PRESENT: The Honourable Mr. Justice Lemieux
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
Applicants
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
As represented by
the ATTORNEY GENERAL OF CANADA and
the MINISTER OF WESTERN ECONOMIC DIVERSIFICATION,
and the MINISTER OF TRANSPORT, and
the MINISTER OF THE ENVIRONMENT and
the PRINCE RUPERT PORT AUTHORITY
REASONS FOR ORDER AND ORDER
I. Introduction
[1] This is a motion in writing pursuant to the Rule 369 of the Federal Court Rules, 1998, (the Rules) in which the applicants seek an extension of time under section 18.1 (2) of the Federal Courts Act (the Act) to bring two judicial review applications (the motion). One judicial review application would challenge a decision of Transport Canada dated October 27, 2005. The other judicial review application would judicially review an environmental assessment dated January 22, 2006.
[2] This motion, filed on October 27, 2006, was launched at the suggestion of Justice Von Finckenstein, as he then was, in his reasons for order and order in dismissing on September 21, 2006, the judicial review application of Harold Leighton et al. as applicants against Her Majesty the Queen in Right of Canada, the Minister of Transport and the Attorney General of Canada as respondents, 2006 FC 1129, Docket T-89-06.
[3] Harold Leighton is the Chief Councillor of the Metlakatla Indian Band (Metlakatla) who brings this motion on his own behalf and as the elected representative of the Metlakatla.
[4] Garry Reece is the Chief Councillor of the Lax Kw’alaams Indian Band (Lax Kw’alaams) who brings this motion on his own behalf and as the elected representative of the Lax Kw’alaams.
[5] The Metlakatla and the Lax Kw’alaams Indian Bands are referred to in this motion as the Coast Tsimshian whose traditional territory is the coastal area of northwest British Columbia along and between the Lower Skeena and Nass Rivers, an area known as Prince Rupert Harbour which includes the Port of Prince Rupert managed by the Prince Rupert Port Authority (the PRPA), a federal port authority.
[6] The judicial review application before Justice Von Finckenstein was “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 …Bands regarding the potential adverse impacts … upon asserted … Aboriginal title and rights.”
[7] Justice Von Finckenstein determined “I have no choice but to dismiss this application” because “this failure by the applicants to properly plead their case is fatal …”
[8] He came to this conclusion writing at paragraph 27 the following:
“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.” [Emphasis mine]
[9] He then said “the applicants could have focused on the October 27, 2005, decision of Transport Canada, a decision of Transport Canada, on behalf of the Crown, the Crown would only consult on the Water Component of the terminal 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 the said October 27, 2005 decision.” [Emphasis mine]
[10] He expressed his invitation to the applicants to make motions to extend time presently before me at paragraph 31 of his reasons:
“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.” [Emphasis mine]
II. Background
[11] At the heart of this motion is the Fairview Terminal (Fairview) built in the 1970’s and its proposed conversion by the Prince Rupert Port Authority (PRPA) from a break-bulk facility to a container facility, (the Project). Fairview is built on Kaien Island located in the Port of Prince Rupert situated within Prince Rupert Harbour.
[12] The Phase I would require a 0.72 hectare wharf extension of the current 21.5 hectares Fairview footprint. The wharf extension involves dredging and driving piles. Phase II which is in the conceptual stage would consist of a substantial expansion of the Port of Prince Rupert.
[13] The Fairview footprint can be divided into three parts:
1. That part built upon land surrendered by the Coast Tsimshian (the land portion) of approximately 5 hectares;
2. That part built on landfill (the landfill portion) of approximately 17 hectares which is below the high water mark; and
3. The proposed extension of the wharf over water (the water component) of approximately 0.72 of an hectare again, below the high water mark.
[14] The Phase I conversion will also involve upgrading the existing terminal’s substructure and electrical services, removal of a transit shed and bulk-loading facilities, relocation and expansion of rail trackage and the installation of three “super-post-paramax” containers cranes which would enable the facility to handle the largest generation of container vessels currently in existence.
[15] The judicial review application decided by Justice Von Finckenstein was filed by the applicants on January 17, 2006. Five days later, on January 22, 2006, an environmental screening document (ESD) was released. The applicants have not challenged its results directly by way of judicial review.
[16] Justice Von Finckenstein had considerable documentation the applicants’ and respondents’ records on what transpired by way of consultation between the parties after the applicants were informed on August 30, 2004 on the proposed Fairview conversion.
[17] He noted in his reasons the applicants requested consultations on March 30, 2005 on Fairview’s conversion. He identified exchanges in correspondence on establishing the mechanisms for consultation. Annex 1 to his reasons for order and order contain a chronology of consultation correspondence. In bold-type, he identified October 24, 2005, as being the first meeting with Transport Canada where considerable Aboriginal title information was provided by the applicants.
[18] His chronology also indicates two days later, a letter dated October 27, 2005 was sent by the Crown representative in the consultation to the applicants stating that “it is Canada’s position that all rights, title and interest 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 interest or rights as against the land component.” His chronology also indicates in bold type that on December 6, 2005, a second meeting was held with Transport Canada where the Crown’s representative reiterated his view that Canada considered all of the land components surrendered, a position he again asserted on December 13, 2005. The judicial review decided by Justice Von Finckenstein was filed a month later. [Emphasis mine]
[19] The applicants’ record before the applications judge consisted of one volume with the main affidavit sworn by Garry Reece, detailing the evidence of the applicants’ Aboriginal rights and title relating to Fairview’s conversion and Kaien Island as well as the history of consultation correspondence with Canada. His affidavit and numerous exhibits cover 481 pages. The respondents’ record consists of three volumes, including the affidavits of Mr. Prudhomme, Lisa Walls, Steve Rhodes and Lorne Keller, which cover 841 pages.
[20] In their memorandum of fact and law opposing the judicial review decided by Justice Von Finckenstein in paragraph 1 entitled Overview counsel for the respondents wrote as follows:
“This judicial review is misconceived. The applicants purport to seek review of the “pending” decision of the Minister of Transport to authorize the conversion of the Fairview Terminal operated by the Prince Rupert Port Authority. There is no statutory jurisdiction conferred by federal legislation that permits or requires the Minister of Transport to make such a decision. No authorization is required for the conversion to proceed. The applicants, in their memorandum of fact and law, do not address this issue at all…instead, the applicants concentrate wholly on the issue of consultation, ignoring completely the crux of this application, the so-called decision of the Minister of Transport. Absent a finding by this Court that the Minister of Transport acted beyond his jurisdiction regarding the authorization of the conversion, the nature and quality of consultation is not relevant. The Attorney General of Canada says that since the applicants did not point to any decision, actual or contemplated, now before this Court for review, this application must be dismissed. Further, the Attorney General of Canada says that the issue of jurisdiction to make the “pending” decision should be determined by this Court before the applicants present their arguments in total.” [Emphasis mine]
[21] Prior to the hearing, Justice Von Finckenstein permitted the applicants to file reply submissions to the respondents on this point with the respondents entitled to rebuttal.
III The Federal Court Decision
[22] After setting out the background facts, the applications judge described the chronology mentioned above, indicating that correspondence was exchanged at meetings held over the next 18 months after March 30, 2005. His chronology ends on December 13, 2005. He indicates Transport Canada took the lead role in the consultations with the applicants in August, 2005.
[23] Under the heading “Duty to Consult”, he referred to the Supreme Court of Canada’s decision in Haida Nation v. British Columbia (Minister of Forest) [2004] 3 S.C.R. 511 which he said 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” a duty arising from the honour of the Crown and section 35 of the Canadian Charter of Rights and Freedoms. [Emphasis mine]
[24] At paragraph 11 of his reasons, he wrote:
“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”
quoting from paragraph 37 of Haida, above. [Emphasis mine]
[25] He described the standard of review and wrote the following at paragraph 13 of his
reasons:
“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.” [Emphasis mine]
[26] Under a heading called “Analysis of the Consultation Process”, he first stated at paragraph 14 that “it was not contested that the Coasts Tsimshian’s provided a full disclosure of their claims and 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.”
[27] At paragraph 15 he stated the Crown’s position on consultation on the other hand has changed over time as evidenced by the record. He described those changes at paragraphs 16, 17, and 18 of his reasons summarizing those positions at paragraph 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.”
[28] He then found at paragraph 20 “there is no evidence that the Crown conducted a proper preliminary assessment of the strength of the Coast Tsimshian case once being presented on October 24, 2005, with the Coast Tsimshian claim. Referring to Mr. Prudhomme’s letter of October 27, 2005, he said that letter “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.”
[29] Beginning at paragraph 21 he said the Crown’s position on the scope of the consultation limited solely to the water component of the project to be skewed and unreasonable. He wrote at paragraphs 21, 22, and 23 as follows:
“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.
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.
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.” [Emphasis mine]
[30] He held the applicants should ordinarily be granted relief expressing himself in the following manner at paragraph 25 of his reasons.
“Given the finding, the Applicants should ordinarily be granted the relief sought in b) and d) of their Notice of Application, namely:
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.
[…]
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.” [Emphasis mine]
but for the reasons previously cited he could not do so , in his view, because of the failure of the applicants to properly plead their case was fatal. [Emphasis mine]
[31] It is worthy to note as a matter of importance that neither the applicants nor the respondents appealed to the Federal Court of Appeal Justice Von Finckenstein’s decision. As such, it is a final decision. [Emphasis mine]
IV Analysis and Conclusions
[32] Subsection 18.1(2) of the Federal Courts Act requires that an application for judicial review in respect of a decision or order of a federal board, commission, or other tribunal must be made within thirty days after the time the decision or order was first communicated “or within any further time that a judge of the Federal Court may fix or allow before or after the expiration of those thirty days”.
[33] To grant or refuse a request for an extension of time to launch a judicial review application is a matter of discretion which must be exercised on proper principles. Those principles are well known with the Federal Court of Appeal’s decision in Grewal v. Canada (Minister of Employment and Immigration) [1985] 2 F.C. 263, being the seminal case.
[34] From Grewal, above, and other decisions of the Federal Court of Appeal, the task at hand is as follows:
• A number of considerations or factors must be taken into account in the exercise of the discretion;
• These factors include: (1) a continuing intention to bring the application, (2) any prejudice to the parties opposite, (3) a reasonable explanation for the delay, (4) whether the application has merit i.e., discloses an arguable case (hereinafter the four-prong test) and (5) all other relevant factors particular to the case [emphasis mine], see James Richardson International Ltd. v. Canada [2006] FCA 180 at paragraphs 33 to 35;
• As explained in Jakutavicius v. Canada (Attorney General) [2004] FCA 289, these factors or consideration are not rules that fetter the discretionary power of the Court. Once the relevant consideration or factors are selected, sufficient weight must be given to each of those factors or considerations;
• The weight to be given to each of the factors or considerations will vary with the circumstance of each case (Stanfield v. Canada, 2005 FCA 107);
• The underlying consideration in an application to extend time is to ensure that justice is done between the parties. The usual consideration in the standard four-prong test of continuing intention, an arguable case, a reasonable explanation for the delay and prejudice to another party is a means of ensuring the fulfilment of the underlying consideration of ensuring that justice is done between the parties. An extension of time can be granted even if one of the standard criteria is not satisfied (Minister of Human Resources Development v. Hogervrost, 2007 FCA 41; and
• The factors in the test are not conjunctive (Grewal, above, at pages 11 and 13).
[35] Counsel for the Crown and counsel for the PRPA strongly oppose the motion. They argue the applicants have not met any one of the factors in the standard four-part test. They identify no additional factors relevant to the facts of this particular case. They do not suggest that any one of the standard four factors should be given more weight than others. They say I cannot assess the merits of the motion because the affidavit sworn is improper and no proposed judicial review application was filed in their motion material. Their argument is premised on a characterization the findings made by Justice Von Finckenstein concerning the scope of consultations the parties have engaged in as simply being obiter. They say the Minister of Transport’s letter of October 27, 2005, is not a decision. They argue they will be severely prejudiced if the motion is granted, premised on the argument the applicants could delay or completely stop the Project.
[36] Counsel for the PRPA went further referring to the affidavit of Lorne Keller, Vice-President, and Project Development. In that affidavit, Mr. Keller referred to the consultations between the PRPA and the applicants regarding their asserted Aboriginal rights and title in Prince Rupert Harbour during the summer of 2004 – a year before Her Majesty became directly involved.
[37] Mr. Keller then deposed to consultations with the applicants and accommodation beyond the 0.72 hectare wharf extension particularly in the context of Canadian Environmental Assessment Act (CEAA) consultation process “in which variously the PRPA and three Ministries of the Federal Crown have been involved with them during different periods over the past two years.” He gave two examples of accommodations. He also referred to the ESD detailing the consultations with the applicants.
[38] Mr. Keller also referred to joint offers of accommodation in early 2006, which he states were not limited to the 0.72 hectare water extension.
(a) Extension to challenge the October 27, 2005 decision
[39] As noted, the applicants seek to extend the time to challenge two decisions: the October 27, 2005, decision to limit the scope of the consultations and the screening decision made under the CEAA.
[40] For the reasons expressed below I would grant the applicants an extension of time to initiate a judicial review application to challenge the October 27, 2005, decision made by the Minister of Transport. It is that decision which the applications judge focussed on and specifically mentioned in his decision.
[41] As an overall comment, the respondents adopted a rigid formula approach to the Court’s discretion on a motion for an extension of time. This approach has been discarded by the Federal Court of Appeal which has indicated flexibility was required in terms of relevant factors to each particular case, the weight to be given to each factor varying on the circumstances of each case and the balancing of all factors in order that a just result is arrived at between the parties.
[42] The findings of Justice Von Finckenstein on the scope of the consultation on the evidence before him are not obiter. They were at the heart of his consideration of the application before him which entirely focused on Canada’s duty to consult the Coast Tsimshian in respect of the Project. At paragraph 25 he specifically held, “Given the finding, the applicants should ordinarily be granted the relief sought in paragraphs b and d of their notice of application. [Emphasis mine]
[43] However, as noted, he could not grant this relief because of the manner the applicants had framed their judicial review application in terms of “the pending decision of the Minister of Transport to authorize the Fairview Terminal Conversion …” He agreed with the reply submissions of the Crown, the salient portions of which were reproduced in Annex II to his reasons.
[44] As noted in paragraph 29 of his reasons, he referred to the October 27, 2005, letter which he suggested be one of the subject-matters of this motion.
[45] Again, it was after the judge stated in paragraph 30 “I have no choice but to dismiss this application” he then wrote “there are other avenues of redress available to the applicant.” One of those avenues he identified was to seek an extension of time to challenge the October 27, 2005, decision of the Minister which, in the case before him, he could have been considered if the notice of application had been amended to encompass that decision.
[46] In my view, it is perfectly clear from Justice Von Finckenstein’s reasons, he found a breach by the Crown of its duty to consult the applicants by unreasonably limiting the scope of the consultations. It is also clear he would have granted the declatory relief sought in paragraphs b and d of the notice of application but could not do so because, in his view, of the way the applicants had structured their application and they had not sought appropriate amendments to focus on the correct decisions. It also flows clearly from his reasons, why he made the suggestions to the applicants i.e., they had “other avenues of redress.” Because of his finding, he wanted the applicants to obtain appropriate relief and that is why he identified certain decisions made in the past in the context of the consultation process to which the relief he intended could be attached.
[47] I stress, once again, that none of the parties appealed his decision to the Federal Court of Appeal. His findings must stand because his decision is a final one for the purposes of this motion.
[48] In my view, Justice Von Finckenstein’s determination in the case before him is a relevant and important factor particular to this case, one which should be given considerable weight.
[49] The jurisprudence is clear that considerable weight must be accorded on a motion to extend time where the underlying judicial review application which is out of time evidences merit and provides an indication that the decision-maker challenged was in error. Such was the case in Grewal, above, where the delay was over a year but where the applicant had a very strong case on the merits. Such was also the case in Jakutavicius, above, where Justice Rothstein, then a member of the Federal Court of Appeal, found that the decision-maker “may well be in error.” Such was the case in a recent decision dated February 20, 2007 by my colleague Justice Martineau, in Huard v. Procureur Général du Canada, 2007 CF 195, where he authorized a judicial review which had been out of time for several years taking into account the underlying application for judicial review had considerable merit. Such is the case here in respect of the October 27, 2005, decision.
[50] There are additional factors particular to this case which affects the exercise of my discretion and the weight to be given to any particular relevant factor. These considerations are:
• The back-drop to the motion is a Charter right guaranteed by section 35 and the duty to consult about them which engages the honour of the Crown. The respondents recognize these considerations;
• In Haida, above, the Chief Justice had this to say about duty to consult and accommodate:
“This case is the first of its kind to reach this Court. Our task is the modest one of establishing a general framework for the duty to consult and accommodate, where indicated, before Aboriginal title or rights claims have been decided. As this framework is applied, courts, in the age-old tradition of the common law, will be called on to fill in the details of the duty to consult and accommodate.” [Emphasis mine]
• In Haida, above, under the heading Administrative Review, the Chief Justice wrote at paragraph 60:
“Where the government's conduct is challenged on the basis of allegations that it failed to discharge its duty to consult and accommodate pending claims resolution, the matter may go to the courts for review. To date, the Province has established no process for this purpose. The question of what standard of review the court should apply in judging the adequacy of the government's efforts cannot be answered in the absence of such a process. General principles of administrative law, however, suggest the following.” [Emphasis mine]
• The duty to consult is ongoing and the extent of consultation varies with the circumstances, see Haida, above, paragraphs 41, and 43 to 46;
• The essence of this motion is a search for an appropriate procedural vehicle through which the applicants can obtain relief on what they claim and the applications judge found was an unreasonable limit to the scope of consultation about the Fairview conversion. It is still an open question how best to trigger review proceedings before the Court when issues related to the duty to consult in the context of Aboriginal claims arise. This debate is evident in the British Columbia Courts (see Huu-Ay-Ahi First Nation v. British Columbia (Minister of Forests) [2005] 3 C.N.L.R. 74. At the Federal Court level, judicial review may proceed without a decision or order (see Krause v. Canada [1999] F.C.J. No. 179 (FCA).
[51] Technically speaking, the respondents are correct to say the applicants have not made out an intention within 30-days and up until now to seek judicial review of the Minister’s October 27, 2005, decision to cut down the scope of consultations. In the particular circumstances of this case I give little weight to the factor because the focus of this motion is on a procedural vehicle. Clearly the respondents were aware the applicants were dissatisfied about the stance the Crown took to the scope of the consultations which emerged in October of 2005 and was confirmed in December of that year. That is why they launched the proceedings which Justice Von Finckenstein decided.
[52] For the same reason I accord little weight to the factor of having a reasonable explanation for not seeking to launch before now a judicial review from the October 27, 2005, decision. While a lack of understanding about appropriate relief may, in some circumstances, not constitute a reasonable explanation for the delay in launching a judicial review, the additional factors particular to this case are such as to lead me to discount this factor.
[53] Prejudice to the respondents is, of course, an important factor. The respondents assert this is the case but that factor is premised on the assumption the applicants want to delay or completely shut down the Project. The facts are against the respondents.
[54] There is no evidence before me Phase I of the Project is not proceeding to completion and there is no evidence granting an extension of time to review the scope of consultation would cause Phase I of the Project not to be completed on schedule. Any discussion of Phase II is speculative.
[55] It would take interim injunctive relief to cause the kind of prejudice the respondents invoke. None has been sought by the applicants in Docket T-1890-05, which is an application for judicial review launched by the applicants on October 25, 2005, and has been the subject-matter of a recent decision of Prothonotary Tabib (See 2007 FC 550).
[56] Moreover, the Chief Justice in Haida, above, down-played the utility of injunctive relief when issues related to the duty to consult arise in Aboriginal cases (see paragraphs 12 to 14).
[57] Balancing all of the appropriate factors with the weight I have assigned to them in the context of justice between the parties, I am persuaded time should be extended to allow the applicants the opportunity to seek judicial review of the Minister of Transport’s decision of October 27, 2005.
[58] I am aware the respondents argue the letter of October 27, 2005 on behalf of the Minister of Transport is not a decision. Justice Von Finckenstein held it was a decision and, in any event, I am of the view the circumstances of Krause, above, applies – no decision is required.
[59] For the purposes of extending the time to challenge the October 27, 2005, decision, I did not take into account the evidence on consultations contained in the Keller affidavit. That evidence represents a collateral attack upon Justice Von Finckenstein’s decision which is impermissible.
[60] In Grewal, above, Chief Justice Thurlow at page 279, letter d to g attached a condition on the grant of an extension of time. I am not prepared to impose it but would commend it to the parties as a way to expedite the matter. In that context, the parties may wish to fashion, by agreement, a process whereby they agree how further consultations should take place. Such agreement is very much more desirable than litigation, a point underlined in Haida, above.
[61] I would, however, attach as a condition to the granting of this motion that immediately after the judicial review is served and filed it be case-managed in conjunction with docket T-1890-05 in order to avoid duplication.
[62] Let me be clear as to the implications of this grant of an extension of time to challenge the October 27, 2005, decision to limit the consultations to the 0.72 hectare, the water component of the Fairview footprint.
[63] Justice Von Finckenstein found the consultations should, at a minimum, have entailed the water component and the landfill component rather than being based only on the 0.72 of a hectare. This is why he determined the Crown’s approach on the consultation and the accommodation process, which he characterized as a bargaining process, to be skewed.
[64] The evidence before Justice Von Finckenstein on the scope of the consultations between the parties did not go beyond December 13, 2005.
[65] The grant of this motion to extend time enables the parties to put before the Court evidence on the scope of the consultations and accommodation after December 13, 2005, to date in order to determine whether the Crown’s duty to consult and, if necessary, accommodate has been fulfilled.
[66] This is where Mr. Keller’s evidence would be appropriate for consideration.
(b) Extension of time to Challenge the EDS of January 22, 2006.
[67] The grant of the first part of the applicants’ motion provides them with a procedural vehicle to test whether the Crown has fulfilled its obligations in the circumstances to appropriately consult with the applicants in respect of the Fairview conversion.
[68] It seems to the Court unnecessary to authorize another procedural vehicle to challenge the EDS in relation to how consultations in respect of the applicants’ asserted Aboriginal rights, title and interest were carried out.
[69] The consultations about Aboriginal interests in the CEAA process are an integral part of the Crown’s obligations to consult with respect to the overall Fairview conversion and should not be severed from that process. In the circumstances I adjourn sine die this part of the applicants’ motion for an extension of time.
ORDER
THIS COURT ORDERS that the applicants’ motion to extend the time within which to serve and file a judicial review application against the October 27, 2005, decision rendered on behalf of the Minister of Transport, limiting the scope of consultations in respect of the Fairview conversion is granted. The applicants shall have leave to do so within 30 days from the date of this Order. Costs to the applicants in any event of the cause.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: 06-T-79
STYLE OF CAUSE: Harold Leighton, et al. v. HMQ, et al
MOTION IN WRITING
TAKEN UNDER RESERVE: February 17, 2007
WRITTEN REPRESENTATIONS BY:
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Gregory J. McDade, Q.C. Maegen M. Giltrow
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Judith A. Mauro Bowers, Q.C.
Neo J. Tuytel |
FOR THE RESPONDENT, PRINCE RUPERT PORT AUTHORITY |
SOLICITORS OF RECORD:
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Ratcliff & Company North Vancouver, BC
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John H. Sims, Q.C. Deputy Attorney General of Canada Department of Justice Vancouver, BC
Clark Wilson Vancouver, BC |
FOR THE RESPONDENT, PRINCE RUPERT PORT AUTHORITY |