yin the Court of Appeat of Alberta Citatian: Seksika first Na4on v. A16erta AB CA 4 0 2 SetweeQ: Tie Siksi[ca First Natiaa
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The Diurecto~r $autb~era Region (Alberta E~ t h e A~t a e r t s Environmental Appesl~ $oard And The' 'own of Stratbmvre Carcected jpcfgment: A corrigendum wac is t h e c o t t cc t i on s have been m a d e to the uxt a t o t his j u d g r n e n t Tic Court: The ,Honourable Madarm Justice Elizabeth McFa ' 1 ' ~e Honoarab[e Mr.J ustice Keit6~ Ritter The ~[onaura6le M~.J us~icc Jack Wat~ou Reayans for Judgment Reserved of The Hoaoarable M Co nc u r r e d i v by Th e H o n o u r$ble 1V~adam Jastice C on c u r r e d in by The ~oaaarab~e 1V~r. Justice Witter Appeal from the Qrder by The Honourable Nir. justice P.J. Mc~utyre Dated the 6Fh day of September,2 0U6 filed on the bth day of November,2 006 (Docket: 0601-06100)
(D i re ctor Southern Region Environment), 2007 Date: 26071212 Aacket: 060I- 0319-AC Registry. Calgary Appellant fAPPlicant)
av i ro n m e ~ t ) , Respondents (Respondents) s u ed on D e c e m b e r 2 8, 20 0 7 ; nd t he e o t ~ i g e n dum is appestded ~ dy e n r . J u st i c e W a t s o n Mc F ~ d y e ~
Reasons for Judgment Reserved of The Honourable Mr.J ustice Watson
[l] The appellant Siksika First Nation challenges the chambers judge's decision dated September 6, 2006, declining to make a judicial review order against a decision of tie respondent
Director of the Southern Region of Alberta Environment ("Director"), made under the Environmental Protection and Enhancement Act, R.S.A. 2000, c. E-12( EPEA).
[2] In November, 2005, the Director approved an application by the respondent Town of Strathmore ("Sti-athmore") for a pipeline that would dischazge waste water into the Bow RRver, which passes through the appellant's reserve. The chambers judge concluded That the motion for judicial review oft he Director's decision was moot as, according to the review process established under the EPEA, that decision was subject to ftuther appeal Eo the Alberta Environmental Appeals Board ("EA.B"), and ultimately subject to a decision oft he Minister of Environment( "Minister"). Given his determination of mootness based on the prematurity of the appellant's application, the chambers judge did not exercise any discretion he may have had to consider the merits of the appellant's challenge to the Duector's decision. In failing to do so, he erred.
[3] The appellant not only sought judicial review of the Director's decision, but also sought declara#ory relied That motion for declaratory relief was not rendered premature or otherwise scoot by reason of there being an internal appeal available from the Director's decision.
[4] The appellant challenged the entire process, from the Director through to the Minister, as being an insufficient form of legal consultation for addressing what are, in the appellant's view, its "iinterests and existing and claimed Treaty 7 and Aboriginal rights". The aQpellant sought declarations as to the extent oft he duty owed,a nd as to whether the statutory system was sufficient to meet that duty. The appellant contended that the rights claimed were not confined by the legislative scheme. The chambers judge effectively accepted the Director's position that the declaratory reliefs ought by the appellant should be regarded as merely ancillary to, or adjectival of, the grounds for objecrion to a specific decision oft he Director. In doing so, the chambersj udge set aside the appellant's broader challenge that the entire stahstory appeal process was not a legally adequate form of Crown consiiltation.
[5] The chambers judge opined that the legislated review process about pipeline approval was not" complete"{ A.B.D.,F 7/26). In his view, it was premature to decide the quesrion ofc onsultation because the later steps in the process might adequately address the appellant's concerns, either by providing a form of consultation legally sufficient to meet the appellant's contentions, or by
providing a conclusion as effective as if there bad been consultation legally sufficient to meet the appellant's wntentions. He was also concerned about the ramifications ofl itigation by instalments. He was not persuaded that it was in the litigants' or the public's interest to offer an opinion on the subject of consultation on the record before him, and divorced that issue from the appellanit's substanrive complaints about the handling of Strathmore's waste water.
Page: 2 [6] Nonetheless, the chambersj udge did offer an opinion about significant points_ Not only d.id he consider judicial review of the Director's decision prematurely moot, and suggest that any consultation defect existing prior to a Director's decision might be coved through later procedural steps, if allowed, under the overall EPEA process, he also ruled as follows:
Counsel on behalf of Siksika argues that the duty to consult is a separate quesrion, different than the kinds of questions that we often see in administrative cases that deal with mootness,p rematurityand exhaustion ofr emedies; that the EAB itselfd oes not have the ability to assess the constitutional validity ofa ny consultations; and that that is only for the Court; and that now is the time for the Court to set out guidelines; to make a declaration, to make it clear what obligations there are is relation to consultation with this First Nation and other First Nations.
Forme, this argument is not of assistance because it suggests that there is a duty to consult at large, no matter what the result oft he Minister's decision may be.I n other words,e ven though the Minister may overturn the decision oft he Director, there stiEl bas been a breach of the duty to consult; a breach, it is said, of the honour of the Crown.
I do not agree with the concept that this duty to consult can be looked at independently ofa result. We do not have t}►e result yet —the final result —and we will not have it for some period of time. So, even though the decision maybe said to be a final decision of the Director, it is subject to appeal, asI s ay, and it has been appealed. (A.B.D., F8/9-F9/8) [Emphasis added]
[7] The chambers judge described the consultation issue as a factual question, with both factual and legal ramificarions. He later added the following:
One of the legal issues is whether this duty to consult is fixed in time; that is to say, did the consultation have to be adequate in relation to and only up to the time of the Director's decision? Or can, for example, a failure to consult be cured by subsequent actions, subsequent meetings, subsequent discussions?
In fact, the EAB itself, although it does not lave the jurisdiction to decide issues relating to consaltarion, can, it seems to me, and counsel have argued to me, order that there be consultation. So there may well be issues about whether any failure, if there was one, to consult, can be cured. (A.B.D., F9/17-F10/2) [Emphasis added]
[8] 'The chamber judge was correct that there was fiuther activity to eoxne in the statutory process. Subsequent to Ius decision, the EAB heard fhe appellant's appeal in February, 2007 and issued a Report and Recommendations to the Minister on AQriI 18, 2007. On May 18, 2007, the Minister issued Ministerial Order No. 11/2007, which amended the Director's order largely in accordance w its the EA,B's Report and Recommendations.The respondent Town of Strathmore then
Page. 3 filed an Operational Plan which, according to the appellant, still failed to adequately address its concerns about discharge. [9] Were this case exclusively within the boundary of the Director's original decision, there wouid be merit in the submission that the present appeal is moot. However, as noted above, the appellant's motion to the chambersj udge soughE declarations as to the extent of the duty to consult and whether or not tf;at duty could be met by the legislative scheme under the EPEA.
[ 10] For the appellan#,t hese gaestions did not rest solely on the terms oft he Director's decision, nor the terms of any decisions by the EAB or the Minister. In light of ss. 11 and 16 of the Administrative Procedures and Jurisdiction Act, RS.A.2 400,c . A-3,t he Director and the E,A.B did not have jurisdiction to decide a "question of constitutional law". They could not therefore state constitutional taw nor transcend the jurisdiction given to them by the EPEA.M oreover,t he Minister was unlikely to do more than presuppose the constitutionality o€his decision. [1 I] $was foc the chambers judge to consider whether the process followed by t}te Director, the EAB,o r the Minister,o r a remedy issued by any oft hem, might be relevant to consultation or might meet the requisites of consultation. Neither following the process nor granting a remedy amounts to a declaration respecting the scope oft he duty to consult, nor a declaration that the duty to consult could or could not be met by following the procedural steps set out in the EPEA. The formal order of the chambers judge [F19-F20] sets out that he made no derision on these contentions as to consultation.I n addition to addressing the appellant's contentions, it was open to the chambersj udge to decide that it was not possible to fairly evaluate the consultative capacity oft he statutory process at the stage it had reached. However, had he done so, that would amount to a dismissal of the
appellant's azgument that such a decision could be made on the face of the statutory structure, not a finding that the appellant's azguments were premature. [12] It follows that the appellant's motion fox declarations, as argued, was not dependent upon the stage oft he legislative process. The appellant contended that the duty to consult in this context was comparable to the duty to consult recognized in the "taking up" cases of Harda Nation v British Columbia( Minister ofForests),2 004 SCC 73,[ 2004]3 S.C.R.5 11 andMikisew Cree Firsi Natias~ v Canada,2 005 SCC 69,[ 2005]3 S.C.R. 388 at pares. 63 Fo 69, where the Supreme Court held that "[t]he determination of the content of the duty to consult will, as Haida~ suggests, be
governed by the context"
[l 3] In allowing the appeal attd returning the matter to the Court of Queen's Bench, we are not ruling on any of the merits of the appellant's position in this regard. We are, however, persuaded that the appellant's contentions raised live and significant issues, independent of the procedural
stage governed by the EegisEation. They were therefore within the chambers judge's jurisdiction to determine one way or another. [14] By the time the matter reached us, the appellant had applied for judicial review of the Minister's decision. We will therefore refrain from re-invigorating the current motion as a separate
Page: 4 motion for judicial review of the Director's decision, and instead direct that the current motion be revived but consolidated., forbearing p~.uposes, with the motion forj udicial review ofthe Minister's decision. The appellaat is therefore at liberty to make the contentions referred to in these reasons byway of challenge to the decisions of the Director, the EAB and the Minister.
Appeal heard on October 12, 2007 [teasons filed at Calgary, Alberta this l2th day of December, 2007
Watson J.A. I concur: Authorized to sign for: McFadyen 3.A. I concur. Ritter J.A.
Page: 5 Appearances: L.D. Andrychuk, Q.C. and R.G. Jeerakathil for the Appellant
J. Moore and S. Folkins for the Respondent, Alberta Environment
A. Sims, Q.C. For the Respondent, Alberta Environmental Appeals Board
S.S awa for the Respondent, The Town of S~athmore
Corri~enduim of the Reasons for J4d~tgent Reserved of The Hoaoura6le Mr.3 AstiCe WAEe~n Paragraph 14 o~'the judgment has been replaced with the tnllavv~g: [14J k'ollowing the submissions of counsel at the E~earing o the a p p e l l an t w o u l d see k ja d i o ial re v i e w o f t h e Ministers d Th e C o v e r t i n a l lowi n g t h i s app e a l and i n r e t u t h e r efo m r a e de a di x +e ct ion to con so l i d ate t h e r e e xpe ct e d to b e a n extant m o t i on for j u d i c ia l rev r e a s o n s o f t h e C o u r t b e i ng r e l e as e d, c o u n s e l for all tfie parties adv had nat a pplie d f or j u di c ia l re v i e w oft he N ,( i n is t e i's decision i s s i m p r l e y t ~ m ed t o t h e C o u r t o Qu ~ e e n's B e n c h :far disposit set ou t .
Page. 6 f t ( t e a p pe a l , t he C o u r t e x p e c ted th a t e ci si o n b e f o r e ~e e l e a s e of t h e s e t ea s o ~ t ts . rning the mua t t e r t o the C o w s of Q u e e n ' s B e n c v h ived earlier m o t i oa t o t ha t Co u r t wit h w h a t i w e a w s of the M i n i s t er ' s de c i s i o n . S u b s e q u e n t t o t h e is ed t i e Co u r t t hat t h e ap p e l l a n t . U ~t d e rt h o s e c i r c u m s t a n c e s , t h e ma E t er i on o n t h e basis oft he reasons herein F~L~D DEC ~ ~ 7007 a ~~ \~f /Qhn..wl ~ ~\~