Federal Court Decisions

     T-1386-97

BETWEEN:

     VUNTUT GWITCHIN FIRST NATION

     Applicant

     - and -

     ATTORNEY GENERAL OF CANADA, representing the

     MINISTER OF INDIAN AND NORTHREN AFFAIRS and

     NORTHERN CROSS (YUKON) LTD.

     Respondents

     REASONS FOR ORDER

ROULEAU, J.

     This is an application for an order setting aside the decision of the Minister of Indian and Northern Affairs dated May 30, 1996, granting Land Use permit YA6A160 to the respondent Northern Cross (Yukon) Ltd..

     On May 30, 1996, Northern Cross filed an application for a Land Use Permit, pursuant to the Territorial Lands Use Regulations, in order to conduct extended flow tests on three of its wells located north of the Dempster Highway. The three wells are located in the Eagle Plain Basin which contains approximately thirty wells that were drilled between the 1950's to 1985. The activity proposed in the application was to move portable equipment over a pre-existing access route to the wellsites (though some slight improvement may be necessary). Depending upon the results of the flow tests, a large capacity tanker truck would thereafter use the route to move a maximum of 35.4 cubic metres of oil per day from the wellsites to the Dempster Highway, a distance of approximately 15 kilometers, for transport to Whitehorse.

     Copies of the application and the accompanying material was sent by the Lands Branch of the Department of Indian and Northern Affairs to all members of the Land Use Advisory Committee and to fifteen parties potentially interested in, or affected by, the permit applied for. The Land Use Advisory Committee is composed of representatives from the Department of Indian Affairs and Northern Development, the Department of Fisheries and Oceans and the Department of the Environment. The represented Territorial departments are the Department of Renewable Resources, the Department of Community and Transportation Services and the Department of Tourism. The other members of the committee are the Council for Yukon First Nations, the Yukon Conservation Society and the Canadian Parks and Wilderness Society, the latter two societies being the major environmental conservation and protection organizations in the Yukon.

     On June 5, 1996, Lands Branch sent a letter to Northern Cross advising that the application had been distributed to the interested parties and that it was the intention of the Department to form a project team. As there were a number of requests for additional time to submit comments on the application, the Department extended the date for comments to July 12, 1996.

     On July 17, 1996, Lands Branch mailed copies of all letters and comments received to Northern Cross together with a summary of the comments and concerns submitted by the consulted parties. The letter also included suggested mitigation measures and further information requirements. On July 31, 1996, Lands Branch received a submission from Northern Cross in which the company addressed the questions and concerns which had been raised. This response was forwarded to all interested parties on July 31, 1996.

     A Land Use Advisory Committee meeting was held in Whitehorse on August 13, 1996, to which all interested parties, including the Vuntut Gwitchin First Nation, were invited to attend. The purpose of the meeting was to review the application, supplementary materials, and the comments and concerns of consulted parties. The parties submitted further input on the application following the meeting. Thereafter, on September 16, 1996, Northern Cross submitted a proposed Spill Contingency Plan and their Safety and Emergencies Measures Manual to the Department.

     By letter dated October 29, 1996, Stanley Njootli, negotiator for the Vuntut Gwitchin First Nation, outlined in detail to the Minister of Indian and Northern affairs, the First Nation's concerns with the respect to the application. Aside from various political and legal concerns, the letter raised the issue of protection of the calving grounds of the Porcupine Caribou Herd in Alaska. In his response, the Minister confirmed that consideration was being given to this environmental factor.

     Since the activities that Northern Cross proposed constituted a project under the provision of the Canadian Environmental Assessment Act, S.C. 1992, c. 37, an environmental assessment of the application was performed by Lands Branch. Mr. Mark Zrum, the engineer designated by the Minister, prepared a draft screening report on April 18, 1997. Thereafter, a copy of the report was sent to all of the parties to the consultation and the Lands Branch received extensive input on the report from these various interested parties.

     After the release of the screening report, further efforts were made by interested parties to lobby cabinet ministers and the Prime Minister with respect to the application. The comments, questions and concerns submitted to Lands Branch by the various parties were considered by Mr. Zrum. He concluded that, taking into consideration the mitigation measures to be put in as terms and conditions of the Land Use Permit, the activities proposed in the application would have no significant adverse environmental impacts, as defined in the Canadian Enviornmental Assessment Act. It was his opinion that the potential impact on the lobbying efforts to protect the calving ground of the Porcupine Caribou Herd in Alaska, an issue raised by the First Nation, was not an environmental factor that should be considered in the screening process. He was also of the view that the scope and nature of the project in the application was such that the issuance of a Land Use Permit to Northern Cross would not adversely affect the efforts to protect the calving grounds in Alaska.

     As a result, the Screening Report was signed on behalf of the Minister on May 29, 1997. Mitigation measures were incorporated into the terms and conditions of Land Use Permit YA6A160 and the permit was issued on May 30, 1997.

     On June 10, 1997, a meeting was held between the Department of Indian Affairs and Northern Cross. Although members of the Vuntut Gwitchin First Nation were invited to attend the meeting they did not do so.

     The First Nation then filed an Originating Notice of Motion in this Court on June 26, 1997, seeking judicial review of the engineer's decision to issue a land use permit to Northern Cross on the following grounds:

(a) that the Minister of Indian Affairs and Northern Development, through his designated engineer, breached the constitutionally protected rights of the Vuntut Gwitchin First Nation pursuant to Chapter 12 of the Vuntut Gwitchin First Nation Final Agreement dated May 29, 1993;

(b) that the Minister, through his designated engineer, acted without jurisdiction or beyond his jurisdiction or refused to exercise his jurisdiction pursuant to paragraph 40(2)(b) of the Canadian Environmental Assessment Act, R.S.C. 1992, c. 37;

(c) that the Minister breached the duty of procedural fairness by failing to take into account the provisions of chapter 12 of the Vuntut Gwitchin First Nation Final Agreement;

(d) that the Level 1 Screening Report dated May 29, 1997, failed to take into account the environmental effects of the project as required pursuant to subsections 2(1) and 16(1) of the Canadian Environmental Assessment Act, and;

(e) that the Minister failed to conduct a comprehensive study of the project as required in subsection 16(2) of the Canadian Environmental Assessment Act.

    

     After having carefully considering the written and oral submissions of the parties, I am satisfied that the application should be dismissed.

     First, Chapter 12 of the Vuntut Gwitchin Final Agreement provides that the Government of Canada shall recommend Development Assessment Legislation to Parliament or the Legislative Assembly, as the case may be, no later than two years after the effective date of Settlement Legislation. Here, the effective date of the Settlement Legislation was February 14, 1995. Accordingly, the deadline for recommending DAP legislation was February 14, 1997. The Northern Cross application was submitted to the Department on May 30, 1996, prior to any government obligation to submit DAP legislation to Parliament or the Legislative Assembly.

     Furthermore, in advancing the proposition that DIAND breached the Vuntut Gwitchin Final Agreement, and in so doing breached section 35 of the Constitution Act, 1982, the applicant entirely ignores a critical provision of chapter 12 of the Final Agreement. Section 12.19.5 provides as follows:

Nothing in this chapter shall be construed to affect any existing development assessment process in the Yukon prior to the Development Assessment Legislation coming into effect.

     This section therefore, clearly governs the development assessment process pending the enactment of proposed DAP legislation. In the absence of such legislation, chapter 12.19.5 mandates the Land Use Engineer to follow the procedures and criteria set out in the Canadian Environmental Assessment Act and the Territorial Lands Act, which is precisely what Mr. Zrum did.

     There is nothing in chapter 12 of the Final Agreement which requires or permits the engineer to depart from, vary or add to the criteria he is required to consider under the Canadian Environmental Assessment Act. Since section 12.19.5 reads as an overriding provision of the Final Agreement, the Department's adherence to that section cannot reasonably be interpreted as a breach of the Final Agreement. As stated by Mr. Zrum in his letter of May 28, 1997:

Land Use Permit Application YA6A160 was received and accepted in May of 1996 and as such is being assessed pursuant to the Canadian Environmental Assessment Act (CEAA). The Development Assessment Process (DAP), as contemplated by c. 12 of the Vuntut Gwitchin First Nation Final Agreement would only have come into effect after February 14, 1997. This application was received prior to this date therefore, existing CEAA assessment mechanisms must be used to assess and screen this application as outlined in s. 12.19.5 of the Final Agreement.

     Second, I am persuaded that in assessing the Northern Cross proposal pursuant to the requirements of the Canadian Environmental Assessment Act, the Department remained within its jurisdiction and provided the Vuntut Gwitchin First Nation with every reasonable opportunity for consultation and input into the matters required to be considered under the legislation.

     Mr. Zrum performed a Level I screening of the Northern Cross application because, after reviewing the application, the supplementary information and all of the documents and concerns raised by the various parties and interest groups, he was of the opinion that the environmental effects of the project would be insignificant. That was a decision which was entirely within his jurisdiction to make. There is nothing to indicate that in reaching this conclusion, he either took into account irrelevant considerations, ignored the evidence before him, acted in bad faith or in any way misinterpreted the provisions of the legislation.

     The Screening Report properly addressed the "environmental effects" of the project, including those environmental concerns raised by the applicant and other concerned groups and agencies. Mr. Zrum appropriately omitted from consideration the "political" concerns raised by the Vuntut Gwitchin First Nation, such as failure to accord it governmental status in the consultation process, concerns over possible implications on lobbying efforts in the United States, and the requirement for a higher level of funding than that offered by Department to enable the First Nation to better study the Northern Cross proposal. These facts quite simply do not fall within the definition of "environmental effects" in the Canadian Environmental Assessment Act, and accordingly were not within Mr. Zrum's jurisdiction in conducting his review of the Northern Cross proposal.

     Finally, the applicant cannot reasonably allege that it has not been afforded adequate consultation throughout the assessment process. At virtually every step in the application process both Northern Cross and the Department have sought to elicit the input of the Vuntut Gwitchin First Nation and to involve the First Nation's representatives in the consultation process. For example, the following are only some of the various efforts which were made by Department officials to facilitate and encourage a dialogue with the Vuntut Gwitchin First Nation:

(a) By letter dated April 7, 1997, DIAND offered to fund the Vuntut Gwitchin First Nation's review of the Application. The offer was for a total of $30,000.00;

(b) On April 16, 1997, Mark Zrum, the Land Use Engineer spoke with Randall Tetlichi and Stanley Njootli, of the Vuntut Gwitchin First Nation and offered to come to Old Crow to discuss the draft screening report with the Chief and Counsel of the First Nation;

(c) On April 16, 1997, Mr. Zrum sent a letter to the Vuntut Gwitchin First Nation and offered to attend at Old Crow to present the draft screening report with them;

(d) On April 18, 1997, Mr. Zrum again called Stanley Njootli and offered to come to Old Crow to review the draft screening report. Stanley Njootli advised him that he felt DIAND was putting pressure on the Vuntut Gwitchin First Nation and asked Mr. Zrum to call back the week of April 21st;

(e) On April 22, 1997, the Engineer sent copies of the draft screening report to Chief Randall Tetlichi of the Vuntut Gwitchin First Nation by fax and by double registered mail;

(f) On April 24, 1997, DIAND reiterated its offer to fund the First Nation's review of the application and the offer for the Land Use Engineer to meet with the First Nation to discuss the environmental assessment of the application.

     Furthermore, through numerous items of correspondence directed to Department and to the Minister, the applicant and other interested parties made their respective views and positions concerning the Northern Cross application known. Unfortunately, with the exception of a single meeting with Northern Cross on June 9, 1995, the First Nation representatives did not avail themselves of the many opportunities offered by the company for direct consultation.

     In light of the volumes of correspondence emanating from the applicant to the Department and the Minister responsible, as well as all of the efforts made by both DIAND and Northern Cross to involve the applicant in meetings to discuss the project, it cannot be reasonably contended that the Vuntut Gwitchin First Nation has been denied procedural fairness. The applicant cannot, in good faith, refuse to actively participate in the consultation process and then complain that it has not been consulted.

     In conclusion, there is no evidence that the Department exercised its discretionary power in an improper manner, that it erred in applying the relevant legislative provisions or that it denied the applicant natural justice or procedural fairness.

     Accordingly, the application is dismissed.

JUDGE

OTTAWA, Ontario

October 29, 1997