] In respect of this second order, TCN seeks the inclusion of the following documents that it says are properly part of the Consultation Record: (

i) the April 8, 2021 letter from Chief Spence and Dr. Ian Halket to the Deputy Minister of Conservation and Climate; (ii) the April 13, 2021 open letter from TCN and O-Pipon-Na-Piwin Cree Nation (“OPCN”); (iii) the April 15, 2021 op-ed by the Chiefs of TCN and OPCN in the Winnipeg Free Press ; (iv) the April 21, 2021 correspondence to the Minister from the Interchurch Council on Hydropower regarding the open letter and the op-ed; (

v) the May 10, 2021 correspondence to the Minister from the Mennonite Church Manitoba regarding the open letter and the op-ed; and (vi) the June 9, 2021 letter from the Deputy Minister of Conservation and Climate to Chief Spence and Dr. Halket in reply to the April 8, 2021 letter. [ 8 ] The third order that TCN seeks would require production from Manitoba of certain categories of records. TCN says that these categories of documents will show the extent to which Manitoba did not consult and failed to accommodate with appropriate terms and conditions in the Final Licence. Specifically, TCN seeks the production by Manitoba of the following categories of documents: (

i) the input received by the consultation team from technical experts across government relating to concerns raised by TCN and Manitoba’s responses and recommendations relating to those concerns and related correspondence, as outlined on pages 40 – 41 of the Consultation Report; (ii) the input received from the Wildlife and Fisheries Branch regarding a more ecologically relevant base flow for the Churchill River at Missi Falls, as outlined on page 43 of the Consultation Report; and (iii) the correspondence between Manitoba Conservation and Climate (formerly Water Stewardship and Sustainable Development) and Manitoba Hydro, in which the proposed Final Licence terms and conditions were shared with Manitoba Hydro for its review and feedback, as stated on page 41 of the Consultation Report. [ 9 ] In arguing for this Court to dismiss TCN’s motion “in its entirety”, Manitoba contends that with the three orders requested, TCN is seeking to significantly expand the scope of the requisite Administrative Record and Consultation Record on judicial review.

This expansion, says Manitoba, would go far beyond what the common law in this province or elsewhere in Canada has previously allowed. II. Issues [ 10 ] Given the orders TCN seeks, the issues requiring this Court’s determinations can be reduced to the following questions: (

i) As it relates to Order #1, should this Court order Manitoba to produce a copy of the Final Licence Record that is unredacted except where necessary to protect solicitor-client privilege? (ii) As it relates to Order #2, should this Court order Manitoba to include the six documents identified and described as being part of the Consultation Record? (iii) As it relates to Order #3, should this Court order Manitoba to produce the categories of documents identified and described by TCN? [ 11 ] After a full consideration of all the evidence adduced on this motion, along with the related submissions of the parties, I have determined that all of the above three questions can be answered in the negative.

Accordingly and for the reasons that follow, TCN’s motion for the three orders it seeks is dismissed.

III. Background and Context [ 12 ] In its submissions, TCN makes certain assertions of fact without reference to the relevant Record and to which, Manitoba states its disagreement.

In this connection, I note that Manitoba maintains that it reserves the right to continue to disagree with any factual assertions made by TCN on the merits component of this application just as it reserves the right to challenge any extra-record evidence TCN may later seek to adduce. [ 13 ] I recognize that there is some dispute as to certain asserted facts that on the merits hearing, will ultimately require resolution and determination. Those facts relate to the nature, breadth and scope of the consultation and accommodation process.

Accordingly, nothing that I set out below by way of background or context is meant to represent ultimate determinations or definitive findings as it relates to the issues to be argued on the merits hearing. That said, for the purpose of considering this motion and facilitating its disposition, what follows in the

section below is what is nonetheless a reasonable and objective contextualization of the CRD and AFP in respect of the identified phases of what Manitoba says was its consultation process. Despite some of the anticipated disagreement as to certain facts that may have to be addressed on the underlying merits application, the background that follows is meant to assist in understanding the issues before the Court and the relief TCN seeks on its present motion. A. The CRD and the Final Licence (

i) The CRD [ 14 ] The CRD was created to increase the water flow to large generating stations on the lower Nelson River. Most of the water flow of the Churchill River is diverted at Southern Indian Lake into the Nelson River. [ 15 ] Construction of the CRD began in 1973 and operations began in 1976. The construction and operation of the CRD was licensed pursuant to The Water Power Act and the Water Power Regulation . [ 16 ] The Water Power Act has a three-stage licensing framework: (

a) an "Interim Licence" to authorize development, construction, and initial operation; (

b) a "Final Licence" to provide for ongoing operation as built and refined; and (

c) a renewal process for the continued or proposed use of the water power, waters, and land. [ 17 ] Pursuant to section 43(1) of the Water Power Regulation , upon completion of the initial development and upon fulfillment and compliance with the terms and conditions of the interim licence, a licencee (such as Manitoba Hydro) is "entitled" to receive a final licence. [ 18 ] Pursuant to

section 44 of the Water Power Regulation , the final licence "shall embody the terms which were set out in the interim licence” and such other terms and conditions as the Minister may impose. [ 19 ]

Article 18 of Manitoba Hydro's Interim Licence states that upon due observance and fulfilment of the Interim Licence conditions, the Minister "shall and will issue in favour of the Licensee a Final Licence". [ 20 ] On May 6, 2009, Manitoba Hydro requested the Minister grant a Final Licence pursuant to the Water Power Regulation and terms of the Interim Licence. [ 21 ] On May 12, 2021, following over ten years of consultation (described below), the Minister granted Manitoba Hydro a Final Licence for the CRD.

The Final Licence included new licensing conditions, as well as non-licensing conditions that formed part of the Minister's covering letter to Manitoba Hydro. (ii) The AFP [ 22 ] From 1986 to the granting of the Final Licence, the Minister, on an annual basis, authorized Manitoba Hydro to deviate from the range of water levels and flows stipulated in the Interim Licence. That program is as earlier noted, referred to as the "Augmented Flow Program" or "AFP". Each year throughout this period, Manitoba Hydro requested the Minister's authorization of the AFP for the subsequent year.

The Minister invariably granted that authorization. [ 23 ] In its application for the CRD Final Licence, Manitoba Hydro requested that the terms of the AFP be incorporated, so that it would be authorized for the term of the Final Licence to divert water from the Churchill River on the same terms as the AFP. [ 24 ] The Minister granted this request in issuing the Final Licence.

The Final Licence incorporates the same terms of the AFP that were granted by the Minister annually under the Interim Licence. (iii) Environmental Impacts of the CRD and the AFP [ 25 ] The parties agree that the CRD has caused serious impacts to the Churchill River and the Nelson River. The parties do not agree on the scope of those impacts or whether the AFP has caused any additional impacts. [ 26 ] Manitoba Hydro (sometimes in conjunction with both the Government of Canada and Manitoba) has entered into numerous

agreements with affected lndigenous communities and groups to address the adverse effects of the CRD and the AFP. [ 27 ] TCN is a party to several such agreements concerning the CRD and AFP (the "Agreements"). The Agreements provide: financial compensation; mitigation and remediation measures regarding waters, lands, wildlife, and fish; and cooperative natural resource management between TCN and Manitoba. B. Consultation for the Final Licence Application [ 28 ] Paragraphs 25 - 44 of TCN's brief provide a partial account of the consultation process as it relates to the adequacy of Manitoba's consultation with TCN.

Manitoba provides the following additional facts relevant to the issues on TCN's motion. (

i) Manitoba's Consultation Process [ 29 ] The CRD consultation process occurred with the guidance of a steering committee with representatives from the Departments of Environment, Climate and Parks ("ECP"), Indigenous Reconciliation and Northern Relations ("IRNR"), and Justice and Finance (collectively the "Steering Committee"). [ 30 ] The Steering Committee identified Indigenous communities and groups that may be adversely affected by the issuance of the CRD Final Licence and established the level and scope of consultation with respect to each individual community. [ 31 ] Manitoba ultimately consulted with 18 potentially affected Indigenous communities and groups regarding Manitoba Hydro's Final Licence.

TCN was one such community. [ 32 ] In accordance with Manitoba's standard practice, departmental staff created and maintained a separate "Record of Consultation" for each Indigenous community consulted, including TCN. The Record of Consultation for each Indigenous community contains the following: (

a) The "Record of Communication", which logs all letters, faxes, meetings, telephone calls, and emails that form part of the Crown- Indigenous consultation process in relation to the Crown decision; and (

b) the "Summary of Concerns Table", which lists the concerns that the individual Indigenous community raised during the consultation process. [ 33 ] As affirmed by Ms Chelsea Silva, the Executive Director of the Consultation and Reconciliation Branch within IRNR, Manitoba's view is that disclosure of information that Indigenous communities provide to Manitoba in confidence is harmful to the free and open discussions that must occur in Crown-Indigenous consultation processes to advance reconciliation and accommodate identified impacts. (ii) Consultation Capacity Funding [ 34 ] Manitoba offered consultation capacity funding for each community it consulted as part of the Final Licence application.

All work plan and budget offers made by Manitoba were made in compliance with the Consultation Participation Fund Community Guide (June 2010) (the "Participation Fund Guide"). [ 35 ] Manitoba's objective in funding offers is to enable Indigenous communities and groups to participate meaningfully in the consultation processes.

The Participation Fund Guide provides for the funding of eligible activities, including Community co-ordinator costs, honorariums, basic travel costs, hall rentals, technical advisors, and other factors. [ 36 ] Pursuant to the Participation Fund Guide, when a provincial department initiates a consultation process with a community, that department will work with the community to develop a consultation plan (also known as a work plan) and a draft budget that would outline anticipated community support costs. (iii) Consultation with TCN [ 37 ] By the time the Minister issued the Final Licence, Manitoba says it had engaged in over 10 years of consultation efforts with TCN.

Whatever those efforts, Manitoba and TCN were unable to agree to a work plan and budget throughout that period.

a) Initial Consultation Process [ 38 ] ECP initiated the consultation process with TCN in June 2009. [ 39 ] In March 2011, ECP and TCN met for the first time. Manitoba had previously attempted to contact TCN several times without success. [ 40 ] After the March 2011 meeting, ECP and TCN worked towards establishing a work plan and budget. TCN proposed a work plan and budget for $155,267 in funding.

However, on November 23, 2011, TCN withdrew from the consultation process after Manitoba made requests for further information regarding TCN's proposed work plan and budget. b) 2015 Re-Engagement [ 41 ] On four occasions between 2012 and 2015, ECP attempted to re-engage TCN in the consultation process. Finally, in February

2015, TCN agreed to continue discussions about a work plan and budget. [ 42 ] On August 14, 2015, ECP sent TCN a proposed consultation work plan and a budget for $48,922.90 in funding. The work plan contemplated, amongst other things, three community meetings and the preparation of a "Consultation Outcomes Report" by TCN with the assistance of a consultant.

TCN did not agree to the proposed budget and work plan. [ 43 ] Between February and June 2016, Manitoba and TCN met and corresponded regarding developing a mutually agreeable work plan and budget, but no budget came out of these engagements. [ 44 ] During this process, TCN tabled two work plans and budgets for $149,445 and $149,866 in funding, respectively. Significant portions of these budgets were to cover professional fees.

The work plans contemplated seven meetings and the preparation of an "Initial Assessment of Impacts Report" and a "Summary Report". [ 45 ] On June 29, 2016, ECP wrote a letter to TCN stating, amongst other things, that it was prepared to provide funding for the consultation "components" it viewed as fair and reasonable at that stage of the process. Those components would have included: an advisor to facilitate and record discussion; two meetings; honoraria for Elders and Knowledge Holders; a community coordinator; and an interpreter. The letter attached a proposed work plan and budget reflecting these components.

TCN did not accept this proposed work plan and budget. c) 2017-2020 Re-Engagement [ 46 ] In May 2019, the Minister met personally with TCN to discuss issues relating to the CRD. Following that meeting, TCN sent to Manitoba a new proposed work plan for consultation on the Final Licence. TCN's proposed work plan did not include a budget. C. O-Pipon-Na-Piwin Cree Nation ("OPCN") [ 47 ] In support of its motion, TCN relies on a redacted version of Manitoba's Record of Communication with OPCN.

TCN received this document from OPCN's counsel. [ 48 ] Most of OPCN's Record of Communication (as filed by TCN) has been redacted except for those entries related to funding discussions. [ 49 ] TCN has not explained the purpose for those redactions or who applied them. [ 50 ] OPCN's Record of Communication shows the following occurring in its consultation process with Manitoba: (

a) on January 11, 2017 OPCN tabled a budget of $358,669, which did not include certain "past expenses"; (

b) on December 12, 2017, Manitoba reviewed OPCN's previous work plans and budgets, and based on the allowable timeline and eligible components, Manitoba proposed a work plan and budget of $131,160; (

c) on May 16, 2018, OPCN proposed a budget of $255,236; (

d) on July 18, 2018, Manitoba sent an offer letter of a work plan and budget of $161,715.53, which included $61,157 for certain past expenses. Manitoba received no response to this proposed work plan and budget. [ 51 ] TCN has not filed evidence of the underlying work plans and budgets referred to in the Record of Communication, nor any other documents from the consultation process with OPCN. D. The Application Record [ 52 ] Following receipt of TCN's notice of application in this proceeding, Manitoba prepared the two documents at issue in this motion: (

i) the Final Licence Record; and (ii) the Pyles affidavit, attaching the Consultation Record. (

i) The Final Licence Record [ 53 ] The Final Licence Record represents the entire record of proceedings put to the Minister in making her decision on whether to issue the Final Licence pursuant to the Water Power Regulation , subject to certain redactions discussed below. [ 54 ] The Final Licence Record consists of a covering memo from the Deputy Minister to the Minister and a Department of Conservation and Climate Advisory Note (the "Advisory Note").

The Advisory Note attaches a "Consultation Report" prepared to inform the Minister's licensing decision. [ 55 ] The Advisory Note states that the Consultation Report "has been prepared for the confidential consideration of the Minister and contains information provided in confidence by communities." Accordingly, in preparing the Administrative Record, Manitoba made redactions to the Final Licence Record to withhold irrelevant confidential information from Manitoba's consultations with other Indigenous communities. (ii) The Pyles Affidavit

[ 56 ] The Pyles affidavit contains evidence responsive to TCN's allegation that Manitoba inadequately consulted and accommodated it in respect of the Final Licence.

Included as Exhibit D is a log of Manitoba's consultations with TCN (defined as the "Consultation Log" but equivalent to the Record of Communication defined above at paragraph 32) and available records of those communications (defined as the "Consultation Record"). [ 57 ] Manitoba stipulates as part of its submission that the "Consultation Record" attached to the Pyles affidavit is not found in the Final Licence Record that was before the Minister in making her decision. E. TCN's Document Motion [ 58 ] Following the commencement of this proceeding, counsel agreed upon a

schedule for the filing of materials for the hearing of TCN's application, including that: (

a) Manitoba serve the Administrative Record and an initial Consultation Record; (

b) TCN send to Manitoba any proposed supplements to the Consultation Record; (

c) Manitoba finalize the Consultation Record with any supplements that it agrees form part of the Consultation Record; (

d) TCN serve and file all its supporting affidavits; (

e) Manitoba and Manitoba Hydro serve and file any responding affidavits; and (

f) TCN serve and file any reply affidavits. [ 59 ] Pursuant to this agreement, on July 27, 2022, Manitoba served the parties with the redacted Final Licence Record and a draft of the Pyles affidavit, including a draft of the Consultation Log and Consultation Records. [ 60 ] On September 22, 2022, TCN wrote to Manitoba to request: (

a) that nine documents be added to the Consultation Record; and (

b) the table at pages 23 - 25 containing the amounts offered to communities for capacity funding be unredacted; (

c) production of "various documents that informed Manitoba's decision making.” [ 61 ] Despite TCN’s assertions to the contrary (see paragraph 75 of its brief), Manitoba maintains that it did agree to add certain documents to the Consultation Record, but declined to add other documents that it did not view as part of the consultation process with TCN relating to the CRD Final Licence. Manitoba also declined to remove the requested redactions or to produce documents that did not form part of the Administrative Record.

Manitoba proceeded to finalize the Consultation Record by serving and filing the Pyles affidavit. [ 62 ] TCN's counsel then wrote to advise TCN would bring the present motion because it needed to know "what is in the two records before we finalize our affidavit evidence." IV. Positions of the Parties (

i) Position of TCN [ 63 ] TCN contends that the three orders it seeks are justified in that they are relevant to and/or required for the preparation of the judicial review merits hearing. [ 64 ] Respecting Order #1, TCN argues that the redactions cannot be justified by Manitoba as Manitoba cannot discharge its onus of establishing that the redactions are clearly irrelevant and that the redactions are necessary to protect an important interest or prevent significant harm. [ 65 ] Respecting Order #2, TCN submits that Manitoba’s Consultation Record excludes materials that were sent to Manitoba during the consultation process, which materials expressed TCN’s concerns about the CRD and AFP.

TCN also submits that the earlier identified matters (see para. 7) should be considered as part of the Consultation Record. [ 66 ] Respecting Order #3, TCN maintains that the documents that it seeks to have produced are material and relevant to the question of whether Manitoba engaged in a meaningful two-way dialogue with TCN regarding potential terms and conditions of the Final Licence in order to accommodate TCN’s Treaty rights.

It is TCN’s position that when Crown representatives formulate recommendations for the decision maker, as a matter of procedural fairness, all parties must have an opportunity to comment on them. [ 67 ] TCN says that Manitoba did not adequately consult TCN on various matters, including potential accommodations.

Production of the documents listed under Order #3 says TCN, would assist the Court in assessing the depth of Manitoba’s failure respecting its consultation and accommodation, including on matters that TCN suggests represent a gap in the procedural fairness afforded to TCN. (ii) Position of Manitoba [ 68 ] Manitoba’s position on this motion is grounded in its basic assertion that TCN is seeking to significantly expand the scope of the

Administrative Record and Consultation Record on judicial review, far beyond what the common law in Manitoba or elsewhere in Canada has previously allowed. [ 69 ] As it relates to Order #1, Manitoba contends that TCN seeks to expand the relevant Record to selectively and inappropriately put before the Court parts of Manitoba’s consultations with other Indigenous communities and groups that are not parties to this proceeding.

Manitoba insists that consultations with other Indigenous communities and groups are irrelevant to whether Manitoba satisfied its duty to consult with TCN. [ 70 ] Respecting Order #2, Manitoba resists TCN’s attempt to add documents unrelated to the Final Licence decision and third-party communications (from religious organizations to Manitoba) to the Consultation Record.

These documents are not part of the Consultation Record in the Final Licence. [ 71 ] Respecting Order #3, Manitoba once again resists TCN’s attempt to compel Manitoba to produce internal government documents and communications that led to the recommendations made to the Minister in the Final Licence Record. Manitoba argues that TCN is in effect, seeking documentary discovery of the deliberative communications of public servants, notwithstanding the fact that those communications were never before the Minister. V.

Legal Framework [ 72 ] TCN spends considerable time in its written submissions on this motion setting out what it is correct to suggest is the well- established legal framework for the duty to consult and accommodate. In that connection, I do not intend in these reasons to review or replicate TCN’s discussions of the governing law as set out in paragraphs 76 – 96 of its written brief. As it relates to this legal framework, Manitoba states the obvious when it suggests that the legal issues regarding the duty to consult and its discharge in this case are matters to be decided at TCN’s application on its merits.

In agreeing with that basic proposition advanced by Manitoba, I would add one additional nuance or stipulation. Insofar as some or any of the parts of the identified issues on this motion need be decided on the basis of relevance and/or procedural fairness relating to the obligations that flow from the duty to consult and accommodate, it should be assumed that this Court is aware of and will remain mindful of the governing law that will be applied at the merits hearing.

If for the purposes of disposing of any of the issues on this motion, the specific jurisprudence invoked by TCN requires particular consideration, those cases will be identified and addressed in my analysis. VI. Analysis i.

As it relates to Order #1, should this Court order Manitoba to produce a copy of the Final Licence Record that is unredacted except where necessary to protect solicitor-client privilege? [ 73 ] As it relates to the first order that TCN seeks (Order #1), I have determined that in the circumstances of this case, based upon the governing legal principles and the evidence adduced, Manitoba has satisfied its onus of establishing that it need not produce a copy of the Final Licence Record that is unredacted.

More specifically, I have determined that Manitoba has established that the redacted information is “clearly irrelevant” and that the redactions are necessary to protect important interests and prevent harm. [ 74 ] All parties agree that Manitoba has a common law duty to provide a record of proceedings on a judicial review (see Kalo v. Winnipeg (City of) , 2019 MBCA 46 , at paragraph 29 ). In the context of this underlying application, the Final Licence Record is the record of proceedings. [ 75 ] It is accepted that this Court’s decision in WSIB Investments (Infrastructure) Pooled Fund Trust et al. v.

Plenary Group (Canada) Ltd. et al. , 2022 MBQB 145 , at paragraph 25 , establishes the applicable legal principles for determining whether the redactions in question can be justified. See also Duhamel v. Financial Institutions Commission , 2018 BCSC 601 , at paragraph 26 ; and McGee v. London Life Insurance Company Limited , 2010 ONSC 1408 , at paragraph 9 . [ 76 ] The applicable legal principles discussed in the jurisprudence include the following: (

a) relevant documents must be produced in their entirety without redactions made unilaterally by the producing party; (

b) redactions may be justified when the specified portion is clearly irrelevant and the redactions are necessary to protect an important interest or prevent significant harm; and (

c) if a redaction is contested, the onus is on the party requesting the redaction to establish, with evidence, that the redacted information is clearly irrelevant and that there exists a sufficiently important interest or potentially significant harm that will result from disclosure. [ 77 ] To the extent that information about Manitoba’s consultation process with other Indigenous communities and groups (and the funding Manitoba provided in that regard) is found in the information contained in the redactions, such information is irrelevant for the purposes of assessing the adequacy of consultations with TCN.

Moreover, as was explained in Manitoba’s uncontested affidavit evidence, disclosure of any such information could irreparably harm Manitoba’s confidential consultation process with Indigenous community groups. It should be noted as well that disclosure of such information would represent a rather exceptional and significant expansion of the scope of the record on judicial review of a statutory decision alleging inadequate consultation.

a) Are the Identified Redactions Clearly Irrelevant? [ 78 ] There are four categories of redacted information that TCN opposes. In each of these categories of information, Manitoba

contends that the redactions are clearly irrelevant. Those four categories relate to: Table 2 – Budget Information; Table 1 - Consultation Table; Community Information; and AFP Information.

(1) Table 2 – Budget Information [ 79 ] Respecting the Table 2 budget information — Table 2 contains information for each consulted community concerning the date funding was approved, the amount of funding approved and Manitoba’s comments on the approved funding.

Manitoba explains in its affidavit evidence that it has redacted the rows in Table 2 concerning Indigenous communities that are not party to this proceeding. [ 80 ] I accept Manitoba’s submission that although TCN argues that Table 2 is relevant because it would show that Manitoba offered other communities greater funding than TCN (which TCN argues would suggest that Manitoba’s rejection of its proposed work plans and budgets was arbitrary), the premise of TCN’s submission on this point is flawed.

The Record does not show, nor does TCN allege that Manitoba rejected TCN’s proposed work plans and budgets simply because the amount of funding TCN sought was too high or because Manitoba was unable to fund the amount TCN sought. Instead, it is apparent that TCN withdrew its 2011 work plan and budget after Manitoba requested further information. It was also clear that Manitoba did not agree to TCN’s 2016 proposed work plan and budgets given what appeared to be duplication of work and the number of consultant staff set out in the proposal.

What Manitoba did do in response was to offer to fund “components” of consultation it viewed as fair and reasonable. Further, it would appear that TCN’s 2019 proposed work plan did not include a budget or a proposed amount of funding.

As Manitoba’s evidence suggests, part of the reason it did not agree to TCN’s 2019 proposed work plan was because there was in fact no budget. [ 81 ] Manitoba is persuasive when it argues that the amounts of funding offered to different communities based on different work plans and budgets and agreed upon in different circumstances, is clearly irrelevant to the reasons Manitoba and TCN did not agree to a work plan and budget.

The funding amounts offered to Indigenous groups and communities is close to meaningless if considered in isolation from the underlying work plans and budgets entered into with those groups and communities. Those work plans and budgets are not before this Court. [ 82 ] In Bigstone Cree Nation v. Nova Gas Transmission Ltd. , 2018 FCA 89 , at paragraph 45 , the Federal Court of Appeal noted that the Crown is under no obligation to provide consultation funding. See also Coldwater First Nation v. Canada (Attorney General) , 2019 FCA 292 (“ Coldwater” ).

The sufficiency of a consultation process will for the most part, be a factual inquiry (see Neskonlith Indian Band v. Salmon Arm (City) , 2012 BCCA 379 , at paragraph 60 ; and Haida Nation v. British Columbia (Minister of Forests) , 2004 SCC 73 , at paragraph 62 . That largely factual inquiry will necessarily be specific to the Crown’s engagement with the Indigenous group challenging the Crown decision.

It does not involve a comparative exercise with other groups. [ 83 ] Manitoba is right to identify TCN’s erroneous reliance on Stratas J.A.’s decision in Coldwater for the proposition that funding amounts are relevant evidence. In fact, Stratas J.A. held that where an applicant alleges that the Crown failed to adequately consult, the Crown may lead responsive evidence as to the capacity funding it offered as part of the consultation process (see paragraph 17). It is a rather stretched

interpretation of Coldwater to suggest that it stands for the proposition that funding amounts offered to non-party Indigenous communities are relevant as to whether the Crown should have offered more to the particular Indigenous group seeking judicial review.

(2) Table 1 – Consultation Table [ 84 ] A second category of information redaction that TCN wants disclosed relates to Table 1 in the Consultation Table. Table 1 summarizes information relating to Indigenous community participation in the consultation process, including when consultations were initiated and the dates of meetings that were held.

In respect of this information, Manitoba has redacted those rows that touch communities that are not party to this proceeding. [ 85 ] It is TCN’s position that the redacted information in Table 1 is relevant given that in conjunction with Table 2, it would likely show the impact that the absence of a work plan and budget had on the consultation process, including for example, the fact that there were no community sessions held for TCN. [ 86 ] I again accept Manitoba’s submission that if Table 2 remains redacted, for its part, Table 1 is also clearly irrelevant.

In the present case, based on the evidence before the Court, Manitoba did in fact offer TCN a work plan and budget that would have included funding for community meetings. It was TCN who chose not to engage in the consultation process on the terms that Manitoba put forward. Manitoba insists that had TCN chosen to engage, there would have been funding for those community sessions. [ 87 ] In the end, I am persuaded by Manitoba’s submission that the information in Table 1 would, at most, show that communities that agreed to work plans and budgets with Manitoba went on to engage in the consultation process.

TCN, which did not agree to a work plan, did not.

(3) Community Information [ 88 ] The next category of redactions that TCN opposes are those which contain information provided to Manitoba by Indigenous communities not party to this case. TCN’s submission is that production of this information ought to occur “to the extent such information would shed light on the adequacy of Manitoba’s consultation with TCN”.

As Manitoba has noted, this request by TCN is not accompanied by any concrete justification as to why this information might shed light on the adequacy of Manitoba’s consultation with TCN. [ 89 ] I am once again persuaded by Manitoba that the reason this information has been redacted relates to its confidentiality and further, it is clearly irrelevant to the adequacy of Manitoba’s consultation with TCN. As I noted earlier, consultation is not a comparative exercise and the adequacy of Manitoba’s consultation with TCN should only be judged on the record of TCN’s consultation process.

Even in cases where multiple Indigenous groups challenge a particular decision, a court will assess the adequacy of consultation for each

group (see Tsleil-Waututh Nation v. Canada (Attorney General) , 2018 FCA 153 (“ Tsleil-Waututh ”), at paragraphs 575 – 597 ).

(4) AFP Information [ 90 ] The fourth and last category of redactions that TCN seeks to have disclosed, relate to the redaction of the three bullet points at page 55 of the Final Licence Record concerning the financial impacts of not renewing the AFP for one year. [ 91 ] This aspect of TCN’s argument can be disposed of quickly. It would seem that the financial impacts of not renewing the AFP was but one of several reasons for incorporating the AFP as a term of the Final Licence. Manitoba is correct to argue that the specific monetary amounts at issue are irrelevant.

b) Are the redactions necessary to protect important interests and prevent harm? [ 92 ] I note that all of the redacted information to which TCN seeks access consists of third party confidential information.

As Manitoba underscores, other than two bullet points relating to Manitoba Hydro’s information, most of the information consists of the confidential information of other Indigenous communities not party to this judicial review. [ 93 ] As it relates to Manitoba Hydro’s confidential business information that was provided to Manitoba in confidence, there can be no doubt that the general commercial interest of preserving confidential information is indeed an important interest to protect (see Sierra Club of Canada v. Canada (Minister of Finance) , 2002 SCC 41 , at paragraph 55 ; and Sherman Estate v.

Donovan , 2021 SCC 25 , at paragraph 41 ). [ 94 ] As it relates to TCN’s request for the production of an Administrative Record containing the confidential information of other Indigenous communities, Manitoba calls this request “novel”.

Although TCN appears to accept that it is Manitoba’s practice to treat the Record of Consultation as confidential and that Indigenous communities ordinarily demand confidentiality before participating in consultation, it (TCN) nonetheless argues that the withheld information is not properly designated as confidential given that much of its nature is “anodyne” and that its disclosure would accordingly not cause harm to the concerned communities. [ 95 ] In making the arguments it does in respect of this aspect of the test concerning the potential justification of redactions, TCN has not cited any cases that would support the removal of such redactions relating to the production of an Administrative Record containing the confidential information of other Indigenous communities.

Indeed, their argument appears to ignore the decision in M étis Nation of Alberta Association of Fort McMurray M étis Local Council 1935 v.

Alberta , 2021 ABQB 282 , at paragraph 103 , in which the Alberta King’s Bench rejected the applicant Indigenous community’s motion for unredacted copies of documents that contained information submitted by other Indigenous communities respecting a potential duty to consult that community. [ 96 ] TCN’s argument that the withheld information is not truly confidential and that much of it is “anodyne” deemphasises the point about which Manitoba urges this Court to appreciate: that it (Manitoba) treats all information received during the consultation process as confidential and that appropriately, Manitoba leaves it to Indigenous communities to decide whether disclosure of their information may cause harm.

In my view, Manitoba persuasively contends that it is not for TCN to decide what information may be “anodyne” or pose a serious risk of harm.

Further says Manitoba, it is not reasonable for TCN to ask Manitoba “to make a unilateral, content based, subjective assessment of information from and about Indigenous communities and groups not party to the proceeding”. [ 97 ] In addition to the above submissions by Manitoba, which I accept, I also note Manitoba’s supporting evidence that the disclosure of the redacted information would in fact harm Manitoba’s relationship with Indigenous communities who have come to expect that their information will remain confidential.

What Manitoba realistically identifies as a harm flowing from the connected reasonable expectation for confidentiality on the part of Indigenous communities, provides a reference point for identifying what Manitoba suggests could be threatened in terms of what need be the free, open and reconciliatory discussions necessary for Crown-Indigenous consultations (see affidavit of Chelsea Silva, sworn February 21, 2023, at paragraph 9).

Retaining the integrity, freedom and openness of these reconciliatory discussions is appropriately noted by Manitoba as an important public interest and it is the reason why Manitoba says its standard practice is to refuse requests under the Freedom of Information and Protection of Privacy Act , R.S.O. 1990, c. F. 31 , for confidential Indigenous community information. [ 98 ] In a constructive suggestion for obtaining the information it seeks, TCN has suggested as an alternative measure, that an unredacted version of the Final Licence Record be filed in this Court under seal.

While I have examined the suggestion with interest and an open mind, I remain persuaded by Manitoba’s submissions that this alternative measure would not avoid the harm to the identified public interest. As Manitoba says, under this alternative, confidential community information would still be disclosed to TCN (a third party to those consultation processes) for a purpose other than the group-specific consultation process in which the information was provided.

The potential consequential harm would accordingly remain: the undermining of Manitoba’s relationship with the Indigenous communities with whom it seeks to engage in reconciliation advancing Crown-Indigenous consultations, which require a requisite level of free and open communication. [ 99 ] Accordingly, for the foregoing reasons, as it relates to TCN’s requested Order #1, this Court will not be ordering Manitoba to produce a copy of the Final Licence Record that is unredacted. ii.

As it relates to Order #2, should this Court order Manitoba to include the six documents identified and described as being part of the Consultation Record? [ 100 ] TCN’s requested relief seeks the inclusion of documents (identified collectively by Manitoba as the “proposed records”) in the Consultation Record that consists of:

i) letters between TCN and the Deputy Minister of Conservation and Climate regarding the AFP; ii) TCN and OPCN’s open letter to Manitoba Hydro customers and the op-ed in the Winnipeg Free Press ; and iii) correspondence from religious groups to the Minister. [ 101 ] The effect of the Order that TCN seeks, is to ask that a Crown’s affiant swear a new affidavit attaching additional records that the

Crown does not consider part of the “Consultation Record”. TCN cites no authority to support the order it seeks and instead, invokes the Court’s inherent jurisdiction to ensure the whole Administrative Record is brought before the Court. In arguing as it has, Manitoba is right to contend that TCN conflates the Administrative Record and the Consultation Record. In the Manitoban context, the Administrative Record consists of all the material that was before the original decision maker.

The corollary is that evidence that was not before the initial decision maker is not generally admissible on judicial review (see Kalo , at paragraphs 30 – 31 ). Although providing no applicable jurisprudential authority for what it seeks in Order #2, TCN at paragraphs 103 and 104 of its brief does rely on the guidance of this Court and the Manitoba Court of Appeal in Pimicikamak et al. v. Her Majesty the Queen in Right of Manitoba et al ., 2018 MBCA 49 ; and Pimicikamak et al. v.

Her Majesty the Queen in Right of Manitoba et al ., 2014 MBQB 143 , at paragraph 52 , respecting when extrinsic evidence is admissible to supplement the Administrative Record on a judicial review. Despite TCN’s invocation of the above cases, Manitoba is again correct in noting that TCN is conflating the Administrative Record and the Consultation Record. [ 102 ] Insofar as the decisions in Pimicikamak have relevance to the present case, those decisions point to what Manitoba characterizes as the appropriate and permissible route for TCN to have these documents put before the Court.

That appropriate route is to lead its own extra-record evidence by way of affidavits that establish the proper evidentiary foundation for their admissibility. See also Manitoba Métis Federation Inc. v. Brian Pallister et al. , 2019 MBQB 118 , at paragraph 67 . [ 103 ] I have determined that the requested Order #2 cannot be justified and in any event, for the reasons advanced by Manitoba, the proposed records or documents are not related to the Final Licence consultation process. iii.

As it relates to Order #3, should this Court order Manitoba to produce the categories of documents identified and described by TCN? [ 104 ] Through its requested Order #3, TCN seeks production of documents that it acknowledges are not part of the Final Licence Record or the Consultation Record. TCN seeks to compel Manitoba to produce internal government documents and communications that led to the recommendations made to the Minister in the Final Licence Record.

Put simply, TCN is seeking documentary discovery of the deliberative communications of public servants despite the fact that those communications were never before the Minister.

In making the request it has, TCN has provided no compelling reason for such an exceptional order, which Manitoba accurately describes as having the potential to turn the application into a hearing de novo based on the deliberations and discussions of public servants, rather than the record of materials before the Minister and record of consultations that occurred. [ 105 ] Discovery is generally not available in proceedings commenced by notice of application (see Jewish Community Campus of Winnipeg Inc. v. Metaser et al. , 2013 MBQB 303 , at paragraphs 5 – 7 ).

While this Court can order production of documents in an application as part of the Court’s inherent jurisdiction to control and regulate its own procedure, absent any right to documentary disclosure, the Court should only order a tribunal (whose decision is under review) to produce documents that are actually admissible or potentially admissible as extrinsic evidence (see Jewish Community Campus , at paragraphs 6 and 21).

Given that it is well established that a judicial review is meant to be a review of a decision and not a de novo hearing, on a judicial review, any such extrinsic evidence may be introduced only in very limited circumstances mindful of the established exceptions to the general rule (see Pimicikamak (QB), at paragraph 52) . [ 106 ] It is not clear how TCN can justify the documentary discovery it seeks as admissible extrinsic evidence.

Given that the documents TCN seeks were not before the Minister when she made her decision and given that they were documents prepared internally for information purposes that were used to consider the merits of various options, were these documents to be characterized as admissible, the production and admission of them would transform the application into a hearing de novo . [ 107 ] When I examine the nature of these documents and the jurisprudence relied upon by TCN in their request for Order #3, I am not persuaded by TCN’s position. [ 108 ] Manitoba is on solid ground when it contends that a decision maker’s internal files do not form part of the Administrative Record provided they did not otherwise form part of the proceedings (see D.

Brown and J. Evans, Judicial Review of Administration Action in Canada , §6:61 (Thomson Reuters Proview). In Waverley (Village) v. Nova Scotia (Acting Minister of Municipal Affairs) , 1993 CarswellNS 201, [1993] N.S.J. No. 238 (CA), at paragraphs 18 – 20, and 23 , the Nova Scotia Court of Appeal held that briefing notes not before the minister and documents referred to but not provided to the minister are not part of the administrative record. [ 109 ] In support of its position for Order #3, TCN relies upon Tsleil-Waututh ; Gitxaala Nation v. Canada , 2016 FCA 187 ; and Manitoba Métis Federation Inc. v.

The Government of Manitoba et al. , 2018 MBQB 131 (“ Manitoba Metis Federation Inc .”). [ 110 ] TCN asserts that when Crown representatives formulate recommendations for a decision maker, as a matter of “procedural fairness” all affected parties must have an opportunity to comment on those recommendations.

To the extent that TCN reproduced a quote from Gitxaala Nation (but inadvertently referenced Tsleil-Waututh ) Manitoba argues that neither that case, nor any of the other jurisprudence cited stands for or supports the proposition TCN asserts. [ 111 ] In its discussion of the jurisprudence, Manitoba is right to clarify that in Gitxaala Nation , the Federal Court of Appeal held that the parties to that proceeding would have an opportunity to comment on a minister’s recommendation to the Governor in Council, a statutory step that must be taken pursuant to the National Energy Board Act , R.S.C., 1985, c. N-7 .

Manitoba stresses that there is no equivalent statutory process under The Water Power Act . In other words, a minister exercising a statutory power to recommend the matter to the Governor in Council is distinguishable from the internal deliberations of ministerial staff (as part of a consultation process) that were never provided to the Minister. In addition, Manitoba distinguishes the Federal Court of Appeal’s comments on the basis that they were limited to the party’s participatory rights as part of the administrative process under the National Energy Board Act .

In Gitxaala Nation , the court did not address an applicant’s subsequent right to discovery in a judicial review proceeding. With these distinctions in mind, Manitoba submits and I agree, that it does not support the relief TCN seeks. [ 112 ] In arguing that there exists a broad right to discovery in a judicial review application, TCN relies on this Court’s decision in Manitoba Métis Federation Inc. Despite TCN’s submissions, in Manitoba Métis Federation Inc. , this Court cannot be seen to have

established a broad right of discovery in judicial review applications.

Such a reading of that case would suggest a clear inconsistency with the many decisions that this Court has rendered asserting and reasserting that judicial review applications are not a hearing de novo even in cases assessing the adequacy of consultation with Indigenous communities where admittedly, certain evidentiary exceptions respecting extrinsic evidence may continue to evolve. [ 113 ] In rejecting TCN’s reliance upon Manitoba Métis Federation Inc. as support for Order #3, Manitoba for its part, points to that case as providing support for its position that the internal documents to which TCN seeks production are irrelevant and should not be produced.

In that decision, the applicant sought production of “advisory notes and internal emails” prepared by Manitoba in preparation for an alleged statutory decision. This Court held that advisory notes and emails prepared internally for information purposes were irrelevant to the issues on judicial review and specifically, to whether the applicants were given sufficient opportunity to be heard in advance of the decision (see Manitoba Métis Federation Inc. , at paragraph 45). In that case, this Court went on to note that the nature of the documents were such that they are not normally subject to a right of access.

Such are documents “touching upon governmental advice, analysis and options which are normally used by government bodies to freely consider the merits of various options” (at paragraph 45). [ 114 ] In the present case, the documents that TCN requests are documents that were prepared internally for the purpose of providing ministerial advice and are used by ECP to consider options before preparing a recommendation to the Minister and any accompanying advisory materials regarding the Final Licence Decision. As such, I am of the view that they are not relevant to the central issue of the adequacy of consultation.

Further, I accept Manitoba’s submission that if disclosed, such disclosure would be harmful to the free and open discussions necessary for public servants to internally consider different options to accommodate Indigenous communities and groups. VII. Conclusion [ 115 ] For the foregoing reasons, TCN’s motion is dismissed. _________________________ C.J.K.B.