Date: 19991020
Docket: A-676-98
CORAM:
LINDEN J.A.
ISAAC J.A.
ROTHSTEIN J.A.
BETWEEN:
| UNION OF NOVA SCOTIA INDIANS, a body corporate, on behalf of itself and its members and the Acadia, Chapel Island, Eskasoni, Membertou, Shubenacadie, Wagmatcook, and Whycocomagh Indian Bands, and their members, and CONFEDERACY OF MAINLAND MICMACS, a body corporate, on behalf of itself and its members and the Afton, Annapolis, Bear River, Horton, Millbrook and Pictou Landing Indian Bands, and their members, and the ASSEMBLY OF NOVA SCOTIA MI'KMAQ CHIEFS |
Applicants
- and -
| MARITIMES AND NORTHEAST PIPELINE MANAGEMENT LTD., a body corporate, and MARITIMES AND NORTHEAST PIPELINE PARTNERSHIP, a limited partnership |
Respondents
HEARD at Ottawa, Ontario, on Wednesday, October 20, 1999
JUDGMENT delivered from the Bench at Ottawa, Ontario, on Wednesday, October 20, 1999
REASONS FOR JUDGMENT BY: ROTHSTEIN J.A.
Date: 19991020
Docket: A-676-98
CORAM: LINDEN J.A.
ISAAC J.A.
ROTHSTEIN J.A.
BETWEEN:
| UNION OF NOVA SCOTIA INDIANS, a body corporate, on behalf of itself and its members and the Acadia, Chapel Island, Eskasoni, Membertou, Shubenacadie, Wagmatcook, and Whycocomagh Indian Bands, and their members, and CONFEDERACY OF MAINLAND MICMACS, a body corporate, on behalf of itself and its members and the Afton, Annapolis, Bear River, Horton, Millbrook and Pictou Landing Indian Bands, and their members, and the ASSEMBLY OF NOVA SCOTIA MI'KMAQ CHIEFS |
Applicants
- and -
| MARITIMES AND NORTHEAST PIPELINE MANAGEMENT LTD., a body corporate, and MARITIMES AND NORTHEAST PIPELINE PARTNERSHIP, a limited partnership |
Respondents
REASONS FOR JUDGMENT
(Delivered from the Bench at Ottawa, Ontario
on Wednesday, October 20, 1999)
| [1] The narrow issue in this judicial review is whether the National Energy Board breached rules of procedural fairness when it determined that the respondents had satisfied a condition to a Certificate of Public Convenience and Necessity issued by the Board for the construction of a natural gas pipeline. |
| [2] In June 1996, the respondents applied to the Board for a Certificate of Public Convenience and Necessity in respect of pipeline facilities from Goldboro, Nova Scotia, to the International Border near St. Stephen, New Brunswick, for the transportation of raw gas. Applications were also made to the Canada/Nova Scotia Offshore Petroleum Board and the Nova Scotia Energy and Mineral Resource Conservation Board. Because each jurisdiction required a public review of the pipeline project, a Joint Public Review Panel was struck in order to coordinate the environmental and socio-economic assessment requirements of each jurisdiction by providing a review of the environmental and socio-economic effects likely to result from the pipeline. |
| [3] The respondents and the applicants, as well as numerous other intervenors made submissions to the Joint Public Review Panel. The Panel reported in October 1997. The section of the Panel's report entitled "Aboriginal Issues" stated in part: |
| Discussions are underway between the Proponents and aboriginal representatives with respect to a protocol or agreement on future consultation, particularly for areas such as land use, rare and medicinal plants and archeological resources. During Argument, two of the three aboriginal intervenors expressed satisfaction with the progress made to date. The Panel feels strongly that the best approach to achieve effective communications is through a written protocol or agreement that spells out responsibilities and roles for the cooperative study, the monitoring of potential impacts, and the development of appropriate litigation, when required. Notwithstanding, the Panel would stress that any approach must be cost effective, efficient and timely. |
| The Panel's recommendation in respect of Aboriginal Issues was: |
| The Panel recommends that the appropriate regulatory authorities condition their approvals to require the Proponents to submit a written protocol or agreement spelling out Proponent Aboriginal roles and responsibilities for cooperation and studies in monitoring. |
| [4] The National Energy Board issued a Certificate of Public Convenience and Necessity to the respondents for their pipeline on December 17, 1997. In its Reasons for Decision, the Board accepted all the pertinent recommendations of the Joint Public Review Panel and where appropriate, the recommendations were incorporated as Certificate conditions. As a result, Condition 22, to which the Certificate of Public Convenience and Necessity was subject, provided: |
| The Company shall submit to the Board a written protocol or agreement spelling out Proponent-Aboriginal roles and responsibilities for cooperation in studies and monitoring. |
| [5] Thereafter, the respondents and the applicants had numerous meetings. In June 1998, the respondents provided the applicants with a protocol of Proponent-Aboriginal roles and responsibilities which they proposed to submit to the National Energy Board. A draft agreement in principle was provided by the respondents to the applicants, also pertaining to the requirements of Condition 22. Thereafter, there were further discussions between the applicants and respondents. |
| [6] Prior to the issuance of the December 17, 1997 Decision and Certificate of Public Convenience and Necessity, the National Energy Board strictly followed rules of procedural fairness. However, subsequently, the procedure had become less formal. Except coincidentally, on matters related to the interests of the applicants, both the applicants and the respondents communicated with the Board without copying each other and the Board responded to them individually, that is, not copying the responses to each other. |
| [7] In particular, the respondents made a submission to the Board on August 24, 1998, enclosing a "Protocol of Commitments" and asking that the Board accept it as satisfying Condition 22. The submission was not copied to the applicants. On September 2, 1998, the Board advised the respondents that it considered the August 24, 1998 submission as an interim statement of progress and not a document on which a decision on the fulfilment of Condition 22 may be taken. |
| [8] On September 30, 1998, the respondents wrote to the Board indicating that an impasse had been created between them and the applicants over money. The agreement in principle which had been given to the applicants in June 1998 was attached to the respondents' submission to the Board. The respondents stated that they were prepared to abide by the Protocol previously submitted whether or not an agreement was reached with the applicants. |
| "The attached Agreement In Principle and the commitments set out in Appendix A of our August 24, 1998 submission address the requirements of Condition 22. M & NP is fully prepared to fulfil those Commitments, whether or not a comprehensive agreement is signed with the Assembly. M & NP also commits to abiding by the Protocol with the Native Council of Nova Scotia which has been verbally agreed to but not yet signed. |
| This letter was not copied to the applicants. |
| [9] Respondents' counsel did not provide the Court with a reason why these submissions to the Board in attempting to satisfy Condition 22 were not copied to the applicants. |
| [10] On October 16, 1998, the Board issued a decision finding that what was submitted by the respondents respected the intent of Condition 22. The Board concluded that the respondents had satisfied Condition 22: |
| The Board has reviewed the confirmed protocols/agreements submitted by M & NP in respect of fulfilment of the intent of Condition 22. In the Board's view, these protocols/agreements respect the intent of Condition 22. |
| The Board has also reviewed M & NP's proposed Agreement in Principle with the Assembly and finds that in terms of dealing with cooperation in studies and monitoring the Agreement in Principle is consistent with the confirmed protocols/agreements. The impasse in concluding this agreement relates to cost considerations and matters which are outside the scope of Condition 22. The Board also notes that, despite the impasse, M & NP is prepared to fulfil the commitments in the Agreement in Principle, whether or not the document is signed. Moreover, the current impasse does not foreclose the opportunity for future consultation. |
| Taking all of the above into consideration, the Board has determined that M & NP protocols/agreements and related undertakings satisfy Condition 22. |
| [11] We agree with counsel for the respondents that the approach in cases such as this was set out by Dickson J. (as he then was) in Martineau v. Matsqui Institution:1 |
| In the final analysis, the simple question to be answered is this: Did the tribunal on the facts of the particular case act fairly toward the person claiming to be aggrieved? It seems to me that this is the underlying question which the courts have sought to answer in all the cases dealing with natural justice and with fairness. |
| The circumstances here involve a proponent for a Certificate of Public Convenience and Necessity for a pipeline having to satisfy a condition to which its Certificate was subject. No general rules of procedural fairness apply uniformly to all cases in which there is communication between parties, intervenors and the Board with respect to satisfying the conditions on certificates. Each case will be determined on its own facts. |
| [12] Here, the Condition in question involved the respondents submitting to the Board a written protocol and agreement in principle spelling out Proponent-Aboriginal roles and responsibilities for cooperative studies and monitoring. We were told the studies involved the applicants' use of Crown land and that monitoring referred to the construction and operation of the pipeline. The Condition reflected the recommendation of the Joint Public Review Panel which, in coming to that recommendation, reported that there had been discussions between the applicants and respondents with respect to a protocol or agreement on further consultations. We think it is obvious that the Joint Public Review Panel expected that the protocol or agreement would result from the discussions between the applicants and respondents. Put another way, an agreement is, by definition, a mutually agreeable set of terms between parties. While a protocol is not necessarily mutually agreed to, in the context here, it was expected to be derived from discussions and consultations between the applicants and respondents. |
| [13] Having regard to this background, it was implicit in Condition 22 that the National Energy Board would hear from both sides as to what that Condition required. Moreover, in a September 3, 1998 letter, the Board wrote to the applicants and, in this case, copied the respondents. The Board stated: |
| The Board believes that consultation to achieve a written protocol or agreement spelling out Proponent-Aboriginal roles and responsibilities is important for the resolution of the kinds of outstanding issues such as have been raised in this instance. The Board notes that agreements are in place with the MAWIW Council of New Brunswick and the Union of New Brunswick Indians, and that the Native Council of Nova Scotia has tentatively agreed to a Protocol for Cooperation and Understanding. The Board encourages the Assembly and M & NP to continue their consultations. The Board will expect correspondence from M & NP and the Assembly by the end of September explaining the situation as it then stands and detailing any concerns or issues that are not resolved. |
| [14] On September 11, 1998, the applicants wrote the Board a wide-ranging letter covering a number of issues and making reference to Condition 22. In an October 16, 1998 letter written to the applicants, the Board acknowledged receipt of the September 11, 1998 letter. Although the respondents argued that the September 11, 1998 letter was considered by the Board in making its decision that Condition 22 had been satisfied, it is not entirely clear whether the Board considered that letter as being responsive to its September 3, 1998 invitation for both the applicants and respondents to submit correspondence as to the status of satisfying Condition 22. In any event, it is clear the September 11, 1998 letter was written prior to the September 30, 1998 submission of the respondents which gave rise to the Board's October 16, 1998 decision confirming satisfaction of Condition 22. In making that decision, the Board did not have the benefit of the applicants' response to the respondents' September 30, 1998 submissions. |
| [15] Respondents' counsel says that the September 3, 1998 letter from the Board inviting correspondence before the end of September shows that procedural fairness was accorded to the applicants. However, the difficulty here is that the applicants were being asked to make submissions without knowing exactly what the respondents were proposing in order to comply with Condition 22. Where procedural fairness rules apply, they require that a party entitled to fairness know the case it has to meet and be able to respond to it.2 That is what was missing here. |
| [16] In the unique circumstances of this case, before issuing a decision that the respondents had satisfied Condition 22, we think the Board was obliged to ensure that the applicants had an opportunity to know specifically what the respondents were submitting with respect to Condition 22 and to provide the applicants with an opportunity to respond to it. In dealing with the respondents and applicants separately, with neither knowing precisely what the other was submitting to it, the Board fell into error. The Board did invite comments from the applicants. However, the procedure it followed did not ensure that the applicants, in making these comments, knew the material that the Board would be considering as having satisfied Condition 22. In proceeding in this fashion, the Board breached the rules of procedural fairness. |
| [17] In coming to this conclusion, we stress that there is no general duty on the Board to adhere to procedural fairness rules in all proceedings involving the satisfaction of conditions attached to certificates after a public convenience and necessity decision has been made. However, where a particular condition, by necessary implication, imposes obligations as between specific participants in the proceedings before it, some adherence to procedural fairness rules by the Board is required. Most post-hearing conditions attached to certificates do not involve specifically identified intervenors. However, the Aboriginal groups involved here had been intervenors before the Board and the Joint Public Review Panel made express reference to discussions between these specific groups and the respondents. In this case, the circumstances called for the Board to ensure that the applicants had the opportunity to know what the respondents were submitting in satisfaction of Condition 22 and be able to respond thereto before deciding that there had been compliance with that Condition. This process was not unknown to the Board and, indeed, was adopted in its proceedings leading to its subsequent Reasons for Decision in GH2-99 of October 1999.3 |
| [18] Condition 22 is a requirement imposed by the Board. A decision as to whether it has been satisfied is discretionary in nature. It would appear to be open to the Board, in its discretion, exercised according to law, to determine whether the agreement and/or the protocol satisfies Condition 22, after it has heard from the applicants and respondents. Notwithstanding applicants' counsel's able submissions, we do not think that it is appropriate to direct the Board at this time as to what it may consider with respect to satisfying Condition 22 or how it should exercise its discretion. |
| [19] Except where the same decision is inevitable,4 a breach of procedural fairness must always render a decision invalid. In Cardinal v. Director of Kent Institution,5 Le Dain J. states: |
| I find it necessary to affirm that the denial of a right to a fair hearing must always render a decision invalid, whether or not it may appear to a reviewing court that the hearing would likely have resulted in a different decision. The right to a fair hearing must be regarded as an independent, unqualified right which finds its essential justification in the sense of procedural justice which any person affected by an administrative decision is entitled to have. It is not for a court to deny that right and sense of justice on the basis of speculation as to what the result might have been had there been a hearing. |
| It is not inevitable that after hearing from the applicants, the National Energy Board would have reached precisely the same decision with respect to compliance with Condition 22 as it originally did. For this reason, the breach of procedural fairness renders the Board's decision invalid. Arguments on other issues by the respondents cannot save it. |
| [20] The respondents argued that the applicants should have returned to the Board to remedy any possible breach of procedural fairness that may have arisen and that that was an adequate alternative remedy before seeking judicial review in the Federal Court. However, the Court is an appropriate forum in which to deal with procedural fairness issues. In any event, the matter is here and has been argued and it would be impractical now not to decide it. |
| [21] The application will be allowed and the matter will be remitted to the Board for redetermination of whether Condition 22 is satisfied, after hearing from the applicants as to their position on the "Protocol" and agreement in principle submitted by the respondents to the Board on September 30, 1998 and giving the respondents an opportunity to respond. Costs will be awarded to the applicants from the respondents. There will no costs awarded for or against the Intervenor Board. |
__________________
1 [1980] 1 S.C.R. 602, at 631.
2 Kane v. Univ. of B.C., Bd. of Governors, [1980] 1 S.C.R. 1105, at 1113.
3 See para. 4.2.2 Aboriginal Consultation: Views of the Board: page 19.
4 Mobil Oil Canada Ltd. v. Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202, at 228-9.
5 [1985] 2 S.C.R. 643, at 661.