Nova Scotia (Aboriginal Affairs) v. Pictou Landing First Nation, 2019 NSCA 75

Nova Scotia Court of Appeal Citation: Nova Scotia (Aboriginal Affairs) v. Pictou Landing First Nation , 2019 NSCA 75 Date: 20190917 Docket: CA 484447 Registry: Halifax Between: Her Majesty the Queen in Right of the Province of Nova Scotia, as represented by the Minister of Aboriginal Affairs Appellant v. Pictou Landing First Nation Respondent v. Northern Pulp Nova Scotia Corporation Intervenor Judge: The Honourable Justice Joel E. Fichaud Appeal Heard: June 12-13, 2019, in Halifax, Nova Scotia Subject: Aboriginal consultation – S. 35(1) of Constitution Act, 1982

Summary: For over fifty years, the Pulp Mill at Abercrombie Point has discharged fluid effluent and airborne emissions. Since 1967, the effluent has settled in the Boat Harbour Effluent Treatment Facility, owned by the Province and leased to the Mill’s operator. The Intervenor Northern Pulp Nova Scotia Corporation is the current operator. Pictou Landing First Nation (PLFN), situated nearby, has long complained to the Provincial Government that the Mill’s discharges were toxic.

The Boat Harbour Act , S.N.S. 2015, c. 4, s. 3 enacted a partial accommodation by stating that, after January 30, 2020, the use of the Boat Harbour Treatment Facility must cease. To operate, the Mill must have the Minister of Environment’s Industrial Approval under

part V of the Environment Act , S.N.S. 1994-95, c. 1 . The Current Industrial Approval expires on January 30, 2020. Given the Boat Harbour Act , a new Industrial Approval will need a new effluent treatment facility (New ETF). A New ETF will require its own ministerial approval under

Part IV of the Environment Act . Northern Pulp has applied for

Part IV approval of its proposed New ETF. The application is under review by the Minister. As of yet, there is no application for

Part V Industrial Approval. Under s. 35(1) of the Constitution Act, 1982 , before PLFN incurs a potential adverse impact to its credibly asserted rights that is caused by Crown conduct, PLFN is entitled to consultation with the Crown and, where appropriate, to accommodation. The Province has consulted with PLFN respecting the design and physical features of Northern Pulp’s proposed New ETF and commits to consult respecting any application for a new Industrial Approval. The Province has confidentially discussed with Northern Pulp whether the Province would provide funding for the New ETF.

PLFN learned of these discussions and asked that consultations extend to the prospect of governmental funding. The Province refused. PLFN applied to the Supreme Court of Nova Scotia for a ruling that the consultations embrace the prospect of governmental funding. The judge of the Supreme Court held that the Province has a duty to consult with PLFN respecting the prospective funding of a New ETF. The Province appeals. In the Court of Appeal, Northern Pulp intervened and applied to add fresh evidence. PLFN applied to add fresh evidence in reply.

Issues: Should the Court admit the fresh evidence from Northern Pulp or PLFN? Must the Province consult with PLFN on the prospect that the Province would fund the New ETF?

Result: The Court of Appeal admitted the fresh evidence tendered by Northern Pulp and, in reply, by PLFN. The Court excluded three exhibits that did not exist at the date of the hearing in the Supreme Court. The fresh evidence was admissible to remedy inadequate Crown disclosure before the hearing in the Supreme Court. The Court of Appeal dismissed the appeal.

The fresh evidence submitted by Northern Pulp included signed Agreements between Northern Pulp and the Province that set out terms of funding by the Province toward the design, engineering, environmental assessment, partial settlement of Northern Pulp’s threatened lawsuit against the Province and, at the Province’s option, capital cost of the New ETF. The Funding Agreements contributed to the potential adverse impact on PLFN.

Under the tests to trigger consultation that have been established by the Supreme Court of Canada, the Province was required to consult with PLFN on the potential impact of the Province’s Funding Agreements. This information sheet does not form part of the court’s judgment. Quotes must be from the judgment, not this cover sheet. The full court judgment consists of 53 pages. Nova Scotia Court of Appeal Citation: Nova Scotia (Aboriginal Affairs) v.

Pictou Landing First Nation , 2019 NSCA 75 Date: 20190917 Docket: CA 484447 Registry: Halifax Between: Her Majesty the Queen in Right of the Province of Nova Scotia, as represented by the Minister of Aboriginal Affairs Appellant and Pictou Landing First Nation Respondent and Northern Pulp Nova Scotia Corporation Intervenor Judges: Bryson, Oland and Fichaud JJ.A. Appeal Heard: June 12-13, 2019, in Halifax, Nova Scotia Held: Appeal dismissed without costs, per reasons for judgment of Fichaud J.A., Oland and Bryson JJ.A. concurring Counsel: Sean Foreman, Q.C., for the Appellant Brian J.

Hebert and Tina Northrup, articling, for the Respondent Harvey L. Morrison, Q.C. and Ryan Baxter, for the Intervenor Reasons for judgment: [ 1 ] For over half a century, the pulp mill at Abercrombie Point has discharged fluid effluent into Boat Harbour and emissions into the air. Pictou Landing First Nation is a Mi’kmaw community nearby. It has long complained to the Province that the discharges were toxic. The Provincial Government promised to act. But nothing was done. [ 2 ] Then, in 2015, the Province came to a partial accommodation by enacting the Boat Harbour Act .

The Act says the Mill’s existing effluent treatment facility at Boat Harbour “must cease” operation by January 30, 2020. [ 3 ] Under

Part V of Nova Scotia’s Environment Act , the Mill needs an Industrial Approval to operate. The Mill’s current

Industrial Approval expires on January 30, 2020. Without an effluent treatment facility, there will be no new Industrial Approval. Then the Mill’s operation would end, as would the effluent and emissions. A new effluent treatment facility needs the Minister’s Environmental Approval under

Part IV of the Environment Act . Northern Pulp Nova Scotia Corporation, the Mill’s current owner, has applied for

Part IV approval of a new effluent treatment facility. The application remains under review. [ 4 ] Under the Constitution Act, 1982 , before Aboriginal peoples incur a potential adverse impact to their credibly asserted rights that is caused by Crown conduct, they are entitled to consultation with the Crown and, when appropriate, to accommodation. The Province treated Northern Pulp’s

Part IV application as triggering Crown consultation with Pictou Landing First Nation. So far, the consultation has been confined to the physical aspects of the design, construction and operation of Northern Pulp’s proposed new effluent treatment facility. [ 5 ] Meanwhile, the Province has confidentially discussed with Northern Pulp whether the Province would fund the new effluent treatment facility. Pictou Landing First Nation learned of these discussions and asked that consultation include the prospect of Crown funding. The Province refused. Pictou Landing First Nation applied for judicial review.

A judge of the Supreme Court of Nova Scotia, after describing the record as “miniscule”, held that the Province has a duty to consult before the Province becomes a “lender” to Northern Pulp. [ 6 ] The Province appeals. Northern Pulp has intervened in this Court and seeks to admit fresh evidence. Pictou Landing First Nation offers fresh evidence in reply. [ 7 ] There are two issues. Is either party’s fresh evidence admissible? Must the Province consult with Pictou Landing First Nation on the prospect that the Province would fund the Mill’s new effluent treatment facility?

Background [ 8 ] The Respondent Pictou Landing First Nation (PLFN) is a Mi’kmaw community in Pictou County. [ 9 ] Not far to the southwest of PLFN, at Abercrombie Point, is a bleached kraft pulp mill (Mill). The Mill has operated since September 1, 1967 under several owners. The Intervenor Northern Pulp Nova Scotia Corporation (Northern Pulp) acquired the Mill in 2008 and has operated it since. [ 10 ] In August 2012, Stantec Consulting Ltd. prepared an Air Dispersion Modelling Study for Northern Pulp.

The Stantec Study, page 3, gives an overview of the Mill’s pulping process: The pulping process consists of digesting wood chips in white liquor, at elevated temperature and pressure, in a continuous digester to separate lignin from cellulose fibers. Once the cooking of the wood chips is complete, the stock is transferred to a blow tank and then to brown stock washers, where the pulp is separated from the cooking liquor by continuous washing of progressively cleaner water; airborne particles and contaminants are captured by vents which are routed to the recovery boiler for incineration.

The separated pulp is further washed, bleached, pressed and dried into the finished product, with ventilation in place during the washing and the bleaching stages to remove airborne contaminants. The remainder of the process is designed to recover cooking liquor (for reuse) and heat. The spent cooking liquor and the pulp wash liquid are combined to form weak black liquor, which is sent through a series of evaporators to become concentrated (55% solids). This liquor is then further concentrated within a direct-contact evaporator to form strong black liquor (approximately 70% solids).

The strong black liquor is burned in the recovery boiler to provide heat and power for the mill’s processes. Gasses from storage tanks at each stage of the concentration process are vented into either the high-level roof vent (HLRV) or into the recovery boiler for direct incineration. The inorganic material that is collected following the burning of strong black liquor is called smelt. Smelt is combined with weak wash to form green liquor in the smelt dissolving tank.

The green liquor is clarified then converted back to white liquor, to be re-used in the chip digestion process, in the slaker and causticizer system by adding calcium oxide (quicklime). The mud precipitate from the green liquor is sent to a lime kiln to re-generate the calcium oxide (quicklime). The mill also operates a power boiler which, for the most part, burns hog fuel, however bunker C fuel oil is used as needed. [ 11 ] The Mill discharges fluid effluent into a treatment facility at Boat Harbour (Boat Harbour ETF), close to PLFN.

The Boat Harbour ETF comprises two settling basins, an aerated stabilization basin and a pipeline that takes the effluent from the Mill to the settling basins. The Mill’s toxic effluent has settled and stabilized in Boat Harbour since 1967. [ 12 ] The Mill also discharges airborne contaminants that are blown by prevailing winds toward PLFN. [ 13 ] For decades, the effect of the Mill’s pollutants has been of concern to PLFN and a point of discussion between PLFN and the Province. Later I will cite the evidence [para. 46]. In 2015, the Legislature enacted the Boat Harbour Act , S.N.S. 2015, c. 4 . The Act says:

Interpretation 2 In this Act, … (b) “Facility” means the Boat Harbour Effluent Treatment Facility … . … Prohibition 3 On and after the earlier of January 31, 2020, and the date on which the Northern Pulp Nova Scotia Corporation ceases to use the

Facility, the use of the Facility for the reception and treatment of effluent from the Mill must cease. No action lies 4

(1) No action lies against Her Majesty in right of the Province or a member of the Executive Council in respect of the cessation of the use of the Facility for the reception of treatment of effluent from the Mill as a result of this Act.

(2) The enactment of this Act is deemed not to be a repudiation or anticipatory repudiation by Her Majesty in right of the Province of the lease agreement dated December 31, 1995, between Her Majesty in right of the Province and Scott Maritimes Limited, as extended by a lease extension agreement dated October 22, 2002, between Her Majesty in right of the Province and Kimberley-Clark Inc. [ 14 ] The Province’s factum characterizes the rationale for s. 3 : 15.

As part of its on-going relationship and commitment to the PLFN, the Province enacted the Boat Harbour Act in 2015, which requires Northern Pulp to close and replace the existing Boat Harbour Treatment Facility by January 30, 2020. [ 15 ] The Province owns the Boat Harbour ETF and leases it to the Mill’s operator.

Section 4 of the Boat Harbour Act refers to the lease from the Province to the Mill’s former owners, Northern Pulp’s predecessors in title. [ 16 ] The Mill is authorized to operate by Industrial Approval #2011-076657 issued by Nova Scotia Environment, effective January 30, 2015 with an expiry date of January 30, 2020 (Current Industrial Approval). The Current Industrial Approval was issued under

Part V of the Environment Act , S.N.S. 1994-95, c. 1 .

Part V includes:

PART V APPROVALS, NOTIFICATIONS, STANDARDS AND CERTIFICATIONS Approvals Prohibition 50

(1) No person shall knowingly commence or continue any activity designated by the regulations as requiring an approval unless that person holds the appropriate class of approval required for that activity.

(2) No person shall commence or continue any activity designated by the regulations as requiring approval, unless that person holds the appropriate class of approval required for that activity. … 52

(1) Where the Minister [of Environment - s. 3 (ag)] is of the opinion that a proposed activity should not proceed because it is not in the public interest having regard to the purpose of this Act, the Minister may, at any time, decide that no approval be issued in respect of the proposed activity if notice is given to the proponent, together with reasons.

(2) When deciding, pursuant to subsection (1), whether a proposed activity should proceed, the Minister shall take into consideration such matters as whether the proposed activity contravenes a policy of the Government or the Department, whether the location of the proposed activity is unacceptable or whether adverse effects from the proposed activity are unacceptable. Application for approval 53

(1) An application for an approval must be made in the manner prescribed by the regulations for the class of approval being sought by the applicant and must contain the information prescribed by the regulations. … Decision re application 54

(1) A decision on an application for an approval must be made within sixty days of the receipt of the completed application unless the Minister notifies the applicant otherwise in writing. … Powers of Minister 73 The Minister may (

a) classify releases for the purpose of this Part and exempt any release or any class of release from the application of this Part and attach terms and conditions to any such exemption; (

b) prescribe the concentration, amount, level and rate, including the maximum concentration, amount, level and rate of a substance that may be released into the environment; (ba) establish procedures respecting the conducting of sampling, analysis, tests, measurements or monitoring of substances;

(

c) determine the manner in which a report of a release of a substance is to be made and the contents of the report. [ 17 ] The Current Industrial Approval,

article 2, defines the “Scope of Approval” as applying to the “Facility”. Articles 1(t), 1(

v) and Appendix B, define “Facility” as the Boat Harbour ETF. [ 18 ] As the Current Industrial Approval will expire on January 30, 2020, the Mill may not operate after that date without a renewed Industrial Approval under

Part V. That renewal will require satisfactory treatment of effluent. Given s. 3 of the Boat Harbour Act , in order to operate after January 30, 2020, the Mill will need a new effluent treatment facility. [ 19 ] A new effluent treatment facility requires its own Environmental Approval under

Part IV of the Environment Act .

Part IV includes:

PART IV ENVIRONMENTAL-ASSESSMENT PROCESS … No work without approval 32

(1) Until the Minister [of Environment] has notified the proponent in writing that an undertaking is approved, no person shall commence work on the undertaking.

(2) The Minister may impose conditions upon the approval of an undertaking and the proponent shall comply with the conditions if the undertaking proceeds. Registration of undertaking 33 Every proponent of an undertaking shall (

a) register the undertaking with the Minister in the time and manner prescribed by the regulations …. Examination of information 34

(1) After an undertaking is registered pursuant to

Section 33, the Minister shall examine or cause to be examined the information that is provided respecting an undertaking and shall determine that (

a) additional information is required; (

b) a focus report is required; (

c) an environmental-assessment report is required; (

d) all or part of the undertaking may be referred to alternate dispute resolution; (

e) a focus report or an environmental-assessment report is not required, and the undertaking may proceed; or (

f) the undertaking is rejected because of the likelihood that it will cause adverse effects or environmental effects that cannot be mitigated.

(2) The Minister shall notify the proponent, in writing, of the decision pursuant to subsection (1), together with reasons for the decision, within the time period prescribed by the regulations. … [ 20 ] Northern Pulp has applied, under

Part IV, for approval of the design, construction and operation of a new effluent treatment facility (New ETF). The Minister has not yet issued an approval. [ 21 ] According to the judicial

interpretation of s. 35(1) of the Constitution Act, 1982 , before suffering a potential adverse impact to their credibly asserted rights caused by Crown conduct, Aboriginal peoples are entitled to consultation with the Crown and, in appropriate circumstances, to accommodation. Later I will review the authorities on that matter [paras. 94-119] [ 22 ] Northern Pulp’s

Part IV Application triggered the Crown’s consultation with PLFN. The Province’s factum states: 17. The Province is currently engaged in active consultation with the PLFN regarding the Pending ETF Application. The Province has confirmed at least $70,000.00 in capacity funding to support PLFN’s meaningful participation in the process. The Province’s factum says (para. 18) the consultation “remains on-going and will continue throughout the Pending ETF Application”. [ 23 ] The current consultation focuses on the physical impact of the design, construction and operation of the proposed New ETF.

PLFN has expressed concern about the discharge of effluent that is proposed for the New ETF. [ 24 ] As the New ETF would handle fluid emissions in a marine environment, the current consultation does not encompass the Mill’s airborne emissions. The Province acknowledges that its consideration of a new

Part V Industrial Approval, once Northern Pulp applies for it, would trigger consultation with PLFN that includes airborne emissions. The Province’s factum says:

22. There is no dispute that when Northern Pulp takes the required steps to seek a new or amended Industrial Approval to permit continued operation of the Abercrombie Mill beyond January 30, 2020, that further consultation between the PLFN and the Province that may be required as part of that future regulatory process can address any changes in Mill operations beyond that date, including regulatory controls regarding air emissions. [ 25 ] Then there is the nub of this litigation.

The Province has discussed with Northern Pulp the prospect of Crown funding that Northern Pulp may apply toward the design, engineering, environmental assessment and capital cost of the New ETF. During PLFN’s consultations for the New ETF, PLFN learned of these discussions. However, PLFN had no access to the documents between the Province and Northern Pulp that reflected the discussions’ progress. [ 26 ] On January 11, 2018, PLFN’s solicitor wrote to Nova Scotia’s Office of Aboriginal Affairs. That Office coordinates the Province’s approach to Aboriginal issues.

The letter asked that the consultation embrace “the decision to fund the effluent facility”. The letter explained PLFN’s reasons: However, the decision to provide funding to Northern Pulp to allow it to build a new treatment facility is also a decision that triggers consultation because of the potential impact that decision could have on Pictou Landing First Nation, impacts that are over and above the potential impacts of the new treatment facility itself.

Specifically, by providing government funds to Northern Pulp as requested the government will be allowing Northern Pulp to extend the operation of the mill beyond January 30, 2020. After that date, the mill must cease operations if no alternative treatment facility is available. By providing funds to Northern Pulp for the purposes of building a new treatment facility, the Province would be prolonging the operating life of the mill.

As noted in previous correspondence, the focus of Pictou Landing First Nation to date has been on the impact of the Boat Harbour treatment facility which is located in close proximity to the community. With the Boat Harbour treatment facility closed, odors and other nuisances emanating from that facility will be eliminated.

However, there is reason to believe that some odors and contaminants, including Sulphur compounds and particulates, will be carried from the mill’s stacks at Abercrombie Point to the reserve lands of the Pictou Landing First Nation and to other areas in and around Pictou County frequented by members of the Pictou Landing First Nation, including fishing areas within the Northumberland Strait.

To the extent that the foregoing is true, extending the operational life of the mill beyond January 30, 2020 will result in continued contamination of the air to which Pictou Landing First Nation members are exposed beyond January 30, 2020. On the other hand, should the Province decide not to provide funding for the new effluent treatment facility, the mill will need to cease operations. For this reason, we take the position that the decision to provide funding to Northern Pulp triggers a separate duty to consult with Pictou Landing First Nation. This impacts the scope of the consultation.

If we were to limit the consultation to the impacts of the new treatment facility only – the construction, the structure itself and the ongoing discharge of effluent, we would only focus on the marine environment and we would miss the adverse impacts from the air emissions from the mill itself.

Accordingly, Pictou Landing First Nation seeks the acknowledgement of the Province that the scope of the consultation includes the decision to provide financial assistance to Northern Pulp and all adverse impacts related to the continued operation of the mill beyond January 30, 2020. [ 27 ] By a letter of February 26, 2018, Beth Lewis, a Consultation Advisor with the Office of Aboriginal Affairs, replied to PLFN’s solicitor. Her letter conveyed to PLFN the Province’s position on several matters.

The letter also denied PLFN’s request for consultation on funding: The current active consultation is focused on potential physical impacts to Aboriginal and Treaty rights associated with the design, construction, and operation of the proposed ETF. The intent of the ETF is to mitigate or eliminate harm to the environment by the industrial operation of the Mill. A decision by the Province in regard to any funding of the ETF does not create a new impact on Aboriginal or Treaty rights.

The Province may provide information to PLFN in the event any decision regarding funding is made, in keeping with the spirit of maintaining transparent communication on the project. [ 28 ] On April 4, 2018, PLFN filed a Notice for Judicial Review with the Supreme Court of Nova Scotia.

The Notice cited s. 35(1) of the Constitution Act, 1982 and challenged the Province’s refusal “to consult with and, if necessary, accommodate [PLFN] regarding the [Province]’s pending decision to provide financial assistance to Northern Pulp … for the construction of a proposed effluent treatment facility”. [ 29 ] PLFN and the Province treated the court application as a judicial review of the ruling by Ms. Lewis on behalf of the Office of Aboriginal Affairs. On a judicial review, Civil Procedure Rule 7.09(1)(

a) requires the decision-making authority to file with the Court “a complete copy of the record”. The “Record of the Respondent (Nova Scotia Minister of Aboriginal Affairs)”, filed by the Province, comprised only two items: the letter of January 11, 2018 from PLFN’s counsel and Ms. Lewis’ reply of February 26, 2018. [ 30 ] In support of the application, PLFN’s Chief Andrea Paul filed an affidavit dated June 13, 2018. Her Affidavit included: 2.

I am advised by Gary Porter, Executive Director, Corporate Initiatives at the Nova Scotia Department of Transportation and Infrastructure Renewal, and do verily believe, that the Province of Nova Scotia (“Nova Scotia”) is negotiating with Northern Pulp Nova Scotia Corporation (“Northern Pulp”) on the sharing of costs for a new effluent treatment facility (the “New Treatment Facility”) and pipeline (the “New Pipeline”) for Northern Pulp’s existing pulp mill at Abercrombie, Nova Scotia (the “Mill”).

It is my understanding based on various discussions with representatives of Northern Pulp and the Province that without Provincial funding, the New Treatment Facility and the New Pipeline will not be built. …

6. One concern that our community has always had has been the quality of the air that we breathe. We have suffered odors from theBoat Harbour Treatment Facility for 50 years. This has caused constant fear about the effect of this on our health, especially our elders’and children’s health. … 7. With the closure of the Boat Harbour Treatment Facility, one source of these sulphur compounds will be removed – and ourcommunity is thankful for that.

But as we look toward the future we must also be concerned about the long-term impact of the operationof the Mill on our community, including adverse impacts from the airborne contaminants coming from the Mill itself. We have neverhad an opportunity to study and understand these long term impacts as we have to date been so focused on the closure of the BoatHarbour Treatment Facility. 8. However, the Province is now in the process of determining whether to fund the New Treatment Facility and New Pipeline. If itdoes, the Mill will be operating for many years to come.

In deciding whether to fund the New Treatment Facility and New Pipeline, webelieve that the Province must take into account the potential impact of its decision on Pictou Landing First Nation. It is for this reasonthat we asked for a formal consultation with the Province in respect of this important decision. … [31] Chief Paul’s Affidavit attached as exhibits three studies that discussed the adverse health impacts that may be caused by toxicemissions from pulp and paper facilities such as the Mill.

One was the Stantec Study [above, para. 10]. [32] The Province responded with an affidavit signed by its counsel, filed on July 6, 2018. The Affidavit attached the Mill’s CurrentIndustrial Approval, due to expire January 30, 2020 [above, paras. 16 and 17]. [33] On July 25, 2018, Supreme Court Justice Timothy Gabriel heard the matter. [34] The Province provided no evidence on funding the New ETF. The judge’s record on that topic was confined to the hearsay inChief Paul’s Affidavit, Ms. Lewis’ conclusory letter and the assertions of counsel. The Province’s brief, filed July 6, 2018, said: 7.

The Province has disclosed it is also engaged in confidential discussions directly with Northern Pulp regarding potential crownfunding that may be provided to support construction of the new ETF (the “Potential Crown Funding”). No such decision has yet beenmade. [underlining in Province’s brief] [35] On November 30, 2018, Justice Gabriel issued a decision (2018 NSSC 306) that granted PLFN’s application.

To summarize hisreasoning: • Justice Gabriel described the record as “miniscule”. [para. 9] • The judge and both parties treated the matter as a judicial review of the decision by the Province’s Office of AboriginalAffairs. The judge characterized the issue as whether the duty to consult was triggered and applied a correctness standard. [paras. 55-62] • The judge [para. 48] cited the three elements of the test to trigger the Crown’s duty to consult, stated in Rio Tinto Alcan Inc.v.

Carrier Sekani Tribal Council, 2010 SCC 43 , [2010] 2 S.C.R. 650 [“Carrier Sekani”], per McLachlin C.J.C. for the Court: [31] … This test can be broken down into three elements: (1) the Crown’s knowledge, actual or constructive, of a potential Aboriginalclaim or right; (2) contemplated Crown conduct; and (3) the potential that the contemplated conduct may adversely affect an aboriginalclaim or right. … • The judge noted that the Province did not deny the existence of Carrier Sekani’s first element. [para. 63] • He considered the second and third elements together and framed the issue as “whether the contemplated conduct (which isto say, the potential funding decision) might adversely affect an Aboriginal claim or right so as to trigger a duty to consult”. [para. 63] [36] Justice Gabriel said – Yes, for several reasons: • He considered that Crown funding for a particular design of the New ETF was connected to any “meaningful” consultationon the New ETF that already was underway. [paras. 71-73] • He said that Crown funding of the New ETF might impair at least the appearance of objectivity in the process by which theMinister would later consider whether to give an approval under the Environment Act.

This would implicate the “Honour of the Crown”that governs consultations under s. 35(1) of the Constitution Act, 1982. [paras. 74-77] • He said the Province’s funding decision “will undoubtedly influence ‘higher level’ strategic decision making” that may leadto an adverse impact under Carrier Sekani’s test. [para. 78] • He said “[i]f the Province is to become the lender, not only is it providing the means by which the ETF will be built, but itwill have an interest to insure that the mill will continue to remain in operation into the future so as to at least recover the taxpayers’investment”. [para. 79] • The judge said some environmental standards are discretionary, and provincial funding might affect whether the Ministerapplies minimum or maximum standards for the approvals under the Environment Act. [para. 80] [37] Justice Gabriel concluded: [84] A consideration of the above factors, and others, makes it seem very implausible that a government decision to fund a new effluenttreatment facility less than fourteen months before the statutorily mandated closure of the existing facility and the expiry of the mill’s

industrial approval, would not carry with it a potential for further adverse effect on PLFN’s right to occupy lands already polluted by the Boat Harbour Treatment Facility. The new adverse impacts would include the increased likelihood of a new ETF being built (in the short term) and of the mill remaining open (in the longer term) prompted by (at least the appearance of) the interest of the Province to either recover its investment or profit from it.

Provincial involvement in funding would set the stage for further decisions that have (at the very least) the potential to impact the “strategic, higher level decisions” of the Province in precisely the manner contemplated by [ Carrier Sekani ] (para. 47 ). [85] Finally, the bifurcation of issues (“design and construction” from the “actual funding” of the ETF) artificially compartmentalizes a process which, in my view, should be treated more holistically. [86] One (obvious) example, arises from the legitimate concern on the part of PLFN (presumably the Province as well – hence the consultation with respect to the design and construction) about the potential for deleterious effects upon the environs, which could potentially result from an inadequate design of the ETF.

Separation of the potential funding issue would result in the loss of an opportunity for the two sides to discuss whether the financing (if it was to be provided by the Province) should or could be tied into a system of penalties and/or rewards for achieving and/or failing to achieve proposed emission or effluent discharge targets. This may (potentially) impact upon the likelihood that these targets would be attained. [87] Put differently, and unlike the situation in River Dene [ Buffalo River Dene Nation v.

Saskatchewan (Minister of Energy and Resources) , 2015 SKCA 31 ], it seems clear to me that the parties have plenty to consult about with respect to the topic of the potential Provincial funding of the new ETF. … … [88] The application is granted. The consultations between the parties must necessarily include inter alia whether the Province should fund the construction and design of the ETF and pipeline, and, if so, what form that financing will take. [ 38 ] The Supreme Court’s Order dated January 16, 2019 said: 2.

The Province has a duty to consult with the Applicant regarding potential funding for the construction and design of a proposed effluent treatment facility and pipeline for the kraft pulp mill at Abercrombie Point, Nova Scotia, owned by Northern Pulp Nova Scotia Corporation, including as to the form such funding might take. [ 39 ] On January 22, 2019, the Province filed a Notice of Appeal to this Court.

The Province’s grounds of appeal say the judge “erred in law” by ruling that the Crown must consult respecting funding to Northern Pulp. [ 40 ] The following day, Northern Pulp filed a motion to intervene in the Province’s appeal. On February 20, 2019, Justice Bourgeois of this Court granted the motion.

Her reasons ( 2019 NSCA 12 ) said: [13] I agree that Northern Pulp, as the potential recipient of Crown funds, has a direct interest in whether PLFN must be consulted in discussions of any financial arrangements. [14] I also agree with the submission of Northern Pulp that, as a potential recipient of government funding, it will likely bring a different perspective to the duty to consult than the Crown. [15] In its written submissions, Northern Pulp set out the two positions it seeks to advance as intervenor: 1.

The appeal should be allowed on the ground that the discussions between Northern Pulp and the Crown were settlement discussions in respect of which there is no duty of consultation owed to PLFN; and 2. The appeal should be allowed on the ground that, whether the discussions are characterized as settlement discussions or not, the continued operation of the Mill will not result in the infringement of aboriginal or treaty rights, and consequently no duty of consultation is owed to PLFN. [ 41 ] Northern Pulp gave notice that it wished to adduce fresh evidence.

Under Civil Procedure Rule 90.47(1), fresh evidence is for a panel, not a chambers judge. The issue of fresh evidence was deferred to this Court at the hearing of the appeal. [ 42 ] On February 19, 2019, Northern Pulp filed its motion to adduce fresh evidence.

That evidence comprised the Affidavit of Terri Fraser, Northern Pulp’s Technical Manager, sworn February 15, 2019 and her supplementary affidavit sworn April 5, 2019 that attached a document inadvertently omitted from her earlier Affidavit. [ 43 ] PLFN countered with a motion to add a further Affidavit of Chief Paul, sworn March 4, 2019, as response fresh evidence. Is the Fresh Evidence Admissible? [ 44 ] Ms.

Fraser’s Affidavits say, or attach exhibits that say: • The Province owns and, from 1967 to 1995, operated the Boat Harbour ETF. • On December 1, 1995, the Province and Scott Maritimes Limited, then the owner of the Mill, signed a Memorandum of Understanding (MOU) to restructure their relationship. The MOU’s recitals included a helpful chronology of events to that date. I quote: 1.

As an inducement to encourage the development of the pulp industry in Pictou County, Nova Scotia and to encourage the introduction and expansion of other industries therein, Nova Scotia has agreed to develop and operate an effluent treatment facility at Boat Harbour, Pictou County, Nova Scotia;

2. Scott Paper Company, through a subsidiary, Scott Maritimes Pulp Limited (now Scott), constructed a kraft pulp mill at Abercrombie Point, Nova Scotia (the “Mill”) which went into production on or about the 1 st day of September, 1967; 3. Nova Scotia and Scott entered into an Agreement dated the 30 th day of September, 1970 (the “1970 Agreement”) which sets out the terms and conditions and respective obligations of the parties with respect to the operation and use of the Boat Harbour Effluent Treatment Facility and the supply of water to the Mill; 4.

Pursuant to the 1970 Agreement, Nova Scotia is obliged to provide the Boat Harbour Effluent Treatment facility and supply water to the Mill for which Scott pays a set fee; 5. The 1970 Agreement is for a term of twenty-five (25) years commencing October 1, 1970, and is renewable at the instance of either party, subject to negotiation or arbitration of certain terms; 6. Scott gave notice of renewal of the 1970 Agreement to Nova Scotia on the 24 th day of February, 1995 and such renewal was acknowledged by Nova Scotia by letter dated March 30, 1995; 7.

Pursuant to Section 37(2) of the Fisheries Act (Canada) the Minister of Fisheries and Oceans has required Nova Scotia to submit a plan for the future operation of the Boat Harbour Effluent Treatment Facility and Nova Scotia desires to submit a plan which will result in the immediate closure of part of the Facility and a definitive termination date for the remainder of the Reconfigured Facility;

Article 1.01 of the MOU said that, under the 1970 Agreement with Scott Maritimes, “Nova Scotia constructed and is presently operating the [Boat Harbour Effluent Treatment] Facility”. The MOU referred to a “Reconfigured Facility”, defined as the Effluent Treatment Facility after completion of upgrades prescribed in the MOU. The MOU, articles 4.01(

k) and (

l) said: (

k) Nova Scotia agrees to obtain all required permits, consents, approvals and letters of authorization for the continued operation of the Reconfigured Facility … . (

l) Nova Scotia agrees to use its best efforts to assist Scott [to] obtain all necessary permits, consents and approvals to permit the construction and operation of a replacement effluent treatment facility to replace the Facility at the expiration of the term of the Lease. • One aspect of the restructured relationship was a Lease, dated December 31, 1995, of the Boat Harbour ETF by the Province, as owner, to Scott Maritimes for a term of ten years ending December 31, 2005. • On October 22, 2002, the Province and Kimberly-Clark Inc., the Mill’s successor in title to Scott Maritimes, signed an extension of the Lease to December 31, 2030. • Neenah Paper Company of Canada was the Mill’s successor in title to Kimberly-Clark. • In 2008, Northern Pulp acquired the Mill from Neenah. • On May 12, 2008, the Province signed an Acknowledgement Agreement that the benefits of the 1995 MOU and Lease and the 2002 lease extension accrued to Northern Pulp and “shall continue to apply with respect to the ongoing operation of the Effluent Treatment System”.

The Acknowledgement Agreement specified that the terms identified on

Schedule A “shall operate for the full benefit of Purchaser” (defined as Northern Pulp and its affiliates).

Schedule A listed

article 4.01(

k) of the MOU, quoted above, that “Nova Scotia agrees to obtain all … approvals … for the continued operation of the Reconfigured Facility … .” • Northern Pulp was not consulted in advance about the Boat Harbour Act . Rather “Northern Pulp was merely advised on or about April 15, 2015 that the bill would be introduced in the House of Assembly on April 16, 2015”. • Northern Pulp has notified the Province that Northern Pulp claims compensation for the early termination of the Lease (January 30, 2020 instead of December 31, 2030) as a result of the Boat Harbour Act . Ms.

Fraser’s Affidavit says: “Northern Pulp and the Province have been engaged in discussions on the amount and form of such compensation since 2016.” • Northern Pulp and the Province have signed an Agreement dated December 28, 2016, and an Amendment dated September 27, 2017, that provide reimbursement by the Province to Northern Pulp for engineering, design and environmental assessment expenses for the New ETF. The Minister of Transportation and Infrastructure Renewal signed for the Province.

The Agreement and Amendment provide: o “The Province shall reimburse Eligible Expenses incurred by Northern Pulp … after December 1, 2016” provided the expenses include no markup, overhead, profit or management fee or salaries, and are not already reimbursable by another public authority. [art. 3.01] o Northern Pulp’s reimbursable Eligible Expenses include Northern Pulp’s reasonable costs for the design and engineering of the New ETF (up to $300,000.00), for the Environmental Assessment (up to $250,000.00), and “other costs approved by the Province in writing”. [arts. 1.02, 2.01, and Amending Agreement, art. 2] o Northern Pulp’s accounts for Eligible Expenses shall include “an approved project progress report”. [art. 3.03] o Accounts are to be sent to the provincial Department of Transportation and Infrastructure Renewal for “approval and payment”. [art. 3.04] o When “approved for payment”, the Province is to pay within 30 days of the Province’s receipt of the account. [art. 3.05]

o Except as required by law, regulatory or judicial authority, Northern Pulp “shall keep private and confidential and not make public or divulge any information or material relative to this Agreement without having first obtained the written consent of the Province”. [art. 6.01] • On December 13, 2017, the Province, by the Minister of Transportation and Infrastructure Renewal, and Northern Pulp signed an Agreement providing that the Province would reimburse Northern Pulp’s detailed design and engineering costs, up to $8 million, for the New ETF.

The Agreement included the terms for approvals by the Province and confidentiality by Northern Pulp as set out above for the Agreement of December 28, 2016 as amended on September 27, 2017.

The December 13, 2017 Agreement also said: 5.02 The parties agree that all or any part of any contribution made by the Province to Northern Pulp under the terms of this Agreement will, at the option of the Province, be considered as a contribution to the capital cost of a replacement facility for the Boat Harbour Effluent Treatment Facility, should the Province agree to contribute to such a replacement; or be set-off against any future award Northern Pulp may be granted for damages against the Province in any respect.

In no event will Northern Pulp be required to repay any amount contributed by the Province under this Agreement, unless a contribution has been made to Northern Pulp contrary to the provisions of this Agreement. [bolding added] [ 45 ] I will refer to the Agreement of December 28, 2016, the Amendment of September 27, 2017 and the Agreement of December 13, 2017 together as the “Funding Agreements”. [ 46 ] PLFN objects to Northern Pulp’s fresh evidence but, if the evidence is admitted, submits a reply Affidavit of Chief Paul sworn March 4, 2019.

Chief Paul gives PLFN’s perspective on the Boat Harbour ETF’s chronology that is set out in Ms. Fraser’s Affidavit. It also states how PLFN learned of the Province’s role in funding and design of the New ETF. The Affidavit includes: • The Memorandum of Understanding dated December 1, 1995 between Her Majesty in right of the Province and Scott Maritimes Limited that is also attached to Ms.

Fraser’s Affidavit; • A Report dated February 16, 1998, prepared for the Province, which Chief Paul cites as supporting her view that PLFN had Aboriginal title to the lands across on which the Boat Harbour ETF’s pipeline was built. • The Boat Harbour ETF has “created devastating environmental conditions in Boat Harbour, contrary to assurances given by the Province before it was built”, after which PLFN “has been in various negotiations and discussions with the Province of Nova Scotia since 1967 in an effort to have the environmental problems associated with Boat Harbour addressed”. • A letter dated February 12, 1991, from the Hon.

John G.

Leefe, Provincial Minister of Environment, to the Federal Minister of Indian Affairs and Northern Development, copied to PLFN’s lawyer, confirmed the Province’s “commitments” to discontinue the Boat Harbour ETF and return Boat Harbour waters to their natural tidal regime by approximately November 1995. • Correspondence confirming that, in September 1995, the Province and PLFN agreed that the Boat Harbour ETF could continue for a further ten years to December 2005, in return for the Province’s agreement that the Boat Harbour ETF would be discontinued by December 31, 2005. • In 2001, PLFN and Kimberly-Clark Inc., the Mill’s new owner, agreed that, instead of closing the Boat Harbour ETF, Kimberly-Clark would, by December 31, 2005, build a new pipeline that would bypass Boat Harbour. • Nonetheless, on October 22, 2002, the Province and Kimberly-Clark Inc. extended the Lease of the Boat Harbour ETF (with its existing pipeline) to December 31, 2030. • The Boat Harbour bypass pipeline was not built. • On January 2, 2006, PLFN and Neenah Paper Company (which had acquired the Mill from Kimberly-Clark) signed an Agreement to extend the deadline for building the bypass pipeline to December 31, 2008. • In June 2008, Neenah Paper conveyed the Mill to Northern Pulp.

Northern Pulp asked PLFN for a further extension of the date for the bypass pipeline. • PLFN refused to grant a further extension, citing adverse environmental effects on its community. • On December 2, 2008, PLFN’s then Chief Francis-Muise met with the Province’s: Minister of Justice and Aboriginal Affairs, the Hon. Michael Baker; Minister of Natural Resources, the Hon. David Morse; and Minister of Transportation and Infrastructure Renewal, the Hon. Murray Scott. At the meeting, Chief Francis-Muise was told the Province would close the Boat Harbour ETF.

This was confirmed by a letter dated December 4, 2008 from Minister Scott, copied to the others and to Northern Pulp. The letter included: As Minister Baker so graphically stated: “To say that the Band has been long suffering would be a masterful understatement of the obvious.” It is our unwavering intention to end that suffering as quickly as possible. It should have been done long ago. Our first step will be to find another discharge location for mill effluent that does not involve Boat Harbour. We will then clean the harbour and return it to a tidal state.

Achieving our mutual goal of relocating the Boat Harbour Effluent Treatment Facility will take time to complete as there is a massive amount of work involved. The band has been incredibly patient with time expended on attempts so far. … Let me make our government’s position perfectly clear. We believe your community has suffered from the negative effects of the Boat

Harbour Treatment Facility for far too long. We are fully committed to ending that suffering as quickly as it is practical to do so. • In June 2009, after an election, there was a new Provincial Government. • Chief Paul’s Affidavit says “[f]ollowing that election Pictou Landing First Nation was advised that the new governmentwas studying the matter and in 2010 was advised that the Province would not close the Boat Harbour Treatment Facility.” • In September 2010, PLFN sued the Province and Northern Pulp. The 57-page statement of claim is an exhibit to ChiefPaul’s Affidavit.

The lawsuit claims interference with Aboriginal and Treaty rights to land, water and riparian rights, breach of contract,fraudulent and negligent misrepresentation, nuisance and escape of dangerous substance, trespass, failure to consult and accommodateand breach of accommodation, violation of Aboriginal title with the pipeline, negligence, breach of fiduciary duty and duty of good faith.The action seeks declarations of rights, injunctions and damages. • After a breakage in the effluent pipeline in 2014, the Province and PLFN agreed the Province would legislate the closuredate for the Boat Harbour ETF.

Further negotiations led to the enactment of the Boat Harbour Act. • In November 2016, PLFN learned the Province and Northern Pulp were jointly designing a New ETF. In March 2017,PLFN learned that the Province and Northern Pulp were discussing cost sharing of the New ETF. • The PLFN then asked for consultation as set out in counsel’s letter of January 11, 2018 [above, para. 26]. • The Province responded with Ms. Lewis’ letter of February 26, 2018, declining consultation on the matter [above, para.27]. [47] The Province objects to the admission of Exhibits I and J in Ms.

Fraser’s Affidavit and to Exhibit W in Chief Paul’s replyAffidavit. I have not paraphrased those exhibits. The basis of the objections is that the documents are dated after the hearing of July 25,2018 before Justice Gabriel. [48] The Province accepts that the other fresh evidence offered by Northern Pulp and PLFN should be admitted. The Province’sfactum says: 81. In

summary, the Province does not object to the fresh evidence that has been filed by these parties that was not otherwise includedin the Record and that pre-dates the hearing date of July 25, 2019 [sic – 2018], as additional background information beyond the Record. … 83.

The evidence is generally credible and in admissible form and speaks to a “decisive or potentially decisive” issue raised by thelower court in the JR [judicial review] Decision, by providing further background information and perspective as to the nature of thePotential Crown Funding (i.e. “funding” to be provided to Northern Pulp that can defray costs relating to the new ETF was not a loan orfinancing with the Province as a lender, and could be set-off against any future finding or agreement with the Province flowing from theeffective termination of Northern Pulp’s land lease as of January 30, 2020). [bolding added] [49] Northern Pulp objects to Chief Paul’s Affidavit as (1) irrelevant, because it addresses historical events rather than the impact ofthe New ETF, and (2) inadmissible on appeal as, with due diligence, the evidence could have been offered at the hearing before JusticeGabriel. [50] In my view, the fresh evidence offered by both Northern Pulp and PLFN should be admitted, except for

(1) Exhibits I and J inMs. Fraser’s Affidavit and Exhibit W in Chief Paul’s Affidavit, as they post-dated the hearing before the reviewing judge, and (2) theidentifying paragraphs for those three exhibits. [51] My reasons are these. [52] Civil Procedure Rule 90.47(1) permits this Court to admit fresh evidence of “special grounds”. This Court has approved twocategories of special grounds. The first is relevant evidence that was omitted despite the parties’ due diligence in the lower court.

Thesecond relates to critical matters of process and fairness in the court or tribunal below. [53] Palmer test: The first category embodies the well-known Palmer test. The evidence may be admitted if the applicant exerciseddue diligence in an effort to adduce the evidence at the court or tribunal of first instance, and the evidence is relevant, credible, couldreasonably have affected the result and is in admissible form: Palmer v. The Queen, (SCC), [1980] 1 S.C.R. 759, p. 775;Armoyan v. Armoyan, 2013 NSCA 99, leave to appeal denied [2013] S.C.C.A.

No. 446, para. 131. [54] Here, Northern Pulp’s fresh evidence is in admissible form and credible. As I will discuss, the evidence is relevant andreasonably could have affected the result. [55] This leaves Palmer’s due diligence criterion. [56] That criterion is poorly suited to the situation of an appellate intervenor. The intervenor was not a party and had no opportunityto adduce evidence in the court below. Northern Pulp addresses the point by saying PLFN “should” have named Northern Pulp as aparty. This submission would shift the failure of diligence to PLFN.

PLFN replies that, under s. 35(1) of the Constitution Act, 1982,consultation is a matter inter se between the Crown and the Aboriginal group, and PLFN was not legally required to name Northern Pulp.

[57] In my view, a debate about who “should” have been named in the Supreme Court is unhelpful. • The “ultimate legal responsibility for consultation and accommodation rests with the Crown” and “[t]he honour of theCrown cannot be delegated”: Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73 , [2004] 3 S.C.R. 511, para.53, per McLachlin C.J.C. for the Court.

The Chief Justice (paras. 52, 56 and 80) said the private party “cannot be held liable for failingto discharge the Crown’s duty to consult and accommodate” and, on that basis, the Supreme Court allowed the private loggingcompany’s appeal against Haida Nation. Here, the true “parties” to the s. 35(1) consultation were the Province and PLFN. PLFN was notlegally required to sue Northern Pulp as a respondent. • The course for an interested party who is not sued is intervention.

Had Northern Pulp moved to intervene in the courtbelow, likely its motion would have been granted, as Justice Bourgeois ordered in the Court of Appeal. See, for instance, Carrier Sekani,where Rio Tinto Alcan actively participated as an intervenor. Northern Pulp learned of PLFN’s Supreme Court application shortly afterits filing yet made no motion to Justice Gabriel.

If Northern Pulp felt it “should” have been a party, it should have moved to intervene. [58] On the other hand, if Palmer’s due diligence criterion is simply dropped, then an appellate intervenor may adduce any credibleand relevant evidence, in admissible form, that may reasonably be expected to affect the result. The appeal would become a de novoproceeding. [59] That is not the law. In Mikisew Cree First Nation v.

Canada (Minister of Canadian Heritage), 2005 SCC 69 , [2005] 3S.C.R. 388, Justice Binnie for the Court said: 40 … It is always open to an intervener to put forward any legal argument in support of what it submits is the correct legal conclusionon an issue properly before the Court, provided that in doing so its legal argument does not require additional facts, not proven inevidence at trial or raise an argument that is otherwise unfair to one of the parties.

An intervener is in no worse a position than a partywho belatedly discovers some legal argument that it ought to have raised earlier in the proceedings but did not … . 41 Even granting that the Mikisew can fairly say the Attorney General of Alberta frames the non-infringement argument differentlythan was done by the federal Minister at trial, the Mikisew have still not identified any prejudice. [citations omitted, bolding added] [60] Normally, the intervenor takes the evidence as it appears on the record but can advance a new argument that does not causeunfairness to an existing party. [61] In my view, the Palmer test does not assist Northern Pulp’s fresh evidence motion. [62] Wolkins test: Northern Pulp’s motion turns on the second type of “special ground” for admitting fresh evidence on appeal.

In R.v. Wolkins, 2005 NSCA 2, Justice Cromwell said: [61] The other category of fresh evidence concerns evidence directed to the validity of the trial process itself or to obtaining an originalremedy in the appellate court. In these sorts of cases, the Palmer test cannot be applied and the admissibility of the evidence depends onthe nature of the issue raised. For example, where it is alleged on appeal that there has been a failure of disclosure by the Crown, thefocus is on whether the new evidence shows that the failure may have compromised trial fairness: see R. v. Taillefer; R. v.

Duguay,2003 SCC 70 , [2003] 3 S.C.R. 307 at paras. 73-77 … . [bolding added] To similar effect: Nova Scotia (Community Services) v. T.G., 2012 NSCA 43, para. 79, leave to appeal refused [2012] S.C.C.A. No. 237. [63] Under the Wolkins test, the evidence must still be credible and in admissible form. The Affidavits of Ms. Fraser and Chief Paulsatisfy those criteria. Further, the evidence must be relevant to the cited concern of process and fairness. Here, the concern is whether theProvince failed to disclose to PLFN, Ms.

Lewis and Justice Gabriel, evidence in the Province’s possession that was pivotal todetermining the appropriate scope of consultation with PLFN. [64] Wolkins mentioned “failure of disclosure by the Crown” as an example of a process concern that supported the admission offresh evidence. Justice Cromwell cited R. v.

Taillefer, which discussed inadequate Crown disclosure that would impair the accused’sright to full answer and defence in a criminal case. [65] In my view, similar considerations govern inadequate Crown disclosure respecting consultation under s. 35(1) of theConstitution Act, 1982. [66] Extrinsic evidence may be admitted to assess the appropriate scope of Aboriginal consultation that is required by the honour ofthe Crown: Sipekne’katik v. Nova Scotia (Minister of Environment), 2016 NSSC 260, paras. 21-24 and authorities there cited; Tsuu T’inaNation v. Alberta (Environment), 2008 ABQB 547, para. 28; Donald J.M.

Brown, Q.C. and the Honourable John W. Evans, JudicialReview of Administrative Action in Canada (Toronto: Carswell, 2009), para. 6.5300, and authorities cited at note 425. Adequatedisclosure inheres in the honour of the Crown as liberally defined by the Chief Justice in Haida Nation, supra, paras. 16, 25 and 42, andTaku River Tlingit First Nation v. British Columbia (Project Assessment Director), 2004 SCC 74 , [2004] 3 S.C.R. 550, paras.23-24 [below, paras. 98-103].

Adequate disclosure is necessary both for meaningful consultation and so a court may assess whether theCrown’s duty to consult is triggered. [67] Generally, on a judicial review, extrinsic evidence may be admitted to add the necessary background, remedy inadequatedisclosure and address the absence of evidence on a central factual issue: Association of Universities and Colleges of Canada v.Canadian Copyright Licensing Agency, 2012 FCA 22, para. 20. This is especially so in a judicial review that follows an atypicallyrestricted production of relevant information: e.g. Nova Scotia (Attorney General) v.

Judges of the Provincial Court and Family Court ofNova Scotia, 2018 NSCA 83, paras. 74-77 (leave to appeal granted by the Supreme Court of Canada). [68] A Consultation Advisor in the Office of Aboriginal Affairs is not a typical administrative tribunal. The Office is part of aProvincial Department and coordinates the Province’s approach to Aboriginal affairs. Ms. Lewis’ letter of February 26, 2018 conveyed to

PLFN the Province’s position on several matters. After denying PLFN’s request for consultation on funding, her letter continued: … The Province may provide information to PLFN in the event any decision regarding funding is made, in keeping with the spirit of maintaining transparent communication on the project. … The Province recognizes the need for capacity funding … .

The Province further recognizes the desire for PLFN to engage subject matter experts … . [T]he Province commits to providing up to $70,000 in funding to PLFN ... . [T]he Province remains open to considering future funding requests. [bolding added] We have no record of any instructions Ms. Lewis would have received on the matters for which she conveyed the Province’s positions. A Consultation Advisor has no legal independence and is not statutorily authorized to make a binding adjudication on issues between PLFN and the Province. Ms. Lewis neither conducted a “hearing” nor received “evidence”.

She was the Province’s spokesperson, not an arbiter of constitutional disputes. [ 69 ] It is simply incongruous to treat the two letters to and from Ms. Lewis as a complete and impervious “judicial review record” on this complex and important issue. [ 70 ] In

summary, under the Wolkins approach, this Court may remedy inadequate Crown disclosure by admitting fresh evidence that is relevant to whether consultation is triggered under s. 35(1) of the Constitution Act, 1982 . [ 71 ] Was disclosure inadequate here?

The circumstances were: • The Province and Northern Pulp signed the Funding Agreements on December 28, 2016, September 27, 2017 and December 13, 2017. • The Funding Agreements were not provided to PLFN. • PLFN heard of the potential Provincial funding from a Provincial employee. • Armed only with hearsay, PLFN’s lawyer wrote to the Nova Scotia Office of Aboriginal Affairs on January 11, 2018. • PLFN’s request to Ms. Lewis and later application for judicial review did not afford the more rigorous pre-trial disclosure that governs a trial in the Supreme Court. PLFN had no access to the Funding Agreements. • Ms.

Lewis made the decision from which judicial review has been taken. She was not given the Funding Agreements.

We know this because the Province’s Judicial Review Record to Justice Gabriel did not include the Funding Agreements, despite Rule 7.09(1)(a)’s requirement that the reviewing court be provided with a “complete copy of the record” before the decision-maker. • Justice Gabriel was not given the Funding Agreements in what he described as a “miniscule” record prepared by the Province. • Justice Gabriel was left to draw inferences from the hearsay in Chief Paul’s Affidavit and the unsworn statements in the argument of counsel. The Province’s brief, filed July 6, 2018, said: 7.

The Province has disclosed it is also engaged in confidential discussions directly with Northern Pulp regarding potential Crown funding that may be provided to support construction of the new ETF (the “Potential Crown Funding”).

No such decision has yet been made. [underlining in Province’s brief] • From the signed Funding Agreements that reimbursed Northern Pulp’s Eligible Expenses incurred after December 1, 2016, it is apparent that, by the time of the proceeding before Justice Gabriel, the Province and Northern Pulp had moved beyond mere “discussions”. • From his record, Justice Gabriel inferred the Province was considering whether to lend money to Northern Pulp. His reasons said: [63] The Province does not deny that the first element set forth in Carrier Sekani “knowledge of a potential Aboriginal claim or right” exists.

Rather it maintains that the central issues concern the second and third elements.

These latter, taken together, raise the question of whether the contemplated conduct (which is to say, the potential funding decision ) might adversely affect an Aboriginal claim or right so as to trigger a duty to consult. … [79] … If the Province is to become the lender , not only is it providing the means by which the ETF will be built, but it will have an interest to insure that the Mill will continue to remain in operation into the future so as to at least recover the taxpayers’ investment. [bolding added] • The funding decision was no longer “potential”, nor was the Province a “lender”.

Rather, the Province had already made non-recoverable payments for approved items of design, engineering and environmental assessment either toward settlement or reduction of damages in a potential lawsuit by Northern Pulp or, at the Province’s option, toward the capital cost of the New ETF.

• The Province’s factum to this Court chastises the reviewing judge for “speculation” about the potential adverse impact and for finding there would be a lending relationship without evidence. • The Province’s factum was filed after Northern Pulp filed its motion to adduce the fresh evidence, which included the Funding Agreements as exhibits.

The Province (factum, para. 83) now acknowledges that Northern Pulp’s evidence, including the Funding Agreements, “speaks to a ‘decisive or potentially decisive’ issue” and should be admitted. [ 72 ] This matter proceeded through the reviewing court without the Funding Agreements. The Funding Agreements would have affected the analysis of the central issue. Later I will explain how. [ 73 ] I would admit Ms. Fraser’s two Affidavits under the Wolkins test. I would exclude Exhibits I and J of the Affidavit and the identifying paras. 15-16.

Those exhibits were dated after the hearing before the reviewing judge and could not have been tendered on the judicial review. [ 74 ] PLFN’s fresh evidence: Chief Paul’s Affidavit is offered in reply to Northern Pulp’s fresh evidence. As Binnie J. said in Mikisew , supra , an intervention should not prejudice or unfairly affect an existing party. [ 75 ] Ms. Fraser’s Affidavit recites the chronology of the Boat Harbour ETF and attaches exhibits citing events back to the 1960s. That is the historical evidence that is relevant from Northern Pulp’s perspective.

It is fair that PLFN be permitted to do the same, from its perspective. [ 76 ] Northern Pulp’s fresh evidence is tendered in support of Northern Pulp’s submissions on the merits of the appeal. Its submissions extend beyond those of the Province, even to challenge a concession made by the Province on one of Carrier Sekani ’s elements. It is fair that PLFN be permitted to adduce reply evidence of its choosing to support its responding submissions. [ 77 ] I would admit Chief Paul’s Affidavit, except for Exhibit W and its identifying para. 42.

That is because Exhibit W was dated after the judicial review hearing before Justice Gabriel. Issue on the Appeal [ 78 ] Did the judge err in law by ruling that the Crown was obliged to consult with PLFN respecting the prospect that the Province may provide funds to Northern Pulp for the New ETF? Given the admission of the fresh evidence, the issue focuses on the impact of the Funding Agreements.

Standard of Review [ 79 ] In Carrier Sekani , McLachlin C.J.C. for the Court discussed the standards of review for issues of consultation with Aboriginal groups: [64] Before leaving the role of tribunals in relation to consultation, it may be useful to review the standard of review that courts should apply in addressing the decisions of tribunals. The starting point is Haida Nation , at para. 61 : The existence or extent of the duty to consult or accommodate is a legal question in the sense that it defines a legal duty. However, it is typically premised on an assessment of the facts.

It follows that a degree of deference to the findings of fact of the initial adjudicator may be appropriate… . Absent error on legal issues, the tribunal may be in a better position to evaluate the issue than the reviewing court, and some degree of deference may be required. In such a case, the standard of review is likely to be reasonableness . To the extent that the issue is one of pure law, and can be isolated from the issues of fact, the standard is correctness. However, when the two are inextricably entwined, the standard will likely be reasonableness. … … [78] … Questions of law must be correctly decided.

The question before us is a question of mixed fact and law. It falls between the legislated standards and thus attracts the common law standard of “reasonableness” as set out in Haida Nation and Dunsmuir v. New Brunswick (Board of Management) v. Dunsmuir , 2008 SCC 9 , [2008] 1 S.C.R. 190. … [93] I conclude that the Commission took a correct view of the law on the duty to consult and hence on the question before it on the application for reconsideration. It correctly identified the main issue before it as whether the 2007 EPA had the potential to adversely affect the claims and rights of the CSTC First Nations.

It then examined the evidence on this question . It looked at the organizational implications of the 2007 EPA and at the physical changes it might bring about. It concluded that these did not have the potential to adversely impact the claims or rights of the CSTC First Nations. It has not been established that the Commission acted unreasonably in arriving at these conclusions. [bolding added] [ 80 ] In Haida Nation , before the passage quoted in Carrier Sekani , McLachlin C.J.C. for the Court said: 61 On questions of law, a decision-maker must generally be correct : for example, Paul v.

British Columbia (Forest Appeals Commission) , [2003] 2 S.C.R. 585, 2003 SCC 55 . On questions of fact or mixed fact and law, on the other hand, a reviewing body may owe a degree of deference to the decision-maker . The existence or extent of the duty to consult or accommodate is a legal question in the sense that it defines a legal duty. However, it is typically premised on the assessment of the facts. It follows that a degree of deference to the findings of fact of the initial adjudicator may be appropriate.

The need for deference and its degree will depend on the nature of the question the tribunal was addressing and the extent to which the facts were within the expertise of the tribunal: Law Society

of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, 2003 SCC 20; Paul, supra. Absent error on legal issues, the tribunal may be in abetter position to evaluate the issue than a reviewing court, and some degree of deference may be required. In such a case, thestandard of review is likely to be reasonableness. To the extent that the issue is one of pure law, and can be isolated from theissues of fact, the standard is correctness. However, where the two are inextricably entwined, the standard will likely bereasonableness: Canada (Director of Investigation and Research) v.

Southam Inc., (SCC), [1997] 1 S.C.R. 748. [bolding added] To similar effect: Mi’kmaq of P.E.I. v. Province of P.E.I., 2018 PESC 20, paras. 60-63; Ahousaht Indian Band v. Canada (Minister ofFisheries and Oceans), 2008 FCA 212, para. 34; Nova Scotia (Attorney General) v. Nova Scotia (Utility and Review Board), 2019 NSCA66, paras. 30-32. [81] The passages from Haida Nation and Carrier Sekani discussed the judicial review of an administrative decision, meaning thechoice was correctness or reasonableness under Dunsmuir. [82] PLFN initiated this litigation with a Notice for Judicial Review.

To the reviewing judge, both PLFN and the Province proposedthe judicial review approach. Justice Gabriel accepted that characterization: [55] The parties both begin with the assertion that an application for judicial review is the appropriate mechanism by which to seek adetermination as to whether there has been a breach of the duty to consult. I agree. [83] In the Court of Appeal, the Province, PLFN and Northern Pulp all confirm the judicial review approach.

No party suggestedthis was a direct claim by PLFN against the Province, or that the Court of Appeal should apply the appellate standard for a direct claim –i.e. correctness for legal issues or palpable and overriding error to issues of fact or mixed issues with no extractable legal error – to thedecision of Justice Gabriel. [84] I will apply the judicial review approach. This involves an appellate standard to Justice Gabriel’s ruling and a reviewingstandard to Ms. Lewis’s letter. [85] In Agraira v.

Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 , [2013] 2 S.C.R. 559, LeBel J. forthe Court defined the appellate standard: [46] In Merck Frosst Canada Ltd. v.

Canada (Health), 2002 SCC 3, [2012] 1 S.C.R. 23, at para. 247, Deschamps J. aptly described thisprocess as “ ‘step[ping] into the shoes’ of the lower court” such that the “appellate court’s focus is, in effect, on the administrativedecision” [47] The issue for our consideration can thus be summarized as follows: Did the application judge choose the correct standard of reviewand apply it correctly? [Deschamps J.’s italics] [86] Was the appropriate reviewing standard to Ms.

Lewis’ letter correctness or reasonableness? [87] The Province’s brief to the applications judge said correctness: The Standard of Review is Correctness … 45. [H]ere, the sole issue is whether a duty to consult is triggered at all. This is a legal determination that was made by anadministrative decision-maker (not the Minister himself, or an adjudicative tribunal) on a threshold question of law that relies on minimalkey facts that are not seriously in dispute. [88] The judge agreed.

Justice Gabriel’s decision said: [59] … here the court is not being asked to review a completed process of consultation replete with an extensive activity record. If itwere, this would ordinarily trigger the application of a more deferential or relaxed standard (one of reasonableness). [60] Rather, in circumstances such as this, the extant case law frames the applicable standard of review as one of correctness. Either theduty to consult exists or it does not. [89] In this Court, all the parties cite correctness: • The Province’s factum: Standard of Review is Correctness 64.

The Province argued in the lower court, and agrees with the JR Decision, that the applicable standard of review to determinethe existence of a duty to consult under s. 35 of the Constitution Act is correctness. 65. This does not appear to be in dispute. As argued, either the duty to consult exists, or it does not. 66. The impugned decision challenged by PLFN was a legal determination that was made by an administrative decision-maker(not the Minister himself, or an adjudicative tribunal) on a threshold question of law that relies on minimal key facts that are notseriously in dispute.

• PLFN’s factum: 35. The parties all agree that whether the duty to consult exists is a question of law and therefore the appropriate standard ofreview by the Court below was correctness. • Northern Pulp’s factum: 29. … The Judge held that the appropriate standard of review was one of correctness: …. Consequently, this Court mustdetermine whether the Judge was correct in holding that a duty of consultation exists. [90] The Province’s Notice of Appeal defines its grounds as whether the applications judge “erred in law”. The List of Issues in theProvince’s factum repeats that phrase for each issue.

The Province’s factum says: 59. The grounds of appeal are all elements of the one central legal issue to be determined when applying the test outlined by theSupreme Court of Canada as to when contemplated Crown conduct may adversely affect an Aboriginal claim or right and trigger a dutyto consult pursuant to s. 35 of the Constitution Act. … 70.

In this appeal, the Province agrees the appropriate standard of review was chosen by the lower court, but that it was appliedincorrectly resulting in an error of law that must be reversed on appeal. [bolding added] [91] The Province characterizes its grounds of appeal as embodying a pure question of constitutional law that invokes correctness. [92] As stated in Haida Nation and Carrier Sekani, a pure legal question on whether consultation is triggered under s. 35(1) of theConstitution Act, 1982 is reviewed for correctness. See also Beckman v.

Little Salmon/Carmacks First Nation, 2010 SCC 53 ,[2010] 3 S.C.R. 103, para. 48, per Binnie J. for the majority. Accordingly, I will apply correctness. That standard would govern whetherthe issue is termed truly jurisdictional or constitutional or of central importance to the legal system in the terminology of Dunsmuir v.New Brunswick, 2008 SCC 9 , [2008] 1 S.C.R. 190, paras. 58-60. [93] Whether there is causation of an adverse impact may involve an issue of fact that would attract a reasonableness standard:Carrier Sekani, paras. 78, 85, 92-93. Here, a deferential standard applied to either Ms.

Lewis’s letter or Justice Gabriel’s ruling would bevirtually unworkable. Neither was given Funding Agreements which are now before this Court as critical fresh evidence. Ms. Lewismade no findings and simply imparted the Province’s position. Justice Gabriel was left to draw inferences, as best he could, from afeeble foundation.

The Legal Principles on Consultation [94] I will start by outlining the general legal principles, as they have evolved, then analyze the submissions that the judge erred. [95] The Constitution Act, 1982 says: 35(1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed. [96] Section 35(1) affirms that before suffering a potential adverse impact, caused by Crown conduct, to their credibly claimedrights, Aboriginal peoples are entitled to consultation with the Crown and, in appropriate circumstances, to accommodation.

Theconditions and scope of the entitlement are governed by principles developed in a series of rulings by the Supreme Court of Canada. [97] Haida Nation (2004): In Haida Nation, supra, the Province of British Columbia issued a Tree Farm Licence in 1961 toMacMillan Bloedel Limited. The license permitted the harvesting of trees on lands claimed by the Haida people. In 1981, 1995 and2000, the Province replaced the previous license with replacement licenses to Weyerhaeuser Company Limited. The Haida Nationchallenged the replacement licenses as having been issued without consultation.

The Supreme Court held that the provincial Crown hadbreached its duty of consultation with the Haida. [98] McLachlin C.J.C. explained the basis for consultation and accommodation and set out the test to trigger the Crown’s duty. Theduty to consult and, if appropriate, accommodate “is grounded in the honour of the Crown”, a term which “is not a mere incantation, butrather a core precept that finds its application in concrete practices”: (Haida Nation, para. 16). The Chief Justice summarized therationale: 25 Put simply, Canada’s Aboriginal peoples were here when Europeans came, and were never conquered.

Many bands reconciled theirclaims with the sovereignty of the Crown through negotiated treaties. Others, notably in British Columbia, have yet to do so. Thepotential rights embedded in these claims are protected by s. 35 of the Constitution Act, 1982. The honour of the Crown requires thatthese rights be determined, recognized and respected. This, in turn, requires the Crown, acting honourably, to participate inprocesses of negotiation.

While this process continues, the honour of the Crown may require it to consult and, where indicated,accommodate Aboriginal interests. [bolding added] [99] The rationale means the duty may apply prospectively to potential Aboriginal rights before those rights have been finallydetermined:

26 Honourable negotiation implies a duty to consult with Aboriginal claimants and conclude an honourable agreement reflecting theclaimants’ inherent rights. But proving rights may take time, sometimes a very long time. In the meantime, how are the interests underdiscussion to be treated? … 27 The answer, once again, lies in the honour of the Crown. The Crown, acting honourably, cannot cavalierly run roughshod overAboriginal interests where claims affecting these interests are being seriously pursued in the process of treaty negotiation and proof. Itmust respect these potential, but yet unproven, interests.

The Crown is not rendered impotent. It may continue to manage theresource in question pending claims resolution. But, depending on the circumstances, discussed more fully below, the honour of theCrown may require it to consult with and reasonably accommodate Aboriginal interests pending resolution of the claim. … … 32 The jurisprudence of this C

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