Pimicikamak et al v Her Majesty the Queen in Right Date:, 2018 MBCA 49

Citation: Pimicikamak et al v Her Majesty the Queen in Right Date: 20180508 of Manitoba et al, 2018 MBCA 49 Docket: AI16-30-08670 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Diana M. Cameron Mr. Justice Christopher J. Mainella Madam Justice Jennifer A. Pfuetzner BETWEEN : ) C. Guirguis and ) K. Ritchie ) for the Appellants PIMICIKAMAK and THE CROSS LAKE ) BAND OF INDIANS ) R. J. M. Adkins and ) M. L. Grande (Applicants) Appellants ) for the Respondent ) The Manitoba Hydro- - and - ) Electric Board ) HER MAJESTY THE QUEEN IN RIGHT OF ) S. Bahir , MANITOBA and THE MANITOBA HYDRO- ) J. R.

Koch and ELECTRIC BOARD ) C. G. Nazar ) for the Respondent (Respondents) Respondents ) Her Majesty the Queen ) in Right of Manitoba - and - ) ) J. G.

Collins THE INCORPORATED COMMUNITY ) for the Intervenor COUNCIL OF CROSS LAKE ) ) Appeal heard: (Intervenor) Respondent ) November 27, 2017 ) ) Judgment delivered: ) May 8, 2018 On appeal from 2014 MBQB 143 ; and 2016 MBQB 128 Cameron JA Introduction [ 1 ] This is an appeal by the applicants from an evidentiary ruling in, and eventual dismissal of, their application for judicial review of a decision (the Decision) made by the respondent Her Majesty the Queen in Right of Manitoba (Manitoba) and the Manitoba Hydro-Electric Board (Hydro) to enter into the “Cross Lake Community Settlement Agreement” (16 September 2010), online: <www.gov.mb.ca/inr/resources/pubs/cross%20lake%20settlement%20agreement%202010.pdf> (the Settlement Agreement) with the intervenor (the Community).

The applicants say that Manitoba failed to meet its constitutional duty to adequately consult with them and accommodate their Aboriginal and Treaty 5 rights prior to entering the Settlement Agreement. [ 2 ] The applicants consist of the Cross Lake Band of Indians (the Band) and Pimicikamak. Pimicikamak describes itself as “an Aboriginal people within the meaning of section 35(1) of the Constitution Act, 1982 ”.

It considers itself the holder of Aboriginal rights over the lands at issue on behalf of all of the Pimicikamak in the Cross Lake territory including (but not limited to) the Band, whom it considers to be an entity defined by the Indian Act , RSC 1985, c I-5, and the Community. [ 3 ] The Community is a community constituted under the The Northern Affairs Act , CCSM c N100. It is composed almost exclusively of Aboriginal persons, including status Indians, non-status Indians and Métis.

Despite the fact that many or most of its members are also members of the Band and Pimicikamak, and that it is adjacent to the Band’s reserve lands, the Community considers itself to be a community that is distinct from the applicants. The Community has an elected mayor and council and exercises municipal type governance powers within its defined boundaries. [ 4 ] Manitoba and Hydro are parties to the Settlement Agreement with the Community.

The issue in this case concerns the applicants’ assertion that Manitoba did not sufficiently fulfill its constitutional obligation to consult with and accommodate them prior to entering into the Settlement Agreement with the Community. [ 5 ] The applicants concede that Hydro had no constitutional duty to consult with them prior to entering the Settlement Agreement. Nonetheless,

the application for judicial review seeks an order that the consultation undertaken was insufficient and that the Settlement Agreement be quashed in whole or in part. [ 6 ] First, the applicants appeal the ruling of the reviewing judge, which struck from the record 11 affidavits (the 11 affidavits) that they filed in support of their application for judicial review.

The applicants say that the 11 affidavits were relevant and necessary to establish the nature and extent of their Aboriginal and Treaty 5 rights and, correspondingly, whether Manitoba sufficiently consulted and accommodated them regarding those rights. [ 7 ] Next, they appeal the decision of the reviewing judge dismissing their application.

They ask that their appeal be allowed; for this Court to issue a declaration that Manitoba failed in its legal and constitutional duties to consult and accommodate them; and for orders quashing the Settlement Agreement (or portions of it) and directing Manitoba to meaningfully consult with and accommodate them regarding the Settlement Agreement. [ 8 ] I would dismiss the appeal in both regards.

The decision of the reviewing judge to strike the 11 affidavits was based on the general administrative law principle that, absent some exceptions, evidence that was not before the decision-maker (extrinsic evidence) should not be considered on judicial review. In my view, the applicants have not shown that the reviewing judge erred in finding that the extrinsic evidence contained in the 11 affidavits was not admissible as it did not fall within the recognized exceptions. Further, much of the evidence in the 11 affidavits is contained in the consultation record filed by Manitoba.

I agree with the reviewing judge that the consultation record offered by Manitoba as the decision-maker was adequate to determine whether the consultation that occurred was sufficient. [ 9 ] I am also of the view that the reviewing judge correctly identified that he was to review the adequacy of the consultation and accommodation on the standard of reasonableness. I cannot say that he erred when he found that the consultation and accommodation leading to the Decision was reasonable. In my view, the consultation undertaken by Manitoba sufficiently fulfilled its constitutional obligation to consult.

Manitoba listened to and understood the concerns raised by the applicants. While Manitoba did not accommodate the applicants in the manner that they requested, it did address the concerns they raised. Thus, I would also deny this ground of appeal. [ 10 ] In order to understand the applicants’ position, it is important to review the duty to consult as well as the rights asserted by the applicants in the context of the Settlement Agreement.

The Duty to Consult [ 11 ] A legal duty to consult “arises when the Crown has knowledge, real or constructive, of the potential existence of [an] Aboriginal right or title and contemplates conduct that might adversely affect it” ( Haida Nation v British Columbia (Minister of Forests) , 2004 SCC 73 at para 35 ). The duty to consult also arises in relation to government actions that have potential impacts on treaty rights. See Mikisew Cree First Nation v Canada (Minister of Canadian Heritage) , 2005 SCC 69 at para 67 .

It is established that the duty to consult is triggered where the Crown is “‘taking up’ [land] pursuant to the Treaty” (at para 22). See also Haida Nation at paras 35, 39 ; Mikisew Cree at paras 33-34; and Grassy Narrows First Nation v Ontario (Natural Resources) , 2014 SCC 48 at para 37 . [ 12 ] The source of the duty to consult and, if necessary, accommodate is grounded in the honour of the Crown and section 35(1) of the Constitution Act, 1982 (the Constitution Act ).

For example, when taking up land as allowed for by a treaty, the Crown has the obligation to act honourably, which includes the recognition and respect of existing Aboriginal rights grounded in section 35(1) of the Constitution Act , as well as the rights provided for in the treaty. This is part of reconciliation. See Mikisew Cree at para 33. [ 13 ] The content of the duty to consult and accommodate varies with the strength of the claim and the significance of the Aboriginal interest. See Haida Nation at para 39 . [ 14 ] The Crown must act honourably and show good faith in the consultation process.

See Haida Nation at para 42 ; and Mikisew at para 55. [ 15 ] Although not always, consultation may reveal a duty to accommodate Aboriginal concerns. In Haida Nation , the Court described accommodation as follows (at para 49): The terms “ accommodate” and “accommodation” have been defined as to “adapt, harmonize, reconcile” . . . “an adjustment or adaptation to suit a special or different purpose . . . a convenient arrangement; a settlement or compromise”. [ 16 ] The duty to consult is reciprocal.

In Ktunaxa Nation v British Columbia (Forests, Lands and Natural Resource Operations) , 2017 SCC 54 , it was described as follows (at para 80): The duty to consult and, if appropriate, accommodate the Aboriginal interest is a two-way street. The obligations on the Crown are to provide notice and information on the project, and to consult with the Aboriginal group about its concerns.

The obligations on the Aboriginal group include: defining the elements of the claim with clarity ([ Haida Nation at] para. 36 ); not frustrating the Crown’s reasonable good faith attempts; and not taking unreasonable positions to thwart the Crown from making decisions or acting where, despite meaningful consultation, agreement is not reached ([ Haida Nation at] para. 42 ). [ 17 ] The duty to consult and, if appropriate, accommodate Aboriginal interests does not give Aboriginal groups a right of veto. Full consent of an Aboriginal group to a government action is only required in certain cases.

What is required is a balancing of interests and a process of give and take. The duty to consult guarantees a process, not a particular result. See Ktunaxa Nation at paras 79-80. [ 18 ] What amounts to adequate consultation was recently considered by the Federal Court of Appeal in Gitxaala Nation v Canada , 2016 FCA 187 , leave to appeal to SCC refused, 37201 (9 February 2017) ( at paras 182-83): [The Crown] is not to be held to a standard of perfection in fulfilling its duty to consult. In this case, the subjects on which consultation was required were numerous, complex and dynamic, involving many parties.

Sometimes in attempting to fulfil the duty there can be omissions, misunderstandings, accidents and mistakes. In attempting to fulfil the duty, there will be difficult judgment calls on which reasonable minds will differ. In determining whether the duty to consult has been fulfilled, “perfect satisfaction is not required,” just reasonable satisfaction: Ahousaht v. Canada (Minister of Fisheries and Oceans) , 2008 FCA 212 , 297 D.L.R. (4th) 722 , at paragraph 54 ; Canada v. Long Plain First Nation , 2015 FCA 177 , 388 D.L.R. (4th) 209 , at paragraph 133 ; Yellowknives Dene First Nation v.

Canada (Minister of Aboriginal Affairs and Northern Development) , 2015 FCA 148 , 474 N.R. 350 , at paragraph

56; Clyde River (Hamlet) v. TGS-NOPEC Geophysical Co. ASA, 2015 FCA 179, 474 N.R. 96, at paragraph 47.

Aboriginal and Treaty Rights Section 35(1) of the Constitution Act [19] Section 35(1) of the Constitution Act provides: The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed. [20] An Aboriginal right or activity is one that contains an “element of a practice, custom or tradition integral to the distinctive culture of theaboriginal group claiming the right” (R v Van der Peet, (SCC), [1996] 2 SCR 507 at para 46). [21] In Van der Peet, the Supreme Court of Canada explained that the purposes of the entrenchment of the rights in section 35(1) are recognition andreconciliation (at para 43): [T]he aboriginal rights recognized and affirmed by s. 35(1) are best understood as, first, the means by which the Constitution recognizes the fact that prior to thearrival of Europeans in North America the land was already occupied by distinctive aboriginal societies, and as, second, the means by which that prior occupationis reconciled with the assertion of Crown sovereignty over Canadian territory. [22] The concept of reconciliation also includes the reconciliation by the Crown of Aboriginal and other societal interests.

See Haida Nation atparas 16-17, 26-27, 32. [23] For example, in this case, the applicants assert Aboriginal rights to gather for ceremonial and other purposes at a site named Sand Bay. The SandBay site is one of the sites identified in the Settlement Agreement for transfer in fee simple to the Community. Treaty 5 [24] The applicants are a party to Treaty 5, entered into in 1875. Through Treaty 5, the applicants (as well as other bands of Indians) surrendered largetracts of land to Her Majesty the Queen in exchange for a number of rights, including the creation of reserve land.

The land that is subject to the SettlementAgreement is composed of land that the applicants surrendered. [25] Among the rights received in Treaty 5 is the stipulation that the applicants have the “right to pursue their avocations of hunting and fishingthroughout the tract surrendered . . . saving and excepting such tracts as may from time to time be required or taken up for settlement, mining, lumbering or otherpurposes, by . . . [the] Government of the Dominion of Canada”. [26] Pursuant to the Natural Resources and Land Transfer Agreement, (Schedule 1 to the Constitution Act, 1930) (the NRTA) the federal governmentgranted Manitoba jurisdiction over Crown lands and resources within Manitoba, including the land surrendered by Treaty 5.

The NRTA stipulates that theapplicants have the right of “hunting, trapping and fishing game and fish for food at all seasons of the year on all unoccupied Crown lands and on any other landsto which” they “may have a right of access”. The Northern Flood Agreement [27] In 1977, Manitoba, Hydro, the Northern Flood Committee, Inc. and Canada entered into the “Northern Flood Agreement” (16 December 1977),online: <www.hydro.mb.ca/community/indigenous_relations/pdf/northern-flood-agreement-1977.pdf> (the NFA).

The NFA describes The Northern FloodCommittee, Inc. as having been incorporated by the Indian bands of Nelson House, Norway House, Cross Lake, Split Lake and York Factory. These bands wereidentified as those that would suffer adverse affects from the Lake Winnipeg Regulation and the Churchill River Diversion Project (the Project). The Project wasdeveloped to facilitate the development of hydro-electric power in Manitoba. [28] As compensation for reserve land affected by the Project, the NFA provides the Band with land entitlement. Pursuant to

article 3 of the NFA, theBand is entitled to the transfer by Manitoba to Canada of “unallocated, unencumbered and unoccupied land” owned by Manitoba “in the area commonly used andenjoyed” by the Band for the continued “use and benefit of” the Band. The NFA further stipulates that Manitoba agrees to transfer the lands identified by theBand “provided they are not required for public purposes”. [29] While the Band has selected some areas of land for transfer pursuant to

article 3, it has not selected all of the land to which it was entitled. [30] Further,

article 4 of the NFA states that Manitoba agrees to “withhold from any other use and to set aside for each Band a substantial area ofland . . . which is specifically defined on a map . . . for a 5 year selection period”. The NFA refers to this land as the “hold area”. There does not exist, nor hasthere ever existed, a hold area for the Band because the parties have been unable to agree as to its scope. The Settlement Agreement [31] The Community was not a party to the NFA.

However, the Project resulted in significant negative impacts on the Community and its residents, aswell as the Incorporated Community of Norway House. In 1992, the Community, along with the Norway House Community Council, filed a statement of claimagainst Manitoba and Hydro in the Court of Queen’s Bench.

Among other things, they asserted that the approval, licensing and construction of the Projectadversely affected the “rights, interests, lands, pursuits and activities of the residents, individually and collectively” in the Community. [32] With the goal of settling the lawsuit, Manitoba, Hydro and the Community entered a “Memorandum of Understanding” (14 February 2000) andan “Agreement in Principle” (30 April 2003) (the AIP). The AIP provided that it was to guide the parties toward the completion of a “comprehensive SettlementAgreement”.

Article 4 of the AIP evidenced the parties’ intent that the boundaries of the Community be expanded.

Article 5 of the AIP stated an intent thatparcels of Crown land be made available to a legal entity established by the Community to be held “by permit or lease, and fee simple” and provided for theidentification of those lands.

It also evidenced an intent to address the Community’s concerns regarding resource management. [33] After further negotiation and identification of the lands agreed to be held by permit or in fee simple, the parties entered a “Letter ofUnderstanding” (18 April 2007) regarding a proposed settlement agreement (the Proposed Settlement Agreement). [34] Throughout the negotiations, Manitoba advised the Community that Manitoba would consult with the applicants prior to final approval of theProposed Settlement Agreement and that “the negotiated land and resource management components of the proposed settlement agreement may change dependingon what Manitoba might learn” from the consultation.

Accordingly, Manitoba initiated and completed the consultation process with the applicants.

[ 35 ] After completing the consultation process, Manitoba entered the Settlement Agreement. [ 36 ] The Settlement Agreement is comprehensive. It provides ranges for water level regimes, compensation regimes, principles for planning and discussing future Hydro development, ongoing communication and monitoring, releases and satisfaction provisions, a process for dispute resolution and processes for approval for executing and implementing the Settlement Agreement. [ 37 ] Of concern to this case are articles 4 and 6 of the Settlement Agreement.

Article 4 relates to the allocation of specified Crown lands, including land use permits and the transfer of lands in fee simple. It provides for the expansion of the Community boundary. It also allows for the creation and administration of the Walker Lake Traditional Use Protected Areas.

Article 6 of the Settlement Agreement relates to the creation of a resource management committee composed of members from the Community and representatives from Manitoba. The objective of the committee is stated to be to “serve as a mechanism . . . to consult about Resource management issues in the Cross Lake Registered Trapline District.” The Consultation [ 38 ] As earlier indicated, after many years of negotiation, Manitoba, Hydro and the Community entered the Letter of Understanding respecting the negotiated terms of settlement in the Proposed Settlement Agreement on April 18, 2007.

According to Manitoba, that Letter of Understanding triggered its duty to consult the Band. It commenced the consultation process by way of letter dated August 20, 2007. [ 39 ] At the outset, an issue arose as to who would represent the Aboriginal rights holders for the consultation process. Manitoba sent a letter to the Band expressing its wish to consult. However, Pimicikamak asserted that it was the representative body to be consulted. Initially, the Band agreed that representatives of Pimicikamak would represent its interests.

Manitoba agreed to consult with whomever the applicants put forward as their representatives. [ 40 ] Between August 2007 and August 2009, letters, emails, phone calls and meetings occurred regarding the creation of a consultation protocol and the actual consultation itself. Throughout this process, the applicants were represented by counsel, for which Manitoba agreed to pay a daily honorarium. The first four meetings were held in Winnipeg, at the request of the applicants.

Counsel for the applicants fully participated in the meetings, in the development of a draft consultation protocol, and in other communications. [ 41 ] During the course of the consultations, the Band held an election, which resulted in a dispute as to which representatives were to be consulted. Thus, on June 22, 2009 a fifth consultation meeting occurred at Cross Lake Manitoba with representatives of the Band. [ 42 ] After its consultation with the Band, Manitoba determined that it would not engage in any further face-to-face meetings with the applicants.

It was Manitoba’s view that the applicants continued to raise the same issues at each of the meetings and through their correspondence. Manitoba’s understanding of the applicants’ concerns and their proposed accommodations were listed in a report that Manitoba sent to the applicants on August 5, 2009 entitled “What you Told Us – A Report on the Crown Consultation on the Proposed Cross Lake Community Council Settlement Agreement ” (the What You Told Us Report). [ 43 ] As I later explain in more detail, the concerns raised by the applicants were:

i) disaggregation of the right of Pimicikamak by the transfer of land and rights to the Community; ii) the impact on the Band’s NFA rights; iii) disputed responsibility for the protection of one of the parcels of land (Walker Lake); iv) the resource management provisions of the Settlement Agreement; and

v) the ability to continue to use one of the parcels of land (Sand Bay) for traditional gatherings and ceremonial purposes. [ 44 ] On October 5, 2009, Manitoba sent a letter to the applicants explaining its conclusions regarding the issues and concerns raised by them and why it did not intend to modify the Proposed Settlement Agreement.

It also suggested ongoing consultations regarding the exercise of Aboriginal or treaty rights. [ 45 ] The applicants repeatedly asserted their objection to the adequacy of the consultation and their opposition to Manitoba entering into the Settlement Agreement. [ 46 ] On June 14, 2010, an Order in Council, OIC 188/2010, online: <oic.gov.mb.ca/OICDocs/2010/06/Aboriginal%20and%20Northern%20Affairs.100614.Executive%20Government%20Organization%20Act.1882010.pdf>, was signed approving entrance into the Proposed Settlement Agreement. [ 47 ] On August 26, 2010, Manitoba forwarded to the applicants a “Final Report: Crown Consultation with the Aboriginal People Residing in the Cross Lake Area (First Nation Community) on the Proposed Cross Lake Community Settlement Agreement” (the Final Report).

As I later explain, that report described the concerns raised by the applicants and the solutions proposed by them. It also explained how Manitoba addressed their concerns. [ 48 ] Manitoba signed the Settlement Agreement on September 16, 2010. [ 49 ] The crux of this case turns on whether the consultation undertaken by Manitoba before it made the Decision was adequate to satisfy the Crown’s obligation to consult and accommodate any adverse effects that articles 4 and 6 of the Settlement Agreement would have on the applicants’ Aboriginal and Treaty 5 rights.

Issue 1—The Admission of Affidavit Evidence on Judicial Review Background [ 50 ] In support of its application for judicial review, the applicants filed the 11 affidavits. Many of the 11 affidavits are from community members describing their and other community members’ use of the lands at issue. Two of the affidavits state that there may be unmarked burial sites on some of the lands at issue. Next, there are affidavits from each of two persons who were professional community planners who assisted and advised the Band at the time when it was making its selections of parcels of land pursuant to the NFA.

These affidavits provide opinion evidence about what the Band would have done in different circumstances. Other affidavits address the significance of Pimicikamak and its assertion that it is the representative of all of the Pimicikamak people for the purpose of consultation. Finally, the affidavits describe the consultation process that occurred. [ 51 ] Manitoba filed two affidavits stating that they constituted the total consultation record that it had before it at the time it made the Decision (the consultation record).

One affidavit contains the records as maintained by the Aboriginal Consultation Unit of the Department of Aboriginal and Northern Affairs, Government of Manitoba (ANA). It included the letters, e-mails and transcriptions of voicemails exchanged between the parties throughout the consultation. It also contained all of the meeting notes from the consultation meetings, as well as Manitoba’s reporting letters and the Final Report. The second affidavit was from the Director of Agreements Management and Aboriginal Consultations Branch of ANA.

That affidavit contained, among other things, the Settlement Agreement and an internal report on the consultation process that Manitoba considered prior to entering into the Settlement Agreement. [ 52 ] In addition to filing the consultation record, Manitoba filed a preliminary motion to have the 11 affidavits struck from the record in the judicial review proceeding. It claimed that the applicants did not provide the information contained in the affidavits during the consultation process, despite their ability to do so.

It also claimed that the 11 affidavits did not comply with the Manitoba, Court of Queen’s Bench Rules , Man Reg 553/88, relating to such evidence. The Decision on the Motion to Strike [ 53 ] In his reasons, the reviewing judge defined the issue to be whether the 11 affidavits were “relevant and otherwise admissible in a judicial review” to determine if Manitoba fulfilled its duty to consult with the applicants regarding the Decision ( 2014 MBQB 143 at para 9 ). [ 54 ] He noted that the general rule is that judicial review is conducted on the record that was before the decision-maker and that extrinsic evidence

“may be introduced only in very limited circumstances” (at para 52). He stated that to admit extrinsic evidence “could and usually would result in a different casethan the one that was evaluated by the original decision maker(s)” (ibid). [55] On the other hand, the reviewing judge recognized that there are exceptions that allow for the admission of extrinsic evidence in order todemonstrate that the record filed by the decision-maker is incomplete or to establish jurisdictional or procedural error.

He also referred to jurisprudence providingfor the admission of extrinsic evidence in circumstances where there was an alleged breach of the duty to consult regarding Aboriginal or treaty rights. [56] After consideration of all of the above, the reviewing judge granted the motion and struck the 11 affidavits.

He held that the admission of themcould not be justified for the following reasons (at para 63): • they were not required to fill in any gaps in the consultation record; • they were not required to demonstrate procedural unfairness; • they were not required to establish the scope of the duty to consult and accommodate owed by Manitoba as Manitoba conceded the scope of its duty to beat least medium and possibly high; • absent the applicability of any other exceptions, the admission of the 11 affidavits was not justified in determining whether Manitoba sufficiently fulfilledits duty to consult. [57] He further commented (at para 66): The applicants’ affidavits are “in addition to” the consultation record.

Manitoba is correct in saying that some of the affidavits repeat what is already in theconsultation record and some of the affidavits include information that the applicants failed to provide to Manitoba during the process of consultation where thereexisted a reciprocal duty on the part of the applicants to bring forth relevant information.

For example, some of the affidavits can be seen to address historical andtraditional uses of specific land subject to the Agreement, which information, it would seem, if not already in the consultation record, is information the applicantscould have provided (but did not) during the process of consultation.

Moreover, there is still other information contained in the affidavits which, separate andapart from its extrinsic nature, is not clearly information relevant to the main question on the judicial review as to whether Manitoba fulfilled its duty ofconsultation. [58] After having found that the 11 affidavits should be struck on the above grounds, the reviewing judge considered arguments made by Manitobaand Hydro that the 11 affidavits did not comply with the Queen’s Bench Rules.

He stated that, had he not struck the affidavits in their entirety, he would havestruck several portions of them for non-compliance with the Rules. Positions of the Parties The Applicants [59] The applicants assert that the reviewing judge erred in law in excluding the 11 affidavits.

Relying on Badenhorst v Great-West Life AssuranceCo, 2013 MBCA 5, they state that his “failure to consider or appreciate relevant and material evidence” constituted an error of law reviewable on the correctnessstandard. [60] In support of their position, the applicants underscore the significance of the Crown’s duty to consult and accommodate when exercising its rightto take up land pursuant to a treaty where, to do so, would adversely affect Aboriginal or treaty rights. They concede, however, that this is a case where the Crowndid not engage in any “sharp dealing”.

See Manitoba Metis Federation Inc v Canada (Attorney General), 2013 SCC 14 at paras 73, 79. [61] The applicants acknowledge the general rule that judicial review is to be conducted on the record that was before the decision-maker.

However,they claim that they “were not given an opportunity to share all of the relevant information” before Manitoba ‘unilaterally cut off’ consultations (2014 MBQB 143at para 21). [62] They also assert that, in cases where the sufficiency of consultation and accommodation of Aboriginal or treaty rights are at issue, courts haveadmitted extrinsic evidence where it was relevant and necessary. They maintain that the 11 affidavits provided such evidence, including the nature and content ofthe rights that stand to be affected by the Settlement Agreement.

They argue that Manitoba could not sufficiently consult and accommodate regarding rights thatthey had not been made aware of and that further consultation would have revealed these rights. [63] Regarding the reviewing judge’s observation that much of the material contained in the 11 affidavits did not comply with the Queen’s BenchRules, the applicants say that, in Delgamuukw v British Columbia, (SCC), [1997] 3 SCR 1010, the Supreme Court of Canada endorsed a flexibleand liberal approach to the treatment of evidence dealing with the doctrine of Aboriginal rights.

They maintain that the reviewing judge erred by failing to applysuch an approach when considering the content of the 11 affidavits. Manitoba [64] Manitoba disagrees that correctness is the sole standard of review to be applied to the evidentiary ruling. Rather, it asserts that the determinationinvolves the consideration of mixed fact and law.

Relying on Housen v Nikolaisen, 2002 SCC 33, it argues that, if the reviewing judge applied the correct test,absent palpable and overriding error, deference is owed to his decision. [65] Manitoba maintains that there is no “duty to consult exception” to the general rule respecting extrinsic evidence in judicial review. Rather, itstates that, in judicial review of Crown consultation regarding Aboriginal and treaty rights, courts have followed a principled approach consistent with the“administrative law general rule and exceptions for extrinsic evidence”.

They assert that the reviewing judge made no error in his application of the lawconcerning the exceptions for extrinsic evidence. Hydro [66] Hydro concurs with the position taken by Manitoba. It notes that only three of the 11 affidavits relate to the consultation process and it disputesthe accuracy of what those affidavits say occurred. It adds that if all, or portions, of the 11 affidavits are admitted it asserts a right to challenge the factualassertions and to provide its own evidence as to what occurred in the negotiation of the Settlement Agreement with the community. The Community

[ 67 ] The Community asserts that the applicants had the opportunity to express their interests and concerns during the consultation process and that they did so. It states that the obligation was on the applicants to provide the information contained in the 11 affidavits during the consultation process and that they failed to do so. Standard of Review [ 68 ] In my view, the Badenhorst case, relied on by the applicants to assert that the evidentiary ruling is reviewable on the standard of correctness, is not applicable.

In Badenhorst , the Court was not reviewing a decision regarding admissibility of evidence at a trial. Rather, it was applying the established principle that a failure to consider relevant evidence or the consideration of irrelevant evidence constitutes an error in law. It does not deal with admissibility of evidence on a judicial review. [ 69 ] In R v Desjarlais (DG) , 2016 MBCA 69 , Chartier CJM explained that, while the correctness standard applies when reviewing the admissibility of evidence, where the evaluation of criteria is required in the assessment of admission, deference is owed.

He stated (at para 13): Typically, questions surrounding the admissibility of evidence are questions of law reviewable on the correctness standard.

However, where the admission of evidence requires an evaluation of certain criteria, . . . the trial judge’s assessment is a discretionary decision and, unless there was misdirection or the decision was so clearly wrong as to amount to an injustice, it is owed significant deference ( see R v Regan , 2002 SCC 12 at para 117 , [2002] 1 SCR 297 ). [ 70 ] In this case, absent a misdirection in law or a decision that amounts to an injustice, the assessment of the criteria to be considered in the application of law concerning the admission of extrinsic evidence on judicial review will be afforded deference.

Analysis Overview [ 71 ] To be admissible, evidence must be relevant and not otherwise excluded on any ground of law or policy. The applicants agree that the reviewing judge properly set out the rule against the admission of extrinsic evidence on judicial review save for limited circumstances. The reason for the rule is to ensure that the review is conducted on the evidence that was before the decision-maker. The review should not expand into a hearing de novo ; there must be finality in litigation.

See AOV Adults Only Video Ltd v Labour Board (Man) et al , 2003 MBCA 81 at para 34 ; Town of Grand Bay-Westfield v The Canadian Union of Public Employees, Local 2404 , 2006 NBCA 115 at para 4 ; Sowemimo v College of Physicians & Surgeons of Manitoba , 2013 MBQB 42 at paras 53-55 ; Albu v The University of British Columbia , 2015 BCCA 41 at para 36 . [ 72 ] As noted by the reviewing judge, extrinsic evidence may be accepted on review to show that the record filed by the decision-maker was incomplete or contained gaps. It may also be admissible to show procedural unfairness or jurisdictional error.

See AOV Adults Only Video at paras 55-56; and Sowemimo at para 54 . [ 73 ] Aside from the above, in cases of judicial review where an Aboriginal community has alleged that the Crown has breached its duty to consult and accommodate, extrinsic evidence has been admitted in certain circumstances. [ 74 ] The applicants contend that the reviewing judge erred in his findings that there was no gap in the evidence and that the claim of procedural unfairness was not made out.

However, in the main, their argument focussed on their contention that this case falls within the exceptions that have been allowed in cases where Aboriginal consultation and accommodation are considered on judicial review. Gap in the Consultation Record [ 75 ] As a general principle, the record of evidence that was before a decision-maker plays a significant role in judicial review.

At stated by Stratas JA in Tsleil-Waututh Nation v Canada (Attorney General) , 2017 FCA 128 (at para 71 ): [T]he evidentiary record before the administrative decision-maker is indispensable to the reviewing court’s fulfilment of its responsibility to engage in meaningful review. In most judicial reviews, the reviewing court must evaluate the substantive correctness or acceptability and defensibility of the administrative decision. It is alert to errors or defects that might render the decision unreasonable.

Often error or unacceptability and indefensibility is found by comparing the reasons with the result reached in light of the legislative scheme and—most importantly for present purposes—the evidentiary record before the administrative decision-maker. [ 76 ] Also as noted by Stratas JA at para 75, the Saskatchewan Court of Appeal explained the reason underlying the requirement for a full record in Hartwig v Commission of Inquiry into matters relating to the death of Neil Stonechild , 2007 SKCA 74 (at para 24 ): [I]n order to effectively pursue their rights to challenge administrative decisions from a reasonableness perspective, the applicants in judicial review proceedings must be entitled to have the reviewing court consider the evidence presented to the tribunal in question. [ 77 ] The gap exception allows for situations wherein the record filed by the decision-maker is incomplete to the extent that the court has not been presented with a complete picture of the evidence that was before the decision-maker, or there was a lack of evidence on which the decision-maker could base a finding of fact.

See AOV Adults Only Video at para 33. [ 78 ] Regarding the argument that there existed a gap in the consultation record, the reviewing judge noted that only three of the 11 affidavits referred to the consultation process. He stated that, except for one paragraph in one affidavit, all of the evidence regarding the process was contained in the consultation record.

I agree. [ 79 ] The reviewing judge further found that, of all the exhibits attached to the three affidavits, only a ministerial statement from 2000 (to the effect that the NFA constituted a treaty) and a map in relation to disputed land selection under the NFA were not contained in the consultation record. He held that all of the above evidence was of questionable relevance and raised issues of contested fact about matters that were “seemingly collateral” to the issue of judicial review ( 2014 MBQB 143 at para 72 ).

The reviewing judge concluded that the three affidavits “provide no further factual information (that has not already been provided in the consultation record) about what was discussed during the consultation process” ( ibid ). [ 80 ] In this case, the applicant has not identified any error with regard to the reviewing judge’s findings of fact regarding the content of the 11 affidavits or, more specifically, the contents of the three affidavits relating to the consultation process. [ 81 ] However, the applicants also contend that Manitoba’s failure to consider the evidence of the exercise of Aboriginal and Treaty 5 rights in the

lands in question as identified in the 11 affidavits constituted a gap in the evidence. That is, they argue that there was insufficient evidence that the Settlement Agreement would not adversely affect their Aboriginal and Treaty 5 rights. [ 82 ] In my view, this argument cannot succeed. First, Manitoba was aware that the applicants used the land within the territory they surrendered to pursue their Aboriginal and Treaty 5 rights.

Indeed, as I later explain, the Settlement Agreement acknowledges and provides for the applicants’ exercise of Aboriginal and Treaty 5 rights over the land in question. [ 83 ] The consultation meeting notes demonstrate that the applicants specifically stated that they used some of the land for the exercise of Aboriginal and Treaty 5 rights. However, the information that they provided during the process was not as detailed as that in the 11 affidavits.

The applicants’ position is that their earlier failure to provide the information now contained in the 11 affidavits was the result of Manitoba’s breach of their right to procedural fairness. Procedural Fairness [ 84 ] As noted by Guy Régimbald in Canadian Administrative Law , 2nd ed (Markham: LexisNexis, 2015), the concept of procedural fairness is grounded in the historical rules of natural justice.

He explains the concept, in part, as follows (at p 261): [B]efore a decision maker could make a decision that might have adverse effects on an individual, it had to allow the affected person an opportunity to be heard before the decision was made. Procedural justice aims at providing individuals with a fair opportunity to influence the outcome of a decision. [ 85 ] The applicants contend that Manitoba unilaterally cut off the consultation meetings. They claim that such action was premature in the consultation process and amounted to procedural unfairness.

They state that, if a more extensive consultation had occurred, they would have presented the evidence regarding their exercise of Aboriginal and Treaty 5 rights over the lands in question as contained in the 11 affidavits. [ 86 ] The reviewing judge held that the applicants had the opportunity to provide the information during the consultation process. He highlighted jurisprudence indicating that there is a reciprocal duty on both sides of the consultation to bring forward relevant information.

He concluded that to admit “additional evidence relating to the applicant’s interests or the impact on those interests, would be irreconcilable with the applicants’ reciprocal duty to have earlier provided that information during the consultation”( 2014 MBQB 143 at para 79 ). [ 87 ] A review of the record shows that the applicants were indeed expecting that more meetings would occur before the conclusion of the consultation process.

However, the record also shows that the consultation process was procedurally fair. [ 88 ] For example, the applicants were given notice of the consultation and the opportunity to make submissions. Prior to the first consultation, they were given the relevant portions of the Proposed Settlement Agreement. After the first consultation meeting, they were given full disclosure of the Proposed Settlement Agreement. The applicants chose the location for the consultation meetings. They had legal counsel present for the meetings. Manitoba agreed to pay for the reasonable costs of the consultation.

Although the consultation protocol was not completely agreed upon, the applicants had input into it. Counsel for the applicants and counsel for Manitoba exchanged letters before and after the meetings. Manitoba provided the applicants with meeting notes after each meeting and the applicants had the ability to suggest amendments to those notes. At the end of the process, Manitoba provided reasons for the Decision. [ 89 ] Manitoba consulted with whomever Pimicikamak and/or the Band chose to represent them at the meetings.

Despite the fact that an issue arose regarding the appropriate representatives with whom Manitoba should be consulting, Pimicikamak or the Band, Manitoba consulted with representatives of each. [ 90 ] While the amount of time over which the consultation occurred is not a determinative factor, in this case the consultation occurred over a period of two years. Throughout that period, there was ongoing dialogue between the parties.

When Manitoba declined to continue to meet with the applicants, it advised them that it felt that the meetings had become unproductive in that the applicants were not expressing any new concerns.

Despite this, there was continued dialogue between the parties, but there was no attempt by the applicants to bring forward the information contained in the 11 affidavits. [ 91 ] The reviewing judge quoted with approval, and I agree with, the following passage from Cold Lake First Nations v Alberta (Tourism, Parks and Recreation) , 2013 ABCA 443 (at para 29 ): The First Nations contend that the record is silent as to the location and frequency of the traditional activities and the extent to which traditional activities could potentially be adversely impacted by the proposed campground expansion.

The First Nations submit that the Crown had a duty to acquire the information about Aboriginal practices and did not. This argument was raised for the first time on appeal. In our view this did not form part of the Crown’s obligation. Both parties have reciprocal duties to facilitate an assessment of the asserted rights and to outline concerns with clarity: Haida at para 36. We do not view this as a gap in the record for which the Crown is responsible. The First Nations argue that the Crown had a duty to provide full information about historic Aboriginal uses of the land in question.

They rely on a passage in Tsilhqot’in Nation v British Columbia , 2007 BCSC 1700 at paras 1293-94 , available on line, which seems to suggest such a duty. However, the facts in that case are very different and the issue was not discussed on appeal: 2012 BCCA 285 , 324 BCAC 214 . There is no suggestion here that the Crown had or withheld such information.

In our opinion, the Crown should not ordinarily be required to conduct such research in lieu of the First Nations, as the First Nations should be in a much better position to ascertain their own historical practices. [ 92 ] In this case, Manitoba carefully documented, reviewed and confirmed the issues raised by the applicants and repeatedly asked if there were any further concerns. Despite this, the applicants did not proffer any new information. That is, they expressed the same concerns at each of the meetings.

With no new matters having been raised, Manitoba declined to meet any further. [ 93 ] In all of the circumstances, the decision to terminate the meetings did not constitute procedural unfairness. The applicants had the duty to act with due diligence in the consultation process. The applicants had the opportunity to bring forward the information contained in the 11 affidavits as it related to their asserted rights. In my view, the consultation process proceeded in a manner that was procedurally fair and I would not accede to this ground of appeal.

Admission of Extrinsic Evidence to Demonstrate the Scope of the Consultation Required and Whether it Was Sufficient. [ 94 ] The applicants argue that, in cases involving Aboriginal consultation, courts have admitted extrinsic evidence to establish the nature and content of Aboriginal and treaty rights “where it is necessary and relevant to determining whether the duty to consult was fulfilled”. [ 95 ] Manitoba states that it acknowledged that, in consideration of the strength of the claim and the potential adverse impact on the rights claimed, it’s duty to consult before entering the Settlement Agreement was on the medium to high end of the spectrum.

See Haida Nation at paras 31-32 and 76 . Therefore, Manitoba asserts that the evidence in the 11 affidavits is not required in order to determine the scope and content of its duty.

[ 96 ] There is no question that, in some cases involving judicial review of Aboriginal consultation, courts have admitted extrinsic evidence.

In this case, the applicants specifically rely on the decisions of Enge v Mandeville et al 2013 NWTSC 33 ; and Lax Kw’Alaams Indian Band et al v Minister of Forests & West Fraser Mills Ltd et al , 2004 BCSC 420 , in support of their contention that the 11 affidavits should be admitted. [ 97 ] In Enge , Smallwood J allowed extrinsic documents in a situation where the government failed to conduct a preliminary assessment of the Aboriginal rights in issue and, therefore, failed in its duty to consult.

In Lax Kw’Alaams , the Court simply noted that “in deciding whether a constitutional duty has been fulfilled, the court can consider evidence additional to that on which [the decision] was made” (at para 31). [ 98 ] Also see, for example, Liidlii Kue First Nation v Canada (Attorney General) , 2000 CarswellNat 1536 (FCTD) (evidence admitted relating to the status of the applicant, whether the duty to consult existed and the scope of the duty); Tsuu T’ina Nation v Alberta (Environment) , 2008 ABQB 547 , aff’d 2010 ABCA 137 (evidence allowed in preliminary assessment of the merits of the claim); Yellowknives Dene First Nation v Canada (Attorney General) , 2010 FC 1139 (applicants never given the opportunity to present the evidence); Adams Lake Indian Band v British Columbia , 2011 BCSC 266 , rev’d on other grounds, 2012 BCCA 333 (evidence admitted of a preliminary strength of claim analysis prepared by the Crown and an outline of the consultation process contemplated); Chartrand v The District Manager , 2013 BCSC 1068 , rev’d on other grounds 2015 BCCA 345 ( evidence allowed to establish duty to consult); Da’naxda’xw/Awaetlala First Nation v British Columbia Hydro and Power Authority , 2015 BCSC 16 , rev’d on other grounds 2016 BCCA 163 (evidence admitted to show a causal connection between the asserted breach and the remedy sought); and Sipekne’katik v Nova Scotia (Minister of Environment) , 2016 NSSC 260 (evidence admitted to assist in determining whether procedural fairness was denied). [ 99 ] On the other hand, there are cases involving Aboriginal consultation where courts have refused to consider extrinsic evidence.

See, for example, Cold Lake First Nation v Alberta (Tourism, Parks and Recreation) , 2012 ABQB 579 , rev’d on other grounds, 2013 ABCA 443 (traditional land use and occupancy evidence not admissible on judicial review); Fort McKay First Nation v Alberta (Environment and Sustainable Resource Development) , 2014 ABQB 32 (affidavit evidence is not admissible in judicial review simply because the honour of the Crown is in issue); and Martin v Province of New Brunswick and Chaleur Terminals Inc , 2016 NBQB 138 (record adequate for the purpose of reviewing whether the Crown had satisfied its duty to consult Aboriginal groups in the context of a statutorily mandated environmental review process) . [ 100 ] In Ktunaxa Nation v British Columbia (Forests, Lands and Natural Resource Operations) , 2014 BCSC 568 , aff’d on other grounds 2015 BCCA 352 and 2017 SCC 54 , the Court considered a challenge by the Ktunaxa Nation to an agreement for a proposed year-round ski resort on Crown land in British Columbia.

Savage J ruled that extrinsic evidence was inadmissible on judicial review, stating (at paras 123-24): In this case, there is no issue regarding a duty to consult existing, nor is there an issue regarding the scope of that duty. The Minister approached the development process for the Proposed Resort based on there being a duty to consult requiring deep consultation. This contrasts with the cases discussed above that involve situations where either the existence of a duty to consult is not admitted, or there is an issue regarding the scope of that duty.

In my view, where it is conceded that there is a duty to consult, the required consultation is agreed to be deep, and efforts to carry out such deep consultation are made in good faith, there should be no need to resort to extrinsic evidence on judicial review. Consultation is a two way street. There is an obligation on the parties in such circumstances to put the evidence relevant to the asserted rights before the decision maker: Haida Nation v. British Columbia (Minister of Forests) , 2004 SCC 73 ( Haida ) at para. 42 ; Mikisew Cree First Nation v.

Canada (Minister of Canadian Heritage) , 2005 SCC 69 at para. 65 ; Halfway River First Nation v. British Columbia (Ministry of Forests) , 1999 BCCA 470 at para. 161 . [ 101 ] As noted by the reviewing judge, Manitoba acknowledged that it’s duty to consult was on the medium to high end of the spectrum. However, the applicants maintain that, regardless of Manitoba’s position, the extrinsic evidence was necessary to determine whether the consultation that occurred was sufficient and that it was an error in law for the reviewing judge not to have considered it.

I disagree. [ 102 ] In his reasons, the reviewing judge cited jurisprudence wherein the admission of extrinsic evidence was allowed in judicial review of Aboriginal consultation. He carefully considered the contents of the 11 affidavits as they related to the applicants’ assertion that they were necessary to understand the nature of the rights asserted and the impact of the Settlement Agreement on those rights. [ 103 ] The reviewing judge highlighted the evidence in the record that supported Manitoba’s position that it considered the situation as one requiring a medium to high level of consultation.

He stated ( 2014 MBQB 143 at para 88 ): In the end, I have concluded that the current consultation record provides an adequate and fair basis for determining whether Manitoba correctly assessed the extent of its duty to consult, whose scope and content required, by Manitoba’s own admission, no lower than a medium and perhaps the highest sort of consultation on the analytical spectrum.

The current consultation record also provides an adequate and fair basis for determining on the particular facts of this case, whether Manitoba satisfied – on a standard of reasonableness – its particular duty to consult. [emphasis added] [ 104 ] The 11 affidavits provide evidence regarding Treaty 5, the NFA and the nature and importance of the applicants’ rights pursuant to them. They review traditional use of the lands in question and the traditional territory of the applicants.

Finally, they review the potential impact of the Settlement Agreement on their rights. [ 105 ] In my view, save for the assertion of some site-specific rights, the claim that there may be unmarked burial grounds in one area and opinion evidence of the land use and planning professionals, the evidence proffered can be found in the consultation record.

Further, the consultation record evidences that the applicants asserted Aboriginal and Treaty 5 rights throughout the lands involved in the Settlement Agreement, including the site-specific sites. [ 106 ] In my view, consideration of the admission of the 11 affidavits, insofar as they address the impact on the exercise of Aboriginal and Treaty 5 rights or the interference with burial sites, should be considered in light of the provisions of the Proposed Settlement Agreement which provided for continued consideration of those rights and existing legislation.

The applicants’ position that their Aboriginal and Treaty 5 rights were not considered by Manitoba in reaching the Decision fails to recognize that, while consultation regarding the Settlement Agreement may have ended, consultation regarding their Aboriginal and treaty rights has not. [ 107 ] Manitoba’s Final Report to the applicants makes allowance for the continued recognition of the need to consult and respect Aboriginal and treaty rights. It states:

[The] proposed Settlement Agreement will not affect the Crown’s duty to consult with the [applicants] on any decision or action that might affect the exercise of the [applicants’] or its members Aboriginal or Treaty rights. [ 108 ] It further states: Manitoba has enshrined the principle that the Settlement Agreement will not have any effect on the [applicants’] rights or obligations under the [NFA] or any other Aboriginal or Treaty rights or any other First Nation rights, in the Settlement Agreement itself. The proposed Settlement Agreement states: 10.5.1 Aboriginal and Treaty Rights .

Nothing in this Agreement is intended to or shall be construed to abrogate or derogate from existing aboriginal rights or treaty rights of any persons that are recognized and affirmed by

Section 35 of the Constitution Act, 1982 . [ 109 ] Manitoba was not made aware of any claims of burial sites at the time of the consultations. Despite not having been informed of the possibility of unmarked burial sites, it is not unreasonable to assume that they exist.

Nevertheless, such sites are covered by the Manitoba, Policy Concerning the Reporting, Exhumation, and Reburial of Found Human Remains (19 October 1987), online: <www.gov.mb.ca/chc/hrb/pdf/burial_policy.pdf>; and The Heritage Resources Act , CCSM c H39.1, which, when read together, require the reporting of any discovery of human remains to Manitoba and for community consultation to occur before the exhumation or removal of human remains or associated grave goods. Thus, should the need arise, further consultation is contemplated. [ 110 ] Manitoba assessed the duty and scope of the consultation.

The reviewing judge accepted this assessment in his determination of whether to admit the 11 affidavits. In my view, the finding of the reviewing judge, that the record was adequate for a determination of whether the consultation that occurred was sufficient, did not involve a misdirection in law or amount to an injustice. Therefore, it is entitled to deference and I would not interfere with it. Compliance With the Queen’s Bench Rules [ 111 ] In my view, the above analysis regarding the admissibility of the 11 affidavits is dispositive of the issue.

However, Manitoba and Hydro also argued that large portions of the 11 affidavits contained material that did not comply with the Queen’s Bench Rules . The reviewing judge held ( 2014 MBQB 143 at para 91 ): [H]ad I not struck the affidavits in their entirety (for the reasons already provided) several of the identified portions of those affidavits would have nonetheless been struck. Such paragraphs alternately included statements that are not statements of fact; they included hearsay;

interpretations and conclusions of law; assertions which amounted to unqualified expert opinion; and generally, statements that were highly contentious and likely collateral and irrelevant to the issues requiring focus on the judicial review. [ 112 ] In reaching that conclusion, he considered that, in Tsilhqot’in Nation v British Columbia , 2014 SCC 44 , the Supreme Court of Canada reinforced the significance of decisions involving Aboriginal and treaty rights. He noted that courts are to apply a functional approach to pleadings and evidence (see Tsilhqot’ in Nation at para 23) in such cases.

However, in his view, a less technical approach still requires a more-or-less substantiated and reliable foundation, which was not present in this case. I agree. [ 113 ] Thus, while a ruling on the application of the Queen’s Bench Rules was not necessary, I cannot say that the reviewing judge erred in his conclusion. Issue 2—The Sufficiency of the Consultation and Accommodation Background [ 114 ] In order to consider the sufficiency of the consultation and accommodation, it is helpful to consider the issues raised by the applicants.

That is, throughout the consultation process, the applicants consistently expressed the same principal concerns. These concerns and the applicants’ proposed solutions or accommodations were listed in the What You Told Us Report. I have summarized those concerns as follows: 1. Pimicikamak must be recognized as the primary rights holder of all of the land and rights in question. The Band and the Community were all part of Pimicikamak. The effect of the Settlement Agreement would be to “chop up” the right of the people to exist as a whole, collective entity; 2.

Manitoba should not dispose of any interests in the territory where the Band, and therefore Pimicikamak, have the right to select exchange lands pursuant to the NFA, without Pimicikamak’s consent; 3. Pimicikamak had the right to issue land permits under the hold area pursuant to

article 4 of the NFA. The issuance of any land permits by Manitoba to the Community would narrow Pimicikamak’s options; 4. The right to protect the Walker Lake Traditional Use Protected Area belonged to Pimicikamak and Manitoba did not have the right to give the Community any say in its protection; and 5.

The resource management provisions in the Proposed Settlement Agreement would interfere with Pimicikamak’s responsibility for resource management and would fragment the land and the people. [ 115 ] The applicants also expressed concern that the proposed disposition of Sand Bay would interfere with traditional gathering and ceremonial rights that the Pimicikamak exercised in the area. [ 116 ] Each of the solutions proposed by the applicants involved them taking control over the lands or management of resources and dealing with them in a traditional manner as they saw fit. [ 117 ] As I later discuss, in its Final Report, Manitoba considered each of the positions taken by the applicants.

While the result was not as suggested by the applicants, Manitoba did address the concerns raised. The Decision of the Reviewing Judge [ 118 ] At the hearing before the reviewing judge, the applicants argued that Manitoba had not carried out its duty to consult and accommodate sufficiently to meet its duty, being on the higher end of the spectrum. The reviewing judge succinctly described their position that Manitoba engaged in a process that ( 2016 MBQB 128 at para 56 ):

(

a) started too late, after the Settlement Agreement was completed and the decision to proceed in a certain way was all but formally made; (

b) was insufficient, in that there was too little consultation (and that it was terminated by Manitoba too early) such that there was no opportunity to meaningfully hear, understand and address concerns; and (

c) precluded accommodation from the outset. [ 119 ] Regarding the first issue, the reviewing judge noted the applicants’ argument that the duty to consult is triggered at the “earliest possible planning stages for a project or a decision and must occur before operational decisions are made” (at para 57). See also Haida Nation at paras 36, 46-47 . The reviewing judge found that it was reasonable for Manitoba to initiate the consultation process after determining with precision the lands in which the Community had an interest.

He held that the manner in which Manitoba proceeded respected the confidentiality of the negotiations it had with the Community. Further, on the basis that it did not enter the Settlement Agreement until after the consultations took place, it reasonably balanced the Community’s interests with those of the applicants. [ 120 ] Next, the reviewing judge held that the consultation was sufficient and meaningful. In this regard, he reviewed the entire consultation record.

He concluded that: • although the consultation protocol was not finalized, the most recent draft “seemed to reflect both parties’ understanding of the consultation process” (at para 72); • Manitoba furnished all “information to the applicants about its proposed decisions” and “provid[ed] the applicants an opportunity to inform and discuss with Manitoba their concerns” (at para 73); • despite the confusion about who was to be identified as representatives for the consultation process, Manitoba consulted with “both sides of the election dispute” (at para 78); • the fact that Manitoba was attentive to and understanding of the concerns raised by the applicants was reflected in the What You Told Us Report provided to the applicants on August 5, 2009 (at para 82); • Manitoba considered the concerns raised and provided written reasons in the letter sent to the applicants dated October 5, 2009, as to why it decided that it was not necessary to change the Proposed Settlement Agreement; he noted that Manitoba did not sign the Settlement Agreement until one year after it provided this letter (at para 84); and • the Final Report reflects the applicants’ concerns, Manitoba’s decisions regarding those concerns and the reasons for its Decision (at para 87). [ 121 ] After making the above findings, the reviewing judge held that it was not unreasonable for Manitoba to cease face-to-face meetings when it did and that no new concerns were raised after the final meeting. [ 122 ] At the end of the day, he found that Manitoba conducted itself in a reasonable and honourable manner. [ 123 ] Regarding the issue of accommodation, the reviewing judge found that the suggested accommodation by the applicants was unreasonable and that Manitoba had addressed their concerns.

The Positons of the Parties The Applicants [ 124 ] The applicants allege that the reviewing judge committed two errors. First, they state that the finding that Manitoba acted in a reasonable and honourable manner was not sufficient to discharge its duty to consult. Rather, they argue that Manitoba must “do more” by satisfying its fiduciary duties, as stated in Grassy Narrows . They argue that, if a Crown taking-up of land pursuant to a treaty amounts to an infringement on the meaningful exercise of Aboriginal or treaty rights, it must be justified.

They maintain that the reviewing judge failed to consider the fiduciary nature of Manitoba’s duties. [ 125 ] Second, the applicants argue that the reviewing judge erred in finding that many of the accommodation measures suggested by the applicants were “neither reasonable nor realistic” ( 2016 MBQB 128 at para 89 ) and therefore accommodation was not necessary. They say that the issue of accommodation is not determined by whether the position taken is unreasonable.

Rather, they state that it is based on an assessment of the strength and nature of the Aboriginal or treaty right and the severity of the potential infringement. [ 126 ] The applicants argue that each of the above errors is reviewable on a standard of correctness. Manitoba [ 127 ] Manitoba states that the reviewing judge correctly reviewed the Decision on the standard of reasonableness. It says that this Court is to determine whether the reviewing judge correctly identified the applicable standard of review (reasonableness) and applied it.

It maintains that any findings of fact made by the reviewing judge are to be reviewed on the standard of palpable and overriding error. [ 128 ] Manitoba denies that the reviewing judge was required to consider whether there existed justification for an infringement of an Aboriginal or treaty right. It argues that, in circumstances such as these, justification of an infringement is not part of the analysis. [ 129 ] Finally, Manitoba maintains that the reviewing judge applied the correct test in determining the issue of accommodation. Hydro [ 130 ] Hydro supports the submissions of Manitoba.

Further, it asks that this Court not exercise its discretion to quash the Settlement Agreement. It submits that the reviewing judge correctly acknowledged that, in cases where third party interests will be affected by the outcome of a judicial review, the court must balance those interests. It submits that the reviewing judge properly took into account the third party interests involved in this case when contemplating a decision that could have had the effect of invalidating, quashing or setting aside the Settlement Agreement.

The Community [ 131 ] The Community agrees with Manitoba regarding the standard of review to be applied. It submits that the reviewing judge correctly applied the standard of reasonableness in consideration of the Decision. It asserts that an appeal court should defer to the findings of the reviewing judge that are “heavily

suffused” with that judge’s “appreciation of the evidence”. [132] The Community further argues that the reviewing judge did not err in his conclusion that Manitoba’s consultation with the applicants wassufficient. It underscores that the consideration of the balance of interests in this situation is unique in that their interest in the land does not involve a commercialinterest, such as forestry. Rather, it says that it constitutes a neighboring community that was not included in the benefits to which the applicants are entitled underthe NFA.

They argue that it was reasonable that the reviewing judge consider that the applicants attempted to negotiate in a way that would cause Manitoba toabandon the Proposed Settlement Agreement. [133] Further, it argues that the reviewing judge made no palpable and overriding error in refusing the accommodations requested by the applicants. They assert that the requested accommodations would have resulted in a grant of the lands in question to the applicants and would have provided authority over alldecisions regarding resource management and use to the applicants.

Standard of Review [134] I agree with Manitoba and the Community regarding the standard of review to be applied to the Decision made by Manitoba in this case. As mostrecently stated in Ktunaxa Nation (SCC) (at para 77): The Minister’s decision that an adequate consultation and accommodation process occurred is entitled to deference: Haida Nation v. British Columbia (Minister ofForests), 2004 SCC 73, [2004] 3 S.C.R. 511, at para. 62. The chambers judge was required to determine whether the Minister reasonably concluded that theCrown’s obligation to consult and accommodate had been met.

A reviewing judge does not decide the constitutional issues raised in isolation on a standard ofcorrectness, but asks rather whether the decision of the Minister, on the whole, was reasonable. [135] In this case, there is no question that the reviewing judge correctly identified the standard of reasonableness.

Review of whether he properlyapplied that standard requires this Court to “‘step into the shoes’ of the lower court” such that the “appellate court’s focus is, in effect, on the administrativedecision” (Merck Frosst Canada Ltd v Canada (Health), 2012 SCC 3 at para 247; and Agraira v Canada (Public Safety and Emergency Preparedness), 2013 SCC36 at para 46. [136] Of course, where the reviewing judge has misstated a legal principle, the standard of review is correctness.

Did the Reviewing Judge Err by Failing to Consider the Crown’s Fiduciary Duty to the Applicants? [137] The applicants argue that it was not enough that the reviewing judge found that Manitoba acted reasonably and honourably in the consultationprocess. It submits that he was required to consider that the Crown must act in accordance with its fiduciary duty when taking up lands.

It submits that this dutyrequired the Crown to consult with and to accommodate the applicants in a manner that would justify the infringement of their Aboriginal and Treaty 5 rights byensuring that they were minimally impaired. [138] It is true that, when taking up lands pursuant to a treaty right, the Crown “must exercise its powers in conformity with the honour of the Crown,and is subject to the fiduciary duties that lie on the Crown in dealing with Aboriginal interests” (Grassy Narrows at para 50).

However, contrary to the applicants’position, judicial review of the sufficiency of consultation in such a situation does not involve a justification analysis. [139] A justification analysis is an after-the-fact analysis that occurs where a Crown action is already complete and a right has been proven to have beeninfringed. See R v Sparrow, (SCC), [1990] 1 SCR 1075 at 1113-19.

The application of the justification analysis to a consideration of thesufficiency of Crown consultation when taking up land pursuant to a treaty was specifically rejected in Mikisew Cree, where Binnie J, writing for a unanimousCourt, stated (at para 31): I agree with Rothstein J.A. that not every subsequent “taking up” by the Crown constituted an infringement of Treaty 8 that must be justified according to the testset out in Sparrow. In Sparrow, it will be remembered, the federal government’s fisheries regulations infringed the aboriginal fishing right, and had to be strictlyjustified.

This is not the same situation as we have here, where the aboriginal rights have been surrendered and extinguished, and the Treaty 8 rights are expresslylimited to lands not “required or taken up from time to time for settlement, mining, lumbering, trading or other purposes” (emphasis added). The language of thetreaty could not be clearer in foreshadowing change. Nevertheless the Crown was and is expected to manage the change honourably.

See also paras 32, 39; and Beckman v Little Salmon/Carmacks First Nation, 2010 SCC 53 at para 44. [140] Moreover, the argument advanced by the applicants was most recently rejected by the Federal Court of Appeal in Prophet River First Nation vCanada (Attorney General), 2017 FCA 15. In that case, the Court emphasized that the Sparrow justification test should not be incorporated into the consultationanalysis in the context of a proposed “taking up” of land by the Crown pursuant to a treaty right (at para 32). See also paras 33-35, 37. The Court further observedthat a judicial review is a

summary proceeding not suited to consider the complex evidence and issues involved in the determination of whether Aboriginal ortreaty rights are unjustifiably infringed. See paras 78, 80. [141] Thus, based on the above, I would dismiss the applicant’s argument in this regard. Did the Reviewing Judge Err in Determining Whether Accommodation Was Required? [142] The applicant’s position is that the reviewing judge determined that accommodation was not required on the basis that the applicants did not fulfilltheir reciprocal duty to participate in a manner that did not frustrate the consultation process.

They say that he erred in determining that the applicants were notentitled to any accommodation on the basis that their requests were “neither reasonable nor realistic”. They assert that the determination of the reasonableness oftheir suggested accommodations was not the proper test to apply.

Rather, they maintain that the degree of consultation and accommodation is to be determinedbased on an assessment of the nature and strength of the right and the seriousness of the impact. [143] I agree with the applicants’ statement of the test to be applied in determining the degree of consultation and accommodation required in a situationsuch as this.

However, I disagree with the applicants’ assertion that the reviewing judge did not apply it. [144] While it is true that the reviewing judge found that the accommodations suggested by the applicants were “neither reasonable nor realistic in thecontext of the specific consultations” (2016 MBQB 128 at para 89), he did not use this factual finding as a test for determining the degree of consultation andaccommodation that Manitoba owed to the applicants.

In his reasons he correctly stated (at para 34): The scope and content of the duties varies with the circumstances and is “proportionate to a preliminary assessment of the strength of the case supporting theexistence of the right or title, and to the seriousness of the potentially adverse effect upon the right or title claimed”.

[ 145 ] The reviewing judge considered each of the concerns identified by the applicants in the context of this consultation, as well as the accommodating measures set out by Manitoba in the Final Report. He found as follows: • Manitoba acted honourably when it recognized the Community as the party with which to enter into the Settlement Agreement, rather than enter into it with Pimicikamak as the “collective entity” (at para 91).

Contrary to the assertion of Pimicikamak that Manitoba was “fragment[ing]” ( ibid ) the Aboriginal people in the area, he found that the Community had negotiated the Settlement Agreement of its own volition. See paras 91-93. • The applicants’ position that Manitoba could not transfer any land or issue land permits to the Community until the Band completed its land selection under the NFA was unreasonable. He found that Manitoba considered all aspects of the applicants’ position regarding this and any other breach of Aboriginal or treaty rights. See paras 96-97.

I would also add that Manitoba had earlier offered, and repeated its offer, of $50,000 to the applicants for a land use study to select its outstanding land compensation claims under the NFA. • Manitoba was not giving the Community land that was reserved by the applicants as a hold area pursuant to

article 4 of the NFA because a hold area had never been established. See paras 99-100. • Manitoba’s rejection of the applicants’ position, that the Community was not entitled to be involved in the establishment of the Walker Lake Traditional Use Protected Area because Pimicikamak was the rights holder, was reasonable. See paras 101-102.

I would also add that, in its Final Report, Manitoba confirmed that this area would be available for use, not only to the members of the Community, but to the applicants for “traditional uses or activities, including hunting, trapping fishing and gathering.” • Regarding Pimicikamak’s position that it was the only entity that could sign a resource management agreement, Manitoba appropriately explained that allowing the Community a voice in resource management did not affect its duty to consult or develop a resource management agreement with the applicants.

See paras 104-107. [ 146 ] In addition, I would also note that the Final Report addresses the issue regarding the use of Sand Bay. It states: The proposed Settlement Agreement also contemplates that the [Community] may apply for transfer of the Sand Bay lands in fee simple and may allocate lots in the parcel to individual applicants after a plan of subdivision is prepared for the lands. In accordance with the principles in The Planning Act relating to subdivision approval, it is customary for subdivision to provide for protection of access to shorelands and protection of public recreation areas.

In preparing or considering the approval of the plan of subdivision, Manitoba will consider the issue of protection of access to the shorelands and use of the shorelands as a traditional gathering site for the Community and others. [ 147 ] In concluding his analysis regarding accommodation, the reviewing judge stated (at para 111): Put simply, there is no merit to the allegation that Manitoba’s conduct at the commencement, engagement, analysis and/or decision-making phases revealed an approach that foreclosed accommodation.

To the extent that specific concerns were raised, those specific concerns were considered, addressed and answered. [ 148 ] It is clear from the above that the reviewing judge considered the evidence as presented, the strength of the claims, whether there would be adverse effects, as well as the views of the parties in reaching his conclusion that some of the positions advanced by the applicants were unreasonable. I agree with his assessment.

Conclusion Regarding the Sufficiency of Consultation [ 149 ] A review of the consultation record demonstrates that Manitoba provided notice, all of the relevant information, funding and engaged in a meaningful consultation process with the persons identified by the applicants as their representatives. The consultation involved consideration of the issues raised by the applicants. The record shows that, despite significant interaction over the course of two years, the applicants did not raise any new issues at the time that Manitoba discontinued the meetings contrary to the wishes of the applicants.

Further, aspects of the Settlement Agreement are not final. For example, consultation will be required pursuant to The Planning Act for uses of land by the Community. [ 150 ] Reviewing the Decision from the perspective of the reviewi

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