2021 MBCA 88, 2021 MBCA 88

Citation: Sagkeeng v Government of Manitoba et al, Date: 20211021 2021 MBCA 88 Docket: AI20-30-09477 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Holly C. Beard Madam Justice Diana M. Cameron Madam Justice Lori T. Spivak BETWEEN : ) N. K. Kempton and ) C. B. Shefman ) for the Appellant ) (via videoconference) SAGKEENG ANICINABE aka ) fort alexander band (“Sagkeeng”) ) S. Bahir and ) J. R. Koch ) for the Respondents (Applicant) Appellant ) The Minister of Sustainable ) Development and ) The Government of - and - ) Manitoba ) ) D. A. Bedford and the minister of sustainable ) D. M. G.

Hiebert development, the government of ) for the Respondent manitoba and manitoba hydro ) Manitoba Hydro ) (via videoconference) ) (Respondents) Respondents ) Appeal heard: ) April 14, 2021 ) ) Judgment delivered: ) October 21, 2021 COVID-19 NOTICE: As a result of the COVID-19 pandemic and pursuant to r 37.2 of the MB, Court of Appeal Rules , MR 555/88R , this appeal was heard remotely by videoconference. On appeal from 2020 MBQB 83 beard JA I. THE ISSUES [ 1 ] This case raises issues related to a government’s duty to consult and accommodate in relation to Aboriginal and treaty rights under

section 35 of the Constitution Act, 1982 (the Constitution Act ), being

Schedule B to the Canada Act 1982 (UK), 1982, c 11 . There is no disagreement that the duty was owed to the applicant, Sagkeeng Anicinabe (Sagkeeng), or that it was triggered in this case.

[ 2 ] Sagkeeng is appealing the dismissal of its application for judicial review of the decision of the Minister of Sustainable Development (the Minister) to grant a licence under The Environment Act , CCSM c E125 (the EA ) (the licence), authorizing the respondent Manitoba Hydro to construct a hydro transmission line crossing through Treaty 1 land. It argues that the respondents the Minister and the Government of Manitoba (together, Manitoba) did not meet their obligations to Sagkeeng to consult and accommodate under

section 35 of the Constitution Act before granting the licence. [ 3 ] The primary issues on appeal are: (

i) whether the application judge erred in dismissing Sagkeeng’s application for judicial review on the basis that it was premature because there was an adequate alternative remedy; (ii) whether the application judge erred by incorrectly assessing the scope of the duty to consult and accommodate as required by

section 35 of the Constitution Act ; and (iii) whether the application judge erred in determining that Manitoba had fulfilled its duty. II. THE FACTS AND JUDICIAL HISTORY [ 4 ] The application judge undertook a lengthy review of the background facts. While Manitoba has adopted the application judge’s review, Sagkeeng takes issue with the description of the quality and adequacy of the contact between it and Manitoba. At this point, I am only setting out a short review of that background to provide a very general understanding of the underlying events and processes. [ 5 ] On April 4, 2019, the Minister granted a Class 3 licence under

section 12 of the EA to Manitoba Hydro to construct a hydro transmission power line from near Rosser (northwest of Winnipeg) to the United States border south of Piney (in the southeast of Manitoba), known as the Manitoba-Minnesota Transmission Project (the project). The project is located on Treaty 1 land (but not on any reserve land), being areas traditionally or currently used by Sagkeeng, other Manitoba and Ontario First Nations and the Manitoba Métis Federation (the MMF).

A short portion of the proposed route crosses Crown land within the area covered by Treaty 1. [ 6 ] There were a number of hearings and review processes over the years that included consultation with the MMF and 20 First Nations, including Sagkeeng, to assess and address the impacts of the project, including: an environmental impact assessment by Manitoba Hydro (2013-2015) and the completion of an environmental impact statement in 2015; public hearings ordered by the Minister under the EA leading to the preparation of a report and recommendations regarding the project by the Manitoba Clean Environment Commission in 2017 (2015-2017); and public hearings by the National Energy Board that led to a report issued in 2018.

Each of these reports approved the project, albeit with a significant number of conditions to address environmental and other issues. [ 7 ] In addition, Sagkeeng had earlier participated in a consultation process related to the construction of the Pointe du Bois Transmission Project, and Manitoba attempted to determine whether Sagkeeng would agree to follow the same, or a similar, process of consultation related to the current project.

It appears that Sagkeeng did not respond directly to that suggestion. [ 8 ] While none of these processes was part of Manitoba fulfilling its duty to consult, Sagkeeng participated in these processes and the information and recommendations were considered by Manitoba when making its licencing decision. [ 9 ] Manitoba began direct contact with Sagkeeng regarding the project in July 2015, after having undertaken an initial assessment of the scale of the project and the potential impacts on the affected First Nations and the MMF, and their Aboriginal and treaty rights.

There was an exchange of correspondence and information, and some meetings, but Sagkeeng did not respond to the request to participate in community meetings proposed by Manitoba or provide input into the plans for the project. In October 2017, Manitoba wrote to Sagkeeng to advise that it was beginning to prepare its consultation report and to request any information that Sagkeeng wanted to provide. In November 2017 and March 2018, Sagkeeng wrote to Manitoba to state that it had not been acting in good faith and that its proposed community session was meaningless.

Sagkeeng proposed an expansive plan of consultation, the preparation of several expert reports and further studies; Manitoba replied that it had complied with its consultation duties, which consultation was set out in the letter. [ 10 ] In April 2018, Sagkeeng filed this application for judicial review. Manitoba renewed its offer to hold a community session with Sagkeeng, to which Sagkeeng did not respond. [ 11 ] There was some further correspondence, but no further steps were taken at that time, pending the hearings scheduled by the National Energy Board for June 2018.

The National Energy Board report, approving the project, was issued in November 2018, and the Minister issued the licence, now under appeal, on April 4, 2019. [ 12 ] Unlike the MMF and five of the other affected First Nations, Sagkeeng did not appeal that decision but, instead, filed an amended application for judicial review. Manitoba, supported by Manitoba Hydro, filed a motion to dismiss the application on the basis that it was premature because Sagkeeng had failed to follow the statutory appeal process.

On May 20, 2020, the application judge granted the motion and, in the alternative, dismissed the application on its merits, leading to Sagkeeng filing this appeal. [ 13 ] Notwithstanding that the application was filed in 2018, there was no application or motion to stop the construction of the project pending the outcome of these, or any other court proceedings, or to suspend it under

section 30 of the EA . Upon the granting of the licence, Manitoba Hydro began construction of the project, which was completed in 2020, and the transmission line was put into service on June 1, 2020. [ 14 ] The statutory appeals of the licence, which were filed by

May 3, 2019 by the MMF and four other First Nations pursuant to section 28(1) of the EA , were dismissed by OIC 156/2020, an Order in Council dated June 17, 2020. III. WAS THE APPLICATION PREMATURE (

i) The Issue [ 15 ] This ground of appeal must consider the adequacy of an appeal to the Lieutenant Governor in Council (LGC), as mandated in this case by

section 28 of the EA . [ 16 ] In oral argument in this Court, Sagkeeng set out the issue regarding this ground of appeal as follows: . . . . . . Sagkeeng takes no issue with the general rule that administrative processes or remedies should be exhausted before going to court. . . . We agree with that. But we are here to say this is an exception, and the law obviously makes room for exceptions to that general rule. The test to grant an exception is a principled examination of whether the alternative administrative forum or remedy is adequate, consistent with precedent.

That’s the test, and we submit that the lower court misconstrued and misapplied this legal test and committed an error of law in doing so. . . . (ii) The Application Judge’s Decision [ 17 ] Following the arguments that Sagkeeng had put forward, the application judge focussed on whether Sagkeeng’s case fit within the category of exceptional cases that would permit a party to apply for judicial review of an administrative decision before exhausting the statutorily mandated appeal process.

He was required to interpret the legislation to determine whether the nature of the statutory appeal, as granted in the legislation, would constitute exceptional circumstances such that a party could apply for judicial review without first availing itself of the statutory appeal procedure. He was then required to exercise his discretion to determine whether, on the facts of this case, to proceed with a judicial review of the Minister’s decision to grant the licence.

In his analysis, the application judge considered the factors raised by Sagkeeng, being the convenience of the alternative remedy, including timing, bias, the adequacy of the remedy and the nature of appeals to Cabinet; the nature of the error, in this case being an allegation related to the failure to meet a constitutional obligation; and the nature of the appellate body, here the LGC. [ 18 ] The application judge found that “[t]he threshold for establishing exceptional circumstances is high” (at para 81) and noted that “[t]he [ EA ] grants broad discretion to the [LGC] to craft an effective remedy upon hearing an appeal of the Minister’s licen[c]ing decision” ( ibid ).

He concluded that the threshold for establishing exceptional circumstances had not been met in this case, making the application premature, and he ordered that the application be deferred ( ibid ; see also para 82). (iii) The Parties’ Positions [ 19 ] Sagkeeng argues that the application judge erred in finding that the statutory appeal was a meaningful or effective remedy for several reasons, repeating the argument that it made at the judicial review hearing. It states that, because the EA is silent as to timing in the appeal process, there is nothing preventing a long delay with no quick resolution.

It points to the history of appeals under this provision, which have taken an average of 18.5 months to complete. Further, it argues that the discretionary wording of section 28(2) of the EA gives the LGC discretion regarding whether or not to even proceed with an appeal. [ 20 ] Sagkeeng also argues that the application judge erred in finding that the LGC was an appropriate appellate body to deal with a legal issue as important as the

interpretation of the Aboriginal constitutional rights that are at issue in this case. It relies heavily on a statement in Donald JM Brown & the Hon John M Evans with the assistance of David Fairlie, Judicial Review of Administrative Action in Canada (Toronto: Thomson Reuters, 2021) vol 1 (loose-leaf updated 2001, release 2) to argue that “appeals to Cabinet, by nature,

should be exceptional” (para 103 herein). Its position is that the application judge erred by incorrectly distinguishing the underlyingcases cited in support of this principle. [21] Sagkeeng states that the application judge missed the main point, being that appeals to Cabinet are exceptional, bothbecause they are not mandatory and, more importantly, because they are decided “on the basis of broad political, economic and socialconsiderations”.

It argues, based on R v Adams, (SCC), [1996] 3 SCR 101 at para 54, that unstructured anddiscretionary appeal regimes like this one are not appropriate for determining constitutionally guaranteed Aboriginal rights. [22] Manitoba’s position is that there are few circumstances that qualify as an exception to the general rule that the statutoryadministrative process must be exhausted and completed to a final decision before seeking judicial review.

It points out that Sagkeeng’sarguments on appeal are the same arguments made before the application judge, which he rejected on the evidence in this case. [23] Manitoba disagrees with the argument that the LGC has discretion whether to hear and determine an appeal, stating thatthe only discretion is as to the remedy to be granted.

It argues that the different facts and issues in Adams make it distinguishable fromthis case. [24] Finally, its position is that the intention of the Legislature is for the LGC to be the appellate body to review Class 3licences, and that an adoption of Sagkeeng’s argument would completely erode that intention.

Manitoba further states that theapplication judge’s decision respecting the Legislature’s delegation of authority to the LGC was not in error and should be upheld. [25] Manitoba Hydro supports Manitoba’s position, but otherwise did not participate in the appeal of this issue. (iv) Standard of Review [26] The motion regarding prematurity was determined at first instance by the application judge; it was not a matter beforethe Minister in the administrative proceeding. [27] The discretionary nature of judicial review and the applicable standard of review were addressed in Strickland vCanada (Attorney General), 2015 SCC 37 at paras 37, 39.

Cromwell J, for the Court on these matters, explained that “[j]udicial review .. . has always been understood to be discretionary. This means that even if the applicant makes out a case for review on the merits, thereviewing court has an overriding discretion to refuse relief” (at para 37). [28] He explained the standard of review as follows (at para 39): The fact that undertaking judicial review is discretionary means that the Federal Court judge’s exercise of that discretion is entitled todeference on appeal.

As this Court noted in Matsqui [Canadian Pacific Ltd v Matsqui Indian Band, (SCC), [1995] 1SCR 3], an appellate court “must defer to the judge’s exercise of . . . discretion and must not interfere with it merely on the ground thatthe members of the appellate court would have exercised the discretion differently”: para. 39, quoting Lord Diplock in HadmorProductions Ltd. v. Hamilton, [1982] 1 All E.

R. 1042, at p. 1046. [29] The well-known discretionary standard of review was explained by Freedman JA in Perth Services Ltd v Quinton et al,2009 MBCA 81 (at para 28): The standard for intervention in a discretionary decision is very high. It is not enough that the appellate judges think the trial (ormotions) judge simply reached a wrong result; there rarely is, in truly discretionary matters, a “right” or “wrong” result. It is not enoughthat the appellate judges would have decided differently; they are to respect, and not replicate, the unique role of trial judges.

Assumingthere have been no reversible errors on fact or law, the appellate judges are not to usurp the trial judge’s role in discretionary matters,barring a decision so “clearly wrong” as to yield a truly unjust result. (See also Boeing Canada Operations Ltd v Winnipeg (City) Assessor, 2017 MBCA 83 at paras 15-17.) [30] The parties are agreed, as am I, that the applicable standard of review regarding errors of fact or law is that set out inHousen v Nikolaisen, 2002 SCC 33 at paras 8, 10, 36, being that questions of law are reviewed on the standard of correctness andquestions of fact or mixed fact and law are determined on the standard of palpable and overriding error, unless there is an extricable errorof law, which would be determined on the standard of correctness. [31] Many of the issues raised by Sagkeeng relate to the

interpretation and application of the appeal provisions in

section 28of the EA, and how that provision applies to the determination of Aboriginal constitutional rights. Those are questions of statutoryinterpretation, which are questions of law. As such, they are to be reviewed on the standard of correctness. (See Canadian NationalRailway Co v Canada (Attorney General), 2014 SCC 40 at para 33 (CNR 2014); Robertson v Harding, 2018 MBCA 67 at para 21; andHyczkewycz v Hupe, 2019 MBCA 74 at paras 32, 105.)

(

v) Statutory Provisions [32] The applicable statutory provisions from the EA are sections 28 and 30: Appeal of minister’s decision 28(1) A person who is affected by a decision of the minister made under

section 10, 11 or 12 in relation to a proposal or a decisionmade under subsection 14(2) may file an appeal in writing with the minister. The appeal must set out the reasons for the appeal andmust be filed within 30 days after the date of the decision. Appeal to Lieutenant Governor in Council 28(1.1) The minister must refer the appeal to the Lieutenant Governor in Council. Disposition of appeal 28(2) When an appeal is referred to the Lieutenant Governor in Council, it may, on such considerations as it deems advisable, (

a) in the case of an appeal of the minister’s decision not to request a public meeting or hearing on a proposal, request the commission tohold a public meeting or hearing on the proposal; (

b) refer the matter back to the minister for reconsideration; (

c) make any decision that in its opinion ought to have been made by the minister; or (

d) quash or vary the decision under appeal, or dismiss the appeal. Appeal does not act as stay of decision 30 An appeal filed under sections 26, 27 or 28 does not suspend the decision appealed against; but the minister may suspend theoperation of the decision, in whole or in part, until the appeal is disposed of. [33] Pursuant to The

Interpretation Act, CCSM c I80, the LGC “means the Lieutenant Governor acting by and with theadvice of the Executive Council” (at

section 17

Schedule of

Definitions).

As has been recently recognized by the Supreme Court ofCanada in Nova Scotia (Attorney General) v Judges of the Provincial Court and Family Court of Nova Scotia, 2020 SCC 21, the Cabineteffectively determines what decision will be made by the LGC (see para 26). (See also Att Gen of Can v Inuit Tapirisat et al, (SCC), [1980] 2 SCR 735 at 741, 755-57 (Inuit Tapirisat); League for Human Rights of B’Nai Brith Canada v Odynsky, 2010FCA 307 at paras 77-78 (B’Nai Brith Canada); and Peter W Hogg & Wade K Wright, Constitutional Law of Canada, 5th ed Supp(Toronto: Thomson Reuters, 2021) vol 1 (loose-leaf updated 2021, release 1) at ch 9.) (vi) Analysis—Prematurity and Adequate Alternative Remedy [34] The issue in this ground of appeal is whether the application judge erred in finding that Sagkeeng’s case was not anexceptional case that should proceed directly to judicial review because the statutory appeal procedure in

section 28 of the EA was anadequate alternative remedy available to it. [35] Sagkeeng challenges the adequacy of the statutory appeal process on the following bases: - the LGC has a discretion whether to proceed with the appeal at all; - there is a lack of procedural requirements respecting the appeal;

- there is a lack of a time frame for an appeal decision, and a history of delays in rendering decisions; - there is institutional bias and lack of independence due to the composition of the LGC and the fact that no past appeals have been successful; and - the LGC, being a political body, is not equipped to determine important legal issues like the

interpretation and application of constitutional rights, which should be determined by judges. (vi.

a) The History of the Legislation [ 36 ] As the Supreme Court of Canada stated in 1704604 Ontario Ltd v Pointes Protection Association , 2020 SCC 22 , a review of the history and legislative background of the statute under consideration can “offer contextual clues to and insight into . . . the proper

interpretation of the provisions at issue” (at para 6). A commonly used source for this information is Hansard, the official record of debates in Canadian Parliament and the provincial legislatures. (See also McLean et al v Canada (Attorney General) , 2021 MBCA 15 at paras 29-32 .) [ 37 ] There is no record in Hansard of any discussion regarding the current version of

section 28 of the EA , enacted in 2009, when it was introduced and debated in the Legislature.

There is, however, helpful discussion regarding that provision when it was originally introduced and later enacted pursuant to SM 1987-88, c 26 , as section 28(2) , in substantially the same form as appears in the current EA . [ 38 ] A review of Hansard shows that the EA was introduced in the Legislature as Bill 26 by the Minister of Environment and Workplace Safety and Health, the Hon Gérard Lecuyer, on May 11, 1987. (See Manitoba, Legislative Assembly, Debates and Proceedings (Hansard) , 33-2, vol 35, No 45A (11 May 1987) at 1853 (Hon Gérard Lecuyer ) .) At second reading on May 27, 1987, the Minister explained that the Bill 26 had been preceded by a discussion bill on which there had been extensive public consultations and approximately 60 written submissions, all of which were important in shaping Bill 26. (See Manitoba, Legislative Assembly, Debates and Proceedings (Hansard) , 33-2, vol 35, No 56 (27 May 1987) at 2469 (Hon Gérard Lecuyer ).) A consultation report on that consultation process was prepared and published just prior to the introduction of Bill 26. (See A New Environment Act for Manitoba: Report on the Public Consultation Process (Fall 1986) , (Winnipeg: Manitoba Environment and Workplace Safety and Health, Planning, Research and Evaluation Branch, 1987).) [ 39 ] The discussion bill proposed that an application for a licence would be determined by the director, with the right of appeal to the minister, and a further right of appeal to the Court of Queen’s Bench, but only on a question of law.

There was no mention, at that time, of any appeal to the LGC. [ 40 ] The subsequent consultation report noted that there were concerns expressed “over the extent of power given to the [m]inister”, including concerns about clarification of the appeal process and time frames, and the scope and degree of power of the minister. When Bill 26 ultimately passed, it contained

section 28 (as it then appeared), with an appeal of the minister’s decision to the LGC and no mention of any appeal to the Court of Queen’s Bench. Thus, it was clearly determined at some point that an appeal to the courts was not appropriate. This may have stemmed from one of the main principles behind the legislation, as set out in both the discussion bill and the consultation report, the latter of which stated: 3. There must be a single unified regulatory process.

The environmental regulatory process as contained in the proposed legislation must be a single unified process for each project to which it is applied. . . .

For every project there is a single application, a single point of contact and a single environmental licence issued. . . . . . . [ 41 ] The feature of a “single unified [licencing] process” which means “a single application and a single environmental licence have to be obtained” (Manitoba, Legislative Assembly, Debates and Proceedings (Hansard) , 33-2, vol 35, No 56 (27 May 1987) at 2470 (Hon Gérard Lecuyer ) was pointed out by Minister Lecuyer to the Legislature during the second reading of Bill 26. He further stated that “wherever possible, decision-making actions and time frames have been mandated” ( ibid ).

This and other comments suggest that setting a specific time frame for an appeal decision by the LGC was not considered “possible” ( ibid ). [ 42 ] During committee-stage discussions of Bill 26, Minister Lecuyer was asked about

section 28 and the reason for allowing an appeal to circumvent the minister. He stated that the intention was to give the public some major input into the decision- making process. If aggrieved by a minister’s decision, an individual could not “appeal again to the [m]inister. Therefore, the only other level where they could appeal would then be to the Cabinet [i.e., the LGC]” ( Manitoba, Legislative Assembly, Standing Committee on Municipal Affairs, Committee Debates (Hansard) , 33-2, vol 35 No 5 (9 July 1987) at 122 (Hon Gérard Lecuyer )). [ 43 ] This indicates two relevant intentions of the government.

First, it shows that Cabinet (i.e., the LGC) was considered to be a separate entity from the minister for appeal purposes. Second, using the phrase “the only other level” ( ibid ) where the appeal could go was to Cabinet shows that the government had determined that these appeals should not be determined by a court. This conclusion is supported by the following statement of purpose that was contained in the 1987 legislation and is repeated in section 1(1)(

d) of the current legislation: “this Act . . . provides for public consultation in environmental decision making while recognizing the responsibility

of elected government including municipal governments as decision makers”. [44] These background materials establish that the intention of the Legislature in passing the EA was to reduce excessivebureaucracy and provide for an efficient, one-window licencing regime where final appeals would go to the LGC in the case of Class 3projects. There was a specific intention to keep elected government officials as the final decision-makers, as opposed to the courts, andthat, although generally considered, time frames for the appeal process to the LGC were not imposed. (vi.

b) The Adequacy of Statutory Appeals [45] The considerations that may be relevant when determining whether an alternative forum is adequate, so as to justify adiscretionary refusal to hear a judicial review, were discussed by Cromwell J, for the majority, in Strickland at paras 42-44.

Whilenoting that the categories of relevant factors are not closed and that the analysis requires a balancing of the factors found to be relevant,rather that taking a checklist approach (see para 43), Cromwell J identified some factors that may apply: the nature of the error alleged;the nature of the other forum which could deal with the issue, including the remedial capacity; the adequacy and effectiveness of therecourse in the forum in which the litigation is taking place; expeditiousness; the relative expertise of the alternative decision-maker;economical use of judicial resources; and cost (see para 42). [46] Cromwell J noted that adequacy does not require that either the process or the alternative remedy needs to be identical tothat available on judicial review, as long as the alternative remedy is adequate in all of the circumstances (see para 42).

Further, hestated that the balancing should take into account the purpose and policy underpinning the legislative scheme in issue (see para 44). [47] Sagkeeng argues that the statutory appeal is inadequate for a number of reasons that are set out at para 35 herein. I willaddress them as follows: the absence of procedural rules relating to appeals; delays and the absence of a time frame for making adecision; the lack of success in past appeals (futility); institutional bias and a lack of independence; and no requirement that the LGCdetermine an appeal under

section 28 of the EA. (vi.b.1) The Absence of Procedural Rules [48] Harelkin v University of Regina, (SCC), [1979] 2 SCR 561, remains one of the leading cases onadequate alternative remedy, and addresses the issue of an absence of procedural rules for an appeal.

In that case, the appellant failed toexercise his statutory appeal to the senate appeals committee, arguing that the absence of any procedural by-laws relating to such anappeal rendered it inadequate, as the senate appeals committee would probably have denied him the opportunity of an in-person hearing,as had the previous university bodies. [49] Beetz J, for the majority, dispelled that notion, stating that the “appellant was not entitled to assume that, because of thelack of such by-laws at the relevant time, the senate committee would have denied him a hearing” (at p 589), or that the failure by alower decision-maker to comply with the rules of natural justice would be repeated by a superior decision-maker.

Beetz J stated, rather,that the appellant “should on the contrary have assumed that the body of superior jurisdiction would give him justice” (ibid). [50] This view has not since been revisited by the Supreme Court of Canada nor questioned by any appellate court and,indeed, seems almost trite.

On the contrary, it has been confirmed both in subsequent decisions and in academic writing. (See, forexample, Prassad v Canada (Minister of Employment and Immigration), (SCC), [1989] 1 SCR 560 at 568-69; Violettev NB Dental Society, 2003 NBQB 128; Litchfield v College of Physicians and Surgeons of Alberta, 2005 ABQB 962 at para 76; and SaraBlake, Administrative Law in Canada, 6th ed (Toronto: LexisNexis, 2017) at 240, 261.) [51] In Guy Régimbald, Canadian Administrative Law, 3rd ed (Toronto: LexisNexis, 2021), the author relies on Harelkinand Blake to state that, when considering whether an alternative remedy is adequate (at p 572): . . . . . . the reviewing court will assume that the alternate tribunal would protect the procedural rights of the applicant, meaning that amere possibility of . . . procedural flaw will not be sufficient to render an alternate remedy “inadequate”. . . . [footnote omitted]

[52] These authorities all indicate that applicants are not entitled to assume that an appeal tribunal will deny them theirproper procedural rights, and, further, that general concerns about the absence of specific appeal procedures and about the possibility ofprocedural unfairness by an appeal tribunal will be insufficient to render the alternate remedy inadequate.

Thus, the general case lawdoes not support Sagkeeng’s argument that the lack of procedural guidelines for the appeal to the LGC renders the appeal an inadequatealternate remedy in this case. (vi.b.2) The Lack of Time Frame for an Appeal Decision and Delay [53] As a starting premise, the jurisprudence indicates that, where there is no prescribed time limit for an administrativedecision, the procedural duty to act fairly includes a duty to proceed within a reasonable time. (See, for example, Re Gill and Min ofEmployment & Immigration (1984), (FCA), 13 DLR (4th) 676 at 679 (FCA); Singh v Canada (Minister of Citizenship& Immigration), 1995 CarswellNat 762 at para 10 (FCTD); and Chong v Canada (Minister of Citizenship and Immigration), 2001 FCT1335 at para 15.) [54] What constitutes a reasonable amount of time, or a timely decision, however, depends on the particular circumstances ofthe case. (See Singh at para 10; and Chong at para 15.) [55] To summarize the jurisprudence, although an unreasonably slow administrative process may lead to the conclusion thatan administrative remedy is ineffective or inadequate, what appears to be of the utmost importance is whether there is evidence of unduedelay in that applicant’s current case.

Evidence that others have experienced delay during the administrative process, and evidence thatthat applicant has experienced delay in past appeals, have both been held by the courts to be insufficient evidence upon which toconclude that the administrative process is an inadequate remedy.

Instead, courts have indicated that the focus must be on an applicant’scurrent administrative proceeding and whether the handling of that proceeding have been so unreasonably delayed that the administrativeproceeding cannot be considered an adequate remedy for that applicant. (Cases in which the administrative remedy has not been found to be inadequate on the basis of delays include Giesbrecht v R,1998 CarswellNat 847 at para 10 (FCTD)); Condo v Canada (Attorney General), 2003 FCA 99 at para 6; McMaster v Canada (AttorneyGeneral), 2008 FC 647 at para 38; Ewert v Canada (Attorney General), 2009 FC 971 at para 39; Bonamy v Canada (Attorney General),2010 FC 153 at paras 53-57; Spidel v Canada (Attorney General), 2010 FC 1028 at paras 17-22; Rose v Canada (Attorney General),2011 FC 1495 at paras 28-34; Karas v Canada (Attorney General), 2020 FC 345 at paras 15-16; and Dhillon v Canada (AttorneyGeneral), 2020 FC 1167 at paras 30, 33-34.) (Cases in which judicial review has proceeded despite there being an alternative administrative process due to delays in that processinclude Caruana v Canada (Attorney General), 2006 FC 1355 at paras 42-43, 45-46; recently distinguished on its facts in Picard vCanada (Attorney General), [2019] FCJ No 1600 at para 45; and Boogaard v Canada (Attorney General), 2013 FC 267 at paras 28-34.) [56] Furthermore, the courts have indicated that, when considering unreasonable delay in the context of the adequacy of anadministrative remedy, a specific time span is not, by itself, determinative, and a myriad of factors may be considered.

Some of thosefactors include: the possibility of bringing mandamus should delay be encountered (Giesbrecht); any contributing factors complicatingthe decision-making process (Ewert); statistical information about current delays (Bonamy); expert evidence explaining the allegedproblems (Bonamy); the cause(

s) of the delay (Spidel; and Dhillon); deference to the administrative system established by the legislation(Rose); the fact that judicial review can itself be subject to delay and cannot provide a decision on the merits (Rose); the complexity ofthe matter (Boogaard); the presence of any expediency requirements or objectives in the legislation establishing the administrativeprocess (Boogaard); and the amount of time generally taken in court to determine similar matters (Boogaard). [57] In effect, the courts have concluded that evidence of delay, or anticipated delay, cannot, on its own, lead to theconclusion that the process is flawed or inadequate (Karas).

Instead, the courts have indicated that, ultimately, the focus must be on thetime delays experienced in that applicant’s proceedings and whether those delays, in all the circumstances of the case, mean that theadministrative process is an inadequate remedy for that applicant. [58] Because this inquiry is so narrowly focussed upon an applicant’s own proceeding, courts have shown extremereluctance to conclude that an administrative remedy is inadequate on the basis of an anticipated long delay in those cases where theapplicant has not even initiated the administrative process.

As suggested by the jurisprudence, where an applicant has not even initiatedthe administrative process, it is speculative to assume that delays of an unreasonable nature will necessarily occur, such that theadministrative process would have to be considered an inadequate remedy. [59] Sagkeeng argues that the appeal procedure is not adequate because the delay in past Class 3 licence appeals undersection 28 has averaged 18.5 months, much longer than would be required for a judicial review.

As noted above, however, according tothe jurisprudence, a long delay does not establish unreasonableness or the inadequacy of the remedy; a myriad of other factors must alsobe considered. [60] In my view, based upon this general law and given Sagkeeng’s failure to even initiate the administrative appeal process,the application judge’s conclusion that it is speculative to assume that delays of an unreasonable nature will occur in this case based onthe outcome in other cases is correct, and he made no palpable and overriding error in giving little weight in his analysis to the lack of atime frame or the time required to decide prior unrelated cases (see paras 56-57). (vi.b.3) The Lack of Success of Past Appeals (Futility)

[61] Sagkeeng’s argument suggests an underlying assumption that pursuing an administrative appeal in the present case willbe futile because the LGC will more likely dismiss the appeal without properly considering its arguments, as it has done in other cases inthe past.

The jurisprudence suggests, however, that generic concerns that an appeal body will decide a case against a party for spuriousreasons is not a supportable argument without clear evidence that the appeal body would not honestly and fairly decide the appeal, orwithout evidence that the appeal body would be bound by a previous decision such that that appellant’s arguments would most certainlynot be successful.

Rather, a court will presume that an appeal body will act properly in determining the matter before it. (See, forexample, Harelkin at p 589; Re BC Government Employees’ Union and BCLRB (1986), (BC CA), 26 DLR (4th) 560at 570 (BCCA); Sagkeeng First Nation v Canada (Attorney General), 2015 FC 1113 at para 94; and MBB v Alberta (Child and FamilyServices), 2019 ABQB 621 at para 36.) [62] The situation is different, however, if futility or predetermination of the specific case can actually be proven. (SeeMobil Oil Canada Ltd v Canada-Newfoundland Offshore Petroleum Board, (SCC), [1994] 1 SCR 202 at 227-29; Nancy Greene’s Cahilty Lodge Ltd v Thompson Nicola (Regional Distrct), 1996 CarswellBC 526 at paras 23, 40 (SC); and ReCarpenter and Vancouver Police Bd (1986), (BC CA), 34 DLR (4th) 50 at 67 (BCCA).) [63] In the present case, Sagkeeng suggests that the administrative appeal to the LGC is inadequate simply on the basis thatthe LGC’s track record reveals that it has dismissed appeals in several other cases in the past.

However, Sagkeeng has not provided anyevidence that would rebut the presumption that the LGC will act fairly when determining issues brought before it by an appellant.

AsManitoba pointed out in its argument, appeals to the LGC in other cases have resulted in further consultations taking place. (SeeManitoba Law Reform Commission, Manitoba’s Environmental Assessment and Licensing Regime Under The Environment Act: FinalReport Report #130 (Winnipeg: Law Reform Commission, 2015) at 145, n 535.) [64] In addition, Sagkeeng did not provide any evidence that the LGC had already made up its mind about the issuesSagkeeng is raising, or that the LGC will be constrained in making a decision on those issues because of a previous binding decisionwhich the LGC, or a court, has made.

I address the allegation of predetermination on the part of the then Premier later in these reasons. [65] In such circumstances, given the jurisprudence, I am of the view that Sagkeeng’s argument that the appeal to the LGCwould be futile is not supportable. In my view, the application judge did not err in rejecting this argument (see para 69). (vi.

c) Bias [66] Sagkeeng argues that the appeal process related to

section 28 of the EA raises a reasonable apprehension of bias, firstly,because the minister who issued the licence also sits as a member of the Cabinet and, thus, may participate in and influence the appeal ofhis own licencing decision.

Secondly, it argues that the then Premier’s ability to appoint and dismiss the Cabinet ministers reveals thatthe LGC suffered from a lack of independence from the influence of the then Premier, who had documented his support for the projecton Twitter. [67] The first argument raises issues of institutional bias, while the second relates to structural independence. (See DavidPhillip Jones & Anne S de Villars, Principles of Administrative Law, 7th ed (Toronto: Thomson Reuters, 2020) at 446.) (vi.c.1) Institutional Bias [68] Institutional bias relates to situations in which the decision-making structure, itself, is alleged to give rise to areasonable apprehension of bias. (See Jones & de Villars at p 444.) As the authors note, a reasonable apprehension of bias will generallyarise where a decision-maker has outside knowledge of, or involvement with, the subject matter in dispute, including situations where adecision-maker sits on appeal from their own decision. (See Jones & de Villars at p 432; see also, for example, R v Alberta SecuritiesCom’n (1932), (AB KB), 36 DLR (2d) 199 (Alta SC); Regina v Board of Arbitration, Ex P Cumberland Railway Co(1968), (NS CA), 67 DLR (2d) 135 at 149 (NSSC(AD)); and Bennett v British Columbia (Superintendent of Brokers), 1994 CarswellBC 762 at paras 16, 22 (CA).) [69] Thus, an administrative structure that allows for a decision-maker to sit on appeal from its own decision will generallygive rise to a reasonable apprehension of bias.

That said, however, the principles of procedural fairness, which include rules relating toreasonable apprehension of bias, are common law principles. (See, for example, Cardinal v Director of Kent Institution, (SCC), [1985] 2 SCR 643 at para 14.) As explained by Jones & de Villars, they may be set aside by legislation (at p 449): . . . . . . Obviously, if the legislation specifically authorizes duplication [of functions] at an individual level, the doctrine of ParliamentarySupremacy means that, absent a constitutional or quasi-constitutional challenge to the legislation itself, the rule against bias must yield.

(See, also, Brosseau v Alberta Securities Commission, (SCC), [1989] 1 SCR 301 at 309; Ocean Port Hotel Ltd vBritish Columbia (General Manager, Liquor Control and Licensing Branch), 2001 SCC 52 at para 42; and Raincoast ConservationFoundation v Canada (Attorney General), 2019 FCA 224 at para 34, leave to appeal to SCC refused, 38892 (5 March 2020).) [70] Sagkeeng argues that the appeal remedy is inadequate on the basis that the appellate structure under

section 28contravenes the common law rule against bias. As indicated above, however, it is open to the Legislature to authorize an overlapping offunctions that would, otherwise, contravene the rule against bias. While that structure may be open to a constitutional challenge, nonehas been brought in this case.

Thus, if the common law rule against institutional bias is essentially erased by legislation, the basis for theargument that the appeal remedy is inadequate due to that bias is equally eroded. [71] In this case, the legislation clearly provides that the LGC determines any appeals from the minister’s decision. It is alsoclear from the discussion in Hansard that the Legislature was aware that an appeal of a minister’s decision to a separate entity wasrequired, and the separate entity chosen was the LGC.

It would also have been clear to the Legislature that the LGC is made up of thegovernment’s Cabinet ministers, including the minister responsible for granting a

section 12 licence. In my view, Sagkeeng’s argumentthat the appeal remedy is inadequate because it contravenes the rules against institutional bias fails on the basis that the allegedinstitutional bias in this case is legislated and, thus, permissible.

Further, I am of the view that the application judge was correct inrejecting this argument, albeit for different reasons (see paras 58, 64). (vi.c.2) Structural Independence [72] Structural independence is explained by Jones & de Villars as follows (at p 464): . . . . . . [T]he structural independence principle is concerned with the need for and extent of guarantees concerning the security of tenure,security of remuneration and administrative independence afforded to members of statutory delegates.

The concern . . . is that if thereare no adequate guarantees of this type of independence, reasonable people might be concerned that members of statutory delegates werevulnerable to interference by those who control their . . . work. . . . . . . [73] This, as well, is a component of natural justice. (See, for example, Canadian Pacific Ltd v Matsqui Indian Band, (SCC), [1995] 1 SCR 3 at para 80; and CUPE v Ontario (Minister of Labour), 2003 SCC 29 at para 189.) As with theprinciples related to institutional bias, the principles related to structural independence are common law principles that can be ousted bystatute. (See Ocean Port at paras 19-20, 22.) [74] Again, Sagkeeng’s argument is that the appeal remedy is inadequate on the basis that the appellate structure does notprovide sufficient institutional independence, because the members of the LGC could be influenced by their leader’s views.

However, asindicated above, the degree of independence required of tribunal members may be ousted by express statutory language or necessaryimplication. Thus, if the common law rule relating to structural independence is essentially ousted by legislation, then, absent aconstitutional challenge to the legislation, the basis of the argument that the appeal is inadequate is also eroded. [75] In this case, the legislation clearly provides that the LGC determines any appeals from the minister’s decision.

TheLGC is made up of the government’s Cabinet ministers, including the Premier, and this is something that the Legislature would havebeen aware of when it passed the legislation. In my view, Sagkeeng’s argument that the appeal remedy is inadequate because itcontravenes the rules against structural independence fails on the basis that the alleged contravention in this case is legislated and,therefore, permissible.

Thus, I am of the view that the application judge was correct in rejecting this argument on the basis of the need todefer to the legislated appeal procedure (see paras 59, 64, 74, 77-78). (vi.c.3) Alleged Bias by the Then Premier [76] Sagkeeng also argued at the judicial review hearing that an appeal to the LGC would be inadequate because of biasdemonstrated by the then Premier in public remarks that he made on May 21, 2019, about the adequacy of the consultation on theproject.

The application judge rejected this bias argument. [77] Sagkeeng did not mention bias on the part of the then Premier as a ground of appeal in its amended notice of appeal,and it does not say, in either its written or oral submissions in this Court, how, in its view, the application judge erred in rejecting this

argument. [78] This issue is raised indirectly in the prematurity argument in Sagkeeng’s factum, which begins by saying that“Sagkeeng relies on its Motion Brief as prepared for the Court of Queen’s Bench, which addresses these issues [of prematurity] in detail”(the QB brief).

In the QB brief, over several pages, Sagkeeng sets out the statements by the then Premier and develops its position as towhy these statements would lead to the conclusion that he had prejudged the adequacy of the consultation, so that any contrary argumentwould be futile. [79] This allegation of bias was clearly a significant argument at the judicial review hearing.

It is unclear as to whether, bythe general adoption of the prematurity argument in the QB brief, Sagkeeng was incorporating this specific argument into its appeal. [80] Whether or not that was Sagkeeng’s intention, in my view, this is not an adequate or acceptable way to frame an appealfor several reasons. [81] First, as this Court has often said, we are a court that corrects errors, which should be identified by the appellant.

Wedo not re-try cases, and referring to issues in a brief filed in an earlier proceeding does not provide any explanation of any possible errorsrelated to that proceeding. [82] Second, such a reference does not give the opposing party notice of the issues for appeal, the errors being alleged, or abasis upon which to prepare a responding factum or argument. [83] Third, if the appellant is permitted to raise an issue that is not developed in its notice of appeal and factum by referenceto another document, the respondent would, generally, be entitled to an adjournment to prepare a response.

This would be a waste ofcourt time and would delay the resolution of the matter. [84] Fourth, parties are expected to respect the court rules regarding the length and content of facta. Guideline 3.5 of the“Court of Appeal PracticeGuidelines” (July 2003), online (pdf): Manitoba Courts <www.manitobacourts.mb.ca/site/assets/files/1139/practice_guidelines.pdf>(date accessed 5 October 2021) sets a 30-page limit for a factum, and court approval is required to file a lengthier one (see the MB, Court of AppealRules, MR 555/88R at r 29(3)).

Adding an argument to a factum by reference to another document would open the door to lengtheningthe factum without obtaining court approval, thus circumventing the rules and guidelines.

I am being repetitive on this point, as thispractice has been the subject of unfavourable comments by other appellate judges. (See, for example, R v Henderson (WE), 2012 MBCA93 at para 48; R v Van Wissen, 2016 MBCA 108; OZ Merchandising Inc v Canadian Professional Soccer League Inc, 2020 ONCA 532(in Chambers); and McLeod Estate v Cole et al, 2021 MBCA 80 (in Chambers).) [85] Even if Sagkeeng did not intend to raise this issue by its reference to the QB brief, the attempt to incorporate that briefinto the factum by reference is still inappropriate.

First, it leaves the appeal court and opposing counsel in the dark as to what it shouldmake of that brief, because there is no indication as to the parts or issues on which the appellant is relying. As well, it ignores the rulesabout the length and content of facta, as set out above. [86] For all of these reasons, the practice of incorporating arguments and briefs by reference into a factum is not anacceptable or appropriate practice. [87] In my view, for reasons set out herein, the allegation of bias on the part of the then Premier is not properly before thisCourt and I would decline to consider it. (vi.

d) Obligation to Hear and Decide the Appeal [88] Sagkeeng argues that an appeal to the LGC is inadequate because, although a minister must refer an appeal undersection 28(1.1) to the LGC, the LGC has a discretion whether to hear and decide that appeal or to take no further action. Its argument isbased on the wording of sections 28(1.1) and 28(2): section 28(1.1) states that the minister “must” refer an appeal to the LGC(obligatory), while section 28(2) states that the LGC “may”, not “shall”, grant one of several remedies (discretionary). [89] Sagkeeng’s

interpretation of this provision as a hard and fast rule is not supported by the authorities. As discussed byRuth Sullivan in Sullivan on the Construction of Statutes, 6th ed (Markham: LexisNexis, 2014), the word “may” in legislation does notnecessarily provide wide-open discretion. She quotes Dickson CJ in R v S (S), (SCC), [1990] 2 SCR 254, and concludesthat “the use of ‘may’ implies discretion, but it does not preclude obligation” (at

section 4.62). She states (at

section 4.63): . . . . . . The word “may” alone cannot determine the outcome; it must be considered in context, having regard to the usual things – theAct as a whole, the purpose and scheme, the entire context.

[90] A similar argument arose in Clarkson Co Ltd v White (1979), (NS SC), 102 DLR (3d) 403(NSSC(AD)). In that case, the legislation provided that the court “may” give judgment to a bankruptcy trustee against one or some of anumber of parties. The trial judge found that, due to the discretionary language, he had the discretion not to grant judgment to the trusteeat all, which is what he did. The trustees appealed, arguing that the only discretion was to whom among the other parties the judgmentwould be given. [91] Hart JA, for the Court, concluded that the trial judge had erred, and that whether the use of “may” in legislation isdiscretionary or obligatory “must be determined from an

interpretation of the statute as a whole” (at p 407). He concluded that, when thepower could be exercised upon the establishment of legal rights, there was a duty to exercise that power once the rights had beenestablished, and the legislation did not leave the judge with an unfettered discretion to grant or withhold the remedy. (See also Bates vBates (2000), (ON CA), 188 DLR (4th) 642 at para 24 (Ont CA); Sistem Mühendislik İnșaat Sanayi Ve TicaretAnomic Sirketi v Kyrgyz Republic, 2015 ONCA 447 at para 43; and Saskatchewan Government Insurance v Nipawin (Town) (1998), (SK CA), 169 DLR (4th) 713 at para 17 (Sask CA).) [92] Following the reasoning in Clarkson, it is clear that the intention of

section 28 of the EA is to permit anyone who isdissatisfied with the minister’s decision to appeal to the LGC. Once all of the pre-conditions have been met (i.e., the appeal is filed withthe minister and the minister refers it to the LGC), then, even though the remedies are presented in a permissive form, the LGC has aduty to grant one of the remedies listed, and does not have an unfettered right to withhold any remedy at all. [93] This

interpretation is more consistent with the principles of fairness to those who have filed an appeal and are expectinga decision. Further, it is also consistent with the intention of the Legislature when passing this provision, being that, if anyone wasaggrieved by the minister’s decision, the “appeal would then be to the Cabinet” (para 42 herein). There was no suggestion that the LGCcould pass on making a decision. [94] In my opinion, the LGC is obliged to hear and determine any appeal remitted to it.

Thus, I am of the view that theapplication judge was correct when he found that “in the present instance, the [LGC] is required to exercise its discretion in determiningthe appeal” (at para 72). (vi.

e) Appeals to the LGC as an Adequate Alternative Remedy (vi.e.1) The Role and Power of the LGC [95] The Supreme Court of Canada has considered various aspects of the role of the federal equivalent of the LGC, being theGovernor in Council (the GIC), in determining petition appeals under federal legislation.

Three leading cases are Inuit Tapirisat; Baker vCanada (Minister of Citizenship and Immigration), (SCC), [1999] 2 SCR 817; and CNR 2014. [96] These cases establish that, unless the legislation otherwise limits the GIC’s authority, if the GIC is given the authorityto rescind any decision of an administrative agency, then the GIC has the authority to determine not only broad questions of fact andpolicy, but also questions of law. (See CNR 2014 at paras 37, 48-49.) [97] Further, Baker and CNR 2014 suggest that GIC petition appeals may well be subject to some principles of proceduralfairness, even though they may not be identified in the legislation; however, the Supreme Court of Canada has not since discussed whatprinciples of procedural fairness actually apply in such cases. [98] Finally, the necessity for the GIC to actually consider a petition placed before it was also established in these cases.

Aswas stated by Estey J in Inuit Tapirisat (at p 752): . . . . . . [I]n the exercise of a statutory power the [GIC], like any other person or group of persons, must keep within the law as laid downby Parliament or the Legislature.

Failure to do so will call into action the supervising function of the superior court whose responsibilityis to enforce the law, that is to ensure that such actions as may be authorized by statute shall be carried out in accordance with its terms,or that a public authority shall not fail to respond to a duty assigned to it by statute. . . . (See, also, Robert W Macaulay, James LH Sprague & Lorne Sossin, Practice and Procedure Before Administrative Tribunals (Toronto: Thomson Reuters, 2021) vol 3 (loose-leaf updated 2021, release 9) at ch 36; an outline of some of the legal characteristics of such apetition appeal is set out at

section 36:3. On the role of the GIC when exercising discretionary decision-making, see B’Nai Brith Canadaat paras 77-78.)

[99] These principles related to the role of the GIC would apply equally to the LGC. (vi.e.2) LGC Appeals as an Adequate Alternative Remedy [100] While there does not appear to be a significant body of jurisprudence that specifically addresses the issue of whetherGIC/LGC appeals are an adequate alternative remedy to judicial review, there are some Federal Court decisions that provide guidance. [101] In Canadian National Railway Company v Scott, 2018 FCA 148, the applicants questioned the suitability of the GIC toundertake the “detail-laden and specific evidentiary examination that is called for during the judicial review process where questions offact relating to decibel levels are at issue” (at para 23), arguing that it was not an expert in relation to the questions being raised.

NadonJA, for the Court, rejected that argument and determined that the petition to the GIC, which was authorized to consider questions of law(citing CNR 2014), fact and policy, constituted “an available and meaningful” appeal mechanism (at para 45) which precluded thefederal judicial review route (see paras 49, 56-57). (See also Association des Compagnies de Téléphone du Québec Inc v Canada (Attorney General), 2012 FCA 203.) [102] As these cases suggest, where the GIC has been given a wide authority to decide appeals, it has the ability to considercomplicated evidence, and engage in fact-finding and legal submissions, alongside policy considerations.

As such, it has been consideredan adequate alternative remedy. [103] As mentioned at para 20 herein, Sagkeeng relies on a statement in Brown & Evans that “since many Cabinet appeals aredecided on the basis of broad political, economic and social considerations, applicants are not normally required to pursue them beforeseeking relief in judicial review proceedings” (at

section 3:25) to argue that “appeals to the Cabinet – because of their generalweaknesses – should by their nature fit within the ‘exceptional’ category.” [104] The application judge found this statement of the law to be of little weight in his analysis because he found that the factsand circumstances of the underlying cases made them distinguishable, diminishing the weight of the statement in Brown & Evans (seepara 73). (See Re DeWolf and City of Halifax (1979), (NS SC), 103 DLR (3d) 277 (NSSC(TD)); Mackey vSaskatchewan (Medical Care Insurance Commission), 1988 CarswellSask 460 (QB); and Richmond Cabs Ltd v British Columbia (MotorCarrier Commission), 1992 CarswellBC 198 (SC).) [105] The application judge concluded that, by

section 28, the Legislature had delegated the appellate jurisdiction to the LGCand that “to presume the nature of the [LGC] is inherently insufficient goes too far and ignores the intent of the legislature” (at para 78). [106] In my view, the law regarding respect for a statutorily mandated appeal procedure has evolved since the cases referencedin Brown & Evans were decided. This is demonstrated in the recent decision of Canada (Minister of Citizenship and Immigration) vVavilov, 2019 SCC 65.

As the application judge noted, the majority explained the importance of respecting the intent of the Legislature(at para 24): Parliament and the provincial legislatures are constitutionally empowered to create administrative bodies and to endow them withbroad statutory powers: Dunsmuir [Dunsmuir v New Brunswick, 2008 SCC 9], at para. 27.

Where a legislature has created anadministrative decision maker for the specific purpose of administering a statutory scheme, it must be presumed that the legislature alsointended that decision maker to be able to fulfill its mandate and interpret the law as applicable to all issues that come before it.

Where alegislature has not explicitly prescribed that a court is to have a role in reviewing the decisions of that decision maker, it can safely beassumed that the legislature intended the administrative decision maker to function with a minimum of judicial interference. . . . [107] In my view, the application judge did not err in his analysis of the Brown & Evans statement or in rejecting Sagkeeng’sargument that appeals to the LGC, by nature, should be exceptional. (vi.

f) Aboriginal Rights and Appeals to the GIC/LGC [108] For context, I will first review some of the important principles regarding the Aboriginal rights guaranteed by

section 35of the Constitution Act, as they have been explained by the Supreme Court of Canada in two recent leading cases, Clyde River (Hamlet) vPetroleum Geo-Services Inc, 2017 SCC 40; and Mikisew Cree First Nation v Canada (Governor General in Council), 2018 SCC 40: - the honour of the Crown is always at stake in its dealings with Aboriginal peoples and applies when the Crown acts either throughlegislation or executive conduct (see Mikisew at para 23); - where the Crown contemplates executive action that may adversely affect

section 35 rights, the honour of the Crown has beenfound to give rise to a justiciable duty to consult (see Mikisew at para 25); - the duty to consult has also been applied in the context of statutory decision-makers who, while not part of the executive, act onbehalf of the Crown (see Mikisew at para 25);

- more particularly, the duty to consult is triggered when the Crown has actual or constructive knowledge of a potential Aboriginalclaim or Aboriginal or treaty right that might be adversely affected by any kind of Crown conduct (see Clyde River at para 25); - an approval process by a regulatory agency, which acts on behalf of the Crown to make a final decision on a project application,constitutes Crown action which may trigger the duty to consult (see Clyde River at para 29); - it is open to legislatures to empower regulatory bodies to play a role in fulfilling the Crown’s duty to consult and, whereappropriate, accommodate (see Clyde River at paras 21-22); and - the Crown always holds ultimate responsibility for ensuring that consultation is adequate (see Clyde River at para 22). [109] Although the Supreme Court of Canada stated in Clyde River that the Aboriginal right to consult and accommodate isjudiciable, and that any decision affecting Aboriginal or treaty rights made on the basis of inadequate consultation can be quashed onjudicial review, it also emphasized that negotiation is the preferable way of reconciling state and Aboriginal interests (see para 24).

More particularly, the Court stated that “adequate Crown consultation before project approval is always preferable to after-the-factjudicial remonstration following an adversarial process” (ibid). (See also Rio Tinto Alcan Inc v Carrier Sekani Tribal Council,2010 SCC 43 at para 34.) [110] Supreme Court of Canada jurisprudence has established that administrative tribunals that have the power to answerquestions of law and constitutional issues are equally able to determine questions relating to constitutionally protected Aboriginal rightsunder

section 35 of the Constitution Act, including the adequacy of consultation and accommodation. (See, for example, Paul v BritishColumbia (Forest Appeals Commission), 2003 SCC 55; and Rio Tinto.) [111] For example, in Paul, the question was whether the respondent, an Aboriginal person, had an Aboriginal right to harvesttrees. The issue was whether the Commission, or any other provincial administrative tribunal, had the jurisdiction to hear argumentsregarding Aboriginal rights.

The Supreme Court of Canada concluded that, if the empowering legislation implicitly or explicitly grantedto the tribunal the jurisdiction to interpret or decide any question of law, then the tribunal will be presumed to have the concomitantjurisdiction to interpret and decide that question in light of

section 35, or any other relevant constitutional provision (see para 39). Bastarache J, for the Court, stated (at para 36): As a preliminary issue, I note that there is no basis for requiring an express empowerment that an administrative tribunal be able toapply s. 35 of the Constitution Act, 1982. There is no persuasive basis for distinguishing the power to determine s. 35 questions from thepower to determine other constitutional questions, such as the division of powers under the Constitution Act, 1867 or a right under theCharter [Canadian Charter of Rights and Freedoms].

Section 35 is not, any more than the Charter, “some holy grail which only judicialinitiates of the superior courts may touch” (Cooper [Cooper v Canada (Human Rights Commission), (SCC), [1996] 3SCR 854], at para. 70, per McLachlin J. (as she then was), dissenting).

This Court has rejected the theory that Indian reserves are federal“enclaves” from which provincial laws are excluded: Hogg [Peter W Hogg, Constitutional Law of Canada (Scarborough: Carswell,1992) vol 1 (loose-leaf updated 2002, release 1)], at p. 27-10, discussing Francis [R v Francis, (SCC), [1988] 1 SCR1025]; Four B [Four B Manufacturing Ltd v United Garment Workers of America, (SCC), [1980] 1 SCR 1031].

Similarly, aboriginal rights do not constitute an enclave that excludes a provincially created administrative tribunal from ruling, at firstinstance, on the border between those aboriginal rights and a provincial law of general application.

The arguments that s. 35 rights arequalitatively different — that they are more complex, and require greater expertise in relation to the evidence adduced — have littlemerit. . . . . . . [112] Bastarache J also explained that, while any decision by a Commission, as a question of constitutional law, would besubject to judicial review by the superior courts, the jurisdiction of the tribunal should not be automatically ousted simply because anissue is raised regarding a constitutionally protected Aboriginal right (see paras 31-32). [113] In Rio Tinto, McLachlin CJC, for the Court, stated that the extent of the duty of a tribunal with regard to consultationwould depend on the mandate conferred on it by its constituent legislation (see para 55).

She concluded that a tribunal only has thepowers that are expressly or implicitly conferred on it by statute, and that the power to engage in consultation (as opposed to the power toassess the adequacy of past consultations) cannot be inferred from the mere power to consider questions of law (see paras 59-61). [114] In

summary, these cases establish, firstly, that if an administrative tribunal expressly or implicitly has the power todetermine and apply questions of law, then it can also determine whether the duty of consultation has been met and, secondly, that non-expert administrative tribunals have an important role to play in the consideration of constitutionally protected Aboriginal rights,including the determination of whether or not the duty of consultation and accommodation has been met. [115] Sagkeeng has raised two further issues.

It argues that constitutionally protected Aboriginal rights constitute anexceptional circumstance that should permit immediate access to judicial review; however, that proposition is not supported by anyjurisprudence in the area of adequate alternative remedy. This, perhaps, flows from the jurisprudence which holds that administrativetribunals are entitled to determine issues relating to Aboriginal rights.

Likewise, there is no jurisprudence that supports its argumentsthat issues like cost, delay and respect for legislated appeal mechanisms should be treated differently in cases involving the adequacy ofthe alternative remedy when it is Aboriginal people who are seeking access to justice with regard to their Aboriginal rights. [116] On this issue, the application judge concluded that “the alleged errors do not amount to exceptional circumstances

allowing a party to bypass the administrative process” (at para 75), and he rejected that argument (see para 78). In my view, he was correct in his

interpretation and application of the law and he made no palpable and overriding error regarding the facts or in applying the law to the facts in so concluding. [ 117 ] Finally, Sagkeeng argues, based on Adams , that “[u]nstructured and discretionary appeal regimes like this one are inappropriate when dealing with constitutionally guaranteed Aboriginal rights.” In Adams , the issue was whether a statutory regime for granting fishing licences infringed Aboriginal fishing rights.

In a unanimous decision, the Supreme Court of Canada determined that a statute that confers administrative discretion with significant consequences for the exercise of Aboriginal rights must outline specific criteria for the granting or refusal of that discretion, which criteria seek to accommodate Aboriginal rights.

Without that guidance, the statute would fail to provide Crown representatives with sufficient directives to fulfil their fiduciary duties, and the statute would constitute an infringement of Aboriginal rights. [ 118 ] In this case, the administrative scheme is the issuance of environmental licences under the EA . Manitoba argues, and Sagkeeng has not disputed, that there is a comprehensive legislative scheme governing the issuance of environmental licences, which is informed by the duty to consult as it relates to potential impacts on asserted rights. In conducting an appeal under

section 28, the LGC would be guided by that scheme. That is a different issue from that of process on appeal, for which there is considerable guidance and direction in the jurisprudence. In my view, that distinction makes Adams distinguishable from the issue in this case. (vi.

g) Conclusion—Adequate Alternative Remedy [ 119 ] The application judge’s decision to refuse to grant the judicial review application on the basis that there was an adequate alternative remedy was a discretionary decision that is to be reviewed on a high standard that, failing a reviewable error of principle or fact, permits appellate interference only if the decision is so clearly wrong as to amount to an injustice. [ 120 ] The issue of the right to appeal a minister’s decision regarding a Class 3 licence, and the most appropriate appellate body to hear those appeals, was clearly before the Legislature when it passed the EA .

Following public consultation, the proposal for a limited appeal to the courts was taken out and replaced by a very wide right of appeal to the LGC. This was accompanied with the inclusion in the legislation of the expressed intent to recognize the responsibility of elected government officials as decision-makers. [ 121 ] Sagkeeng’s argument, if accepted, that appeals to the LGC should be exceptional would, essentially, render this legislation meaningless and of no effect.

This result fails to respect the choices made by the Legislature and is contrary to the directions of the Supreme Court of Canada in recent decisions such as Vavilov . It would affect not only the EA , but the many other statutory schemes that provide an appeal to either the LGC or GIC. As stated by the application judge, “To suggest every appeal or even most appeals to [the LGC] are exceptional cases and trigger an administrative process instead is not appropriate. . . . The legislative intent behind the delegation of authority should be respected” (at para 74).

I am of the view that he did not err in so concluding. [ 122 ] In my view, for the reasons set out herein, Sagkeeng has failed to identify any errors of law or palpable and overriding errors of fact or mixed fact and law. Further, the application judge’s decision was available to him on the facts of this case, and it is not so clearly wrong as to amount to an injustice. [ 123 ] For these reasons, I would uphold the application judge’s finding that the application for judicial review was premature because there was an adequate alternative remedy.

Given this decision, it is not necessary to consider whether the application judge erred by incorrectly assessing the scope of the duty to consult and accommodate or by determining that Manitoba had fulfilled its duty, and I would decline to determine those issues. IV. DECISION [ 124 ] For the reasons set out herein, I would dismiss the appeal. There will be costs to Manitoba and to Manitoba Hydro under the tariff. JA I agree: JA I agree: JA