OTTAWA, ONTARIO, September 21, 2006
PRESENT: The Honourable Mr. Justice von Finckenstein
BETWEEN:
HAROLD LEIGHTON on his own behalf
and on behalf of the METLAKATLA INDIAN BAND, and
GARRY REECE on his own behalf
and on behalf of the LAX KW’ALAAMS INDIAN BAND
and
HER MAJESTY THE QUEEN IN RIGHT OF CANADA,
as represented by
THE MINISTER OF TRANSPORT and
THE ATTORNEY-GENERAL OF CANADA
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of the pending decision of the Minister of Transport (also referred to as “the Crown”) to authorize the conversion of the Fairview Terminal, in Prince Rupert, B.C. seeking both a declaration and an injunction.
[2] The Applicants are two bands as defined by the Indian Act, R.S.C. 1985, c. I-5. These two bands, the Lax Kw’alaams Indian Band and the Metlakatla Indian Band, comprise nine tribes who are collectively known as the Coast Tsimshian. The Coast Tsimshian traditional territory is on the coastal area of northwest British Columbia along and between the Lower Skeena and Nass Rivers. This area is also known as the Prince Rupert Harbour.
[3] The land is Federal Crown land and the Fairview Terminal was built upon some of this land in the 1970’s. The Prince Rupert Port Authority (“PRPA”), a federal port authority, currently manages the property within the Port of Prince Rupert which includes the Fairview Terminal.
[4] PRPA proposes to convert the terminal from a break-bulk facility to a container facility. This conversion would be completed in two phases: Phase I conversion of the facility to a container facility and Phase II a substantial expansion of the port. At this time, only Phase I is beyond the conceptual phase. The conversion would require a 0.72 hectare wharf extension of the current 21.5 hectare footprint. This wharf extension would involve driving piles and dredging.
[5] The land for the current footprint and the wharf extension can be divided into three sections:
1. that part of the footprint built upon land surrendered by the Coast Tsimshian (approximately 5 hectares) (‘the land portion’);
2. that part of the footprint built upon landfill (approximately 17 hectares) (‘the landfill portion’); and
3. the proposed extension of the wharf (‘the water component ’) (0.72 hectares).
[6] The land portion and the landfill portion are also referred to by the Crown as the “Land Component”.
Chronology
[7] On August 30, 2004, the two bands representing the Coast Tsimshian were informed of the proposed conversion of the Fairview Terminal. The Coast Tsimshian requested consultations on March 30, 2005. Correspondence was exchanged and meetings held over the next 18 months as set out in the attached Annex I. Transport Canada took the lead role in the consultations with the Coast Tsimshian on August 2005 (See RR Vol 2 page 340).
Duty to consult
[8] In Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511, 2004 SCC 73, the Supreme Court of Canada articulated a process whereby the Crown has a duty to consult, and accommodate if necessary, when the Crown has knowledge of the potential existence of an Aboriginal right or title and contemplates conduct that may adversely affect the Aboriginal rights or title. This duty arises from the honour of the Crown and section 35 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c.11. (the “Charter”). As McLachlin C.J. stated at para 25,
25 Put simply, Canada's Aboriginal peoples were here when Europeans came, and were never conquered. Many bands reconciled their claims with the sovereignty of the Crown through negotiated treaties. Others, notably in British Columbia, have yet to do so. The potential rights embedded in these claims are protected by s. 35 of the Constitution Act, 1982. The honour of the Crown requires that these rights be determined, recognized and respected. This, in turn, requires the Crown, acting honourably, to participate in processes of negotiation. While this process continues, the honour of the Crown may require it to consult and, where indicated, accommodate Aboriginal interests.
[…]
38 I conclude that consultation and accommodation before final claims resolution, while challenging, is not impossible, and indeed is an essential corollary to the honourable process of reconciliation that s. 35 demands. It preserves the Aboriginal interest pending claims resolution and fosters a relationship between the parties that makes possible negotiations, the preferred process for achieving ultimate reconciliation.
[9] The process set out in Haida, supra, in essence, involves four steps:
1. Full disclosure by the aboriginal claimants setting out their claims including the scope and nature of the rights asserted and the alleged infringement of these rights;
2. A preliminary assessment of the strength of the case and the seriousness of the potentially adverse effect upon the claimed right or title be conducted by the Crown;
3. Meaningful consultation between the parties; and
4. Accommodation, if necessary.
[10] The Supreme Court of Canada was clear that while good faith by the parties is required, there is no duty for them to agree. Furthermore, the scope of the duty may vary depending upon the strength of the claim and the potential for infringement. The information obtained through meaningful consultation may require the Crown to make changes to its proposed action.
[11] In this case the question arises as to whether the Crown properly assessed the claim of the Coast Tsimshian when it started the process of negotiations. As Chief Justice McLachlin stated at para 37 of Haida, supra,
37 There is a distinction between knowledge sufficient to trigger a duty to consult and, if appropriate, accommodate, and the content or scope of the duty in a particular case. Knowledge of a credible but unproven claim suffices to trigger a duty to consult and accommodate. The content of the duty, however, varies with the circumstances, as discussed more fully below. A dubious or peripheral claim may attract a mere duty of notice, while a stronger claim may attract more stringent duties. The law is capable of differentiating between tenuous claims, claims possessing a strong prima facie case, and established claims. Parties can assess these matters, and if they cannot agree, tribunals and courts can assist. Difficulties associated with the absence of proof and definition of claims are addressed by assigning appropriate content to the duty, not by denying the existence of a duty.
Standard of Review
[12] As to the appropriate standard of review the Supreme Court advised in Haida, supra, the Court commented on the standard of review at paragraph 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 an 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 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, where the two are inextricably entwined, the standard will likely be reasonableness: Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748.
[13] Here there is no question as to the existence of a duty to consult, but rather a question of the assessment of the facts to determine the strength and extent of the Applicants’ claim. Based on the foregoing quote from Haida it strikes me as obvious that the issue here, the Crown’s assessment of the Coast Tsimshian’s claim, has to be reviewed on the basis of the standard of reasonableness.
Analysis of the Consultation Process
[14] It is not contested that the Coast Tsimshian’s provided a full disclosure of their claims and the alleged infringement of their claims by the conversion of the terminal at the October 24, 2005, meeting. They presented documents totalling 378 pages consisting of maps, documents and historical studies (See Appendix F of the affidavit of Gary Reece A.R. pp 55 to 433).
[15] The Crown’s position on consultation on the other hand has changed over time as evidenced by the record.
[16] Position 1 On July 25, 2005, the Minister of Transport wrote to counsel for the Coast Tsimshian stating:
I have been informed that in late June Mr. Donald H Krusel, President and Chief executive Officer of the PRPA, contacted departmental officials, explaining that both the Port and the Bands believed formal consultation was not required given that Phase 1, the conversion of Fairview terminal, was not considered a change of use. Transport Canada has requested documented proof from PRPA that the Fairview Terminal conversion does not constitute a change of use. Once Transport Canada receives this information, the department will be able to determine the requirement to consult. (RR Vol 3 page 824)
[17] Position 2 On October 27, 2005, Mr. Robert Prud’homme, chief negotiator on behalf of Transport Canada, outlined the Crown’s position on the consultation process. He stated:
It is Canada’s position that all rights, title and interests of the Bands with respect to the Land Component were absolutely surrendered by the Metlakatla Indian Band on August 17, 1906 and by the Lax Kw’alaams First Nation under the Settlement Agreement dated March 31, 2003. Accordingly, it is our view that the legal obligations of the Crown to consult do not extend to asserted claims of title, interests or rights as against the Land Component.
We acknowledge that the Water Component did not form part of the surrendered interests and we would like to focus our efforts on determining the specific concerns of the Bands with respect to the proposed development in relation to the water area. In that regard, we are currently reviewing the written materials that you presented to us and we would welcome any additional information that you may have or specific items of concern that would assist us in this consultative process.
(AR page 436 and 437)
This was further reinforced by a letter from the Department of Justice counsel of Transport Canada who wrote on November 21, 2005, to the Coast Tsimshian. The applicable parts of the letter regarding the positions of the parties regarding aboriginal title are:
Please be advised that Mr. Prud’homme represents the Crown in the consultations with your clients and that, in short, the consultations are intended to address potential impacts on your client’s asserted aboriginal rights and title claims related to implementation of the Fairview Terminal Conversion project. This is set out in our client’s letter dated October 27, 2005 to your clients, which letter also indicates that the Crown will not be consulting with respect to any asserted aboriginal rights and title claimed in respect of the lands at Fairview Terminal previously surrendered by your clients. (underlining added)
[18] Position III The Respondent’s statement of fact and law states at point 5:
The Fairview Terminal, in existence since the 1970’s was build upon lands previously surrendered by the Bands. Much of the Fairview Terminal’s footprint is below the high water mark; that is, lands created by infill of water sites. The reserved lands do not extend below the high water mark.
R.R. Vol 3 p. 845
[19] The Crown’s position, in short, changed from there was no duty to consult with the Coast Tsimshian to the duty to consult encompassing both the Water Component and most of the Landfill portion.
[20] There is no evidence that the Crown conducted a proper preliminary assessment of the strength of the Coast Tsimshian’s case once being presented on October 24, 2005, with the Coast Tsimshian claim. Mr. Prud’homme’s letter dated October 27, 2005, demonstrates that the Crown’s assessment of the strength of the Coast Tsimshian’s case was not based on any analysis of the evidence the Coast Tsimshian presented at the October 24, 2005, meeting.
[21] It is also an open question whether aboriginal titles were extinguished by the surrender and settlement. This issue is not at all addressed by the Crown in its various positions. If aboriginal title is not extinguished by surrender or settlement, than of course the consultations would encompass the entire land component. However, there is no need for me to address that issue for the following reasons be set out below.
Assessment of Claim
[22] It is impossible to characterize the Crown’s position that only the water component was subject to consultation, as anything but unreasonable. Its own submission concedes that the landfill portion was below the high water mark and therefore could not have been considered part of a surrender or a settlement.
[23] Accordingly, at a minimum, the consultations should have entailed the Water Component and the Landfill Portion. Or put differently rather being based on 0.72 hectares the consultations should have been based on the combined total of 0.72 hectares (the water component) and approximately 17 hectares (the landfill portion). By failing to take this position and insisting on discussing solely the water component the Crown began the entire consultation and accommodation process, essentially a bargaining process, on a skewed basis.
[24] Regardless of the consultations held or the accommodations offered by the Crown, the Supreme Court in Haida, supra, was clear that the focus of the analysis is on the process of consultation and accommodation and not only on the outcome of the consultations. I fail to see how the court can find the consultation and the accommodation offered to be reasonable where the process started out on such a misconception and minimization of the Coast Tsimshian’s claim. Since the accommodation by definition is the product of a negotiation process, reasonable assessment of the claim disclosed by the Coast Tsimshian is required.
[25] Given the finding, the Applicants should ordinarily be granted the relief sought in b) and d) of their Notice of Application, namely:
b) In the alternative, a declaration that Canada has a duty to consult with, and if appropriate accommodate, the Coast Tsimshian regarding the potential adverse impacts from the proposed Fairview Terminal Conversion to Coast Tsimshian aboriginal title and rights upon that portion of the existing Fairview Terminal footprint that lies below the traditional high-water mark.
[…]
d) a declaration that Canada has a duty to consult with, and if appropriate accommodate, the Coast Tsimshian regarding the potential adverse impacts from the proposed Fairview Terminal Conversion to Coast Tsimshian aboriginal title outside the existing Fairview Terminal footprint.
Pending Decision
[26] However, the Applicants, when bringing this application, focused on the wrong decision in framing the Notice of Application. The Notice of Application states:
This is an application for judicial review in respect of the pending decision of the Minister of Transport to authorize the Fairview Terminal Conversion and the consequential duty upon the Crown to consult with, and if appropriate accommodate, the members of the Lax Kw’alaams Indian Band and the Metlakatla Indian Band (hereinafter the “Coast Tsimshian”) regarding the potential adverse impacts of the Fairview Terminal Conversion upon asserted Coast Tsimshian aboriginal title and rights. (underlining added)
[27] The pending decision upon which this application refers does not exist. The Minister of Transport is not required to authorize the conversion. As the lead minister for the project, he leads the consultation process. If the process is successful there will be an offer of accommodation. The Coast Tsimshian may accept it or may go to court to seek judicial review. However there is no decision required for the Minister of Transport to authorize the conversion process. At best he will decide that the offer of accommodation made by the Crown is adequate. However, this application does not concern itself with that decision, which yet has to be made, in any event.
[28] In short I agree with the position of the Crown set out in the reply submission of the Respondents, the salient portions of which are reproduced in Annex II attached hereto.
[29] The Applicants could have focused on the October 27, 2005, decision of Transport Canada, on behalf of the Crown, that the Crown would only consult on the Water Component of the terminal’s conversion in the Notice of Application. The Applicants did not do so nor did they make a motion amending their pleadings to seek judicial review of said October 27, 2005, decision.
[30] In my view this failure by the Applicants’ to properly plead their case is fatal and accordingly, I have no choice but to dismiss this application.
[31] However, I should note that there are other avenues of redress available to the Applicants. First, they can bring a motion requesting an extension of the 30 day filing period and seek to review the decision of October 27, 2005, to only consult on the water component. Second, they can seek judicial review of environmental assessment done pursuant to the Canadian Environmental Assessment Act and the accommodations offered in connection therewith. Third, they can continue to pursue the judicial review application that has already been filed with the Federal Court regarding the April 15, 2005, announcement that $30 million in funding would be provided by the Canadian Government to PRPA for the conversion of the Fairview Terminal.
[32] Given that the Crown’s consultations were unreasonable, yet the application is not granted because of procedural defects, I find that this is not a case where costs should be awarded to either party.
ORDER
THIS COURT ORDERS that this application be dismissed.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-89-06
STYLE OF CAUSE: Leighton et al.
v. Her Majesty the Queen et al.
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: August 22, 2006
REASONS FOR
ORDER AND ORDER: von FINCKENSTEIN J.
DATED: September 21, 2006
APPEARANCES:
|
Gregory J. McDade, Q.C. Maegen Giltrow
|
FOR THE APPLICANTS |
|
Sean Gaudet
|
FOR THE RESPONDENTS |
SOLICITORS OF RECORD:
|
Ratcliff & Company North Vancouver, B.C. |
FOR THE APPLICANTS
|
|
John H. Sims, Q.C. Deputy Attorney General of Canada |
FOR THE RESPONDENTS |
ANNEX I
Chronology of Consultation Correspondence
|
No. |
Date |
Description |
Location and Record |
Summary |
|
1. |
Aug. 30/04 |
Letter from Port |
Ex. “C” Reece Aff., App. Rec. p.49 |
Letter from Port Authority acknowledging First Nation may have an interest in the Fairview Terminal Development Project. |
|
2. |
Mar. 30/05 |
Letter, First Nation counsel to Minister |
Ex. “E” Reece Aff., App. Rec. p. 53 |
Request for consultation. |
|
3. |
May 3/05 |
Letter from Minister to First Nation counsel |
Ex. “D” Prud’homme Aff., Resp. Rec. (Vol. 3) p. 823 |
Assurance Crown will consult. |
|
4. |
July 6/05 |
Letter, First Nation counsel to Minister |
Ex. “G” Reece Aff., Resp. Rec. p. 359 |
Second request to Minister. |
|
5. |
July 25/05 |
Letter from Minister to First Nation counsel |
Ex. “H” Reece Aff., Resp. Rec. P. 361 |
Minister waiting from information from Port before determining the requirement to consult. |
|
6 |
Sept. 14/05 |
Letter from Minister to Council |
Ex. “L” Reece Aff., Resp. Rec. p. 367 |
Minister has instructed department officials “to initiate formal consultation”. Commencement date to be determined “in near future”. |
|
7. |
Sept. 23/05 |
Letter from Council to Minister |
Ex. “M” Reece Aff., Resp. Rec. P. 368 |
Acknowledge consultation will proceed. Requests identification person with “full governmental authority”, Canada’s departments and ministries involved in the project. |
|
8. |
Oct. 3/05 |
Letter from Transport Canada to Lax Kwa’alaams |
Ex. “O” Reece Aff., Resp. Rec. p. 371 |
First letter from R. Prud’homme requesting identification of outstanding issues |
|
9. |
Oct. 17/05 |
Letter, Transport Canada to First Nation counsel |
Ex. “P” Reece Aff., Resp. Rec. p. 375 |
Second letter from Prud’homme; proposing first meeting. Treasury Board decision already made.
|
|
10. |
Oct. 24/05 |
First meeting – Transport Canada |
Ex. “F” Reece Aff., Resp. Rec. p. 55 to 433 |
Aboriginal title information provided by First Nation. |
|
11. |
Oct. 25/05 |
Follow-up letter, Council to Prud’homme |
Ex. “G” Reece Aff. App. Rec. p.433 |
Setting out terms of proposed consultations. |
|
12. |
Oct. 27/05 |
Letter, Prud’homme to First Nations |
Ex. “H” Reece Aff., App. Rec. p. 436 |
Crown’s obligations to consult do not extend to title over land component. |
|
13. |
Nov. 21/05 |
Letter, DOJ to First Nations counsel |
Ex. “T” Reece Aff., App. Rec. p. 438 |
No consultation regarding land component. |
|
14. |
Dec. 6/05 |
Second meeting – Transport Canada |
Ex. “Y” Reece Aff., App. Rec. p. 442 |
Prud’homme statement “Canada considers all title to land component surrendered”. |
|
15. |
Dec. 13/05 |
Letter, Prud’homme to First Nations |
Ex. “J” Reece Aff., App. Rec. p. 440 |
Reiterating position from Dec.6/05 meeting. |
ANNEX II
Excerpt from Reply Submissions of Respondent dated September 1, 2006
6. In the specific context of an application for judicial review in the Federal Court, the “decision” or “matter” within the meaning of section 18.1 of the Federal Courts Act that provides the Federal Court with the jurisdiction to review the adequacy of consultation is the contemplated government conduct that may adversely affect the asserted Aboriginal rights or title. The “decision” or “matter” conferring jurisdiction is not the process of consultation per se.
7. This is the way that all Aboriginal consultation cases have come before the courts – through a challenge to the government action, decision or conduct that could potentially adversely impact the First Nation’s Aboriginal rights or title. For example:
(1) In Haida itself, the Haida Nation brought a petition challenging the B.C. Minister of Forests’ decisions to replace a tree farm licence, pursuant to procedures set out in the Forests Act;
(2) In Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage) (2001), 214 F.T.R. 48, the First Nation brought an application for judicial review in Federal Court for, among other things, an order setting aside the decision of the Minister of Canadian Heritage approving construction of a winter road through a national park pursuant to the Canadian Environmental Assessment Act on the basis that the Minister had failed to adequately consult with the First Nation prior to approving the road;
(3) In Musqueam Indian Band v. Canada, [2004] 4 F.C. 391, the First Nation brought an application for judicial review of a decision approved by the Treasury Board of Canada to dispose of certain lands by transferring them to the Canada Lands Company; and
(4) In Musqueam Indian Band v. British Columbia, [2005] B.C.J. No. 444, the First Nation brought a petition for judicial review challenging the decision of the Minister of Sustainable Resource Management authorizing the sale of a golf course to the University of British Columbia.
8. In each of these cases, the decision or matter challenged was the government decision that potentially impacted on the asserted Aboriginal rights or title. The challenge was not to the specific steps taken (or not taken) in the consultation process itself. Rather, the lack of adequate consultation was raised as a ground in support of relief sought in the applications.
…
10. In the case currently before the Court, the Applicants have framed their application as a challenge to a “pending decision of the Minister of Transport to authorize the Fairview Terminal Conversion”.4 However, there is no action, decision or other conduct contemplated by the Minister of Transport that could potentially adversely affect the asserted Aboriginal title of the Coast Tsimshian First Nations. There simply is no such “pending decision”. In the absence of any contemplated conduct on the part of the Minister of Transport, there is no “decision” or “matter” conferring jurisdiction on the Court to review any aspect of the consultation process.