Ottawa, Ontario, March 9, 2006
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
and
MINISTER OF FISHERIES AND OCEANS,
MINISTER OF INDIAN AND NORTHERN AFFAIRS CANADA,
MINISTER OF TRANSPORT,
IMPERIAL OIL RESOURCES VENTURES LIMITED,
on behalf of the Proponents of the Mackenzie Gas Project,
NATIONAL ENERGY BOARD, AND
ROBERT HORNAL, GINA DOLPHUS, BARRY GREENLAND,
PERCY HARDISTY, ROWLAND HARRISON, TYSON PERTSCHY AND
PETER USHER, all in their capacity as panel members of a Joint Review Panel
established pursuant to the Canadian Environmental Assessment Act
to conduct an environmental review of the Mackenzie Gas Project
and
THE ATTORNEY GENERAL OF ALBERTA
Intervener
REASONS FOR ORDER AND ORDER
[1] The Attorney General of Canada (Canada) moved for an order staying this litigation pursuant to section 50(1) of the Federal Courts Act and the Court's inherent discretion. The grounds for the motion were that "it was in the interests of justice and of reconciliation that the grounds advanced by the Dene Tha' in this judicial review application be addressed through the processes underway before the National Energy Board, the Joint Review Panel and the Crown Consultation Unit".
[2] The thrust of Canada's argument is that there is in place an adequate alternative remedy through the process (in fact several processes or proceedings) created by the governments, certain but not all affected native groups and various administrative agencies which are at least as well suited, if not better suited, to address the issues in this judicial review. Therefore, the judicial review should be stayed until all of the processes or proceedings created have completed their mandates - then the Court can deal with whether the establishment of the overall process is legally adequate in accordance with the duty to consult and accommodate.
[3] The essential feature of the Dene Tha's judicial review is an attack on the very manner in which the process (the "adequate alternative remedies") was established and how it operates. The Dene Tha' complain that there was no consultation (or inadequate consultation) and accommodation, as required by section 35 of the Constitution Act, 1982 and under the developing common law in this regard, in the creation of the very processes which Canadasays should address the Dene Tha's complaint. The Dene Tha' also alleges that there have been breaches of the Canadian Environmental Assessment Act (CEAA).
II. Background
[4] The Mackenzie Gas Project (MGP) is a massive and complex undertaking comprising a number of components including a gas field in the Mackenzie Delta, a pipeline down the Mackenzie Valley to link up to the existing Nova Gas Transmissions Ltd. (NGTL) system in Alberta (the Pipeline). There is a northern portion of the Pipeline for which there are existing regulatory applications. There are no applications for that portion of the pipeline situated in Alberta (the Connecting Facilities). It is claimed that part of the Pipeline passes through areas in which the Dene Tha' have asserted an aboriginal interest.
[5] Between 2000 and 2002, because interest in the MGP had been revived, there were a series of consultations between the federal and territorial regulators, including the National Energy Board (NEB) and consultations with others, principally native groups, to develop a framework for the handling of the formal application for approval of the MGP. The result was a Consultation Plan which deals with issues such as the nature of the environmental review to be undertaken, the expected role of various regulators, and the minimum information expectations for any project.
[6] Subsequently there were negotiations to implement a framework described in the Cooperation Plan. As part of the Plan, various regulatory authorities and government agencies and departments entered into a Regulators' Agreement to coordinate their responsibilities in respect of the MGP. This was followed by a Joint Review Panel Agreement to deal with the establishment of an environmental review process. The EIS Terms of Reference were created as a guide for the environmental review of the MGP.
[7] The final organization of particular relevance to this proceeding is the Crown Consultation Unit (CCU) whose role, it is suggested, relates to the identification of impacts on or infringement of rights protected by section 35 of the Constitution Act, 1982. The evidence indicates that the CCU, while charged with aboriginal consultation, has no jurisdiction to deal with matters related to the Cooperation Plan, Regulators' Agreement or the JRP Agreement - matters which are an essential aspect of the Dene Tha's claim in this litigation.
[8] The Dene Tha' complains that they were never consulted with respect to these plans, agreements or terms of reference. They also say that other native groups were consulted at various times throughout the creation of these various arrangements. The Dene Tha' say that with the exception of a press release on the NEB website shortly before the EIS Terms of Reference were finalized, they were never consulted about the establishment of the process to deal with the approvals for the MGP.
[9] While the implementation of all of the processes and proceedings put in place under the Plan and JRP Agreement is not complete and further applications before regulators are contemplated, both the JRP and NEB are in the hearing stage.
[10] Some of the argument on this motion tried to take the Court into the merits of the judicial review - "the who said (or did not say) what to whom", the state of the negotiations, what the future holds and what was good or bad about the processes in place. The Court cannot make any finding on these matters. It is simply premature to do so, irrelevant to the motion and not sufficiently grounded in facts established on a complete record.
[11] The issue is solely whether this litigation should be held off until a later day.
III. Analysis
[12] It is common ground that the issue of a stay is a matter of discretion for the Court. This is confirmed by the wording of s. 50 of the Federal Courts Act.
| 50. (1) The Federal Court of Appeal or the Federal Court may, in its discretion, stay proceedings in any cause or matter
(a) on the ground that the claim is being proceeded with in another court or jurisdiction; or
(b) where for any other reason it is in the interest of justice that the proceedings be stayed.
(2) The Federal Court of Appeal or the Federal Court shall, on application of the Attorney General of Canada, stay proceedings in any cause or matter in respect of a claim against the Crown if it appears that the claimant has an action or a proceeding in respect of the same claim pending in another court against a person who, at the time when the cause of action alleged in the action or proceeding arose, was, in respect of that matter, acting so as to engage the liability of the Crown.
(3) A court that orders a stay under this section may subsequently, in its discretion, lift the stay. |
50. (1) La Cour d'appel fédérale et la Cour fédérale ont le pouvoir discrétionnaire de suspendre les procédures dans toute affaire :
a) au motif que la demande est en instance devant un autre tribunal;
b) lorsque, pour quelque autre raison, l'intérêt de la justice l'exige.
(2) Sur demande du procureur général du Canada, la Cour d'appel fédérale ou la Cour fédérale, selon le cas, suspend les procédures dans toute affaire relative à une demande contre la Couronne s'il apparaît que le demandeur a intenté, devant un autre tribunal, une procédure relative à la même demande contre une personne qui, à la survenance du fait générateur allégué dans la procédure, agissait en l'occurrence de telle façon qu'elle engageait la responsabilité de la Couronne.
(3) Le tribunal qui a ordonné la suspension peut, à son appréciation, ultérieurement la lever. |
[13] While each stay application will turn on its facts and there is no check-list of factors to bind the Court, the general principles are that a stay of proceedings should not be granted unless it can be shown that (1) the continuation of the application or action would cause prejudice or injustice, not merely inconvenience or additional expense and (2) the stay would not be unjust to the applicant/plaintiff. See Compulife Software Inc. v. Compuoffice Software Inc., [1997] F.C.J. No. 1772 (QC).
[14] Added to these principles is that of the "adequate alternative remedy" as discussed in Canadian Pacific Ltd. v. Matsqui Indian Band, [1995] 1 S.C.R. 3. Although this decision arose in the context of a motion to strike a judicial review, it is a relevant factor in a motion for a stay as it goes to the Court's discretion to stay. However, there must be a clear showing of adequate, alternative remedy which addresses the two fundamental principles above.
[15] Even where a stay is not granted, the Court retains jurisdiction under s. 18.1(3) of the Federal Courts Act to deny any of the relief sought. In view of the disposition of this motion for a stay, it should be clear that the Court is not limiting its discretion under s. 18.1(3) after a full
hearing of the judicial review. However, at this stage of this judicial review, the Court is not prepared to conclude that a stay is appropriate.
[16] In addition, toward the end of the day Canada suggested that, since the NEB has authority to deal with whether aboriginal consultations have been adequate, this Court would not have jurisdiction because appeals of NEBdecisions go to the Federal Court of Appeal under s. 22 of the National Energy Board Act.
[17] The issue of this Court's jurisdiction is more properly the matter of a motion to strike or a matter to be dealt with at the judicial review. No such motion has been made. However, to the extent that jurisdiction remains an issue, that issue can still be pursued at the hearing on the merits as can other issues such as those related to the Court's discretion to grant any relief.
[18] As to the jurisdiction issue, it is not absolutely clear at this stage whether an attack on the establishment of the process by which the various regulatory and other approvals would be obtained is a "decision or order" of the NEB governed by s. 22 of the National Energy Board Act. The thrust of the Dene Tha's challenge is to the conduct of the Respondents rather than any specific decision or order.
[19] To the extent that the matter of the NEB considering the issue of consultation goes to this Court's exercise of discretion on the motion to stay, it is unclear as to the extent to which the NEB would have jurisdiction to review the creation of the processes which are the subject matter of the Dene Tha's attack.
[20] There is also concern that the NEB, having been a party to the agreements and creation of the process for regulatory approvals, is either the necessary or appropriate body to consider whether those actions were consistent with the obligations to consult and accommodate claimed under s. 35 of the Constitution Act, 1982.
[21] A further difficulty the Court has with the argument that the Dene Tha's issues should be left to an "adequate alternative remedy" is the underlying assumption that the alternative process is legally correct. That issue is an essential part of the Dene Tha's challenge in this judicial review.
[22] The Dene Tha' attack the joint review panel and its processes. The JRP has held that it "does not have the jurisdiction or mandate to determine the adequacy of consultation between the Crown and First Nations in relation to First Nations rights".
[23] Therefore, the Court is not satisfied that it has been established clearly that the alternative remedy of leaving s. 35 rights determination to the regulatory bodies will deal with the same issues, in substantially the same way and accord substantially the same remedy as the Dene Tha' seek in this judicial review. Certainly the regulatory bodies cannot give the declaratory relief sought. Where such doubt exists, it cannot be said that the alternatives are adequate.
[24] The Court is also concerned with the issue of timeliness to address the Dene Tha's issues. The end result of the regulatory proceedings is estimated to be several years away. The judicial review is scheduled to be heard in the third week of June 2006, with a decision not many months thereafter.
[25] The subject matter of the Dene Tha's judicial review, being the creation of the processes for the review of the MGP, is largely completed. It is a discreet issue separate from what may be the outcome of those reviews. Therefore, it is a matter which can be dealt with without disrupting the existing and future proceedings. There is nothing in the judicial review process which precludes efforts at consultation and accommodation.
[26] The Court is also concerned that delay in resolving these issues is to no one's legitimate advantage. Waiting until the end of the various proceedings may make an effective remedy either difficult to implement or extraordinarily disruptive of a massive project with issues of cost, efficiency, and financing all at play in any determination which would undermine the legitimacy of the various proceedings.
[27] In my view, it is fairer and more efficient, and potentially more effective, to the parties and all persons interested in this project, that any legal infirmities with the creation of the mechanisms to approve this project be dealt with fully and expeditiously. Once dealt with, the issue of legality of the creation of the process as it affects Dene Tha' is res judicata. Whether other native groups have similar claims which could produce multiple proceedings is speculative and is not a basis for granting this stay.
[28] Lastly, the Court must be reluctant to tell an applicant/plaintiff that they cannot come to this Court and cannot determine the issues, venue and remedies to which they say they are entitled because it is more convenient for their opponent that they litigate elsewhere and at a different time. A party generally has a right to invoke the applicable jurisdiction in which to seek redress.
[29] The Respondent Canada has not shown that the continuation of the judicial review would cause prejudice or injustice or that no injustice arises in delaying the Applicant's right to seek judicial review. The situation was fairly addressed by the JRP in refusing the Dene Tha's request to the JRP not to schedule hearings pending this stay motion:
"... matters set out in the Application are beyond the jurisdiction of this panel and are best resolved by the courts."
[30] In summary, it is my view that it is in the interests of justice that this litigation proceed on its merits. The motion for a stay is denied with costs.
ORDER
IT IS ORDERED THAT the motion for a stay is denied with costs.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-867-05
STYLE OF CAUSE: Dene Tha' First Nation
v.
Minister of Environment et al
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: February 21 and 22, 2006
APPEARANCES:
| Mr. Robert J.M. Janes Mr. Robert Freedman
|
|
| Mr. Kirk Lambrecht, Q.C.
|
ATTORNEY GENERAL OF CANADA |
| Ms. Mary E. Comeau
|
FOR THE RESPONDENT, IMPERIAL RESOURCES VENTURES LIMITED |
| Mr. Andrew Hudson
|
FOR THE RESPONDENT, NATIONAL ENERGY BOARD |
| Ms. C.J.C. (Jill) Page Mr. Colin King
|
FOR NON-PARTY, ATTORNEY GENERAL OF ALBERTA |
| No Appearance |
FOR THE RESPONDENT, JOINT REVIEW PANEL FOR THE MACKENZIE GAS PROJECT |
SOLICITORS OF RECORD:
| Cook Roberts LLP Barristers & Solicitors Victoria, British Columbia
|
|
| John H. Sims, Q.C. Deputy Attorney General of Canada Edmonton, Alberta
|
ATTORNEY GENERAL OF CANADA |
| Macleod Dixon LLP Barristers & Solicitors Calgary, Alberta
|
FOR THE RESPONDENT, IMPERIAL OIL RESOURCES VENTURES LIMITED |
| National Energy Board Calgary, Alberta
|
FOR THE RESPONDENT, NATIONAL ENERGY BOARD |
| Miles Davidson LLP Barristers & Solicitors Calgary, Alberta
|
FOR THE RESPONDENT, JOINT REVIEW PANEL FOR THE MACKENZIE GAS PROJECT |
| Alberta Energy Legal Services Calgary, Alberta |
FOR NON-PARTY, ATTORNEY GENERAL OF ALBERTA |