Date: 20240212 Docket: T-1270-21 T-1367-21 T-1369-21 Citation: 2024 FC 231 Ottawa, Ontario, February 12, 2024 PRESENT: The Honourable Mr. Justice Southcott BETWEEN: BENGA MINING LIMITED, PIIKANI NATION AND STONEY NAKODA NATIONS Applicant and THE MINISTER OF ENVIRONMENT AND CLIMATE CHANGE AND THE ATTORNEY GENERAL OF CANADA Respondents JUDGMENT AND REASONS I.

Overview [ 1 ] This decision addresses three consolidated applications for judicial review of two decisions, made under the Canadian Environmental Assessment Act , 2012, SC 2012, c 19 [ CEAA 2012 ], denying the approval of the Grassy Mountain Steelmaking Coal Project [Project].

The decisions were made available to the Applicants and the public on August 6, 2021. [ 2 ] The Applicants, Benga Mining Limited, the Piikani Nation, and the Stoney Nakoda Nations, all support the Project, which they describe as having the potential to represent a billion-dollar investment in Alberta and to employ over 500 local employees over the life of the Project. The Applicants originally commenced separate applications for judicial review in Court file nos. T-1270-21, T-1367-21 and T-1369-21.

An Order consolidating the matters was issued on September 29, 2021. [ 3 ] As explained in greater detail below, the applications of the Piikani Nation and the Stoney Nakoda Nations are is allowed, because I find that these Applicants were deprived of procedural fairness due to an unfulfilled representation, made after the issuance of the Report of the Joint Review Panel (as defined later in these Reasons) that they would be consulted before the impugned decisions were made. The application of Benga Mining Limited is dismissed. II. Background A.

Parties [ 4 ] Benga Mining Limited [Benga] is a Canadian resource company based in Alberta and the proponent of the Project. Benga describes its parent company as having spent over $700 million acquiring its interests relating to the Project, including pursuing the necessary provincial and federal approvals and assessments. [ 5 ] The Piikani Nation is one of four First Nations comprising the Blackfoot Confederacy and is a signatory to the Blackfoot Treat of 1877 [Treaty 7]. The Piikani Nation is an Indian Band within the meaning of the Indian Act , RSC 1985, c I-5 [ Indian Act ].

The Project is located entirely within Treaty 7 lands and within the Piikani Nation’s ancestral territory. [ 6 ] Following years of consultations, the Piikani Nation entered into a confidential impact benefit agreement with Benga in July 2016 [Piikani Agreement], formalizing the relationship between Piikani Nation and Benga and intended to compensate the Piikani Nation for the Project’s impact, including setting out Benga’s environmental commitments and initiatives, as well as Benga’s commitment to provide training and employment opportunities, scholarships, and business development opportunities for the Piikani Nation and its members. [ 7 ] The Stoney Nakoda Nations [the Stoney Nakoda] are comprised of three First Nations, the Bearspaw First Nation, the Chiniki First Nation, and the Goodstoney (Wesley) First Nation, and are an Indian Band within the meaning of the Indian Act .

The three First Nations are signatories to Treaty 7. The Project is located in the traditional lands of the Stoney Nakoda. [ 8 ] Following years of consultations, the Stoney Nakoda and Benga entered into a confidential Relationship Agreement in February 2019 [the Stoney Nakoda Agreement].

The Stoney Nakoda Agreement provided the Stoney Nakoda with economic, social, and cultural benefits including ongoing consultation, employment, commercial opportunities, as well as community development for social and cultural programs, and a partnership as environmental stewards to oversee the Project including the Project’s reclamation.

[ 9 ] The Respondents to these applications are the Minister of Environment and Climate Change [Minister] and the Attorney General of Canada. B. Project and regulatory processes [ 10 ] Benga proposes to operate and construct an open-pit steelmaking coal mine in the Crowsnest Pass area of southwest Alberta.

The Project’s maximum production capacity would be 4.5 million tonnes of metallurgical coal per year over a mine life of approximately 23 years, and it is estimated by Benga that it would generate $1.7 billion in royalties and taxes for the provincial and federal governments. [ 11 ] The Project requires both federal and provincial assessments and approvals to proceed. Provincially, the Project required an environmental impact assessment under Alberta’s Environmental Protection and Enhancement Act , RSA 2000, c E-12 [ EPEA ] and approvals under various provincial acts.

Federally, the Project required an assessment under CEAA 2012 and resulting preparation of a report to the Minister. The Minister was then required to decide under subsection 52(1) of CEAA 2012, after taking into account any mitigation measures the Minister considered appropriate, whether the Project was likely to cause significant adverse environmental effects. If so, the Minister was required under subsection 52(2) of CEAA 2012 to refer the matter to the Governor in Council [Cabinet] for a decision under subsection 52(4) whether such effects were justified in the circumstances. Finally,

section 54 then required the Minister to issue a decision statement, informing the proponent of the

section 52 decisions by the Minister and Cabinet. [ 12 ] In 2018, the Alberta Energy Regulator [AER] and the Minister established a joint federal-provincial review panel [JRP] pursuant to the Agreement to Establish a Joint Review Panel for the Grassy Mountain Coal Project Between the Minister of Environment, Canada and the Alberta Energy Regulator, Alberta [JRP Agreement] and its attached Terms of Reference [TOR].

The JRP Agreement and TOR tasked the JRP with discharging federal and provincial environmental assessment responsibilities for the Project and preparing a report. [ 13 ] Prior to the appointment of the JRP, Benga prepared its Environmental Impact Assessment in accordance with provincial and federal requirements. (While this document is called an Environmental Impact Statement in federal terminology, Benga employs the provincial nomenclature of Environmental Impact Assessment [EIA] in its materials, and I adopt that nomenclature for purposes of these Reasons.) Benga submitted its EIA and responded to multiple information requests [IRs] from the AER and the Canadian Environmental Assessment Agency (now called the Impact Assessment Agency) [Agency] and, subsequent to its appointment, from the JRP.

On June 25, 2020, the JRP advised Benga that the information that had been provided was sufficient to proceed to the hearing stage of the environmental assessment process [Sufficiency Determination]. [ 14 ] The JRP public hearings took place between October 27, 2020 and December 2, 2020. During the hearing, Benga and the other participants including First Nations presented evidence, cross-examined other parties’ witnesses, and presented argument.

The Piikani Nation and the Stoney Nakoda [First Nation Applicants] were invited to participate in the hearing process. [ 15 ] The Stoney Nakoda participated in the JRP hearing through written submissions and an oral presentation. Through that participation, the Stoney Nakoda advised the JRP that, through the Stoney Nakoda Agreement, Benga had adequately addressed the Stoney Nakoda’s project-specific concerns and that the Stoney Nakoda were therefore in support of the Project. [ 16 ] The Piikani Nation did not participate in the hearing.

However, it had previously submitted on May 9, 2016, its technical review of the Project, which set out the Piikani Nation’s rights and interests related to the Project, as well as a July 7, 2016 update to that technical review.

Further, the Piikani Nation advised the JRP by letter dated January 18, 2019, that it had signed the Piikani Agreement to enter into a partnership with Benga and therefore supported the Project. [ 17 ] In this letter, the Piikani Nation explained that its partnership with Benga would allow it to provide employment, training and education to its members, would spur business development opportunities and help build economies on its reserve, and would increase its administration’s capacity to provide community programming and support for its members.

The Piikani Nation stated that, most importantly, its partnership would ensure it could continue to be stewards of its land by working with Benga on environmental protection and mitigation activities that encompass both traditional and modern methods. [ 18 ] On June 17, 2021, the JRP issued its report, concluding that the Project was likely to cause significant adverse environmental effects not outweighed by the positive economic impacts of the Project [JRP Report or Report]. The JRP had the authority as the AER to make the decision whether to approve the Project under Benga’s provincial applications.

In its provincial capacity as the AER, the JRP concluded the project was not in the public interest and denied those applications [Provincial Decision]. Without provincial approval, the Project was unable to proceed. Nevertheless, the federal government was required to proceed with the assessment pursuant to CEAA 2012 . [ 19 ] On the same day, June 17, 2021, the Agency issued a News Release advising that the Minister had received the JRP Report [News Release].

The News Release also stated that, prior to the Government of Canada’s decision on the Project, the Agency would consult with Indigenous groups on the JRP Report. The News Release stated that the Agency would also invite the public and Indigenous groups to comment on potential conditions related to possible mitigation measures and follow-up program requirements that Benga would need to fulfil if the Project was ultimately allowed to proceed.

Finally, the Agency stated that the Minister would consider the results of these consultations before issuing a decision statement and any potential legally-binding conditions. [ 20 ] On June 26, 2021, Benga’s legal counsel informed the Minister that Benga was considering appealing the Provincial Decision and requested that the Minister hold the issuance of a decision statement in abeyance until such time as Benga advised the Minister that the process under CEAA 2012 should continue [Abeyance Request]. Benga wrote to the Agency again on July 6, 2021, reiterating the Abeyance Request.

Benga received no response to its request. [ 21 ] On July 13, 2021, the Piikani Nation wrote to the Minister in support of Benga’s Abeyance Request. This letter referenced the Piikani Agreement and the benefits and opportunities it would provide for the Piikani Nation and its members and expressed concern that, as the AER had denied approval for the Project, such benefits and opportunities may have been lost. This letter also expressed the Piikani Nation’s understanding that the Agency would be consulting further with Indigenous groups, prior to a federal decision on the

Project, and advised that the Piikani Nation looked forward to actively engaging with the Agency on those consultations. [ 22 ] On July 22, 2021, the Agency issued a final version of a report documenting its consultations with Indigenous communities with respect to the Project, for purposes of informing the Minister of those consultations [Final Consultation Report].

This report stated that the Agency considered the consultation process conducted to date to be reasonable and properly implemented and that affected Indigenous communities were given sufficient opportunity to express their views and share concerns throughout the process. The Agency expressed its opinion that, in the event the outcome of the required federal decisions prevented the Project from proceeding, the Crown had fulfilled its duty to consult.

The Agency also expressed its opinion that, if the Minister did not agree with the JRP’s findings of significant adverse environmental effects, or if the Cabinet determined that those effects were justified in the circumstances, then further consultation with Indigenous communities would be required. [ 23 ] On August 6, 2021, the Minister issued a decision statement under

section 54 of CEAA 2012 , communicating the decisions of the Minister and Cabinet [Decision Statement]. The Decision Statement advised that the Minister had determined under section 52(1) of CEAA 2012 that, after considering the JRP Report and the implementation of mitigation measures the Minister considered appropriate, the Project was likely to cause significant adverse environmental effects referred to in subsection 5(1) and 5(2) of the CEAA, 2012 [Minister’s Decision].

The Decision Statement also advised that Cabinet had decided under section 52(4) of CEAA 2012 that the significant adverse effects were not justified in the circumstances [the Cabinet Decision] [collectively, the Decisions]. It is these Decisions that are the subject of these applications for judicial review. III. Decisions under review [ 24 ] The JRP Report, submitted to the Minister under s 43(1)(

e) of CEAA 2012 on June 17, 2021, included a

summary of findings and recommendations for the purpose of the federal environmental assessment. While the JRP Report is not itself a decision under review in these applications, it is useful to summarize its conclusions, as a report of this nature may be reviewed to ensure that it was a " “report” " that the Minister or Cabinet could rely upon for purposes of their decisions ( Taseko Mines Limited v Canada (Environment) , 2019 FCA 319 [ Taseko 1 ] at para 45). [ 25 ] In the Executive

Summary

section of the JRP Report, the JRP found that Benga’s conclusion, that the Project was not likely to result in significant adverse effects following mitigation measures, was premised on overly optimistic assumed effectiveness of those measures, which was not supported by the evidence provided. The JRP’s conclusions included that the Project was likely to result in significant adverse environmental effects upon surface water quality, westslope cutthroat trout and their habitat, whitebark pine, rough fescue grasslands, and vegetation species and community biodiversity.

The JRP also found that the Project was likely to contribute to significant adverse cumulative environmental effects on westslope cutthroat trout, little brown bats, grizzly bears and whitebark pine. [ 26 ] The JRP Report also explained its conclusion that, in assessing the Project’s positive economic impact on the region, Benga did not consider certain risks that could reduce the magnitude of the positive impacts.

The JRP found that the Project would result in low to moderate positive economic impacts on the regional economy. [ 27 ] The JRP additionally found that the Project would result in the loss of lands used for traditional activities and that this would affect Indigenous groups who use the Project area.

The JRP concluded that the Project would cause significant adverse effects to physical and cultural heritage for three Treaty 7 First Nations (including the Piikani Nation) and that the proposed mitigation measures were not sufficient to fully mitigate those effects, but it noted that all Treaty 7 First Nations had signed agreements with Benga and stated that they had no objection to the Project. [ 28 ] The JRP Report includes findings specific to the federal assessment and approval process.

In accordance with CEAA 2012 , the JRP considered potential environmental effects within the legislative authority of Parliament: fish and fish habitat, aquatic species, and migratory bird, as well as the effects of the Project on wildlife species listed under the Species at Risk Act , SC 2002, c 29 and their critical habitat.

The JRP also assessed the manner in which the Project may adversely affect asserted or established Aboriginal or Treaty rights as described by Indigenous persons or groups, as well as potential adverse effects that the Project may cause on the health, social, or economic conditions of Indigenous people. The JRP also assessed measures proposed to avoid, mitigate or accommodate adverse environmental effects and adverse effects on Aboriginal and Treaty rights. [ 29 ] In a

summary of its findings on matters related to federal jurisdiction, the JRP stated that: The project would likely result in significant adverse environmental effects on surface water quality, westslope cutthroat trout and their habitat, and whitebark pine. For some Indigenous groups, the project would result in adverse effects on their current use of land for traditional purposes and physical and cultural heritage, but the effects would not be significant.

For some Treaty 7 First Nations (Káínai, Piikani, and Siksika) the project would result in significant adverse effects on physical and cultural heritage, but these groups entered into agreements with Benga and withdrew their objections to the project. Impacts on Aboriginal or treaty rights would be low to moderate for the Treaty 7 First Nations, Métis Nation of Alberta Region 3, and Ktunaxa Nation. [ 30 ] The JRP stated that it was not providing mitigation measures for consideration by the Minister, should the Project proceed.

The JRP reasoned that, because it had denied the Project provincial approval in its capacity as the AER, the Project could not proceed. [ 31 ] Pursuant to

section 51 of CEAA 2012 , the Minister was required to take the JRP Report into account and then make a decision under subsection 52(1). Section 52(1) of the CEAA 2012 states:

Decisions of decision maker 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 (

a) is likely to cause significant adverse environmental effects referred to in subsection 5(1); and (

b) is likely to cause significant adverse environmental effects referred to in subsection 5(2). Décisions du décideur 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) d’une part, d’entraîner des effets environnementaux visés au paragraphe 5(1) qui sont négatifs et importants;

b) d’autre part, d’entraîner des effets environnementaux visés au paragraphe 5(2) qui sont négatifs et importants . [ 32 ] In a Memorandum to the Minister, which indicates it was drafted on June 30, 2021, the Agency summarized the conclusions in the JRP Report and recommended that the Minister decide that, taking into account the implementation of mitigation measures he considered appropriate, the Project was likely to cause significant adverse environmental effects.

This Memorandum also advised the Minister of the Abeyance Request but informed the Minister that the Agency was of the opinion that there would not be any benefit in delaying the Minister’s decision under CEAA 2012 . The Minister endorsed his concurrence upon this Memorandum on July 7, 2021 [Minister’s Decision Memorandum]. [ 33 ] Section 52(2) of CEAA 2012 then required the Minister to refer to the Cabinet the matter of whether the significant adverse environmental effects were justified in the circumstances, a decision that Cabinet was authorized to make under section 52(4) of CEAA 2012 .

In the subsequent Cabinet Decision, set out in an Order in Council dated August 6, 2021 [Order in Council], the Cabinet decided that the significant environmental effects likely to be caused by the Project were not justified in the circumstances. [ 34 ] As previously noted, the Minister also issued on August 6, 2021 the Decision Statement under

section 54 of CEAA 2012 , communicating both the Minister’s Decision (that the Project was likely to cause significant adverse environmental effects) and the Cabinet Decision (concluding that those effects were not justified in the circumstances). IV. Issues [ 35 ] In the interests of avoiding duplication, each of the Applicants has identified and provided submissions on different issues for the Court’s determination, but each of the Applicants supports the other Applicants’ submissions on all issues raised. Based on the submissions of all the parties, I would articulate the issues as follows: A .

Whether the Minister’s Decision is unreasonable; B . Whether the Cabinet Decision is unreasonable; C . Whether the Decisions breached the right to procedural fairness of any of the Applicants; and D . Whether Canada owed the Piikani Nation and the Stoney Nakoda a duty to consult and, if so, whether Canada failed to reasonably consult and accommodate those First Nations before issuing the Decisions, such that the Decisions are unreasonable. V.

Standard of Review [ 36 ] All parties agree (and I concur) that the merits of the Decisions are reviewable on the standard of reasonableness ( Canada (Minister of Citizenship and Immigration) v Vavilov , 2019 SCC 65 [ Vavilov ]), while the procedural fairness issues are reviewable on what is sometimes referred to as the standard of correctness. Strictly speaking, no standard of review applies to issues of procedural fairness.

Rather, the Court is required to consider whether the procedure followed was fair having regard to all the circumstances ( Canadian Pacific Railway Company v Canada (Attorney General) , 2018 FCA 69 at para 54 ). [ 37 ] The existence, extent, and content of the Crown’s duty to consult First Nations are legal questions reviewable on the standard of correctness ( Ermineskin Cree Nation v Canada (Environment and Climate Change) , 2021 FC 758 [ Ermineskin ] at para 82-83 ; Squamish First Nation v Canada (Fisheries and Oceans) , 2019 FCA 216 at para 30 ; Yellowknives Dene First Nation v Canada (Minister of Aboriginal Affairs and Northern Development) , 2015 FCA 148 at paras 46-47 ).

In accordance with the principles explained in Vavilov at paragraph 55 , the correctness standard applies to these questions because the duty to consult flows from the honour of the Crown and is constitutionalized by s 35 of the Constitution Act, 1982 (see Ktunaxa Nation v British Columbia (Forests, Lands and Natural Resource Operations) , 2017 SCC 54 [ Ktunaxa Nation ] at para 78 ). [ 38 ] Whether or not Canada fulfilled the duty to consult is reviewable on a standard of reasonableness (see Ermineskin at para 82-83 ; Coldwater First Nation v Canada (Attorney General) , 2020 FCA 34 at para 27 , citing Vavilov at para 55 ).

VI. Analysis A. Whether the Minister’s Decision is unreasonable [39] Leaving aside for the moment the constitutional arguments of the First Nation Applicants (that the Decisions were unreasonablebecause Canada failed to reasonably consult and accommodate them), the arguments challenging the reasonableness of the Decisions asa matter of administrative law are advanced by Benga.

Benga asserts that the JRP Report demonstrates a number of errors made by theJRP, as a consequence of which it was a materially flawed report and therefore not a report for purposes of CEAA 2012 upon which theMinister could rely in making the Minister’s Decision. [40] As Benga submits, the JRP Report was a statutory prerequisite to the Minister’s Decision (CEAA 2012, s 47(1)). As explained inTaseko 1 at paragraph 45, a decision by the Minister or Cabinet may be set aside if it is based on a materially flawed or materiallydeficient report, such as one that falls short of legislative standards.

In reliance on this principle, Benga raises both procedural fairnessconcerns, related to the process followed by the JRP before issuing the JRP Report, as well as concerns about the merits of the analysisin the Report. I will consider Benga’s procedural fairness concerns later in these Reasons but will presently address Benga’s argumentssurrounding the merits of the substantive determinations in the JRP Report.

Those determinations are reviewable on the reasonablenessstandard (Taseko 1 at paras 47-48). [41] Benga submits that the JRP Report is flawed because the JRP ignored relevant material evidence, misapprehended the evidencebefore it, and failed to consider the rules of evidence. I will address each of the examples in the JRP Report upon which Benga relies inadvancing this submission.

However, before embarking on that analysis, I wish to address a point on which the parties take differingpositions surrounding the extent, if any, to which this Court should take into account a decision by the Alberta Court of Appeal inlitigation that the Applicants have pursued in an effort to set aside the decision by the AER.

(1) Alberta litigation [42] As noted earlier in these Reasons, on June 26, 2021, Benga’s legal counsel informed the Minister that Benga was consideringappealing the Provincial Decision by the AER. Subsequently, Benga and the First Nation Applicants all commenced applications forpermission to appeal the Provincial Decision to the Alberta Court of Appeal [ABCA], under section 45(1) of the Responsible EnergyDevelopment Act, SA 2012, c R-17.3 [REDA].

Under section 45(1), a decision of the AER is appealable to the ABCA with thepermission of the Court of Appeal, but only on a question of jurisdiction or on a question of law. [43] On January 28, 2022, the ABCA released its decision (Benga Mining Limited v Alberta Energy Regulator, 2022 ABCA 30 [ABCADecision]), dismissing the applications for permission to appeal.

The Applicants sought leave for appeal to the Supreme Court of Canada[SCC], which was denied. [44] The Applicants take the position that this Court should not take the reasoning in the ABCA Decision into account in deciding thepresent applications for judicial review and, indeed, that it would be an error of law for the Court to do so. In support of that position,advanced in Benga’s submissions, they note that the ABCA was not conducting a reasonableness review.

Rather, it was applying theparticular test prescribed by REDA, which required consideration of whether the proposed appeal raised questions of law or jurisdictiononly.

The Applicants also note that the ABCA was considering Alberta law, not federal law, and had a limited record before it, or at leasta record different from that which is presently before the Court. [45] The Applicants also emphasize that the ABCA Decision addressed a leave application, not an appeal on its merits, and rely on thedecision of the SCC in Saatva Capital Corporation v Creston Moly, 2014 SCR 53 [Saatva], which provided the following guidance onthe extent to which appeal courts are bound by comments on the merits of an appeal made by leave courts (at para 122): 122.

With respect, the CA Appeal Court erred in holding that the CA Leave Court’s comments on the merits of the appealwere binding on it and on the SC Appeal Court. A court considering whether leave should be granted is not adjudicating themerits of the case (Canadian Western Bank v. Alberta, 2007 SCC 22, [2007] 2 S.C.R. 3, at para. 88). A leave court decidesonly whether the matter warrants granting leave, not whether the appeal will be successful (Pacifica Mortgage InvestmentCorp. v.

Laus Holdings Ltd., 2013 BCCA 95, 333 B.C.A.C. 310, at para. 27, leave to appeal refused, [2013] 3 S.C.R. viii).This is true even where the determination of whether to grant leave involves, as in this case, a preliminary consideration ofthe question of law at issue. A grant of leave cannot bind or limit the powers of the court hearing the actual appeal (TamilCo-operative Homes Inc. v.

Arulappah (2000), (ON CA), 49 O.R. (3d) 566 (C.A.), at para. 32). [46] In response to the Applicants’ reliance on Saatva, the Respondents note that the SCC held only that an appellate leave court’scomments on the merits of an appeal are not binding on the appeal court, not that such comments cannot be taken into account. TheRespondents recognize that the ABCA Decision was decided in a different statutory context and do not suggest that it has rendered anyof the issues in the present applications res judicata or subject to issue estoppel.

However, the Respondents note that some of thearguments the Applicants are advancing in the present applications were also advanced before the ABCA. To the extent the ABCAengaged with the merits of those arguments, as required by the test applicable under section 45(1) of the REDA that includesconsideration whether the appeal has arguable merit (see ABCA Decision at para 28), the Respondents submit that this Court can treatthe ABCA’s analysis as instructive. [47] In my view, it would be inappropriately artificial for this Court to ignore the reasoning in the ABCA Decision as the Applicantssuggest.

This is particularly so given that, in one respect when considering the First Nation Applicants’ procedural fairness argumentslater in these Reasons, the outcome of my analysis diverges from that of the ABCA, and I consider it appropriate to note and explain thatdivergence. However, I remain conscious of the various distinctions between the task and circumstances of the ABCA and those of thisCourt, as raised by the Applicants.

As such, to the extent my Reasons reference the analysis in the ABCA Decision on arguments onwhich I arrive at similar conclusions, I emphasize now (and therefore will not necessarily repeat) that I am not relying on that analysis

and arrive at my conclusions in these Reasons independent thereof. [ 48 ] Also in relation to the Applicants’ litigation in the Alberta courts, I note that the parties have advised that they are pursuing applications for judicial review of the AER’s decision in the Alberta Court of King’s Bench [ABKB]. I understand that those applications name the AER (and the JRP in its capacity as the AER) and Alberta’s Aboriginal Consultation Office as respondents and seek to set aside the AER’s decision. As I understand the status of that litigation, the AER brought a motion to dismiss the applications, on the basis that the Applicants’ failed appeal under

section 45 of REDA , combined with a privative clause in

section 56 of REDA , prevented the Applicants from pursuing judicial review. On December 4, 2023, in an unpublished decision, the ABKB granted the motion and dismissed the applications. [ 49 ] However, counsel have advised that the Applicants have appealed this dismissal to the ABCA.

Counsel for the First Nation Applicants have further explained that the applications for judicial review before the ABKB remain as against Alberta’s Aboriginal Consultation Office, although they have been placed in abeyance pending the appeal of the dismissal of the applications against the AER. [ 50 ] None of the parties take the position that these applications have any particular significance for the issues before this Court, other than the fact that the Applicants’ efforts to challenge the Provincial Decision are not exhausted, which could be relevant to this Court’s decision on remedies. [ 51 ] I now turn to Benga’s arguments that the JRP Report is flawed because the JRP ignored relevant material evidence, misapprehended the evidence before it, and failed to consider the rules of evidence.

(2) Economic benefits of the Project [ 52 ] In assessing the economic benefits of the Project, the JRP considered the impact of global climate change policies on metallurgical coal demand. This assessment contributed to the JRP’s finding that it was likely that Benga had overstated the Project’s positive economic impacts. Benga submits that, in reaching this conclusion, the JRP ignored Benga’s economic analysis and evidence of continued demand for steelmaking coal and instead relied on a witness (Dr.

Joseph, testifying on behalf of the Livingstone Landowners Group) who did not have applicable expertise and whose evidence was based on third-party reports. Benga raises similar concerns about the JRP’s reliance on the evidence of other lay witnesses from groups called the Crowsnest Conservation Society and the Eco-Elders for Climate Action.

Benga argues that the JRP erred by ignoring Benga’s evidence, which was based on experience and expertise, and failing to assess the qualifications and reliability of the evidence of other witnesses. [ 53 ] Benga submits that, in the JRP’s treatment of this opinion testimony, it failed to consider the rules of evidence.

It argues that, even if not bound by the strict rules of evidence applicable to judicial proceedings, administrative decision-makers are still required to consider the reliability of evidence before them (see, e.g., Pridgen v University of Calgary , 2012 ABCA 139 at para 59 ). [ 54 ] I accept that administrative proceedings are not an evidentiary free-for-all. Rather, as identified in

section 22 of its TOR, the JRP hearing was to be conducted in accordance with the Alberta Energy Regulator Rules of Practice , Alta Reg 99/2013 . However, as the Respondents submit, those rules do not prescribe a particular approach to the assessment of opinion evidence, and Benga has not identified any particular provision of those rules that it argues was contravened. [ 55 ] The relevant portion of the JRP’s analysis is found at paragraphs 2858 to 2868 of its Report. The JRP references Benga’s evidence and that of Mr.

Campbell of the Coal Association of Canada, who predicted future high demand for steel-making coal. The JRP also references the evidence of the Crowsnest Conservation Society and the Eco-Elders for Climate Action, surrounding alternative steelmaking technologies, and then that of Dr. Joseph. His evidence included submission of two scenarios from the International Energy Agency’s annual World Energy Outlook that, depending on various potential scenarios, suggested a future decline in global production of steelmaking coal. Benga argued that the scenarios spoke to production rather than demand, and Dr.

Joseph responded that it was reasonable to think that demand would accompany production. The JRP ultimately described the information provided by Dr. Joseph as an independent outlook that such a decline in production and demand for metallurgical coal could be possible. [ 56 ] In relation to the concerns raised by Dr. Joseph about declining production and demand, the JRP considered Benga’s argument that those scenarios spoke to production rather than demand and that, if only production and not demand decreased, this would result in higher prices for steel-making coal.

However, the JRP concluded that a decline in demand would be a reasonable expectation if the steel industry was successful in developing new technologies to reduce its greenhouse gas emissions. [ 57 ] Benga submits that the JRP’s analysis is illogical, because basic economics dictates that production (or supply) and demand are factors that influence price, not that there is a relationship between supply and demand.

However, this argument asks the Court to re- weigh the evidence before the JRP in a manner that is not appropriate on judicial review. [ 58 ] It is clear from the evidentiary references in the JRP Report that Benga’s evidence was not ignored, and the JRP’s treatment of the evidence and resulting analysis is intelligible as required by Vavilov (at para 99 ). Moreover, even if fault could be found with the JRP’s treatment of Dr.

Joseph’s evidence or that of the other witnesses to which Benga refers, that evidence forms only a portion of the JRP’s reasoning in support of its finding that Benga had overstated the positive economic impacts of the Project.

The Report also analyses the potential for negative economic impacts on the tourism and recreational sectors and the potential for coal quality from the Project to decline in later years of mine life, reducing market prices and government revenues (see paras 2835-2857). [ 59 ] I find that this portion of the JRP’s analysis withstands reasonableness review under the principles prescribed by Vavilov and, applying the language of Taseko 1 , that Benga’s arguments surrounding this analysis do not render the JRP Report a materially flawed or deficient report. [ 60 ] Before leaving these arguments, I note that it appears that similar submissions were rejected by the ABCA, which held at paragraph 65 to 66 that Benga’s arguments amounted to assertions that the JRP should have accepted or preferred Benga’s evidence.

(3) Surface water quality and effects on westslope cutthroat trout [ 61 ] Benga advances similar arguments surrounding the JRP’s assessment of surface water quality and effects on westslope cutthroat trout [WSCT], topics within federal jurisdiction.

Benga submits that the JRP improperly relied on lay evidence and unfounded opinion, lacking any scientific support, instead of Benga’s expert and science-based evidence. [ 62 ] Benga explains that it conducted fish inventory surveys from 2014 to 2016, employing a suite of standard protocols including active capture and direct visual observation in order to characterize fish species composition, distribution and abundance in mark-capture assessment techniques, and that it continued to conduct annual fish surveys between 2016 and 2020.

However, it submits that, instead of reviewing and relying on this evidence, the JRP accepted the evidence of the personal catch rate of a local fisherman, without assessing the fisherman’s qualifications or providing reasons why that evidence was reliable or more persuasive than that of Benga. [ 63 ] This portion of the JRP Report (at paras 1177-1194), which addresses whether a particular waterway (Gold Creek) is a critical habitat for WSCT and the size and trends in WSCT populations, clearly references Benga’s surveys including its mark-capture assessment.

As such, it is not possible to conclude that the JRP did not review Benga’s evidence. In expressing its concerns about WSCT populations and Benga’s proposed mitigation measures to avoid significant adverse effects on that species, the JRP stated the importance of having accurate population estimates and trends. The JRP disagreed with Benga’s characterization of a particular waterway as not being good habitat for WSCT, relying upon a number of evidentiary sources in arriving at that conclusion.

It also expressed concern about the reliability of Benga’s data, including based on Benga’s own acknowledgement of the difficulty in obtaining an accurate population estimate. [ 64 ] Included among the evidence that the JRP reviewed in the course of this analysis was that of a local fly fisherman who provided his personal catch rates and noted a dramatic decline following a 2015 pollution event.

However, this evidence, based on the fisherman’s personal observations, was only one of a number of sources (including the Canadian Parks and Wilderness Society [CPAWS], the Coalition of the Alberta Wilderness Association and the Grassy Mountain Group [Coalition], and the Department of Fisheries and Oceans [DFO]) from which the JRP developed its concern about water quality effects on WSCT populations.

I find no basis to conclude that this portion of the JRP’s analysis is unreasonable or that it renders the JRP Report materially deficient. [ 65 ] As the Respondents note, Benga raised before the ABCA its concern that the JRP had improperly relied on anecdotal information from a local fly fisherman in considering Gold Creek as a critical habitat for WSCT. The ABCA Decision at paragraphs 72 to 73 found that Benga’s argument represented selective reading of the Provincial Decision ( i.e. , the JRP Report), which also described the position advanced by the CPAWS, the Coalition, and DFO.

The ABCA found nothing in the Provincial Decision indicating that the JRP unreasonably relied upon the fly fisherman’s evidence, particularly since his concern echoed that of other hearing participants.

(4) Mitigation measures [ 66 ] More broadly, Benga argues that the JRP Report is materially deficient and the subsequent Decisions are unreasonable, because the JRP and the Minister ignored the statutory requirement to assess mitigation measures. [ 67 ] As Benga submits, subsection 43(1)(d)(

i) of CEAA 2012 requires that a review panel, in accordance with its terms of reference, prepare a report with respect to the environmental assessment that sets out the review panel’s rationale, conclusions and recommendations, including any mitigation measures and follow-up program. Also, in making the decision under section 52(1) as to whether a project is likely to cause significant adverse environmental effects, the decision-maker (in the present case, the Minister) must take into account the implementation of any mitigation measures that the decision-maker considers appropriate. [ 68 ] In advancing this argument, Benga relies significantly on a statement by the JRP, in the

section of its Report setting out its " “Federal Findings and Recommendations,” " that it was not providing mitigation measures for consideration by the Minister, should the Project proceed (at para 3066). The JRP states that, in its capacity as the AER, it denied Benga’s provincial applications and, without approval of the provincial applications, the Project cannot proceed.

Benga emphasizes the need to give consideration to factors that are mandated by a statute (see, e.g., Ontario Power Generation Inc v Greenpeace Canada , 2015 FCA 186 at paras 125 , 126, 130) and argues that the JRP’s failure to consider mitigation measures renders its Report materially deficient. [ 69 ] I agree with Benga’s position that the fact the Project was not receiving provincial approval did not affect the JRP’s statutory mandate under CEAA 2012. The JRP was required to consider mitigation measures.

However, I am not convinced that the fact that the JRP did not provide an express list of mitigation measures in its Federal Findings and Recommendations

section necessarily rendered its Report materially deficient, such that the Minister was unable to rely on it. As the Respondents submit, there are numerous portions of the Report in which the JRP assessed mitigation measures proposed by Benga and others (see, e.g., paras 399-407, 409, 415, 887, 903- 904, 952, 977, 1003, 1061, 1088-1090, 1102, 1116, 2214, 2364-2363, 2377-2380, 2388-2389, 2397-2399, 2505-2509, 2523-2524, 2531- 2535, 2543-2546). [ 70 ] In both the " “Executive

Summary” " (at pp vii-viii) and the " “Federal Findings and Recommendations” "

section of its Report (at para 3062), the JRP concluded that, in some instances, the claimed effectiveness of Benga’s proposed mitigation measures was overly optimistic and not supported by the evidence provided. [ 71 ] It is significant that this point was captured in the Minister’s Decision Memorandum from the Agency to the Minister, which sought the Minister’s section 52(1) decision. The Agency described the situation as follows: The Panel Report describes in detail the proposed mitigation measures with respect to the adverse environmental effects referred to in subsections 5(1) and 5(2) discussed above.

In its Report, the Panel was critical of some of the Proponent’s proposed mitigation measures, finding that, in some instance, the Proponent made overly optimistic assumptions regarding the sufficiency or effectiveness of its proposed mitigation measures. Normally a Panel Report sets out a specific set out [sic] mitigation measures for you to consider. While the Panel did not do so in this case given the Project may not proceed under provincial legislation, the Panel thoroughly examined each of the Proponent’s proposed mitigation measures and, in light of

this analysis, made its conclusions on whether Project was likely to cause significant adverse environmental effects. [ 72 ] At the conclusion of the Minister’s Decision Memorandum, the Agency recommended that the Minister decide that, taking into account the implementation of mitigation measures the Minister considered appropriate, the Project was likely to cause significant adverse environmental effects referred to in subsections 5(1) and 5(2) of CEAA 2021 .

The Minister endorsed his concurrence with, and signed, the Minister’s Decision Memorandum. [ 73 ] As previously noted, in making the decision under section 52(1), as to whether the Project was likely to cause significant adverse environmental effects, the Minister was required to take into account the implementation of any mitigation measures that he considered appropriate.

I agree with the Respondents’ position that the record supports a conclusion that the Minister agreed with the Agency’s analysis in the Minister’s Decision Memorandum and was satisfied that the level of analysis of mitigation measures contained in the JRP Report was sufficient for him to make the required section 52(1) decision.

The record before the Court demonstrates intelligible reasoning and supports a conclusion that the Minister’s approach to mitigation measures, in making the Minister’s Decision, was reasonable. [ 74 ] Benga advances a related argument that, even if the Minister did consider mitigation measures, the Minister’s Decision is still unreasonable, because the record does not disclose what mitigation measures were considered.

Benga acknowledges that CEAA 2012 does not contemplate the Minister providing reasons for a section 52(1) decision (see Taseko Mines Limited v Canada (Environment) , 2017 FC 1100 [ Taseko FC ] at para 123 , aff’d Taseko Mines Limited v Canada (Environment) , 2019 FCA 320 [ Taseko 2 ]), but argues that such reasons are required in a circumstance where the Minister has not adopted the JRP Report. However, as explained above, I read the record as demonstrating that the Minister did adopt the JRP Report including its approach to mitigation measures. I therefore find no reviewable error arising from this argument. B.

Whether the Cabinet Decision is unreasonable [ 75 ] Benga’s submissions that the Cabinet Decision is unreasonable are largely the same as those advanced in challenging the Minister’s Decision, i.e. , that the Cabinet erred in relying on a flawed JRP Report or flawed decision by the Minister.

As I have rejected those arguments above, they cannot undermine the reasonableness of the Cabinet Decision. [ 76 ] However, at the hearing of these applications for judicial review, Benga raised an additional argument in oral submissions, which had not been identified in its Memorandum of Fact and Law, related to an inconsistency in the record leading to the Cabinet Decision, as to whether the Minister’s Decision was based on a finding that the Project is likely to cause significant adverse environmental effects on the little brown bat.

Other than a concern raised by the Respondents during Benga’s reply submissions, the Respondents did not object to this argument.

As such, subject to certain concerns about points first raised in reply (which I will explain below), I am prepared to adjudicate this argument. [ 77 ] Benga points out that the Order in Council, which captures the Cabinet Decision, includes among several recitals the following paragraph: Whereas, on July 7, 2021, after having considered the joint review panel’s report and having taken into consideration the implementation of mitigation measures that the Minister of the Environment considered appropriate, the Minister decided that the project is likely to cause significant adverse environmental effects on surface water quality, westslope cutthroat trout and their habitat, little brown bat , whitebark pine and the current use of lands and resources for traditional purposes and physical and cultural heritage of the Káínai, Piikani and Siksika First Nations; (my " emphasis " ) [ 78 ] Noting the reference to little brown bat in this paragraph of the Order in Council, Benga draws the Court’s attention to the absence of a similar reference in a Memorandum from the Agency to the Minister, dated June 30, 2021, which sought the Minister’s approval on a draft decision statement to be issued under section 52(4) of CEAA 2012 [Decision Statement Memorandum].

The draft decision statement (like the Decision Statement as issued) does not set out a list of the particular elements of the environment on which the Minister found the Project would likely have significant adverse effects. However, the Decision Statement Memorandum includes a description of the Minister’s Decision under section 52(1) that includes a list of elements of the environment upon which the Minister found the Project is likely to cause significant adverse effects.

That list does not include the little brown bat. [ 79 ] Based on this inconsistency, Benga submits that the above-quoted recital in the Order in Council contains an error in its reference to bats and that the Cabinet Decision was therefore premised on an inaccurate understanding of the basis for the Minister’s Decision.

As I understand the argument, Benga submits that the Minister did not decide that the Project was likely to have a significant adverse environmental impact related to bats and that, if Cabinet had understood this, it might have arrived at a different conclusion as to whether the effects likely to be caused by the Project were justified in the circumstances. [ 80 ] In responding to this argument at the oral hearing, the Respondents referred the Court to the JRP Report, which includes analysis of impacts on little brown bat, as well as the Minister’s Decision Memorandum from the Agency to the Minister, which summarized the conclusions in the JRP Report (including related to impacts on little brown bat) in recommending that the Minister decide that the Project is likely to cause significant adverse environmental effects.

The Respondents therefore take the position that the little brown bat figured in the Minister’s Decision and the reference thereto in the recital in the Order in Council is accurate. [ 81 ] In reply, Benga maintained its position that the Decision Statement Memorandum represents the best evidence of the details of the Minister’s Decision and that, based on the inconsistency with the description of the Minister’s Decision in the relevant recital in the Order in Council, the Cabinet Decision is unreasonable. [ 82 ] However, Benga also raised a new argument in reply surrounding the

interpretation of provisions of CEAA 2012 . Benga argued that the JRP Report did not conclude that the Project would have significant adverse environmental effects upon little brown bat, only that the

Project, in combination with other projects and activities that have been and will be carried out, are likely to contribute to an existingsignificant adverse cumulative effect on little brown bat. Benga noted that subsection 19(1)(

a) of CEAA 2012 requires an environmentalassessment of a project to take into account the environmental effects of the project, including any cumulative environmental effects thatare likely to result from the project in combination with other physical activities that have been or will be carried out. However, Bengaargued that this requirement is intended to develop a database of cumulative effects and that cumulative effects do not figure in decision-making under

section 52 of CEAA 2012. [83] The Respondents’ counsel objected to this argument, as Benga was raising it for the first time in reply. In response to that objection,Benga’s counsel confirmed that Benga was not arguing that the Decisions were unreasonable on the basis that they improperlyconsidered cumulative effects.

Rather, Benga raised the point related to the role of cumulative effects under CEAA 2012 in support of itsposition that, consistent with the absence of any reference to little brown bat in the Decision Statement Memorandum, the Minister’sDecision did not take little brown bat into account and the Cabinet Decision was therefore unreasonable because it relied on aninaccurate understanding by the Cabinet of the Minister’s Decision. [84] I accept that there is an inconsistency in the record as to whether the little brown bat figured in the Minister’s determination that theProject was likely to cause significant adverse environmental effects.

In addressing the parties’ divergent positions as to the reasonsunderlying the Minister’s Decisions, I will not make findings on the operation of the provisions of CEAA 2012 in relation to cumulativeeffects, as the Respondents had no opportunity to engage with that issue. Rather, I base my decision on the relative significance of thedocuments under consideration. [85] The relevant recital in the Order in Council describes the Minister’s Decision as having been made on July 7, 2021.

That datecorresponds with the date on which the record indicates the Minister signed the Minister’s Decision Memorandum and endorsed hisconcurrence therewith. Moreover, it is apparent from the content of the Minister’s Decision Memorandum that its purpose was to seekthe Minister’s decision under subsection 52(1) of CEAA 2012 and to provide the Minister with a

summary of information to support thatdecision. [86] In contrast, it is apparent from the content of the Decision Statement Memorandum that its purpose was to seek the approval of thedecision statement to be issued under subsection 52(4) of CEAA 2012. It was common ground among the parties at the hearing of theseapplications that the decision statement does not itself represent an administrative decision. Rather, the role of the decision statement is tocommunicate decisions already made under subsections 52(1) and 52(3).

Also, as previously noted, the Decision Statement in thismatter, which was ultimately issued by the Minister on August 6, 2021, did not set out a list of the environmental elements that theMinister had found the Project likely to significantly adversely affect. [87] Against that backdrop, considering the roles of the respective documents, it follows that the Minister’s Decision Memorandum ismore relevant to the Minister’s Decision than is the Decision Statement Memorandum and therefore represents the better reference toinform an understanding of the reasons for the Minister’s Decision.

I therefore prefer the Respondents’ position that little brown batfigured in the Minister’s Decision and that the Cabinet Decision is not unreasonable for taking that into account. As previously noted, tothe extent there might be an argument that the JRP’s findings related to little brown bat were in the nature of cumulative effects and notproperly the basis of decisions made

section 52, that argument is not properly before the Court. C. Whether the Decisions breached the right to procedural fairness of any of theApplicants [88] I now turn to the Applicants’ procedural fairness arguments. Benga advances a number of procedural fairness arguments related tothe JRP’s process and Report, as well as an argument relating to events between the issuance of the Report and the Minister’s Decisionwhen Benga made its Abeyance Request.

The First Nation Applicants also raise several procedural fairness arguments, advanced by theStoney Nakoda on behalf of it and the Piikani Nation, including a position that, following the issuance of the JRP Report, they wereentitled to an opportunity to make further submissions before the Minister made his decision. [89] I will address Benga’s arguments first.

Its arguments related to the JRP’s process and Report all share a common premise, thatrequirements of procedural fairness, informed by the doctrine of legitimate expectations, obliged the JRP to advise Benga of concerns ithad as to the insufficiency of Benga’s evidence in certain areas, before relying on those concerns in its Report. [90] As Benga correctly submits, where there is a legitimate expectation that a certain procedure will be followed in administrativedecision-making, then that procedure must be followed as a matter of fairness (Baker v Canada (Minister of Citizenship andImmigration), (SCC), [1999] 2 SCR 817 [Baker] at para 26).

A legitimate expectation arises if a decision-makerthrough its conduct, including established practices, or representations that can be characterized as clear, unambiguous and unqualified,establishes that a particular procedure will be followed in the decision-making process (Agraira v Canada (Public Safety and EmergencyPreparedness), 2013 SCC 36 [Agraira] at paras 94-95). [91] In invoking these principles, Benga relies on the Guidelines for the Preparation of an Environmental Impact Statement related to theProject, issued by the Agency on July 6, 2015 [Guidelines].

The Guidelines identify the nature, scope and extent of information requiredfor the preparation of Benga’s EIA, incorporate considerations from CEAA 2012, and include instructions to provide informationrelevant to areas of federal jurisdiction. [92] Benga also references the JRP’s TOR, as approved by the Minister under sections 40 and 42 of CEAA 2012.

In particular, the TORprovide that if the JRP decides that the proponent’s EIA, including supplemental information on the public registry, is not sufficient toallow a joint review that complies with the TOR and to proceed to the public hearing stage of the process, it shall request additionalinformation to be provided by the proponent. Further, both the TOR and CEAA 2012 itself afford the JRP broad powers to obtain suchinformation from the proponent and others. [93] Benga submitted its original EIA to the Agency on November 10, 2015 and provided an updated EIA on August 12, 2016. Prior to

the JRP’s appointment on July 9, 2018, Benga received and responded to five packages of IRs from the Agency and two packages of IRs from the AER. Following its appointment, the JRP sent Benga an additional six packages of IRs between March and November 2019, to which Benga responded. In response to all IRs, Benga submitted twelve addenda, providing additional information supplementing that in its EIA. [ 94 ] Against that backdrop, Benga relies on the Sufficiency Determination made by the JRP on June 25, 2020. In the Sufficiency Determination the JRP advised Benga that, after reviewing Benga’s EIA report and addenda for the Project, it had determined that: (

i) information on the public registry was sufficient to proceed to the public hearing in accordance with the TOR; (ii) the information provided by Benga met the information requirements outlined in the Guidelines; and (iii) the JRP would issue the notice of hearing in the coming days. [ 95 ] Benga submits that the combination of CEAA 2012 , the Guidelines, and the TOR represent a clear, unambiguous and unqualified statement of the administrative process the JRP would follow in gathering information, giving rise to legitimate expectations by Benga that the JRP would not depart from that process.

It argues that it was entitled to rely on the Sufficiency Determination and that it was therefore deprived of procedural fairness when the JRP, without seeking further information from Benga, subsequently found in the JRP Report that Benga had provided incomplete or insufficient information. Benga raises a number of examples of this concern.

(1) Critical habitat for WSCT [ 96 ] The JRP Report’s conclusions included a finding that the Project is likely to have significant adverse environmental effects on WSCT and their aquatic habitat (at para 3041). The reasoning underlying this conclusion included a finding that Benga had not adequately assessed the amount of critical habitat that the Project would affect, in accordance with DFO’s 2019 Recovery Strategy - Action Plan [2019 Recovery Plan], which was important to fully assess the potential impacts of the Project (at para 3040).

As explained in the Report, the 2019 Recovery Plan was an update released in 2019, while review of the Project was underway, which included a revised definition of critical habitat for WSCT that included a certain scope of riparian and aquatic habitat (at para 1208). [ 97 ] Benga emphasizes that DFO did not request that Benga update its plans as they relate to WSCT critical habitat. Although the JRP acknowledged that DFO had not requested such an update, the JRP nevertheless found Benga’s assessment of critical habitat to be inadequate, a conclusion that Benga submits was procedurally unfair.

Benga also notes that

section 6.3.3 of the Guidelines directs it to assess the environmental effects of the Project based on valued components including the direct and indirect impacts to existing Recovery Strategy and Action Plans. [ 98 ] As a broad submission on Benga’s procedural fairness arguments, the Respondents disagree with Benga’s submission that the combination of CEAA 2012 , the Guidelines, the TOR, and the Sufficiency Determination give rise to legitimate expectations as Benga asserts. I agree with the Respondents’ position.

These communications cannot be characterized as representing a clear, unambiguous and unqualified statement that the JRP would not assess aspects of Benga’s evidence as insufficient to support determinations by the JRP that were favourable to Benga. [ 99 ] In relation to Benga’s argument surrounding the 2019 Recovery Plan in particular, I do not regard the use of the term " “existing” " in

section 6.3.3 of the Guidelines as clearly and unambiguously precluding the application of the 2019 Recovery Plan once developed during the course of the environmental assessment process. [ 100 ] More broadly, I accept that the TOR required the JRP to assess whether Benga’s submissions were sufficient to allow a joint review and to proceed to the public hearing stage of its process and that, if the JRP concluded that the information provided was not sufficient, the JRP was obliged to request additional information from Benga. I further accept that CEAA 2012 afforded the JRP the powers to obtain such information.

However, this cannot be read as a commitment, let alone a clear, unambiguous and unqualified one, that in the absence of further requests, the JRP would find Benga’s evidence sufficient to support favourable findings. Rather, the evidentiary sufficiency contemplated by the provisions of the TOR on which Benga relies is that which is necessary for the JRP’s process to move to the next stage, the conduct of public hearings.

Indeed, the Sufficiency Determination says exactly that. [ 101 ] I note that Benga raised this argument in its application for permission to appeal under REDA and that the ABCA dismissed the argument for reasons similar to the reasons above (see ABCA Decision at paras 32 to 54).

However, I also recognize that the ABCA was addressing a different legislative scheme and therefore a somewhat different record. [ 102 ] For the reasons expressed above, I find no duty of procedural fairness arising from Benga’s broad legitimate expectations arguments in relation to its example of the critical habitat for WSCT and the 2019 Recovery Plan. For the same reasons, I arrive at the same conclusion in relation to Benga’s other examples that I will address below. As such, I will not repeat this analysis for each example.

However, in my view, independent of Benga’s invocation of the doctrine of legitimate expectations, it is necessary for the Court to assess whether any of these examples otherwise demonstrates a denial of procedural fairness, as a result of Benga being deprived of the opportunity to know the case it had to meet and to respond to that case. [ 103 ] In relation to the critical habitat for WSCT, the Report’s analysis is found at paragraphs 1204-1215.

The JRP explains that DFO stated at the public hearing that, under the 2019 Recovery Plan, critical habitat for WSCT within the local study area now included additional geography. DFO therefore expressed concern that authorizing the destruction of critical habitat in a particular watershed would require robust scientific evidence that such destruction would not jeopardize the survival and recovery of WSCT.

DFO stated at the hearing that Benga had not characterized the full extent of critical habitat losses to the Project to reflect the updated 2019 Recovery Plan and suggested that such an update was required to fully understand the impacts on WSCT habitat and to assess proposed mitigation and offsetting measures. [ 104 ] The JRP Report also explains that, in its final argument before the JRP, Benga rejected DFO’s assertion that it should have used the 2019 Recovery Plan and updated its assessment, noting that IRs prepared by DFO did not request such an update.

However, the Report notes that Benga stated through the review process that it was aware of the importance of WSCT and their critical habitat and notes that Benga had performed estimates of Project impacts upon critical habitat. The JRP therefore concluded that Benga was fully

aware of the consequences of the updated 2019 Recovery Plan. The JRP also explained that, given Benga’s awareness of the expanded definition of critical habitat in the 2019 Recovery Plan, it would have been helpful if Benga had updated its calculations to take such expansion into account. [ 105 ] This demonstrates that Benga was aware of the 2019 Recovery Plan, its potential implications for the JRP’s assessment of the Project, and DFO’s position that Benga should have updated its own assessment. Indeed, Benga spoke to this latter point directly in its submissions to the JRP.

Benga was alerted to the potential relevance of the 2019 Recovery Plan, and I find no basis to conclude that Benga was deprived of an opportunity to address it. I therefore find no breach of procedural fairness arising from this example.

(2) Rainbow trout as proxy for WSCT [ 106 ] The JRP Report captures Benga’s explanation that it would be challenging to sample tissue from WSCT, to obtain baseline data and subsequent monitoring data, because of the protected status of that species. Benga therefore suggested employing rainbow trout as a proxy or surrogate species.

However, the Report observed that Benga did not assess the feasibility of using rainbow trout as a surrogate, and the JRP concluded that it did not have confidence that Benga’s risk assessment models produced sufficiently conservative estimates of the risk of significant adverse environmental effects on WSCT. This portion of the JRP’s analysis is found in paragraphs 1069 and 1077 of its Report. [ 107 ] Benga argues that the only time the JRP requested this type of information was during the oral portion of the hearing, when it inquired qualitatively how analogous different species of fish were to WSCT.

Benga submits that it was therefore procedurally unfair for the JRP to make the above finding without first seeking further information from Benga, as Benga had no way of knowing that this information was of interest to the JRP. [ 108 ] I agree with the Respondents that, as demonstrated by the JRP Report, it was Benga that suggested using rainbow trout as a surrogate for WSCT. Moreover, as is evident from Benga’s argument, the JRP’s questioning during the hearing inquired as to whether the two species were analogous.

Again, I cannot conclude that Benga was unaware of the potential relevance of this point. [ 109 ] I also agree with the Respondents’ submission that the portion of the JRP Report upon which Benga relies forms part of a larger

section in which the JRP explains its lack of confidence in Benga’s conclusion that the Project would be of negligible risk to WSCT. This

section identifies a number of concerns giving rise to the JRP’s conclusion (at paras 1062-1081). As the Respondents submit, this further detracts from Benga’s argument that the Report was materially deficient based on procedural unfairness in relying on the lack of information about the comparison between rainbow trout and WSCT.

(3) Groundwater surface modelling [ 110 ] In its assessment of the Project’s potential effects on groundwater quantity, flow and quality (commencing at para 615 of the Report), the JRP considered various aspects of Benga’s modelling.

The Report’s conclusions included a finding that, to gain confidence in the prediction of effects, a comprehensive understanding of groundwater-surface water interactions was required and that the use of an integrated groundwater-surface water model may have been more appropriate than the model that Benga employed (at paras 663 and 812). [ 111 ] Benga’s Vice President, External Relations, Mr. Gary Houston, who served as the chair for Benga’s witness panels before the JRP, swore an affidavit in support of Benga’s application for judicial review. Mr.

Houston deposes that, based on his participation and role in advancing the Project in the regulatory process, it was his understanding that the JRP never asked Benga to use an integrated groundwater-surface water model. [ 112 ] However, when questioned at the hearing of this application as to how the point surrounding an integrated groundwater-surface water model surfaced in the regulatory process, Benga’s counsel advised that this point had been raised by DFO or perhaps another participant in the course of the JRP hearings.

Again, in my view, this precludes a finding that it was procedurally unfair for the JRP to rely on this point. Also, the fact that the absence of an integrated groundwater-surface water model was only one of several reasons that the JRP’s Report expressed for its lack of confidence in Benga’s predictions further detracts from Benga’s position that this procedural fairness argument renders the Report materially deficient.

(4) Feasibility of groundwater recovery wells [ 113 ] Mr. Houston also references the concern expressed in the JRP Report (at para 725) that one of Benga’s proposed mitigation measures, the installation of groundwater recovery wells down-gradient of the external waste rock dump, was subject to uncertainties regarding the wells’ technical and economic feasibility and effectiveness. Mr.

Houston deposes that Benga was never asked to demonstrate such feasibility and effectiveness. [ 114 ] Again, Benga’s counsel advised at the hearing of this application that this topic was raised by one of the participants in the hearings before the JRP. I therefore find no basis to conclude that the hearing process was procedurally unfair.

(5) Methodology and models to verify economic benefits [ 115 ] In assessing the Project’s potential economic effects, the JRP Report describes Benga’s use of a standard economic impact analysis based on a widely-used macroeconomic input-output model, employed to simulate both direct and indirect effects (at para 2788).

In arriving at its conclusion that the Project would have positive but low to moderate economic impacts, the JRP expressed concern that some potential downside risks to Benga’s economic projections were not adequately considered, as well as concern about potential negative spillover effects in other important regional economic sectors. The Report explains that these issues might have been captured if Benga had conducted an economic assessment to evaluate the Project’s net benefits (at para 2818). Benga submits that it could not have known that the JRP would have wanted a net, rather than gross, assessment.

[ 116 ] Consistent with Benga’s counsel’s explanation at the hearing of this application, the Report identifies that Dr. Joseph submitted an expert review of Benga’s economic analysis, which raised concern that the analysis assessed only gross impacts of the Project and did not offer insights into its net benefits (at para 2809). This review appears to have been the source of the JRP’s concern, it was raised in the course of the hearing, and I therefore find no procedural unfairness in the JRP having relied on this concern without having expressly asked Benga to submit evidence to address it.

(6) Abeyance request [ 117 ] Benga’s final procedural fairness argument is unrelated to the Sufficiency Determination or the JRP hearing process itself.

Benga raises an argument relating to events following the issuance of the JRP Report, when Benga made its Abeyance Request. [ 118 ] As noted earlier in these Reasons, the JRP issued its Report on June 17, 2021, and on June 26, 2021, Benga’s legal counsel informed the Minister that Benga was considering appealing the Provincial Decision and requested that the Minister hold the issuance of a decision statement in abeyance until such time as Benga advised the Minister that the process under CEAA 2012 should continue.

Benga wrote to the Agency again on July 6, 2021, reiterating the Abeyance Request. [ 119 ] Benga did not receive a response to the Abeyance Request. It argues that the Minister’s decision to issue the Decision Statement, without responding to, acknowledging, or providing reasons for refusing the Abeyance Request, affected the legal rights and interests of Benga and Indigenous groups by prematurely concluding the federal decision-making process.

On that basis, Benga submits that the Minister owed it a duty of procedural fairness with respect to the Abeyance Request, which duty Benga argues the Minister breached. [ 120 ] In support of its position that ignoring a request for a time extension without justification is a breach of procedural fairness, Benga relies on authorities of this Court decided in the context of immigration proceedings. Benga refers the Court to the following conclusion in Venkata v Canada (Citizenship and Immigration) , 2017 FC 423 [ Venkata ] at paragraph 75 : 75. ….

All we know is that the Visa Officer ignored the request for an extension of time, but we are left to speculate as to why he did so. Without a justifiable reason for ignoring the request, I think we have to conclude that a breach of procedural fairness has occurred in this case. The Visa Officer ignored the request for an extension of time without notifying the Applicant and then rendered a decision. There is no indication that he did this for the reasons put forward by the Respondent in this application.

He might have made the mistake of assuming that the Applicant had already submitted the documentation he wanted to submit: “some documents have already been received.” [ 121 ] The Respondents argue that Venkata is distinguishable, in part because it involved circumstances in which an immigration officer had advised a permanent residence applicant of concerns with his evidence related to his ability to establish himself economically in Canada.

Although the applicant requested an extension of time to provide responsive evidence, the officer rejected the application without responding to the extension request (see paras 5, 6, 64). [ 122 ] I agree that this is a distinguishing feature. In Venkata , the lack of a response to the extension request resulted in the relevant decision being made without the applicant having an opportunity to respond to the concern the officer had raised. This is similar to the reasoning in Goodman v Canada (Public Safety and Emergency Preparedness) , 2019 FC 1569 [ Goodman ], another authority that Benga references.

In Goodman , a pre-removal risk assessment officer was advised by the applicant that he wanted to make further submissions in support of the requested relief, and the Court held that fairness demanded the officer advise the applicant that he intended to proceed to a decision and then to afford an opportunity to make up-to-date submissions about risk (see paras 62-63).

In the case at hand, there was no suggestion by Benga that its Abeyance Request was made with a view to providing the Minister with additional submissions relevant to his decision. [ 123 ] In relying on Venkata at paragraph 75 , Benga emphasizes in particular the Court’s concern that procedural fairness had been breached because the record revealed no reasons for the visa officer’s decision not to respond to the extension request, such that the Court was left to speculate in this regard.

For similar reasons, this Court allowed the application in Naeem v Canada (Citizenship and Immigration) , 2016 FC 1073 , another case on which Benga relies, in that the decision of the immigration officer in that matter made no mention of the applicant’s request that the decision be deferred. In the absence of reasons, it was impossible to infer from the record that the officer considered and made a decision on the request or to identify the reasons why any such decision may have been made in the circumstances.

The officer’s failure to make a decision represented denial of procedural fairness (see para 24). [ 124 ] However, in the case at hand, the record supports an inference that the Abeyance Request was considered and rejected. Earlier in these Reasons, I accepted the Respondents’ position as to the role of the Minister’s Decision Memorandum in informing an understanding of the reasons for the Minister’s Decision.

In the Minister’s Decision Memorandum, the Agency informed the Minister of the Abeyance Request and conveyed the Agency’s opinion that there would not be any benefit in delaying the Minister’s decision under CEAA 2012 . The Minister endorsed his concurrence with the Minister’s Decision Memorandum, which I read as demonstrating that the Minister considered Benga’s request but rejected it, for the reasons given by the Agency. [ 125 ] I therefore find no breach of procedural fairness associated with the Minister’s treatment of the Abeyance Request.

(7) Failure to provide reasons [ 126 ] I now turn to the procedural fairness arguments advanced by the First Nation Applicants. I will begin with their argument that no reasons were provided as to how the Decisions were reached and what was actually considered by the Minister or Cabinet, particularly with respect to mitigation measures. The First Nation Applicants note that the Decision Statement does not include any content that can be characterized as reasons.

Similarly, they argue that, while the Order in Counsel contains five recitals and states the Cabinet Decision, it does not contain any detailed reasoning, particularly with respect to mitigation measures. The First Nation Applicants also argue that the JRP Report does not indicate whether or how the JRP considered the mitigation and accommodation measures in the Piikani Agreement and the Stoney Nakoda Agreement [together, the Impact Benefit Agreements].

[ 127 ] The First Nation Applicants argue that this absence of reasons represents a breach of procedural fairness. [ 128 ] I accept the principles invoked by the First Nation Applicants.

While reasons typically figure in the review of the reasonableness of an administrative decision by employing the principles explained in Vavilov , a complete absence of reasons in circumstances where they are required can represent a breach of procedural fairness, because there is nothing for the Court to review ( Newfoundland and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board) , 2011 SCC 62 [ Newfoundland Nurses ] at para 22 ). [ 129 ] Before addressing the First Nation Applicants’ argument, I note that their procedural fairness submissions, advanced on their behalf by the Stoney Nakoda, included attention to the non-exhaustive list of factors identified by the SCC in Baker (at paras 23-28 ) as assisting in identifying the scope and content of procedural fairness required in a given matter.

I will turn shortly to those submissions, as well as the Respondents’ submissions in response. [ 130 ] However, it is not necessary for the Court to engage in an analysis of the Baker factors, or other applicable

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