NATIONAL ENERGY BOARD

Manitoba Hydro Manitoba-Minnesota Transmission Project

File OF-Fac-IPL-M180-2015-01 02 Hearing Order EH-001-2017

Written Reply Submissions of Manitoba Hydro

June 25, 2018

TABLE OF CONTENTS I. INTRODUCTION...... 3 II. RESPONSE TO CAEPLA ...... 5 A. Manitoba Hydro’s Negotiations with Landowners ...... 5 B. Revisions to the Statutory Easement...... 6 C. Expropriation ...... 7 III. RESPONSE TO CONSUMERS ASSOCIATION OF CANADA MANITOBA ...... 9 A. Economic Feasibility ...... 9 B. Export Price Forecast ...... 9 C. Discount Rate ...... 10 D. Economic Business Case ...... 11 E. MMTP Monitoring Committee ...... 11 IV. RESPONSE TO PEGUIS FIRST NATION ...... 13 V. RESPONSE TO SAGKEENG FIRST NATION ...... 15 A. Assessment of Environmental Effects ...... 15 B. Impacts to Crown lands used by Sagkeeng First Nation members ...... 15 C. Financial Compensation...... 17 VI. RESPONSE TO WA NI SKA TAN ...... 18 VII. RESPONSE TO COUNCIL OF CANADIANS - WINNIPEG CHAPTER ...... 19 VIII. RESPONSE TO MANITOBA METIS FEDERATION ...... 20 IX. RESPONSE TO SHOAL LAKE NO. 40 FIRST NATION ...... 23 X. RESPONSE TO ANIMAKEE WA ZHING #37 FIRST NATION AND NORTHWEST ANGLE #33 FIRST NATION ...... 25 A. Clarity Regarding Consultation Process ...... 25 B. Assessment of impacts to AWZ#37 and NWA#33 ...... 26 XI. RESPONSE TO SOUTHERN CHIEFS’ ORGANIZATION ...... 28 A. Board Jurisdiction ...... 28 B. SCO Working Warriors Database ...... 28 XII. RESPONSE TO SOUTHEASTERN STAKEHOLDERS COALITION ...... 29 A. The ISD for Keeyask Generation Station ...... 29 B. The ISD for the Project ...... 29 C. The Ownership of the Great Northern Transmission Line ...... 30 XIII. RESPONSE TO MANITOBA WILDLANDS...... 31 XIV. DISPOSITION SOUGHT ...... 32

I. INTRODUCTION

1. The Intervenors in the National Energy Board (“Board”) proceeding for the Manitoba- Minnesota Transmission Project (the “Project”) have provided both oral and written arguments.

2. These reply submissions (“Reply Submissions”) will first address issues raised by each of the following Intervenors in their oral final arguments:

(a) Canadian Association of Energy and Pipeline Landowners Association (“CAEPLA”);

(b) Consumers Association of Canada - Manitoba Branch (“CAC Manitoba”);

(c) Peguis First Nation;

(d) Sagkeeng First Nation; and

(e) Wa Nis Ka Tan.

3. The Reply Submissions will then address issues raised by each of the following Intervenors in their written arguments:

(f) Council of Canadians - Winnipeg Chapter (“CoC”);

(g) Manitoba Metis Federation;

(h) Shoal Lake No. 40 First Nation;

(i) Animakee Wa Zhing #37 First Nation;

(j) Northwest Angle #33 First Nation;

(k) Southern Chiefs’ Organization;

(l) Southeast Stakeholders Coalition (“SSC”); and

(m) Manitoba Wildlands.

4. Many arguments raised by the Intervenors have already been addressed in Manitoba Hydro’s Final Written Submissions1 and are not repeated here. These Reply Submissions focus on issues raised by the Intervenors that were not already addressed in Manitoba Hydro’s Written Submissions. Manitoba Hydro’s silence on a particular matter should not be interpreted as agreement with or acquiescence to the position of the Intervenors.

1 Exhibit A92662-1.

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5. Manitoba Hydro submits that the case for the Project is compelling, and has not been brought into question by the Intervenor arguments. The Project is in the public interest and should be approved.

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II. RESPONSE TO CAEPLA

6. In CAEPLA’s final argument, it argued it was seeking “improvements” to Manitoba Hydro’s land acquisition process. Manitoba Hydro will respond to the following three issues raised in CAEPLA’s argument:

(a) Manitoba Hydro’s negotiations with landowners;

(b) Revisions to the Statutory Easement; and

(c) Expropriation.

A. Manitoba Hydro’s Negotiations with Landowners

7. CAEPLA suggested that Manitoba Hydro presented its Statutory Easement as a “take it or leave it” offer, without negotiating with landowners.2

8. CAEPLA’s argument does not reflect the facts of the Proceeding. Contrary to CAEPLA’s argument, the evidence of Mr. Ireland was clear that Manitoba Hydro did not agree with the suggestion that its Statutory Easements were provided on a take it or leave it basis.3 There is no basis to suggest otherwise.

9. Manitoba Hydro’s Reply Evidence was clear on its commitment that, prior to construction, Manitoba Hydro will prepare a draft letter for landowners affected by the new right-of-way summarizing its commitments, the concerns that were heard and details about future steps and communications. Once landowners have had the opportunity to review the draft letters, Manitoba Hydro will seek to gain additional feedback on whether they have any new or additional concerns to note. Site visits will occur on request or as needed, and will be completed by Manitoba Hydro to learn about site specific features of concern and discuss mitigation measures. Manitoba Hydro will then provide final letters summarizing its commitments to landowners prior to commencing construction on their lands.4

10. This was explained by Ms. Bratland at the hearing:

“Those [commitment] letters are a way for Manitoba Hydro to document with the landowner the commitments that we’re making to them when we undertake the project on their land. The process of documenting those commitments, discussing what might be missing from those commitments, and then sending a signed letter to the landowner is another way for us to show them the commitment we’ve made on their land and the actions we will undertake.”5

2 Transcripts, Vol. 9 (June 21, 2018), para. 2524. 3 Transcripts, Vol. 6 (June 18, 2018), paras. 2410-2415. 4 Exhibit A92478-2, PDF page 29, para. 87. 5 Transcripts Vol. 6 (June 18, 2018), para. 2442.

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11. As Mr. Ireland indicated at the hearing, there are also other opportunities for Manitoba Hydro to address landowners’ particular concerns. Mr. Ireland stated:

“If a landowner, during a discussion over a voluntary easement expresses concerns about any particular part of the easement, then there’s a potential there for us to be able to document those concerns in the landowner database. There is opportunities for us to make minor improvements or minor changes directly onto the easement form, or there’s opportunities for us potentially to have an appendix, or an add to the easement agreement.”6

B. Revisions to the Statutory Easement

12. CAEPLA argued that it was seeking changes to the Statutory Easement in the following three respects:

(a) Construction in wet soil conditions;

(b) Biosecurity; and

(c) Third party oversight.7

13. None of these conditions is necessary. The evidence on the record is clear that Manitoba Hydro has appropriate protocols in place pertaining to each of these issues. Regarding wet soils, Mr. Matthewson confirmed that mitigation measures are available to Manitoba Hydro and needed to be assessed on a case-by-case basis.8

14. Regarding biosecurity protocols, Mr. Matthewson was clear that a biosecurity management plan is being developed and will be in place prior to construction of the Project:

“…has resulted in Manitoba Hydro developing a biosecurity -- or in the process of developing a biosecurity management plan, which goes into more detail about the nature of the different construction activities, whether they be similar to Manitoba Agriculture, where they look at the nature of those activities and the disturbance to soils and involvements such as installing a foundation on a tower in agricultural land versus surveying on agricultural land, similar to the way Manitoba Agriculture defines those.

The risk is a combination of the risk levels that Manitoba Hydro has or currently has are still low and high risk. And they do look at a combination of known invasive plant species within the area, clubroot sampling results, landowner discussions about individual landowner biosecurity plans and protection measures they may have on their land, as well as the spreading of manure within the parcel of land that the right-of-way is built on.

6 Transcripts Vol. 6 (June 18, 2018), para. 2436. 7 Transcripts Vol. 9 (June 21, 2018), para. 7621. 8 Transcripts Vol. 6 (June 18, 2018), paras. 2515-2516.

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There are a variety of different factors involved in determining the risk level that Manitoba Hydro will assign to a particular parcel of land, one of which will include these -- the current weather conditions and saturated soils or dry, frozen soils is that will affect how those soils cling to the equipment and people's boots and how those -- what the level of cleaning is required to address and remove that soil from the equipment.”9

15. With respect to third party oversight, Manitoba Hydro’s Reply Evidence explained that there will be numerous parties to oversee the construction of the Project, including but not limited to the following parties:

(a) Manitoba Sustainable Development and other provincial departments, which are responsible for approving Manitoba Hydro’s construction environmental plans and ensuring the licence conditions and permits falling under their scope of authority are adhered to;

(b) Provincial and federal departments (which include biologists and other experts) responsible for reviewing the annual monitoring reports;

(c) International Organization for Standardization auditors who can review the results of Manitoba Hydro’s Environmental Protection Program;

(d) Provincial and federal inspectors;

(e) Third party biosecurity and environmental monitoring specialists; and

(f) MMTP Monitoring Committee and associated monitors hired by the Committee.10

C. Expropriation

16. CAEPLA argued that if landowners were to be subject to expropriation, they would not have an opportunity to challenge the expropriation.11

17. The land acquisition process for the Project will be overseen provincially, as Manitoba Sustainable Development has been designated as the “provincial regulatory agency” under section 59.17 of the National Energy Board Act.12 As such, the Board will not share oversight with Manitoba. However, as Manitoba Hydro indicated in an information request response to CAEPLA, under The Expropriation Act,13 landowners may have the right to issue a Notice of Objection calling for a public inquiry as to whether a proposed expropriation is fair and reasonably necessary.14 The determination of whether that

9 Transcripts Vol. 6 (June 18, 2018), paras. 2603-2605. 10 Exhibit A92478-2, PDF page 46, para. 154. 11 Transcripts Vol. 9 (June 21, 2018), para. 7591. 12 National Energy Board Act, RSC 1985, c. N-7. 13 CCSM, c. E190. 14 Exhibit A91170-1, NEB_CAEPLA-IR-001.14(f), PDF page 37.

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public inquiry is waived is a determination that is made by the Province of Manitoba and is outside of Manitoba Hydro’s control.

18. Manitoba Hydro notes that even if the Board had the power to oversee the Provincial expropriation process, this would not be an appropriate forum to do it. As CAEPLA does not represent any landowners affected by the Project, it is asking for certificate conditions to be made in the abstract, in an evidentiary vacuum. This is particularly problematic in a proceeding such as this, where the Board is being asked to make constitutional determinations on the record that is before it.15 As such, it would not be appropriate for the Board to make such a determination.

15 Beattie v. Canada, 2006 FC 24, para. 20. [Tab 1] - 9 -

III. RESPONSE TO CONSUMERS ASSOCIATION OF CANADA MANITOBA

19. Manitoba Hydro will respond to the following four issues raised by CAC Manitoba:

(a) Economic feasibility of the Project;

(b) Export price forecast;

(c) Discount rate;

(d) Updated business case.

A. Economic Feasibility

20. CAC Manitoba argued that the “crux” of its argument with respect to economic feasibility was that the circumstances have changed since 2016 such that the economic analysis undertaken by Manitoba Hydro could not be relied upon.16

21. It is not clear what changed circumstances that CAC Manitoba was referring to. In argument, CAC Manitoba mentioned that it had retained Bill Harper of Econanalysis to assist with its assessment of the need for and assessment of the economic feasibility of the Project.17 However, neither CAC Manitoba nor Mr. Harper filed any written or any other evidence of this assessment. As such, Manitoba Hydro’s information is the best and only information regarding the economic feasibility of the Project before the Board. As CAC Manitoba should be fully aware, having been involved in both the previous Needs for and Alternatives to (“NFAT”) and Clean Environment Commission proceedings related to the Project, approvals to construct international power lines like the Project may take several years, as has been the case with the Project. As such, it should be of no surprise to CAC Manitoba that financial information from late 2016 was relied upon by Manitoba Hydro for an Application that was filed in late 2016.

B. Export Price Forecast

22. With respect to export price forecasts, CAC Manitoba argued that Manitoba Hydro relied on different pricing than it did for most its recent General Rate Application to the Public Utilities Board. In particular, CAC Manitoba criticized Manitoba Hydro for including a “capacity premium” in its forecast export prices for this Project.18

23. CAC Manitoba’s reference to “capacity premium” confuses two pricing concepts in Manitoba Hydro’s long term revenue forecast: the premium on long term dependable (firm) energy; and the value of generation capacity as a separate product. As noted in the 2016 500 kV Evaluation Report filed by Manitoba Hydro, the electricity price forecast no

16 Transcripts Vol. 9 (June 21, 2018), para. 7700. 17 Transcripts Vol. 9 (June 21, 2018), para. 7667. 18 Transcripts Vol. 9 (June 21, 2018), para. 7715-7716.

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longer assumes a premium for long term firm prices.19 As such, the premium on long term dependable energy was not a source of economic value considered in the Boston Consulting Group analysis and the 500 kV Evaluation Report, or in subsequent General Rate Applications to the Manitoba Public Utilities Board.

24. With respect to the value of generation capacity, it was included as a separate product as a source of economic value in Manitoba Hydro’s 2016 analysis. Mr. Cormie confirmed to CAC Manitoba that Manitoba Hydro did not include the value of unsold generation capacity as a separate product in its 2017 General Rate Application.20 However, the Manitoba Public Utilities Board subsequently found that Manitoba Hydro’s export forecast to be conservative and did not support the removal of the value of generation capacity from Manitoba Hydro’s financial forecast.21 As such, the export price forecast used in 2016 analysis is still representative.

C. Discount Rate

25. CAC Manitoba argued that less weight can be given to the 2016 business case analysis because the lower discount rate is inconsistent with the trend in Manitoba Hydro's projected interest rates.22

26. CAC Manitoba is incorrect. In fact, as provided in Manitoba Hydro’s response to NEB IR No. 7.1.k.1, the interest rate forecast has declined further for the 2017/18 to 2019/20 time-period, which is the period in which Manitoba Hydro would expect the majority of the capital costs for the Project and the Great Northern Transmission line project to be incurred and financed.23

27. Manitoba Hydro also provided evidence with respect to the impact that the discount rate can have on the economic value of the Project in its response to NEB IR No. 7.1.l. This analysis indicated that for the NFAT analysis, the discount rate would need to increase from 5.40% to 9.29% in order to drive the net present value (“NPV”) benefit to zero.24 Furthermore Section 3.4 of the 500 kV Evaluation Report examined the sensitivity of the NPV benefit to potential increases in the discount rate. This sensitivity analysis indicates that deriving a new discount rate based on Manitoba Hydro’s current long term interest rate forecast, which is based on the 10 year plus rate (average of 10 and 30 year debt rates), that the current interest rate forecast will have little to no negative effects on the NPV benefits of the Project.25

19 Exhibit A92431-3, PDF page 19. 20 Transcripts, Vol. 6 (June 18, 2018), para. 3003. 21 Exhibit A92039-1, Order No. 59/18, PDF page 128. 22 Transcripts, Vol. 9 (June 21, 2018), para. 7737. 23 Exhibit A92431-2, NEB IR No. 7.1.k, PDF page 25. 24 Exhibit A92431-2, NEB IR No. 7.1.l, PDF page 31. 25 Exhibit A92431-3, PDF pages 27-30.

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D. Economic Business Case

28. CAC Manitoba asserted in its final argument that a certificate should not be issued until Manitoba Hydro submits an updated business case to the Board including all inputs current as of June 2018, and that the Board is satisfied of the positive economic value of the Project.26

29. An update to the economic business case is not necessary. The 500 kV Evaluation Report accurately reflects the benefits of the Project to Manitoba Hydro and contains sensitivity analysis to address the concerns that CAC Manitoba raised regarding key inputs to the economic analysis. CAC Manitoba’s concerns with key inputs have been addressed by the reports through evidence that has been filed by Manitoba Hydro with the Board. The 500 kV Report identified numerous strategic benefits that are not included in the NPV benefit, including provincial benefits of $196M and rate payer reliability benefits of $72M to $98M.27

E. MMTP Monitoring Committee

30. CAC Manitoba also argued that a licencing recommendation of the Clean Environment Condition had not been met, as it does not include local residents, interested non- governmental organizations and academic researchers.28 CAC Manitoba also argued that monitoring activities would only occur for two years.29

31. As Manitoba Hydro indicated in response to an information request from Peguis First Nation,30 the draft licencing conditions recommended by the Clean Environment Commission have not yet been approved by the Minister of Sustainable Development. Ms. Coughlin explained at the hearing that the Indigenous participants of the Committee had expressed their preference not to have landowners or environmental non governmental organizations participate in the Committee.31 Ms. Coughlin confirmed that there were other communication protocols and opportunities for these stakeholders to continue to participate in the Project, including landowner liaisons to discuss concerns with the Project.32 The landowner liaisons provide the opportunity for landowners to voice concerns directly with Manitoba Hydro one-on-one. In accordance with the draft conditions, Manitoba Hydro expects it will be filing monitoring reports on an annual basis and non-government organizations and academic researchers will have the opportunity to provide feedback directly to the government should they have any concerns with these reports and their findings. As such, there is no need for a second committee.

26 Transcripts, Vol. 9 (June 21, 2018), para. 7784. 27 Exhibit A92431-3, PDF page 35. 28 Transcripts, Vol. 9 (June 21, 2018), para. 7759. 29 Transcripts, Vol. 9 (June 21, 2018), para. 7763. 30 Exhibit A91174-1, PDF page 1. 31 Transcripts, Vol. 6 (June 18, 2018), para. 3160. 32 Transcripts, Vol. 6 (June 18, 2018), paras. 3162-3166.

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32. As indicated in Manitoba Hydro’s Reply Evidence, the MMTP Monitoring Committee activities in the operation phase of the Project are anticipated to be commensurate with the nature of activities occurring during this time.33 Ms. Coughlin confirmed in response to a question from the Board that the MMTP Monitoring Committee activities would not be limited to a two year term.34 She indicated that herbicide application was an example of the type of activity that the Committee may be interested in once the Project is placed into operation.

33 Exhibit A92478-2, PDF page 45, para. 152. 34 Transcripts, Vol. 9 (June 21, 2018), para. 6664.

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IV. RESPONSE TO PEGUIS FIRST NATION

33. In oral argument, Peguis First Nation argued that the Board’s process does not constitute “consultation” with the federal Crown.35 Peguis First Nation argued that the Board process was “not good” with respect to the duty to consult Indigenous groups, as it was unilaterally imposed upon it.36

34. As demonstrated in the community summary filed with the Board, Manitoba Hydro’s engagement efforts with Peguis First Nation have been exhaustive.37 This was confirmed by Ms. Coughlin under cross examination by counsel for Peguis First Nation:

“We began engagement with Peguis right at the start, at the beginning, before we had a route. We had a beginning location and border crossings, and Peguis was involved from August of 2013 and throughout.

They're one of the groups we have engaged with robustly and continuously throughout the development of the MMTP route, environmental assessment, the development of mitigation measures and definitely the formation of the monitoring committee. A lot of it has been influenced by much of the information shared and received through communications Peguis First Nation, specifically, Mike Sutherland.”38

35. Peguis First Nation’s concerns do not appear to be with the Project. In its final argument, Peguis First Nation did not mention the Project, or the public interest test applicable to the Board.

36. Like all Intervenors in the Proceeding, Peguis First Nation has had, and has exercised, all opportunities to participate in the Board’s process. Peguis First Nation requested clarification from the Board regarding the federal Crown’s intent to rely on the Board’s process.39 The letter indicated that a response from the federal government was “crucial” to its ability to prepare information requests, evidence, oral traditional evidence (“OTE”) and to decide which experts to utilize. Subsequently, the Minister of Natural Resources40 and the National Energy Board41 each unequivocally responded to Peguis First Nation confirming that the federal Crown would be relying on the Board’s process to satisfy, in whole or part, its duty to consult Indigenous groups.42

35 Transcripts, Vol. 10 (June 22, 2018), paras. 7922-23. 36 Transcripts, Vol. 10 (June 22, 2018), para. 7924. 37 Exhibit A92082-2, Response to NEB IR No. 5.9, PDF pages 109-129. 38 Transcripts, Vol. 8 (June 20, 2018), para. 5117 39 Exhibit A90450-1. 40 Exhibit A90752-1. 41 Exhibit A91387-1. 42 Exhibit A90752-1.

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37. Subsequently, after receipt of this clarification, Peguis First Nation filed correspondence with the Board indicating that it did not want the proceeding suspended. As stated in response to a motion brought by the SSC:

“To the extent that the NEB process constitutes a fulfilment of the Crown’s duty to consult, then PFN takes the position that the suspension or adjournment of the NEB Process will materially affect and interfere with the exercise of duties of Consultation and Accommodation…”43

38. Even though Peguis First Nation signed an agreement expressing its support for the Project,44 it fully exercised its opportunity to participate in the Board process. With the assistance of legal counsel, Peguis First Nation:

(a) made information requests of Manitoba Hydro;

(b) filed written evidence;

(c) filed comments on the draft Board conditions;

(d) provided evidence through OTE;

(e) provided comments on proposed mitigative measures;

(f) cross examined Manitoba Hydro’s panel; and

(g) participated in oral argument.

39. Peguis First Nation was provided funding for this participation through the Board’s Participant Funding Program. As such, it would be inaccurate to suggest that the Board’s process does not constitute consultation.

43 Exhibit A91064-1, PDF 11, para. 39. 44 Exhibit A92082-2, Response to NEB IR. No. 5.11, PDF 197.

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V. RESPONSE TO SAGKEENG FIRST NATION

40. In oral argument, Sagkeeng First Nation raised three issues, which Manitoba Hydro will respond to:

(a) Assessment of environmental effects;

(b) Impact to Crown lands used by Sagkeeng First Nation members;

(c) Financial compensation.

A. Assessment of Environmental Effects

41. Sagkeeng First Nation argued that it undertook twice the effort of Manitoba Hydro in that it assessed both Canadian Environmental Assessment Act, 2012 (“CEAA, 2012”) factors and the impact of the Project on Indigenous and Treaty rights.45 Sagkeeng First Nation argued that Manitoba Hydro focussed strictly on the CEAA, 2012 factors.

42. Sagkeeng First Nation’s argument does not accord with the record of the proceeding. The Application is clear on its face that Manitoba Hydro went far beyond the consideration of the CEAA, 2012 factors in its application to the Board. The public interest test also considers the broader societal benefits of the Project, as well as the socioeconomic effects of the Project. Engagement activities with Indigenous communities, including Sagkeeng First Nation, were clearly considered as part of these broader assessments, including the design of the Project.

B. Impacts to Crown lands used by Sagkeeng First Nation members

43. Sagkeeng First Nation argued that the right-of-way would impact Crown lands, affecting its interests in moose harvesting and medicinal and food plants.46 Sagkeeng First Nation argued that the Project would affect Crown lands, and the fact that the right-of-way would remain accessible to Sagkeeng First Nation members was “irrelevant” and that Manitoba Hydro has rendered its concerns “invalid”.47 Sagkeeng First Nation requested that the Board require Manitoba Hydro to fund a regional Aboriginal Traditional Knowledge (“ATK”) study and to fund an environmental monitoring regime.48

44. Unoccupied Crown lands constitute less than 10% of the Final Preferred Route.49 The fact that Indigenous peoples will continue to have access to the right-of-way is not irrelevant. There is absolutely no evidence on the record to support the suggestion that Manitoba Hydro considered the concerns of Sagkeeng First Nation to be “invalid”. The

45 Transcripts, Vol. 10 (June 22, 2018), para. 7990. 46 Transcripts, Vol. 10 (June 22, 2018), para. 8111. 47 Transcripts, Vol. 10 (June 22, 2018), para. 8064, 8068. 48 Transcripts, Vol. 10 (June 22, 2018), para. 7990. 49 Exhibit A84536-22, MMTP CEC Hearing Transcript (June 22, 2017), May 30, 2017, Transcript Page 3156, PDF page 865, ll,12 to 15.

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abundance of evidence on the record is clear that Manitoba Hydro undertook its engagement efforts in good faith, with the intent of meaningfully addressing concerns. The fact that Sagkeeng First Nation entered into agreements with Manitoba Hydro to undertake ATK studies accords with this.

45. Sagkeeng First Nation’s requests for an ATK study and for an environmental monitoring program are unnecessary. As previously indicated, Manitoba Hydro has already funded an ATK study and a second supplemental study for Sagkeeng First Nation.50 The studies were self-directed. As such, the scope of the Project area was chosen by Sagkeeng First Nation, not Manitoba Hydro.

46. Sagkeeng First Nation’s ATK study confirmed that the right-of-way for the Final Preferred Route is not an area that is used by Sagkeeng First Nation members. The Sagkeeng First Nation self-directed study indicated:

“While the individuals were happy to talk and share their stories, the area that is proposed for the Manitoba Minnesota Transmission Line, was not widely used by the members interviewed and they had only little recollection of how the area was used in the recent past.

The most common activities that were talked about as having been practiced in the general area were berry picking and hunting. However, these activities have apparently seen a gradual decline over the years.”51

47. In addition to its ATK studies, if there were outstanding concerns, they could have been raised by Sagkeeng First Nation in this proceeding. Sagkeeng First Nation participated fully in the proceeding. With the assistance of legal counsel, Sagkeeng First Nation:

(a) made information requests of Manitoba Hydro;

(b) filed written evidence;

(c) filed comments on the draft Board conditions;

(d) provided evidence through OTE;

(e) provided comments on proposed mitigative measures;

(f) cross examined Manitoba Hydro’s panel; and

(g) participated in argument.

48. Sagkeeng First Nation was also provided participant funding through the Board’s Participant Funding Program.

50 Exhibit A81184-3, PDF pages 46-76; Exhibit A91072-6, PDF pages 33-39. 51 Exhibit A81184-3, PDF page 58.

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49. Manitoba Hydro is already funding the MMTP Monitoring Committee and Sagkeeng First Nation has been repeatedly invited to participate, both within this proceeding and outside of it.52

C. Financial Compensation

50. Sagkeeng First Nation indicated that Manitoba Hydro failed to provide for financial compensation and other benefits of an economic nature.53

51. Sagkeeng First Nation appears to misunderstand the authority of the Board. While the Board can consider constitutional questions, the Board does not have the mandate or authority to appropriately identify or order compensation to Indigenous groups. As a creature of statute, upon questioning from the Board, counsel for Sagkeeng First Nation acknowledged that there was nothing in the Board’s enabling legislation that would grant it such a statutory authority and there is no precedent for it.

52. The duty to consult is owed by the Crown. While initially referring to the Board as the “final decision making authority”,54 counsel for Sagkeeng First Nation later correctly acknowledged that it will be the Governor in Council, and not the Board, that will make the ultimate decision as to whether to issue a certificate for the Dorsey international power line (“IPL”). As such, to the extent any compensation would be payable, it would be the Crown that makes that decision. The Crown may instead decide that the conditions issued pursuant to a certificate of public convenience and necessity constitute appropriate accommodation of the Indigenous interests in this proceeding. As such, Sagkeeng First Nation’s request is premature.

53. Manitoba Hydro notes that even in the context of Crown consultation, which has not been delegated to Manitoba Hydro in this case, there is no duty for the Crown to provide funding to Indigenous groups. The Federal Court of Appeal recently confirmed this in Bigstone Cree Nation v. NOVA Gas Transmission Ltd.55 In that decision, the Federal Court of Appeal clearly stated that “the Crown is under no obligation to provide funding” to Indigenous groups.

52 Exhibit A91176-1, PDF pages 188-189. 53 Transcripts, Vol. 10 (June 22, 2018), para. 7997. 54 Transcripts, Vol. 10 (June 22, 2018), para. 8011. 55 2018 FCA 89, para. 45. [Tab 2] - 18 -

VI. RESPONSE TO WA NI SKA TAN

54. In oral argument, Wa Ni Ska Tan indicated that the “silo” approach of the Board’s process, should not be utilized to assess the Project.56 Wa Ni Ska Tan went on to suggest that because no questions were put to Wa Ni Ska Tan witnesses, the Board should place weight on their reports.57

55. The Board’s consideration of the public convenience and necessity cannot be fairly characterized as a “silo” approach. The Board has broad powers to consider the need for and broader Canadian benefits of the Project, as well as its environmental, social and economic effects. The Board has a duty to consider impacts on Indigenous rights, which the Supreme Court of Canada has indicated can be thought of as a “special public interest” within its broader public interest mandate.58

56. Manitoba Hydro disagrees that any weight should be placed on the reports filed by Wa Ni Ska Tan. There is no evidence before the Board of Wa Ni Ska Tan having the authority to speak for any Indigenous group. As such, there was no need to cross examine any of the witnesses or to require their attendance at the hearing. Each of the reports contained an express proviso indicating that views were those of the writer, and did not represent those of Wa Ni Ska Tan, or anyone else.59

57. Furthermore, there was almost no mention made of the Project included in any of the reports. As such, the information was not relevant to the Application before the Board. While Wa Ni Ska Tan may disagree with the well-established statutory scheme for approval of international power lines in Canada, it was provided a fulsome opportunity, which it utilized, to participate within that process.

56 Transcripts, Vol. 10 (June 22, 2018), para. 8242. 57 Transcripts, Vol. 10 (June 22, 2018), para. 8246. 58 Clyde River (Hamlet) v. Petroleum Geo‑Services Inc., 2017 SCC 40, para. 40. 59 Exhibit A91743-19, PDF page 5, para. 11; Exhibit A91743-4, PDF page 2; A91743-9, PDF page 2; and Exhibit A91743-2, PDF page 7.

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VII. RESPONSE TO COUNCIL OF CANADIANS - WINNIPEG CHAPTER

58. The COC Winnipeg argument focuses on the same issues raised in the COC Winnipeg information requests, including climate change and decarbonisation.60

59. Manitoba Hydro’s consideration of climate change, including its report prepared specifically for the purposes of this Project, have been thoroughly explained and will not be repeated here. Beyond this consideration, as the Board indicated in Ruling No. 461 and Ruling No. 8,62 other downstream impacts of the Project (e.g., decarbonisation) are beyond the scope of the proceeding or the Board’s mandate in considering Manitoba Hydro’s Application.

60. Manitoba Hydro notes that many of the materials referenced in the COC Winnipeg argument are not evidence in the Proceeding. COC Winnipeg refers extensively to new website links, documents cited in information requests, and other materials that are not on the record. As the documents were not prepared by COC Winnipeg, and were not adopted by any party to the Proceeding, reference to them in final argument is inappropriate.

60 Exhibit A92593-1. 61 Exhibit A90001-1. 62 Exhibit A91931-1.

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VIII. RESPONSE TO MANITOBA METIS FEDERATION

61. In a number of instances in the MMF final written argument, new facts appear to be referenced that were not put into evidence by MMF.63 As such, Manitoba Hydro would not expect the Board to take into consideration or provide any weight to these “facts” - many of which are disputed by Manitoba Hydro - in its consideration of Manitoba Hydro’s Application.

62. The MMF argument states that the Environmental Impact Statement (‘EIS”) failed to address impacts to Metis rights.64 As such, the MMF requested that the Board issue two conditions on any approval for the Project, including: 1) a condition that Manitoba Hydro fully implement its legally binding agreements with Indigenous peoples; and 2) a condition that the Board recommend that the Crown not make a decision on the Project until an agreement between Manitoba Hydro and the MMF is implemented.65 Neither of these conditions is necessary, appropriate or enforceable.

63. With respect to the first suggested condition, it would serve no practical purpose and would potentially reach beyond the mandate of the Board. Manitoba Hydro is already obligated to satisfy its legal agreements. Requiring Manitoba Hydro to implement its Indigenous agreements as a condition of its certificate and public convenience and necessity for one of its many transmission assets (i.e., the Dorsey IPL), would, in effect, provide the Board with oversight over unrelated Manitoba Hydro operations. Furthermore, such a condition may also overreach the federal jurisdiction of the Board. As the Board is aware, Manitoba Sustainable Development has been designated as the “provincial regulatory agency” for the Dorsey IPL pursuant to s. 59.17 of the National Energy Board Act. This provides the Province with jurisdiction over the detailed route for the Dorsey IPL and the land acquisition process.66 To the extent that an agreement touched upon a Provincial matter (e.g., a Provincial Crown land permit), the Board may not have supervisory jurisdiction.

64. At paragraph 14 of the MMF argument, MMF acknowledges that the Board cannot assess the legal effect of its purported agreement with Manitoba Hydro.67 Manitoba Hydro agrees. As the Board cannot assess the substance of agreements, contested or otherwise, it is similarly not in a position to take contractual analysis even further and determine whether any agreement has been “fully implemented”. The Board lacks the discovery and trial procedures and processes to make such determinations. The Board also lacks the remedy or relief powers that may be appropriate to address such circumstances (e.g., to award contractual damages).

63 Exhibit A92669-2. For example, see paras. 14, 32 and 73. 64 Exhibit A92669-2, PDF page 5, para. 9. 65 Idem., PDF page 37, para. 151. 66 National Energy Board Act, RSC 1985, c. N-7, s. 59.19. 67 Exhibit A92669-2, PDF page 6, para. 14.

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65. Regarding the second recommended condition, requiring an agreement between Manitoba Hydro and the MMF would effectively serve to provide the MMF with a veto over the Project. In Haida, the Supreme Court of Canada was clear that with respect to an unproven, asserted right prior to final proof of claim, no such veto exists for any Indigenous group.68 More recently, in Chippewas, the Supreme Court of Canada confirmed that, pursuant to the duty to consult, an Indigenous group does not have a veto over a Crown decision.69

66. The more appropriate forum for the MMF to address its concerns about the existence of a contract is before the Manitoba Court of Queen’s Bench, before a trier of fact and pursuant to the full rules of evidence and the Court of Queen’s Bench Rules. As such, the Board should not entertain a condition that it would have no jurisdiction to provide subsequent oversight over.

67. Manitoba Hydro agrees with the MMF that the duty to consult must be discharged before the federal Crown’s approval of the Project. However, the Board process itself can constitute, in whole or in part, the consultation and, if appropriate, accommodation of the MMF. As such, the MMF’s requested condition should not and cannot be considered in isolation of other conditions that may be issued to accommodate impacts to MMF and other Indigenous groups’ rights.

68. Manitoba Hydro and MMF do not agree that an agreement exists or existed. Manitoba Hydro does not rely on the alleged agreement. In the absence of MMF’s conditional support for the Project, the Board must assess the impacts of the Project on MMF’s asserted rights.

69. While Manitoba Hydro is not in a position to undertake a legal assessment of MMF’s rights, it has engaged with MMF regarding the Project and shared information regarding MMF’s use of the Project area. For example, Manitoba Hydro provided funding for the MMF to undertake a Land Use and Occupancy Study for the Project. As part of that study, MMF provided Manitoba Hydro with site specific information.

70. As the MMF argument acknowledges, the Land Use and Occupancy Study was a baseline study.70 The full title of the report is “Metis Land Use and Occupancy Study Assessment of Potential Effects Prior to Mitigation (emphasis added).”71 As such, the study considered effects prior to the mitigation not residual effects, as described in paragraphs 88 and 89 of the MMF final argument.

71. To mitigate effects of the Project on the use of the Project area by MMF members, Manitoba Hydro has proposed a substantial number of mitigation measures. The mitigation measures Manitoba Hydro has proposed have been filed with the Board as a

68 Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511, para. 48. 69 Chippewas of the Thames First Nation v. Enbridge Pipelines Inc., 2017 SCC 41, para. 59. 70 Exhibit A92669-2, PDF page 12, para. 34. 71 Exhibit A91072-20.

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supplemental report in this proceeding.72 Manitoba Hydro’s filing includes a summary of how the MMF study influenced the Project.

72. As shown in the community summary that was filed with the Board in response to NEB IR No. 5.9, Manitoba Hydro has engaged extensively with the MMF regarding the Project since 2013.73 The MMF has been included in all communications regarding the Board’s process and been invited to, and has attended, MMTP Monitoring Committee meetings. The MMF has also been invited to meet with Manitoba Hydro to discuss Project related concerns, site specific issues, and the Environmental Protection Plan for the Project. The MMF has also been provided with Project contracting related materials. As such, the MMF has been continuously engaged on the Project with Manitoba Hydro and has been offered opportunities for further engagement.

73. The MMF will continue to have opportunities for further Project-related engagement, including the identification of any additional Environmentally Sensitive Sites, as well as further participation opportunities in the MMTP monitoring committee. The evidence on the record is clear that, as is the case with all Indigenous groups, Manitoba Hydro remains open to meeting with the MMF to discuss the Project.

72 Exhibit A90600-2. 73 Exhibit A92082-2, PDF pages 182-188.

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IX. RESPONSE TO SHOAL LAKE NO. 40 FIRST NATION

74. In its written argument, Shoal Lake No. 40 argues that if approved, the Project has the potential to affect seasonal water levels and the regulation of water in the Lake of the Woods water system, and in turn exacerbate existing impacts on the exercise of Shoal Lake No. First Nation’s Indigenous and Treaty rights.74 The Shoal Lake No. 40 First Nation argument goes on to state that Manitoba Hydro had not provided any reports substantiating its position that the regulation of Lake of the Woods will not change as a result of the Project.75

75. As the Board indicated in Rulings No. 4,76 877 and 13,78 the water levels of the Lake of the Woods are outside of the scope of this Proceeding. Regardless, a report from Manitoba Hydro would be unnecessary. Mr. Cormie provided uncontroverted evidence in this Proceeding that the Project will have no impact on water levels of the Lake of the Woods and that Manitoba Hydro does not control the lake levels. Lake of the Woods water levels are controlled by the Canadian Lake of the Woods Control Board:

“MR. CORMIE: Yes. The dams at the outlet of Lake of the Woods are owned by a private utility; I think it’s H2O Power Ltd. But those dams are regulated by the Canadian Lake of the Woods Control Board, which is a government organization set up under concurrent legislation.

The board members are appointed under Order in Council. And there’s legislation that describes the operating limits for Lake of the Woods and what happens when water levels get too low and what happens when they get too high.

Manitoba Hydro has no legislative relationship to that board. We do not control those. We go before the Lake of the Woods Control Board, like other users, and express our views. And the board takes those views into consideration when it makes its regulation decision.

So the Board doesn’t come to Manitoba Hydro, “What would you like?” We go to the board, just as in this process, and seek -- they seek our input and then they make those decisions.

There are reservoirs in northwest Ontario that are deemed to by hydroelectric reservoirs, where the hydroelectric utilities can make specific requests for flow changes. And the Lake of the Woods Control Board in those reservoirs is very responsive.

Lake of the Woods is a different -- it’s not considered a reservoir, a hydropower reservoir. It’s considered a -- it’s a multipurpose lake. And the legislation is

74 Exhibit A92645-1, PDF page 1, para. 2. 75 Idem., PDF page 10, para. 40. 76 Exhibit A90001-1. 77 Exhibit A91931-1. 78 Transcripts, Vol. 6 (June 18, 2018), paras. 1995 to 2001.

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very broad, requiring the Lake of the Woods Control Board to regulate for the maximum beneficial use of all parties.

And so Manitoba Hydro has no preferential position in -- when it goes to speak to the board in asking for any particular water flows.

MEMBER LYTLE: Okay. So to be clear, Manitoba Hydro is not the point of control of lake levels in that particular ---

MR. CORMIE: That’s correct. It’s outside Manitoba. It’s not our dam. It’s upstream. The board decides independently -- not independently, but it has its independent jurisdiction, and it can choose to ignore Manitoba Hydro, it can choose to listen to it, it can give it weight, it may not give it weight. But it does seek input from all people who are affected by the water levels, both upstream and downstream of the dam.”79

79 Transcripts, Vol. 9 (June 21, 2018), paras. 6522 to 6533.

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X. RESPONSE TO ANIMAKEE WA ZHING #37 FIRST NATION AND NORTHWEST ANGLE #33 FIRST NATION

76. Manitoba Hydro will respond to the following two issues raised in each of the Animakee Wa Zhing #37 First Nation (“AWZ #37”) final argument80 and in the Northwest Angle #33 (“NWA #33”) First Nation final argument:81

(a) Clarity regarding consultation process;

(b) Assessment of impacts to AWZ #37 and NWA#33 Indigenous and Treaty rights.

A. Clarity Regarding Consultation Process

77. The AWZ #37 First Nation and NWA #33 First Nation arguments indicate that the consultation process for the Project was unclear.82

78. The Crown’s consultation process for the Project was very clear. As indicated above in the response to Peguis First Nation, the Minister of Natural Resources83 and the National Energy Board84 each unequivocally confirmed that the federal Crown would be relying on the Board’s process to satisfy, in whole or part, its duty to consult Indigenous groups, including AWZ #37 First Nation and NWA #33 First Nation.

79. There were no opportunities for participation in the Board’s process that were missed for either community, as they each participated fully in the Proceeding. With the assistance of legal counsel, AWZ #37 First Nation and NWA #33 First Nation:

(a) made information requests of Manitoba Hydro;

(b) filed written evidence;

(c) filed comments on the draft Board conditions;

(d) provided evidence through OTE;

(e) provided comments on proposed mitigative measures;

(f) cross examined Manitoba Hydro’s panel; and

(g) participated in written argument.

80. AWZ #37 First Nation and NWA #33 First Nation was also provided participant funding through the Board’s Participant Funding Program.

80 Exhibit A92661-1. 81 Exhibit A92663-1. 82 Exhibit A92661-1, para. 13. 83 Exhibit A90752-1. 84 Exhibit A91387-1.

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B. Assessment of impacts to AWZ#37 and NWA#33

81. The AWZ #37 First Nation and NWA #33 First Nation suggest that because their Project related input was provided after the EIS was prepared, their views were not considered to develop the Project.85

82. AWZ #37 First Nation and NWA #33 First Nation have been given ample opportunity to make their concerns known to the Board. As indicated above, they were provided participant funding to fully participate in the Board process.

83. In addition to the Board process, AWZ #37 First Nation and NWA #33 First Nation have both been engaged directly with Manitoba Hydro.

84. Upon learning of AWZ #37 First Nation and NWA #33 First Nation’s interest in the Project, Manitoba Hydro engaged with each community about the Project. The communities have been included in all Project related correspondence since June 2017. The community summaries were provided in response to NEB IR No. 5.9.86 The First Nations have shared information with Manitoba Hydro and their concerns have been responded to by Manitoba Hydro.

85. As Ms. Coughlin confirmed at the hearing, both AWZ #37 First Nation and NWA #33 First Nation have executed an agreement with Manitoba Hydro to undertake a self- directed ATK study, which will be funded by Manitoba Hydro.87

86. As Ms. Coughlin confirmed at the hearing, the route for the Project avoids many of the concerns that have been raised by Indigenous groups.88 As Ms. Coughlin confirmed, the results of the ATK study can be utilized by Manitoba Hydro to inform the Environmental Protection Plan and to avoid any identified Environmentally Sensitive Sites:

“Another way that we can handle site specific concerns is we can create environmentally sensitive sites to protect specific areas that are of importance to Northwest Angle 33 and we can modify our practices in those areas to make sure that they are protected.

So there's an opportunity to provide input now, through the self-directed study we're supporting, to gather that input and include that information into our Environmental Protection Plans prior to the project beginning.”89

87. Mr. Matthewson confirmed at the hearing that the environmental protection plans are being continuously updated, so if information is received at a later date, the information can be reviewed and incorporated into the environmental protection plans.90

85 Exhibit A92663-1, PDF page 7, para. 19; Exhibit A92663-1, PDF page 7, para. 18. 86 Exhibit A92082-2, PDF pages 70-80, 98-108. 87 Transcripts, Vol. 9 (June 21, 2018), para. 6489. 88 Transcripts, Vol. 8 (June 20, 2018), paras. 4720-4727. 89 Transcripts, Vol. 8 (June 20, 2018), paras. 4720-4721.

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88. AWZ #37 First Nation and NWA #33 First Nation have both been invited to participate in the MMTP Monitoring Committee.

90 Transcripts, Vol. 9 (June 21, 2018), para. 6496.

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XI. RESPONSE TO SOUTHERN CHIEFS’ ORGANIZATION

89. Manitoba Hydro will respond to two issues raised in the SCO final argument:

(a) The jurisdiction of the Board to assess consultation absent Crown participation in the Board process; and

(b) The SCO Working Warriors database.

A. Board Jurisdiction

90. At paragraph 38 of the SCO final argument,91 SCO argues that the Board cannot consider the duty to consult without considering the adequacy of the consultation of the Provincial and Federal Crowns.

91. No juridical support is provided for SCO’s submission. The SCO argument fails to recognize that the Crown was not a participant in the Board’s proceeding in Chippewas. The Supreme Court of Canada confirmed that the steps used in the Board’s process could be relied upon to satisfy consultation obligations, in whole or in part.92 In that case, there was no Crown consultation outside of the Board’s process93 and the Court found the participation rights provided by the Board to be “manifestly adequate”.94

B. SCO Working Warriors Database

92. SCO indicates that Manitoba Hydro has not made any further comment on whether it intends to utilize the Working Warriors database.95

93. This is incorrect. Manitoba Hydro’s comments regarding SCO’s Working Warriors database were provided at paragraphs 194 and 195 of its Reply Evidence.96 Mr. Penner also confirmed at the hearing that a paragraph had been included in Manitoba Hydro’s RFP process that referred contractors to the database.97

91 Exhibit A92657-1, para. 38 92 Clyde River (H7-1amlet) v. Petroleum Geo‑Services Inc., 2017 SCC 40, para. 23. 93 Chippewas of the Thames First Nation v. Enbridge Pipelines Inc., 2017 SCC 41, para. 17. 94 Idem., para. 43. 95 Exhibit A92657-1, para. 80. 96 Exhibit A92478-2, PDF 54, paras. 194-195. 97 Transcripts, Vol. 8 (June 20, 2018), para. 5947.

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XII. RESPONSE TO SOUTHEASTERN STAKEHOLDERS COALITION

94. Manitoba Hydro will respond to the following three issues raised in the final argument for the SSC:

(a) The in-service date (“ISD”) for the Keeyask generation station;

(b) The ISD for the Project; and

(c) The ownership of the Great Northern Transmission Line.

A. The ISD for Keeyask Generation Station

95. The SSC argument suggests that Manitoba Hydro knowingly asserted in its Application an incorrect ISD for the Keeyask generation station and that Manitoba Hydro cannot meet its export power supply obligations to Minnesota Power without Keeyask being in- service.98

96. Manitoba Hydro clearly indicated that the winter of 2017 was the date the Keeyask ISD was officially moved from 2019 to August 2021.99 Manitoba Hydro also indicated that it will not know how the energy and capacity supply obligations to Minnesota Power will be sourced as it will depend on water conditions and the schedule for the Keeyask generating station. Mr. Cormie explained that once the Project is in service, Manitoba Hydro could import power to satisfy its contractual requirements.100

B. The ISD for the Project

97. The SSC argument states that the “true” ISD for the Project is June 1, 2025.101

98. In response to Undertaking 11, Manitoba Hydro confirmed that the June 1, 2025 date referenced by the SSC in Section 12.1 of the 133 MW Energy Sale Agreement is the date at which Manitoba Hydro has the right to terminate the contract should the interconnection not go into service by that date.102 The June 1, 2020 in-service date for the Project is clearly articulated in the 250 MW System Power Sale Agreement103 and the Transmission To Transmission Interconnection Agreement.104

98 Exhibit A92660-1, PDF page 5, paras. 5(a)-(b). 99 Transcripts, Vol. 8 (June 20, 2018), para. 6045. 100 Transcripts, Vol. 8 (June 20, 2018), para. 6032-6033, 6079-6081. 101 Exhibit A92660-1, PDF page 8, para. 15. 102 Transcripts, Vol. 8 (June 20, 2018), para. 6409. 103 Exhibit A81054-8, PDF page 30. 104 Exhibit A81054-26, PDF page 15.

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C. The Ownership of the Great Northern Transmission Line

99. The SSC argument refers to the transfer of ownership to the Great Northern Transmission line as a “gift”.105

100. The SSC argument misconstrues the evidence that was provided by Mr. Cormie at the hearing. Mr. Cormie explained that by transferring ownership, Manitoba Hydro was able to divest itself of the risk of the Project, while maintaining all of the rights to use the transmission line:

“It was in the interests of Manitoba Hydro and 669 to transfer the ownership to Minnesota Power on April 1st. We retain the right to use the line. All the power flowing on the line, either imported or exported, was for the benefit of Manitoba Hydro. There was no benefit to ownership, only risk, and Manitoba Hydro and 669 chose to shed that risk through the transfer of ownership.”106

105 Exhibit A92660-1, PDF page 10. 106 Transcripts, Vol. 8 (June 20, 2018), para. 6212.

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XIII. RESPONSE TO MANITOBA WILDLANDS

101. Manitoba Hydro has reviewed the final argument filed by Manitoba Wildlands in this Proceeding.107

102. At the outset, Manitoba Wildland’s final argument indicates that it is not new evidence.108 However, after providing comments about the Board’s general statutory framework, process and funding mechanisms, the argument goes on to comment on documents that were not adopted by Mr. Woodford or any other witness in the Proceeding.109 As such, Manitoba Hydro would expect that the Board would give no weight to submissions made in respect of such documents.

107 Exhibit A92688-1. 108 Idem., PDF page 1. 109 Ideam. PDF pages 10-17.

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XIV. DISPOSITION SOUGHT

103. The evidence tendered in this Proceeding establishes that the Project applied for in the Application is in the public interest and should be approved.

104. Manitoba Hydro respectfully requests that the Board issue a decision recommending that the certificate be issued and the approvals sought in the Application be issued in relation to the Project.

CanLII - 2006 FC 24 (CanLII) Tab 1

Beattie v. Canada, 2006 FC 24 (CanLII)

Date: 2006-01-13 File T-2134-00; T-2203-00; T-2204-00 number: Citation: Beattie v. Canada, 2006 FC 24 (CanLII), , retrieved on 2018-06-25

Date: 20060113

Docket: T-2134-00, T-2203-00, T-2204-00

Citation: 2006 FC 24

Ottawa, Ontario, January 13, 2006

PRESENT: THE HONOURABLE MR. JUSTICE LEMIEUX

BETWEEN:

BRUCE ALLAN BEATTIE

Plaintiff (Appellant)

and

HER MAJESTY THE QUEEN

Defendant (Respondent)

REASONS FOR ORDER AND ORDER

[1] The question which arises in this motion in writing is whether it is appropriate for the Court to proceed to hear and determine constitutional issues raised by the plaintiff/appellant (appellant) in his notice of constitutional question served and filed on January 14, 2005, a few weeks before this Court heard commencing on February 8, 2005, Mr. Beattie's appeal from judgments rendered by Prothonotary Lafrenière dated May 6, 2004, dismissing three actions the appellant had commenced against the federal Crown. Mr. Beattie is self-represented but I understand him to say that he had legal training. CanLII - 2006 FC 24 (CanLII)

[2] Mr. Beattie, in those actions, claimed to be entitled to the payment of unpaid arrears plus accrued interest of annual payments of $5.00 payable by the federal Crown to the original adherents or their natural descendents to Treaties 6 and 11.

[3] The basis for Mr. Beattie's claim are assignments he took from certain natural descendents of the original adherents to Treaties 6 and 11 entered into between the federal Crown and various Indian Tribes.

[4] The circumstances of this case are somewhat unusual as is demonstrated by the following background.

[5] When he issued his statements of claim in October of 2000, Mr. Beattie claimed through the assignments from the assignors who, it was said, are all Aboriginal persons who are natural descendents of the original adherents to the two treaties. Mr. Beattie pleaded the entitlement to the annual payment under the treaties was a treaty right which is recognized and affirmed by section 35(1) of the Constitution Act, 1982 and guaranteed equally to male and female Aboriginal persons by subsection 35(4) of the Constitution Act, 1982. He also asserted the assignors were all Aboriginal peoples of Canada within the meaning of subsection 35 (2) of the Constitution Act, 1982 and that each of the two treaties is a treaty for the purposes of section 35 of that Act.

[6] In its defence, the federal Crown admitted that treaty annuities had been paid to the assignors for some period of their lives, i.e. after their registration as Indians but that no treaty annuities were paid to them for prior periods because the assignors did not meet the requirements for entitlement to treaty annuities as interpreted in a modern context. The federal Crown also denied that she breached her lawful obligations pursuant to the two treaties or section 35 of the Constitution Act, 1982, or that she had accumulated debts of treaty annuity arrears to any or all of the assignors. In the alternative, the federal Crown pleaded that if the defendant had breached her lawful obligations pursuant to either treaty or section 35(1) of the Constitution Act, 1982, such breach constituted a justifiable infringement. Other defences were claimed including invalidity of the assignments under the Financial Administration Act.

[7] In his reply, Mr. Beattie pleaded that to the extent that any law purports to infringe or limit the benefit of any existing treaty right which are constitutionally guaranteed to Aboriginal peoples, including any entitlement that the Aboriginal assignors had to receive treaty annuity payments and reasonable interest on arrears, such law is, by the effect of section 35 and 52(1) of the Constitution Act, 1982, of no force and effect.

[8] On April 1, 2003, the late Prothonotary Hargrave severed two issues in the action. He stated the issues for determination were:

(1) the effect, if any, of the Financial Administration Act on the validity of the assignments to Mr. Beattie; CanLII - 2006 FC 24 (CanLII)

(2) whether interest is owing on any annuity arrears that may be found to be owing and, if so, what the interest rate is, whether it is simple or compound interest, and how it is to be calculated.

[9] Prothonotary Lafrenière heard and determined the two severed issues. He concluded that any Crown debt owing under a treaty did not fall within the exception set out in section 68 of the Financial Administration Act (FAA) and that the general prohibition against assignments set out in section 67 of the FAA applied with the result that the treaty annuities at issue were not assignable. He also determined that treaty annuities were not Indian monies pursuant to the relevant provisions of the Indian Act including section 90 of that Act. He also ruled no interest was payable on the arrears assuming liability for payment of treaty annuity arrears.

[10] Mr. Beattie had argued before Prothonotary Lafrenière that the assignments at issue were the preferred means by each of the Indian assignors of exercising their incidental rights to enforce payments of Crown debts of treaty annuity arrears characterized by him as a core treaty right. According to Mr. Beattie, to the extent that the provisions of the FAA infringed that incidental right, those provisions must be justified by the federal Crown in accordance with section 35(1) of the Constitution Act, 1982. Prothonotary Lafrenière did not entertain that argument. He stated at paragraph 51 of his reasons that he was not prepared to entertain a constitutional challenge in the absence of any proper or sufficient notice and added that, in any event, he failed to see how the assignors' rights, which could be enforced individually, can be said to have been infringed by any provision of the FAA.

[11] Mr. Beattie appealed Prothonotary Lafrenière's decisions. In his appeal document, he argued the Prothonotary erred by disregarding entirely the fundamental legal principle that statutory limitations which restrict the rights of Indians under treaties must be narrowly construed and that a generous and liberal interpretation of Indian rights is to be preferred over a narrow and technical one. He argued the Prothonotary erred by disregarding entirely the Court's paramount obligation to recognize and affirm existing treaty rights in accordance with the principles of treaty interpretation established to give effect to section 35 of the Constitution Act, 1982. He argued the Prothonotary erred in finding that, absent the Crown's consent, treaty annuity was not transferable by a Treaty Indian and debts of annuity arrears are not assignable. He also stated the Prothonotary erred in finding that treaty annuity arrears are not Indian monies within the meaning of subsection 2(1) of the Indian Act.

[12] It was only on January 14, 2005, that Mr. Beattie, pursuant to section 57 of the Federal Courts Act served and filed a notice of constitutional question stating that he intended to question the constitutional validity, applicability or effect of section 90 of the Indian Act and sections 67 and 68 of the FAA to the extent that any of them may be construed to restrict, limit or otherwise infringe the freedom of Indian persons to assign or otherwise transfer their treaty annuity monies or any debts of annuity arrears owed to them by the federal Crown pursuant to treaties previously mentioned. He stated the question would be argued on the hearing of the appeal, i.e. February 8, 2005. CanLII - 2006 FC 24 (CanLII)

[13] In paragraph 3 of his notice of constitutional question, Mr. Beattie stated that the following were the material facts giving rise to the constitutional question:

Where both treaty annuity entitlement and the existence of federal Crown debts of treaty annuity arrears are assumed to be existing treaty rights protected by s. 35(1) of the Constitution Act, 1982, the Respondent Crown relies upon s. 90 of the Indian Act to render void any transaction entered into by an Indian which purports to assign or otherwise transfer of their treaty annuity money to any third party other than another band member, unless the transaction is consented to in advance by the Minister of Indian Affairs and Northern Development.

Alternatively, the Respondent Crown relies upon sections 67 and 68 of the Financial Administration Act to prohibit and render unenforceable any assignment by an Indian of any Crown debts which derives from an Indian treaty.

[14] In that same notice of constitutional question, Mr. Beattie stated the following was the legal basis for the constitutional question:

The constitutional questions arise only if application of established principles of treaty interpretation does not reasonably permit the impugned provisions to be construed consistent with both the equality rights guaranteed by subsection 15(1) of the Canadian Charter of Rights and Freedoms, and the recognition and affirmation of existing treaty rights required by section 35(1) of the Constitution Act, 1982.

The constitutional principles in issue are:

a. that no law shall apply so as to discriminate on the basis of race, unless such inequality can be demonstrably justified;

b. that no law shall apply to limit or otherwise infringe an existing treaty right, unless such infringement has been constitutionally justified;

c. that any law which, if applied, would effectively extinguish an existing treaty right without Indian consent, is of no force or effect.

[15] Because of the lateness in the serving and filing of the notice of constitutional question, I issued, on February 2, 2005, the following oral direction after a telephone conference call with the parties:

At the hearing on February 8, 2005 we will not debate the request by Mr. Beattie that certain provisions of the Indian Act and the Financial Administration Act be declared of no force or effect. We will deal with the appeal of the Prothonotary's decision, absent a declaration of invalidity. We will deal with whether it is proper on appeal by Mr. Beattie to raise new relief not sought below.

[16] In reasons issued on May 18, 2005, I dismissed the appeals by Mr. Beattie from Prothonotary Lafrenière's judgments. I did so invoking the application of subsection 68(4) of the FAA which provides that where an assignment is made in accordance with the FAA it is subject to all conditions and restrictions with respect to the right of transfer that relate to the original Crown debt. This provision links to section 90 of the Indian Act related to personal property that is given to Indians under CanLII - 2006 FC 24 (CanLII)

a treaty or agreement deeming that property always to be situated on a reserve and to subsection 90(2) providing that every transaction purporting to pass title to any property that is deemed to be situated on a reserve, or any interest in such property, being void unless the transaction has the consent of the Minister of Indian and Northern Affairs.

[17] In dismissing the appeals, I stated that such dismissal was subject to a determination whether Mr. Beattie's notice of constitutional question is proper and, if so, subject to the outcome of the constitutional challenge.

[18] Mr. Beattie does not challenge the applicable principles stated by counsel for the federal Crown governing the question raised by the motion under consideration. Those principles were:

(1) that a section 57 notice is required for the Court to have jurisdiction to declare any legislative enactment constitutionally invalid, inapplicable or inoperable;

(2) a section 57 notice is necessary to ensure that an opportunity is provided for the public interest to be presented to the Court whenever the validity of a legislative enactment is challenged on constitutional grounds;

(3) that constitutional questions should not be decided in a factual vacuum, and, therefore, the parties and any intervening Attorneys General must be allowed a fair opportunity to adduce any necessary and relevant constitutional facts.

[19] In the case at hand, a notice of constitutional question has been served and filed albeit on the eve of the hearing by this Court of the appeals from Prothonotary Lafrenière's judgments. This late service and filing did not provide a reasonable opportunity for the Attorney General for Canada to respond albeit it appears the provincial and territorial Attorneys General are not interested in intervening.

[20] In my view, the hearing of Mr. Beattie's constitutional questions should not proceed before me because I am not satisfied Mr. Beattie has demonstrated the existence of a sufficient evidentiary record from which necessary constitutional facts required to properly adjudicate the underlying constitutional issues can be drawn.

[21] Mr. Beattie is correct in acknowledging the critical importance of a proper evidentiary record upon which he can mount his constitutional arguments. I need cite only the following cases:

(1) MacKay v. Manitoba, 1989 CanLII 26 (SCC), [1989] 2 S.C.R. 357 at 361-62;

(2) Northern Telecom Ltd. v. Communications Workers of Canada, 1979 CanLII 3 (SCC), [1980] 1 S.C.R. 115 at 140;

(3) Eaton v. Brant County Board of Education, 1997 CanLII 366 (SCC), [1997] 1 S.C.R. 241 at paragraph 48; CanLII - 2006 FC 24 (CanLII)

(4) Bekker v. Her Majesty The Queen, 2004 CAF 186 (CanLII), [2004] D.T.C. 6404 (F.C.A.); and

(5) Gitxsan Treaty Society v. Hospital Employees Union et al. 1999 CanLII 7628 (FCA), [1999] FCJ No. 1192 at paragraphs 12 and 13.

[22] Mr. Beattie argues forcefully that this is not a case where new constitutional evidence is needed because the parties proceeded before Prothonotary Lafrenière on an agreed statement of fact and on uncontested documentary evidence. In my reasons, I referred to some of that evidence (see Beattie v. The Queen, 2005 FC 715 (CanLII) at paragraphs 12, 14 and 41 through 61).

[23] I share the reservations expressed by Justice Létourneau in Bekker, supra:

¶ 12 It is a serious matter to invoke the Charter to challenge the validity of legislation enacted by Parliament. Such challenges normally require an evidential foundation. Constitutional issues cannot and should not be decided in a factual vacuum. As Cory, J. said in MacKay v. Manitoba, 1989 CanLII 26 (SCC), [1989] 2 S.C.R. 357 at pages 361-62:

Charter decisions should not and must not be made in a factual vacuum. To attempt to do so would trivialize the Charter and inevitably result in ill-considered opinions. The presentation of facts is not, as stated by the respondent, a mere technicality; rather, it is essential to a proper consideration of Charter issues ... Charter decisions cannot be based upon the unsupported hypotheses of enthusiastic counsel.

¶ 13 These concerns are very relevant to challenges under section 15, where the jurisprudence mandates a complex, multi-factored, contextual inquiry by the reviewing court into whether the impugned legislation not only creates differential treatment, but also is discriminatory in the constitutional sense: see, for example, Gosselin v. Quebec (Attorney General), 2002 SCC 84 (CanLII), [2002] 4 S.C.R. 429; Front commun des personnes assistées sociales du Québec v. Canada (Canadian Radio-Television and Telecommunications Commission), 2003 CAF 394 (CanLII); Canada (Attorney General) v. Lesiuk, 2003 FCA 3 (CanLII), [2003] 2 F.C. 697 (F.C.A.); Lovelace v. Ontario, 2000 SCC 37 (CanLII), [2000] 1 S.C.R. 950; Granovsky v. Canada (Minister of Employment and Immigration), 2000 SCC 28 (CanLII), [2000] 1 S.C.R. 703; Falkiner v. Ontario (Ministry of Community and Social Services), 2002 CanLII 44902 (ON CA), 59 O.R. (3d) 481 (C.A.). In other words, all these cases stress the need for a contextual inquiry and analysis to establish whether a distinction conflicts with the purpose of section 15 of the Charter.

¶ 14 The evidence required for this purpose may include social science and statistical data; cross-examination may also be necessary. Evidence in rebuttal may be filed by the respondent, who may also adduce evidence in an attempt to establish that, if the legislation infringes section 15, it can nonetheless be upheld under section 1 as a reasonable limit that is demonstratively justifiable in a free and democratic society.

[24] That same cautiousness was reiterated by Justice Rothstein in Gitxsan, supra, at paragraph 11: CanLII - 2006 FC 24 (CanLII)

¶ 11 In any event, the attorneys general have demonstrated prejudice in this case. They advance a number of areas in which constitutional evidence would be relevant in determining the constitutional question put forward by the applicant. In particular, facts relating to the nature of the Aboriginal right claimed, whether the Aboriginal right has existed continuously, whether it has been infringed and if infringed whether the infringement is justified, are all legitimate evidentiary areas. See for example, Watt v. Liebelt. [...] I am satisfied that the attorneys general have demonstrated prejudice. The second argument of the applicant cannot be accepted.

[25] An examination of cases such as R. v. Sparrow, 1990 CanLII 104 (SCC), [1990] 1 S.C.R. 1075 and R. v. Badger, 1996 CanLII 236 (SCC), [1996] 1 S.C.R. 771, clearly show that issues surrounding section 35 of the Constitution Act, 1982, are fact based. Infringement of a treaty right is fact based as is any justification which the federal Crown may wish to advance. Fairness dictates that the federal Crown has the right to a proper evidentiary record. Indeed, in Badger, supra, the Supreme Court sent the matter back to the trial judge to allow for proper finding of fact according to the appropriate tests. I wish to avoid the Badger result in this case.

[26] Should Mr. Beattie wish to pursue his constitutional challenge, it seems to me that he would be better served to institute fresh proceedings where the evidentiary record can properly be addressed rather than pursuing the issue in the context of the present proceedings risking that, down the line, he does not have sufficient constitutional evidence to make out his case.

[27] I also note this motion in writing preceded my judgment. In my reasons for judgement, I dealt with whether the assignment of arrears of treaty annuities was an implied treaty right. I held in the negative. This finding may negatively impact the proposed constitutional question and require an expanded evidentiary record.

ORDER

The appellant's motion to argue his proposed constitutional issues is dismissed without costs.

"François Lemieux"

J U D G E

FEDERAL COURT

NAME OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: T-2134-00, T-2203-00, T-2204-00

STYLE OF CAUSE: Beattie v. The Queen

PLACE OF HEARING: Motion in writing CanLII - 2006 FC 24 (CanLII)

REASONS FOR ORDER: LEMIEUX J.

DATED: January 13, 2006

APPEARANCES:

Bruce Allan Beattie (on his own behalf)

FOR THE PLAINTIFF

Roseanne M. Kyle FOR THE DEFENDANT

Karl Burdak

SOLICITORS OF RECORD:

Bruce Allan Beattie (on his own behalf)

FOR THE PLAINTIFF

John H. Sims, Q.C. FOR THE DEFENDANT

Deputy Attorney General of Canada

Federation of Law Societies of By for the law societies members of the Canada Tab 2

Date: 20180508

Docket: A-31-17

Citation: 2018 FCA 89

CORAM: GAUTHIER J.A. NEAR J.A. DE MONTIGNY J.A.

BETWEEN:

BIGSTONE CREE NATION

Applicant

and

NOVA GAS TRANSMISSION LTD. AND THE ATTORNEY GENERAL OF CANADA

Respondents

and

NATIONAL ENERGY BOARD

Intervener

Heard at Calgary, Alberta, on October 30, 2017.

Judgment delivered at Ottawa, Ontario, on May 8, 2018.

REASONS FOR JUDGMENT BY: DE MONTIGNY J.A.

CONCURRED IN BY: GAUTHIER J.A. NEAR J.A.

Date: 20180508

Docket: A-31-17

Citation: 2018 FCA 89

CORAM: GAUTHIER J.A. NEAR J.A. DE MONTIGNY J.A.

BETWEEN:

BIGSTONE CREE NATION

Applicant

and

NOVA GAS TRANSMISSION LTD. AND THE ATTORNEY GENERAL OF CANADA

Respondents

and

NATIONAL ENERGY BOARD

Intervener

REASONS FOR JUDGMENT

Page: 2

DE MONTIGNY J.A.

[1] This is an application for judicial review of Order in Council P.C. No. 2016-962 (the

Order or the OIC) made by the Governor in Council (the GIC) dated October 28, 2016. The

Order directed the National Energy Board (the NEB or the Board) to issue an environmental assessment decision statement concerning the 2017 Nova Gas Transmission Ltd. (NGTL, Nova or the Company) System Expansion Project in northern Alberta (the Project), and to issue the

Certificate of Public Convenience and Necessity GC-126 (the CPCN or the Certificate) authorizing the construction and operation of the Project. The authorization is subject to the

Certificate Conditions contained in the CPCN (the Conditions), which are attached as Appendix

III to the GH-002-2015 National Energy Board Report In the Matter of NOVA Gas Transmission

Ltd. (the NEB Report) (Applicant’s Record (AR), vol. 6 at 1031-1048).

[2] The applicant Bigstone Cree Nation (the applicant or Bigstone) requests inter alia orders declaring that Canada breached its constitutional and common law obligations to consult and accommodate Bigstone, that the Crown improperly delegated its duty to assess the Project’s effects on the environment and on Bigstone’s rights protected under subsection 35(1) of the

Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (the

Section 35 Rights), and that the GIC erred in law in issuing the OIC as it does not comply with the National Energy Board Act, R.S.C. 1985, c. N-7 (the NEB Act) and is otherwise unreasonable for failing to provide reasons or sufficient reasons, and for failing to publish the Order in the

Canada Gazette. The applicant requests an order declaring that the OIC is unenforceable, invalid and unlawful and/or without legal effect and prohibiting the Project approval decision, as well as

Page: 3 an order quashing the OIC and the Certificate. In the alternative, Bigstone requests an order requiring the Crown to enter into consultations with Bigstone subject to the Court’s supervision and on specific and detailed terms.

[3] For the reasons that follow, I would dismiss the application with costs. I am of the view that the Crown has adequately fulfilled its duty to consult and accommodate Bigstone and I see no reason to interfere with the GIC decision to approve the Project.

I. Context

[4] The applicant is a First Nation in Alberta with a membership of approximately 7,752. It is also a band under the Indian Act, R.S.C. 1985, c. I-5, and its members are Aboriginal peoples pursuant to subsection 35(1) of the Constitution Act, 1982. They have been using and occupying lands in north-central Alberta (Bigstone Territory) prior to and at the time of the Crown’s assertion of sovereignty. Bigstone relies on its territory to exercise activities, practices, customs and traditions that include hunting, fishing and harvesting. These traditions are essential for

Bigstone people’s survival and the preservation of its distinct way of life and culture.

[5] On or about August 14, 1899, Bigstone’s ancestors and the Crown concluded Treaty No.

8, which covers a portion of Bigstone Territory and provides for harvesting and governance rights on this territory (Bigstone Treaty Rights). Bigstone asserts unextinguished Section 35

Rights, which protect its territory, as well as harvesting and governance rights against interference and infringement from the Crown. It is not in dispute that the Project is located in

Bigstone Territory. In Reasons for Order issued as part of these proceedings (2017 FCA 54),

Page: 4

Justice André Scott recognized that “[t]he Pelican Lake Section is located directly within

Bigstone Territory and runs roughshod through three identified ranges of the threatened boreal woodland caribou” and that “the Boreal Caribou is an important and significant element for

Bigstone” (at paras. 3 and 49).

[6] On December 15, 2014, Nova, a wholly-owned subsidiary of TransCanada PipeLines

Limited, submitted to the NEB a Project Description, thereby triggering the federal regulatory review of the Project. The $1.29 billion Project aims at expanding the existing Nova Gas

Transmission Ltd. System in northern Alberta to receive and deliver sweet natural gas. It provides for 230 kilometers of new pipeline in five separate sections looping existing NGTL pipelines, and two compressor station unit additions. This application for judicial review relates to one of the five sections, approximately 56 kilometers long, comprised of the Liege Lateral

Loop No. 2, in Pelican Lake Section. It is located entirely on provincial Crown land, and it parallels existing rights-of-way and other disturbances for 93% of the route.

[7] For the Project to proceed, a CPCN was required pursuant to sections 31, 52 and 54 of the NEB Act. Since the Project includes more than 40 kilometers of new pipeline, it is also a

“designated project” for the purposes of subsection 2(1) of the Canadian Environmental

Assessment Act, S.C. 2012, c. 19 (the CEAA); as such, the NEB was required to conduct an environmental assessment under section 52 of that act (see also sections 2 and 4 of the

Regulations Designating Physical Activities, S.O.R./2012-147, and section 46 of its schedule).

Page: 5

[8] Being a “major resource project” as defined by Canada’s Cabinet Directive on Improving the Performance of the Regulatory System for Major Resource Projects (AR, vol. 14 at 2371-

2378), the Project was subject to Canada’s Major Project Management Office (the MPMO)

Initiative. The MPMO coordinated Canada’s overall approach to Indigenous consultation for the

Project among interested federal departments, which led to the Project Agreement for the 2017

NGTL System Expansion Project in Alberta (AR, vol. 14 at 2549-2558). This overall approach to

Indigenous consultation was integrated to the extent possible with the NEB hearing process. The consultation process for the Project was carried out in four phases.

A. Phase I: The Early Engagement Phase

[9] Prior to filing its Project Application, NGTL engaged and consulted with Bigstone and other Indigenous groups, as required by the NEB Filing Manual at 3-3 to 3-11 (AR, vol. 15 at

2666-2674). A list of potentially affected Indigenous groups was established in the Project

Description (AR, vol. 14 at 2509), and on February 17, 2015, the Board contacted potentially affected Aboriginal groups, including Bigstone, and provided information about the Project and the review process. A letter from the MPMO was attached, specifying that it “intend[ed] to rely on the NEB’s public hearing process, to the extent possible, to fulfil its duty to consult

Aboriginal groups” (Nova’s Record (NR), vol. 1 at 234-242) and the way it intended to do so.

Additional telephone calls and email correspondence between the NEB and Bigstone were exchanged, and a meeting with Bigstone took place on April 29, 2015 to provide information about the Project (AR, vol. 17 at 2944-2970).

Page: 6

B. Phase II: The NEB Hearing Phase

[10] On March 31, 2015, Nova formally applied to the NEB and filed a Project Application for approval of the construction and operation of the Project. Attached were an Environmental and Socio-economic Assessment and a summary of the Company’s engagement with Indigenous groups, including Bigstone, up to that point in time (AR, vol. 1 at 122-198). Once the Project

Application was considered complete, on May 29, 2015 the Board issued a Notice of Hearing and Application to Participate (NR, vol. 1 at 317-328). In its Ruling No. 1, the Board granted intervener status to a number of parties including Bigstone (AR, vol. 2 at 205-230). Through the

Board’s Participant Funding Program, Bigstone was also granted funding in the amount of

$27,000 to participate as an intervener in the hearing.

[11] On July 31, 2015, the Board issued Hearing Order GH-002-2015, which established the process for the public hearing. As an intervener, Bigstone was able to submit written evidence, present oral traditional evidence, ask questions in writing about NGTL’s and other interveners’ evidence, submit and respond to motions, and present a final argument. Bigstone participated in all of these steps throughout the hearing, which took place from July 2015 to March 2016.

[12] Bigstone issued 197 Information Requests (IRs) to NGTL over two rounds; it brought a motion to the Board to compel further responses, but the Board determined that NGTL had sufficiently answered Bigstone’s IRs (AR, vol. 4 at 689-692). Bigstone presented a panel of four elders in Edmonton on November 4, 2015 (AR, vol. 4 at 549-589), and filed written evidence consisting of a Bigstone Cree Nation Traditional Use Study: TransCanada NGTL 2017 – Interim

Report (Interim TLU Study) and a Review of Appendix 9-I Preliminary Caribou Habitat

Page: 7

Restoration and Offset Mitigation Plan (AR, vol. 4 at 615-688). Finally, Bigstone filed written submissions addressing, among other things, the impact of the Project on Bigstone’s Aboriginal and Treaty Rights, Bigstone’s Project-related concerns with respect to the boreal woodland caribou (the Caribou), Caribou habitat and traditional land and resources use, Bigstone’s concerns regarding cumulative effects in its traditional territory, perceived deficiencies in consultation, and comments on the draft Conditions (AR, vol. 5 at 758-780). In January 2016,

Bigstone submitted a revised version of its Interim TLU Study: Bigstone Cree Nation

Traditional Use Study: TransCanada NGTL 2017 – Final Report (Final TLU Study).

[13] Both prior to and parallel with the NEB process, NGTL engaged directly with Bigstone.

Eight meetings were held, Bigstone was invited to provide input on preliminary information, it participated in three NGTL biophysical studies and received $225,000 in funding to conduct a

TLU Study and otherwise engage in relation to the Project.

C. Phase III: The NEB Recommendation Phase

[14] On June 1, 2016, the Board released its 187-page report. The Board recommended that the GIC approve the Project, subject to 36 Conditions. It found that the consultation undertaken and proposed by NGTL for the Project was appropriate for the scope and scale of the Project, and that potentially affected Aboriginal groups had been provided with sufficient information about the process and had had enough opportunities to provide their views (NEB Report at 70-

71; AR, vol. 6 at 931-932). The Board was also of the view that the Project-specific effects on use of land and resources for traditional purposes were not likely to be significant, even though it was concerned with the Project’s cumulative effects. It was further of the view that the potential

Page: 8 impact of the Project on the rights and interests of Aboriginal groups would be appropriately mitigated given the nature and scope of the Project, NGTL’s commitments, proposed mitigation measures and regulatory requirements, and Conditions imposed by the Board for the Project

(NEB Report at 83-84; AR, vol. 6 at 944-945).

[15] With respect to its environmental assessment, the Board found that “sufficient routine design and standard mitigation measures ha[d] been identified to mitigate most of the potential adverse environmental effects identified” (NEB Report at 111; AR, vol. 6 at 972). It also found that NGTL was implementing a number of known best practices to mitigate potential adverse environmental effects associated with the presence of species at risk, rare plants and ecological communities, weeds and wetlands (NEB Report at 112; AR, vol. 6 at 973). As regards the cumulative effects analysis, the Board recognized NGTL’s efforts to route the pipeline to follow existing rights-of-way and minimize new disturbances, especially in Caribou ranges; it expected the Company to respect the timing window set out to avoid adverse impact on Caribou (NEB

Report at 132-133; AR, vol. 6 at 993-994). Given the already substantial ongoing cumulative effects on Caribou in the region due to both direct and indirect habitat disturbance, the Board required all residual effects on Caribou habitat to be considered and compensated (NEB Report at 141; AR, vol. 6 at 1002).

[16] The Board imposed a number of Conditions on NGTL, the most significant being: a commitments tracking table (Condition 5), an environmental protection plan (Condition 6), a revised version of the Caribou Habitat Restoration and Offset Measures Plan (Condition 7), a report on outstanding traditional land use investigations (Condition 8), evidence that it has

Page: 9 received heritage resources permits and clearances from provincial authorities (Condition 10), a plan for Aboriginal participation in monitoring construction activities (Condition 12), a report summarizing NGTL’s engagement with all potentially affected Aboriginal groups identified

(Condition 13), various programs and manuals regarding construction, operation, maintenance and safety (Condition 15), a construction schedule (Condition 16), construction progress reports

(Condition 18), a hydrostatic testing plan (Condition 25), a Caribou habitat restoration implementation report and status update (Condition 31), a Caribou habitat restoration and offset measures monitoring program (Condition 32), Caribou monitoring reports (Condition 33), a

Caribou habitat offset measures implementation report (Condition 34), and post-construction monitoring reports (Condition 36) (NEB Report at 170-183; AR, vol. 6 at 1031-1044).

D. Phase IV: The Post-NEB Report Phase

[17] On June 2, 2016, the day after the NEB Report was released, the MPMO wrote to

Bigstone expressing Canada’s interest in consulting directly with Bigstone and advising it that the Crown considered the depth of its duty to consult with Bigstone as being at the high end of the consultation spectrum. To ensure the Crown consultation would be meaningful, the Governor in Council extended, on June 17, 2016, the statutory time limit for Canada’s decision in respect of the Project by two months. Bigstone was awarded the maximum amount of $8,500 in funding to participate in post-hearing consultations. The MPMO made efforts to meet as early as mid-

July, but Bigstone was unavailable to meet due to an “organizational restructuring process”; officials from the MPMO and the NEB eventually met with officials from Bigstone on August

24 and September 1, 2016. At those meetings, Bigstone was invited to discuss the outstanding issues and proposed accommodation measures. On September 20, 2016, the MPMO shared a

Page: 10 draft Crown Consultation and Accommodation Report (the CCAR) for Bigstone’s comments, accompanied by a draft annex specific to Bigstone (the Bigstone Annex). On September 27 and

September 30, 2016, the MPMO wrote to Bigstone to request its comments and extended the time initially to September 29, 2016, and then to October 11, 2016. On October 3, 2016,

Bigstone advised Canada it wished to comment on the draft CCAR; having heard nothing further from Bigstone on October 24, 2016, the MPMO finalized the draft CCAR and the Bigstone

Annex. Chief Gordon T. Auger requested a meeting between Bigstone leadership and the

MPMO on October 25, 2016, and suggested that the MPMO consider seeking an extension to current timelines. That letter remained unanswered.

[18] Based on its analysis of the available information, the Crown anticipated minimal impact on Bigstone’s Section 35 Rights from its contemplated conduct, and considered that any adverse impact would be addressed by the Conditions proposed by the NEB to ensure the safe construction and operation of the Project. The Crown also believed that it had met its duty to consult with Bigstone.

[19] On October 28, 2016, the Governor in Council issued the Order directing the NEB to issue a Certificate to NGTL in respect of the Project and subject to the Conditions set out in

Appendix III of the NEB Report. In the preamble of the Order, it is explained that the Governor in Council came to its conclusion after having considered Aboriginal concerns and interests, being satisfied they had been appropriately accommodated and that the consultation process was consistent with the honour of the Crown. It also accepted the Board’s recommendation that, if the Company complied with all the Conditions, the Project would be required by the present and

Page: 11 future public convenience and necessity and would not likely cause significant adverse environmental effects. As a last consideration, the GIC took into account that “the Project would enhance natural gas transmission infrastructure for adequate gas supply and support environmentally sustainable resource development” (AR, vol. 1 at 16).

[20] On November 4, 2016, the NEB issued the Certificate. On December 10, 2016, the Order was published in the Canada Gazette, along with an Explanatory Note. While this note is not part of the impugned Order, it proves useful in terms of understanding the context that surrounds it. Worth mentioning is the fact that the GIC considered that NGTL correctly assessed the impacts of the Project on existing infrastructure such as roads and highways. The GIC also determined that the mitigation measures proposed by NGTL to limit disturbance on the Caribou were satisfactory, given the concerns raised by Environment and Climate Change Canada. The

GIC noted NGTL’s commitment to continue engaging with Aboriginal groups. It also took into account the Conditions developed by the Board to address Health Canada’s concerns about noise associated with the Project and the effects of this noise on human health, the two-month extension granted by the Crown to provide for deeper consultation and an online questionnaire to determine the public’s interest in the Project. Fifteen people answered that questionnaire and provided 47 responses, a majority of which were in favour of the Project.

[21] On December 7, 2016, Bigstone filed a notice of motion for leave to judicially review the

OIC (AR, vol. 22 at 3880). Leave was granted by Justice Johanne Gauthier on January 19, 2017.

On the same day, alleging risks to its Aboriginal and Treaty Rights, as well as threats to Caribou,

Bigstone requested the NEB to “immediately issue a stop work order for the [Loop]” (AR, vol.

Page: 12

11 at 1890). On December 22, 2016, the NEB dismissed the request as it did not raise any new issues that had not been previously heard and considered (NR, vol. 3 at 877-878). On February

15, 2017, Bigstone filed a motion for an interlocutory injunction in this Court, but it was dismissed by Justice André Scott on March 17, 2017 (NR, vol. 3 at 880).

II. Issue

[22] The only substantive issue raised by this application is whether the Crown has adequately discharged its duty to consult and, if necessary, to accommodate Bigstone.

III. Analysis

A. The legislative scheme

[23] The legislative scheme for pipeline approvals set out by Parliament in the NEB Act has been aptly summarized in Gitxaala Nation v. Canada, 2016 FCA 187 at paragraphs 92 to 127,

485 N.R. 258 (Gitxaala). I will therefore refrain from engaging in the same exercise and will focus instead on the particulars of this case.

[24] In a nutshell, section 31 of the NEB Act requires a company that wishes to construct a section of a pipeline to apply to the Board to obtain a certificate. Once the Board determines that such a Project Application is complete and ready to proceed to assessment, it issues a Notice of

Hearing and Application to Participate convening a public hearing to assess the Project; in the case at bar, this was done on May 29, 2015. On July 31, 2015, the Board issued Hearing Order

GH-002-2015, followed by procedural updates, which established a public hearing process that

Page: 13 included a list of issues that the Board would consider during its assessment of the Project, and invited all Aboriginal interveners who wished to do so to inform the Board of their intent to provide oral traditional evidence (AR, vol. 2 at 231-279). The Board conducted its public hearing primarily through a written process which included two rounds of filing evidence, several rounds of IRs, letters of comment, and the submission of final arguments, concluding with NGTL’s submission of a reply argument. The one oral component of the hearing was the collection of oral traditional evidence from Aboriginal interveners, which took place in October and

November 2015 (NR, vol. 1 at 208).

[25] On June 1, 2016, the Board issued its report. Subsection 52(1) of the NEB Act provides that such a report must set out a recommendation as to whether the certificate should be issued, and if so, under what conditions. Subsection 52(2) lists the criteria upon which the Board must base its recommendation, which includes “any public interest that in the Board’s opinion may be affected by the issuance of the certificate or the dismissal of the application” (NEB Act at para.

52(2)(e)). Since NGTL’s proposed pipeline section loops for the Project collectively exceed 40 kilometers in length, the Project is a “designated project” under subsection 2(1) of the CEAA and requires an environmental assessment for which the Board is the responsible authority, in accordance with subsection 52(3) of the NEB Act.

[26] The Board found that the Project is, and will be, required by the present and future public convenience and necessity as requested by subsection 52(1). That conclusion reflected the

Board’s consideration not only of the criteria mentioned in subsection 52(2) of the NEB Act but also of the matters set out in sections 5 and 19 of the CEAA. The Board also set out 36

Page: 14

Conditions that it considered necessary or desirable in the public interest, should the Governor in

Council direct the Board to issue a certificate to authorize the Project, as required by paragraph

52(1)(b) of the NEB Act. The Board was of the view that with these Conditions, the implementation of NGTL’s environmental protection procedures and mitigation measures, the

Project was not likely to cause significant adverse environmental effects. These Conditions had previously been shared with all participants in the hearing who were then invited to provide their comments.

[27] After the Board has submitted its report, the Governor in Council may, by order, direct the Board either to issue a certificate and to make it subject to the terms and conditions set out in the report, or to dismiss the application for a certificate (NEB Act at subsection 54(1)). Such an order must be made within three months after the Board’s report, unless the Governor in Council extends that time limit pursuant to subsection 54(3) of the NEB Act. In the case at bar, the time limit was extended by two months, to November 1, 2016. The Governor in Council could also have asked the Board to reconsider its recommendation or any terms and conditions, or both

(NEB Act at subsection 53(1)).

[28] The Crown, through the MPMO, consulted Aboriginal groups on the NEB recommendation to understand the impacts of the Project that were not addressed in the NEB

Report and Conditions, where those impacts could be mitigated and where they could not be mitigated, and how any outstanding impact could be accommodated. In the Crown Consultation and Accommodation Report released on October 14, 2016, the MPMO described the consultation process undertaken by the Crown with Aboriginal groups, reported the views of

Page: 15

Aboriginal groups on how the Crown’s conduct may potentially impact their rights, explained the Crown’s findings regarding the potential impact of the Crown’s conduct on Section 35

Rights, and outlined accommodation measures proposed to address potential impact on

Aboriginal rights. It concluded that the Conditions proposed by the NEB were responsive to, and appropriately accommodated, the concerns raised by Aboriginal groups.

[29] On October 28, 2016, the Governor in Council issued the Order directing, pursuant to paragraph 54(1)(a) of the NEB Act, the NEB to issue CPCN GC-126 to Nova in respect of the

Project, subject to the Conditions set out in the NEB Report. It also decided, pursuant to subparagraph 31(1)(a)(i) of the CEAA, that, taking into account those Conditions, the Project is not likely to cause significant adverse environmental effects, and directed the NEB to issue a decision statement to that effect (CEAA at para. 31(1)(b)).

[30] It is that decision which is the subject of this application for judicial review. Under the legislative scheme put in place by the NEB Act and the CEAA, the Governor in Council is the only decision-maker. The NEB (and, to a lesser extent, the MPMO) gathers information, consults, analyzes, assesses and makes a recommendation. It does not exercise, either prior to or after the Order made by the Governor in Council, any independent or discretionary power.

Accordingly, the Order in Council is the only focus of this application; Bigstone appropriately challenged the legal validity of that decision.

Page: 16

B. Standard of review

[31] There is broad agreement between the parties that the standard of review for a discretionary decision of the Governor in Council made under subsection 54(1) of the NEB Act is reasonableness. As stated by this Court in Gitxaala at paragraph 154, the GIC’s discretionary decision to issue the Order in Council and to direct the NEB to issue a CPCN to Nova was

“based on the widest considerations of policy and public interest assessed on the basis of polycentric, subjective or indistinct criteria and shaped by its view of economics, cultural considerations, environmental considerations, and the broader public interest”. As such, the GIC is entitled to a very broad margin of appreciation. In the present case, it is beyond doubt that the decision of the GIC was based, as required by the NEB Act, on public policy and economic considerations that are diffuse in nature and call for a high level of deference.

[32] There is no need in the case at bar to determine the breadth of the range of acceptable and defensible outcomes on the facts and the law. I acknowledge that a majority of the Supreme

Court rejected the notion that the reasonableness standard can be calibrated and therefore expanded or restricted on a sliding scale depending on the nature of the decision being reviewed

(Wilson v. Atomic Energy of Canada Ltd., 2016 SCC 29 at paras. 18 and 73, [2016] 1 S.C.R.

770). It is sufficient to reiterate, as the highest court did in that case, that reasonableness “takes its colour from the context” (Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12 at para. 59, [2009] 1 S.C.R. 339) and must therefore “be assessed in the context of the particular type of decision-making involved and all relevant factors” (Catalyst Paper Corp. v. North

Cowichan (District), 2012 SCC 2 at para. 18, [2012] 1 S.C.R. 5). I leave it to others to determine how these two approaches (i.e. delineating at a conceptual level the margin of appreciation

Page: 17 afforded to an adjudicator or determining the reasonableness standard in light of the specific context under review) differ at a practical level.

[33] Be that as it may, the issue before this Court is not whether the Order is reasonable under administrative law principles, but rather whether the Crown fulfilled its constitutional duty to consult and accommodate. It is accepted by the parties that determinations pertaining to the existence, content and scope of the duty to consult, as well as to the seriousness of the Aboriginal or treaty claims and the impact of the infringement, are to be reviewed on a standard of correctness to the extent that they can be isolated from issues of fact. As the Supreme Court recognized in Haida Nation v. B.C. (Minister of Forests), 2004 SCC 73 at paragraph 61, [2004] 3

S.C.R. 511 (Haida), such questions are no doubt of a legal nature but nevertheless suffused with and premised on an assessment of facts.

[34] Conversely, the adequacy of the consultation and the accommodation is reviewed on a standard of reasonableness as it is a mixed question of fact and law. It requires a combined legal and factual analysis of the strength of the prima facie Aboriginal claim and the seriousness of the impact on the underlying Aboriginal or treaty right (Haida at paras. 62-63). At that stage, the

Court will focus on the process itself, not on the substantive outcome of the consultation and accommodation. As the Supreme Court stated in Haida at paragraph 62, “[p]erfect satisfaction is not required”; the duty to consult will be satisfied if the government made reasonable efforts to inform and consult. See also: Gitxaala at paragraphs 182-185; Ahousaht First Nation v. Canada

(Fisheries and Oceans), 2008 FCA 212 at paragraph 54, 379 N.R. 297; Canada v. Long Plain

First Nation, 2015 FCA 177 at paragraph 133, 388 D.L.R. (4th) 209; Yellowknives Dene First

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Nation v. Canada (Aboriginal Affairs and Northern Development), 2015 FCA 148 at paragraph

56, 474 N.R. 350; Hamlet of Clyde River v. TGS-NOPEC Geophysical Company ASA (TGS),

2015 FCA 179 at paragraph 47, 474 N.R. 96, rev’d on other grounds 2017 SCC 40.

C. The existence, content and scope of the duty to consult

[35] In the case at bar, the Crown acknowledged that it had a duty to consult Bigstone, given that Bigstone had established Treaty Rights and that the potential impact of the Project on the rights and interests of Bigstone would be “moderate to high”. On that basis, it assessed the extent of that duty at the “high end of the consultation spectrum” (AR, vol. 21 at 3664-3665).

Therefore, no issue arises as to the existence or extent of the duty to consult. It is not in dispute either that deep consultation will normally require the opportunity to make submissions, formal participation in the decision-making process, and the provision of written reasons to show that

Aboriginal concerns were considered and how they were factored into the decision (Gitxaala at para. 174).

[36] Nevertheless, Bigstone attempted to argue that the Crown made an error of law reviewable under the standard of correctness as it determined that the duty to consult excludes consultation on important prima facie stewardship rights related to Caribou. Bigstone claimed that this aspect of its Aboriginal and Treaty Rights was not addressed in the NEB Report, and that the CCAR and the MPMO consultations did not substantively respond to the evidence that it presented in that respect.

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[37] First of all, the NEB Report does address Bigstone’s concerns relating to Caribou habitat.

At pages 140 and 141 of the NEB Report (AR, vol. 6 at 1001-1002), it specifically refers to

Bigstone’s (and other First Nations’) concerns and measures that have been taken to restore

Caribou habitat and populations. While the CCAR may not be as explicit, this is not sufficient in and of itself to conclude that the MPMO paid no attention to that issue; indeed, there may well be other reasons why no such mention is made in the CCAR, as I shall explain later in these reasons. In any event, I agree with Nova that Bigstone’s complaint raises issues regarding the adequacy of the consultation, and not the extent or the depth of the consultation. Bigstone may well be unhappy with the sufficiency of the consultations, how they were conducted, their thoroughness and the responsiveness of the Crown’s representatives, but there was certainly no ambiguity as to the necessity to consult, the scope of that duty and the nature and impact of

Bigstone’s Aboriginal and Treaty Rights.

[38] Accordingly, I will now deal with Bigstone’s arguments going to the sufficiency and adequacy of the consultation, and assess them on a reasonableness standard.

D. The sufficiency and adequacy of the consultation and accommodation

(1) The Phase IV consultations were left too late

[39] Bigstone raised a number of issues with respect to the Phase IV consultation process.

First, it claims that the Crown released the CCAR without its input, as a result of having provided a draft version to Bigstone only 18 days before it was finalized by the MPMO.

However, a careful reading of the Record shows that Bigstone faced a short deadline not because the Crown rushed the process, but because Bigstone failed to act diligently. It is to be

Page: 20 remembered that the Crown contacted Bigstone by email on June 2, 2016, one day after the release of the NEB Report, to begin post-recommendation consultations and to inform it of funding availability. On June 16 and June 24, 2016, the Crown tried again to contact Bigstone to arrange a meeting (CCAR, AR, vol. 21 at 3665). Even though the Crown was unable to arrange such a meeting, Bigstone nevertheless sent its application for funding to the MPMO on June 24,

2016, which would tend to indicate that Bigstone had knowledge of the Crown’s first attempt to meet on June 2, 2016. It is only on July 5, 2016, as a result of a further attempt by the Crown on that same day to set up a meeting, that Bigstone responded that it was “currently undergoing an organizational restructuring process” (AR, vol. 19 at 3293).

[40] In the following week the Crown tried to reach its original contact person with Bigstone without success, and then attempted to contact another individual identified by Bigstone as a contact person (AR, vol. 19 at 3295). Finally, on July 11 and 18, 2016, the Crown had to contact the firm that made the TLU Study for Bigstone to find out who was now in charge of participating in consultations (AR, vol. 19 at 3295 and 3340-3341). As a result of all these failed attempts to contact Bigstone, the first meeting occurred almost three months after the NEB

Report was released, that is on August 25, 2016. At that meeting, the Crown gave a copy of a presentation about the Crown’s consultations with respect to the Project. That presentation contained a timeline indicating that the Crown would seek input on the CCAR in September

2016 and that the GIC’s decision would be made at the beginning of November (as a result of the

GIC having extended the statutory time period to render its decision on the NEB’s recommendation by two months).

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[41] In its memorandum, Bigstone states that it requested a second meeting (which took place on September 1, 2016) because the first meeting was “rushed”. Yet it appears from an email sent to the MPMO by Bigstone’s representative that the meeting was rushed because of this representative (AR, vol. 19 at 3387). Moreover, that same representative left in the middle of the second meeting and was replaced by someone else, despite the fact that he was the one who had proposed the time and place of that meeting. This is clearly evidence that Bigstone was not seriously engaged in the process.

[42] It is true that the deadline given to Bigstone (and all other First Nations involved in the process) to comment on the draft CCAR was tight. The draft CCAR was shared on September

20, 2016, and the initial deadline for comments was September 26, 2016. Yet that deadline was twice extended, first to September 29, 2016, and then to October 11, 2016. Bigstone wrote to the

MPMO on October 3, 2016 to advise that they would provide comments prior to the deadline, but did not in fact provide their comments before the CCAR was finalized on October 14, 2016.

[43] In light of that sequence of events, Bigstone cannot seriously complain that it was not meaningfully consulted after the release of the NEB Report. Both sides had approximately four months to consult, but the first three months were lost as a result of Bigstone’s lack of engagement. On October 25, 2016, Chief Gordon T. Auger of Bigstone wrote to the MPMO expressing its “interest in becoming involved in the Federal consultation process for the 2017

NGTL System Expansion Project”, requesting an “immediate meeting” and recommending the

MPMO to seek an extension of time, the failure of which would result in “the Crown’s failure to discharge its duty to consult”. The Chief finally insisted on the fact that “Bigstone is committed

Page: 22 to employing all avenues available under the law to ensure the Project does not move forward and adversely impact rights and titles or causes irreparable harm to Bigstone” (AR, vol. 7 at

1157-1159). After weeks of silence, unanswered emails and comments never provided by

Bigstone despite its commitment to provide them, this letter is disingenuous and flies in the face of an objective and fair-minded appreciation of the parties’ conduct. The request came way too late, and the Crown was justified in not agreeing to a time extension, especially given the fact that it had already granted a two-month extension.

(2) The funding provided was insufficient

[44] Second, Bigstone argues that the lack of funding prevented meaningful consultations at

Phase IV. With all due respect, this argument is without merit. First, I note that Bigstone was awarded the maximum amount of $8,500 in funding to participate in post-hearing consultations.

This was on top of the $27,000 provided to Bigstone by the NEB in participant funding (AR, vol.

14 at 2360) and of the approximately $225,000 provided by NGTL to fund Bigstone’s engagement in the Project (AR, vol. 13 at 2313).

[45] Moreover, the Crown is under no obligation to provide funding. The two cases relied upon by counsel for Bigstone to support such a duty clearly do not go that far (Platinex Inc. v.

Kitchenuhmaykoosib Inninuwug First Nation, [2007] O.J. No. 2214, [2007] 3 C.N.L.R. 221 (Ont.

Sup. Ct.) (Platinex); Dene Tha’ First Nation v. Canada (Minister of Environment), 2006 FC

1354, [2007] 1 C.N.L.R. 1, aff’d 2008 FCA 20). At best, it will be but one factor to determine if the consultations were meaningful; or, as stated in Platinex, “[t]he issue of appropriate funding is essential to a fair and balanced consultation process” (at para. 27). In the case at bar, Bigstone

Page: 23 has not even attempted to show how the purported lack of funding impacted on its participation in the consultation process and how much additional funding would have been necessary.

Indeed, Bigstone returned a signed Funding Agreement two months after its application had been approved, after having been reminded twice (on August 8 and September 20, 2016) that they had missed the deadline to do so (which was July 27, 2016) (AR, vol. 19 at 3344 and 3400).

(3) The consultations were not meaningful

[46] Bigstone also alleges that the Phase IV consultations were not effective or properly managed and claims that the meetings were an exchange of information only, did not respond to

Bigstone’s concerns, and did not provide Bigstone with a platform to engage in meaningful discussions on outstanding Project-specific issues. These submissions, however, are not substantiated and are not borne out by the Record.

[47] There is no doubt that the Crown had a duty to consult with Bigstone and other

Indigenous groups impacted by the Project. That duty is grounded in the honour of the Crown, and arises every time the Crown has actual or constructive knowledge of the potential existence of Section 35 Rights and contemplates conduct that might adversely affect those rights (Haida at para. 35; Gitxaala at paras. 171-172). It is equally beyond dispute that the Governor in Council, when considering a pipeline project under the NEB Act that may impact Section 35 Rights, must ensure that the duty to consult has been fulfilled before it actually gives its approval for the issuance of a certificate by the NEB (Gitxaala at paras. 168 and 237).

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[48] In the case at bar, Canada readily conceded that its duty to consult lay at the high end of the spectrum, since Bigstone had established Treaty Rights as a Treaty 8 signatory, the potential infringement of the Project is of high significance and the risk of non-compensable damage is high. In such circumstances, consultation might entail the opportunity for the potentially affected

Indigenous groups to make submissions and participate in the decision-making process, as well as the provision of written reasons showing that Aboriginal concerns were taken into account and factored into the decision (Haida at para. 44; Gitxaala at para. 174).

[49] The duty to consult is not unlimited in scope and does not confer a veto power on any

First Nation. As the Supreme Court stated in Haida, the Crown is not to be held to a standard of perfection; so long as reasonable effort to inform and consult has been made, the duty to consult will have been discharged (Haida at para. 62; Gitxaala at para. 184). On the basis of the Record before the Court, I am of the view that the consultation of Bigstone, viewed as a whole, was genuine and sufficient for the Crown to meet its duty even at its highest threshold.

(a) The GIC unlawfully relied on the NEB Process

[50] First, the Governor in Council was entitled to rely on the NEB process to fulfill, at least in part, its duty to consult. As acknowledged by the applicant itself, the Crown could delegate the procedural aspects of the consultation to the NEB and rely on the regulatory process to either partially or completely fulfil this duty. Of course, the Crown must take further measures to meet its duty where the regulatory process does not achieve adequate consultation or accommodation

(Clyde River (Hamlet) v. Petroleum Geo-Services Inc., 2017 SCC 40 at para. 22, [2017] 1 S.C.R.

1069 (Clyde River)). As the Supreme Court stated in that case:

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This might entail filling any gaps on a case-by-case basis or more systemically through legislative or regulatory amendments. Or, it might require making submissions to the regulatory body, requesting reconsideration of a decision, or seeking a postponement in order to carry out further consultation in a separate process before the decision is rendered.

(references omitted)

See also: Chippewas of the Thames First Nation v. Enbridge Pipelines Inc., 2017 SCC 41 at paragraph 44, [2017] 1 S.C.R. 1099 (Chippewas); Haida at paragraph 53; Gitxaala at paragraph 178.

[51] Canada notified Bigstone early on that it intended to rely on the NEB process in partial fulfillment of its duty to consult. In the Project Agreement for the 2017 NGTL System Expansion

Project in Alberta, which was signed in September 2015, Canada made it clear that it would rely, to the extent possible, on the NEB process to discharge any duty to consult for the Project (AR, vol. 15 at 2556). On February 15, 2015, the Director General of Operations for the MPMO, Mr.

Jim Clarke, wrote to Bigstone Chief Gordon T. Auger to inform Bigstone of Canada’s plans for consultation:

For the proposed 2017 NGTL System Expansion, the Crown will rely on the National Energy Board’s (NEB) public hearing process, to the extent possible, to fulfil its duty to consult. Accordingly, this process will be used to identify, consider and address the potential adverse impacts of the proposed project on Aboriginal and treaty rights. The process provides an open, comprehensive and participatory venue for Aboriginal groups and other affected parties to express their concerns and interests related to a proposed project.

…

The Government of Canada encourages all Aboriginal groups whose established or asserted rights could be impacted by the project to apply to the NEB to participate in the public hearing process.

AR, volume 17 at 2916-2917.

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[52] It was reasonable for the Crown to rely on that process to consult with Bigstone and other affected Aboriginal groups. The case law is clear that existing regulatory processes are reasonable and a practical means of undertaking consultation, and Aboriginal groups have a responsibility to make use of such processes if they wish to voice their concerns (Clyde River at para. 22; Chippewas at para. 44; Taku River Tlingit First Nation v. British Columbia (Project

Assessment Director), 2004 SCC 74 at para. 40, [2004] 3 S.C.R. 550 (Taku River); Beckman v.

Little Salmon/Carmacks First Nation, 2010 SCC 53 at para. 39, [2010] 3 S.C.R. 103; Gitxaala at paras. 175-176). A review of the Record establishes that the NEB process was structured to encourage significant and meaningful Aboriginal consultation. Bigstone was indeed provided with ample information about the Project, was provided with participant funding to assist in its involvement in the Crown consultations, and was substantially involved in the hearing process.

As an intervener, it filed its Interim and Final TLU Studies, as well as a Caribou Technical

Review. It also submitted two rounds of IRs, filed written motions, transmitted traditional oral evidence and submitted a final argument. It is clear that Bigstone was provided ample opportunity to express its concerns about the Project and to discuss possible ways in which its concerns might be addressed.

[53] It is apparent from the numerous accommodation measures imposed on NGTL through the Conditions that the NEB seriously considered Bigstone’s rights and concerns. In particular,

Bigstone requested confirmation from NGTL that an accident response plan would be submitted and asked NGTL to commit to providing regular updates on the status of the plan. Having considered NGTL’s proposed measures to address emergency preparedness, the Board found them appropriate and imposed Conditions in that respect (NEB Report at 44; AR, vol. 6 at 905).

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Bigstone was also concerned by the potential contamination of traditional foods, medicine and agricultural crops, the loss of habitat and potential cumulative environmental effects of the

Project. The Board considered those submissions and those of other First Nations, and came to the conclusion that the effects of the Project on traditional land use would not likely be significant and would be appropriately mitigated with the implementation of NGTL’s commitments, proposed mitigation measures and fulfillment of regulatory requirements, and the

Conditions imposed on the Project by the Board (NEB Report at 74 and 83-84; AR, vol. 18 at

935 and 944-945).

[54] Bigstone’s main preoccupation appears to be with the Project’s potential impact on

Caribou and Caribou habitat. Bigstone, as well as other Aboriginal groups, expressed concerns with NGTL’s preliminary Caribou Habitat Restoration and Offset Measures Plan for the Project, and the cumulative effects on Caribou. The Board addressed these issues at length in its Report

(see NEB Report at 129-143; AR, vol. 18 at 3190-3204), and came up with seven Conditions

(Conditions # 6, 7, 18, 31-34) in regard to habitat restoration, offset measures, monitoring, reporting and cumulative impacts, in addition to NGTL’s own commitments to implementing best practice mitigation measures.

(b) The Conditions constitute an unlawful delegation of the duty to consult to the NEB

[55] In its memorandum of fact and law, Bigstone alleges that many of the Conditions set out by the NEB are prospective and contemplate future consultation, and thereby constitute an unlawful delegation of the duty to consult to the NEB. Relying on Gitxaala at paragraph 237, it

Page: 28 argues that the duty to consult must be fulfilled before the Governor in Council gives its approval for the issuance of a certificate by the NEB.

[56] This objection is easily dealt with. The NEB Act makes it clear that the role of the Board is not merely to assess pipeline projects and issue orders or certificates to construct and operate such projects, but also to oversee and supervise their construction, operation and abandonment.

This is a dynamic process that is not frozen in time. Indeed, the Board plays an ongoing regulatory role with respect to federally-regulated pipeline infrastructure, ensuring compliance and enforcing safety and environmental protection measures (see, for example, sections 13, 21,

48, 49, 51.1 and 136 of the NEB Act). The fact that the NEB may impose conditions requiring the proponent to submit further information for the NEB review or approval at a later stage, therefore, does not detract from the requirement that it be satisfied in the first place that it has sufficient information at the end of the hearing to issue a recommendation with terms and conditions to which the certificate should be subject.

[57] The same is true with respect to environmental assessments. Given the ongoing and dynamic nature of large projects and the early phase of the process at which such assessments are made, it is obviously reasonable to recommend further studies, in order to gather more information. This possibility is indeed contemplated by paragraph 29(1)(b) of the CEAA, according to which the responsible authority carrying out an environmental assessment of a designated project requiring the issuance of a certificate pursuant to section 54 of the NEB Act is explicitly empowered to make recommendations with respect to the follow-up program that is to

Page: 29 be implemented for that project. Commenting on a similar provision in the Canadian

Environmental Assessment Act, S.C. 1992, c. 37 at section 38, this Court stated:

Finally, we were asked to find that the panel had improperly delegated some of its functions when it recommended that certain further studies and ongoing reports to the National Energy Board should be made before, during and after construction. This argument misconceives the panel’s function which is simply one of information gathering and recommending. The panel’s view that the evidence before it was adequate to allow it to complete that function “as early as is practicable in the planning stages…and before irrevocable decisions are made” (see section 11(1)) is one with which we will not lightly interfere. By its nature the panel’s exercise is predictive and it is not surprising that the statute specifically envisages the possibility of “follow up” programmes. Indeed, given the nature of the task we suspect that finality and certainty in environmental assessment can never be achieved.

Alberta Wilderness Assn v. Express Pipelines Ltd. (1996), 137 D.L.R. (4th) 177 at paragraph 14, 201 N.R. 336 (F.C.A.).

[58] Obviously, the responsible authority for the purposes of the CEAA, must have sufficient information to make a recommendation with respect to the designated project, taking into account the implementation of any mitigation measures that it may set out in its report.

Ultimately, however, the decision is made by the Governor in Council under section 54 of the

NEB Act and subsection 31(1) of the CEAA, and it is for that body to determine whether it has sufficient information to assess whether the project is in the public interest and whether or not it is likely to cause significant adverse environmental effects and whether these effects can be justified.

[59] I am therefore of the view that the Conditions found in the NEB Report do not amount to an impermissible and unlawful delegation of the duty to consult. The Governor in Council was entitled to rely on an existing regulatory and environmental assessment process to fulfil its duty, and came to its own conclusion on the basis of the evidence, recommendation and proposed

Page: 30 mitigation measures that were put to it, including the information derived from the Phase IV consultations. Moreover, the Crown’s duty to consult and accommodate does not come to an end once the approval of a project has been given, but subsists at later stages of the development process. As the Supreme Court recognized in Taku River at paragraph 45, project approval is

“simply one stage in the process by which a development moves forward” (see also Gitxaala at para. 177). It is to be expected that the Crown will be responsive to outstanding or fresh First

Nation concerns throughout the life of the project.

(c) The meetings with the Crown amounted to an exchange of information rather than meaningful consultation and Bigstone’s concerns were not appropriately dealt with

[60] Bigstone also argued that the consultations which took place after the release of the NEB

Report were not meaningful because the meetings were an exchange of information only, did not respond to Bigstone’s concerns, and did not provide a platform to engage in real discussions on unresolved issues. Bigstone has not provided any particulars to support those allegations, and the

Record does not bear them out.

[61] According to the MPMO’s records of the two meetings that took place between the representatives of Canada and Bigstone, the Crown clearly appears to have been open to suggestions of accommodation and mitigation measures. The main concerns and issues raised by

Bigstone were explicitly identified, yet Bigstone failed to propose any possible accommodation or mitigation measures to alleviate its apprehensions.

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[62] Bigstone also alleges that the MPMO did not facilitate a meeting amongst Environment

Canada or Natural Resources Canada and its representatives. Once again, it would appear that if such a meeting did not take place, it is because Bigstone never requested it. In a letter sent to

Bigstone and all other First Nations on June 2, 2016 (the day after the NEB Report was released), the MPMO Director of Operations suggested that representatives of other federal departments be invited to participate in future meetings, “depending on the topics you identify for discussion” (AR, vol. 19 at 3266). Bigstone never took that offer up. It should also be noted that the MPMO is part of Natural Resources Canada.

[63] Bigstone further complains that the Bigstone Annex contains an incomplete list of its concerns and does not demonstrate how its scientific data and Indigenous knowledge was incorporated into decision-making processes. This argument can easily be rebutted. As previously mentioned at paragraph 17 of these reasons, the MPMO wrote to Bigstone and provided a copy of the draft CCAR and draft Bigstone Annex for its review and comments on

September 20, 2016; despite being given two extensions of time, Bigstone failed to respond.

Moreover, there is no evidence that Bigstone specifically raised the issue of the Project’s potential impact on Caribou at either meeting, which it now claims is of major concern. When combined with the fact that Bigstone was far from responsive to the Crown’s requests for meetings and eventually met for the first time almost three months after having been contacted by the Crown, one is drawn to the inescapable conclusion that Bigstone did not live up to its part of the bargain. As the Supreme Court stated in Haida at paragraph 42, “good faith on both sides is required”.

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(4) The reasons provided are inadequate

[64] Bigstone then argues that from the reasons set out in the OIC, the Explanatory Note, and the CCAR, one cannot tell whether its Aboriginal and Treaty Rights were considered and how they influenced the OIC. The OIC is the only evidence before this Court (an important part of the

Record showing what formed the basis of the GIC decision is not before this Court as it is subject to the Cabinet confidence privilege under section 39 of the Canada Evidence Act, R.S.C.

1985, c. C-5), and it does not include all of the concerns that Bigstone raised either during or following the NEB hearing with Canada. As for the Explanatory Note, it is not an “impact assessment of the rights at stake” and of possible accommodation, but rather in Bigstone’s view, a mere summary of the process up until the date of the GIC decision. The CCAR, in turn, cannot demonstrate that the GIC had proper regard and appreciation of the Aboriginal and Treaty Rights at stake since it was drafted by the MPMO and is only capable of addressing issues up to the point of the GIC’s decision.

[65] It is beyond dispute that deep consultation requires written explanations capable of showing that the Aboriginal group’s concerns were duly considered and sufficient to reveal the impact those concerns had on the GIC’s decision (Haida at para. 44; Gitxaala at para. 314). In the case at bar, this requirement was clearly met. The GIC was entitled to rely on the NEB

Report and the CCAR as an adequate basis for its decision. It is well established that an administrative decision-maker need not provide its own reasons on each and every issue raised by the parties, and may rely on and adopt the reports of other administrative actors

(Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board),

2011 SCC 62 at para. 16, [2011] 3 S.C.R. 708; Baker v. Canada (Minister of Citizenship and

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Immigration), [1999] 2 S.C.R. 817 at para. 44, 174 D.L.R. (4th) 193). In fact, the GIC referred explicitly to the NEB Report and the CCAR in the preamble of the OIC as a basis of its decision to authorize the Project.

[66] The OIC that is the subject of this application for judicial review does not suffer from the same deficiency as the OIC that was challenged in Gitxaala. In that case, this Court found that the OIC was lacking, in that it contained only a single recital on the duty to consult, merely stating that a process of consultation was pursued. Here, the OIC clearly takes a position and expresses the view that Canada has fulfilled its duty. The fourth “whereas” clause reads as follows:

Whereas the Governor in Council, having considered Aboriginal concerns and interests identified in the Crown Consultation and Accommodation Report, is satisfied that the consultation process undertaken is consistent with the honour of the Crown and that the concerns and interests have been appropriately accommodated.

AR, volume 1 at 16.

[67] This statement leaves no room for ambiguity: it is clear that the GIC considered its obligation to consult and, if necessary, to accommodate, and that it is of the view that it has fulfilled that obligation. The Explanatory Note, although not part of the Order, expands on this preliminary clause. It states that the Crown relied on the NEB review process and its own consultative activities to discharge its duty to consult. It then goes on to say:

To evaluate the adequacy of the Crown’s consultation, including accommodation, NRCan drafted a Crown Consultation and Accommodation Report (CCAR). The CCAR includes an analysis of issues raised, proposed mitigation measures, the NEB response and NEB conditions. The CCAR documents the Crown’s consultation process with Indigenous groups, issues raised, potential impacts on Aboriginal rights, and accommodation measures.

AR, volume 21 at 3742.

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[68] As a result, it cannot be said, as in Gitxaala, that there is no indication the GIC has received any information about the consultation process. The Explanatory Note summarizes the consultation process, the concerns expressed by the Aboriginal groups who participated in the

NEB process and the conclusions of the Board, and the consultation that took place in the post-

NEB Report phase.

[69] Nor can it be said, as in Gitxaala at paragraph 317, that the CCAR “did not determine anything about Aboriginal rights or title and gave no explanation on how those non-assessed rights affected, if at all, its decision that the Project would not significantly adversely affect the interests of Aboriginal groups that use lands, waters or resources in the Project area”. A careful reading of that report shows that the Crown 1) explained its strength of claim and depth of consultation analysis in respect of each of the Aboriginal groups potentially affected by the

Project, including Bigstone; 2) identified and assessed evidence of the Aboriginal perspective on their main concerns; 3) considered the Aboriginal evidence presented in the NEB process as well as other evidence presented after the NEB process; and 4) addressed each of the concerns raised by Aboriginal groups and discussed how those concerns impacted the Crown’s decisions on the

Project.

[70] In light of the NEB Report and of the extensive reasons of the Crown (through the

MPMO), which the GIC expressly relied on in the OIC, it cannot reasonably be argued that the

GIC failed to give adequate reasons. The decision made may not be to the liking of Bigstone, but this is not the test to determine whether the duty to consult has been fulfilled. Consultation cannot translate into a duty to agree, as this would amount to a veto power. As the Supreme

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Court emphatically stated in Haida (at para. 62), “[t]he government is required to make reasonable efforts to inform and consult. This suffices to discharge the duty.”

[71] In Gitxaala, this Court concluded its analysis of the requirement to give reasons with the following paragraph:

Had the Phase IV consultation process been adequate, had the reasons given by Canada’s officials during the consultation process been adequate and had the Order in Council referred to and adopted, even generically, that process and the reasons given in it, the reasons requirement might have been met. …

Gitxaala at paragraph 324.

There is absolutely no doubt in my mind that in the case at bar, all of these requirements have been met.

(5) The Crown did not accommodate Bigstone’s concerns

[72] Bigstone’s final argument is that the Crown failed to adequately accommodate its concerns. Its concerns related to the impacts of the Project on Caribou and Caribou habitat, and on traditional land and resources use. Relying on its Interim TLU Study that was filed with the

Board, Bigstone claims that they requested the following accommodation measures:

(a) further engagement with Bigstone to assess impacts and develop accommodation measures; (b) implementation of Indigenous knowledge in the development of monitoring and reclamation plans and programs; (c) agreement to conduct further studies and assessments; (d) support of a Company liaison employed by Bigstone; (e) development and implementation of a community- based monitoring program; (f) formation of a multi-stakeholder working group focussed on restoring Boreal Caribou; and (g) development of management strategies that minimize potential for impacts to wildlife and Harvest Rights.

Applicant’s revised memorandum of fact and law at paragraph 80. See also AR, volume 4 at 685-688.

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[73] Canada obviously had a duty not only to consult, but also to accommodate in order to substantially address Bigstone’s legitimate concerns. As the Supreme Court stated in Taku River at paragraph 25, “[r]esponsiveness is a key requirement of both consultation and accommodation”. In some cases, meaningful consultation may require the Crown to change its proposed course of action to address Aboriginal concerns and avoid irreparable harm or minimize the effects of infringement.

[74] Here, NGTL made a number of commitments to protect Caribou and Caribou habitat, including (1) developing a Caribou Habitat Restoration and Offset Measures Plan; (2) enabling construction to occur primarily in the winter season to avoid Caribou restricted activity periods; and (3) including, in addition to other measures for wildlife, further mitigation measures specifically for Caribou ranges. These commitments were recorded by the Board in its Report

(AR, vol. 6 at 992-993), and are enforceable under Condition 5 (AR, vol. 6 at 1032); they are also referred to in the CCAR at page 34 (AR, vol. 21 at 3656).

[75] The Crown also specifically endorsed in the CCAR the seven Conditions proposed by the

NEB to mitigate the direct impact on Caribou and Caribou habitat (see para. 54 of these reasons), and caused the Board to issue CPCN GC-126 subject to those Conditions. The Crown accepted that protecting the Caribou is of the utmost importance, given its status as threatened under the

Species at Risk Act, S.C. 2002, c. 29, and concluded its analysis of this issue in the following way:

The Crown is of the view that NEB Certificate Conditions 6, 7, 18, 31, 32, 33, and 34 will directly ensure that potential impacts to caribou and caribou habitat are minimized and mitigated. More specifically, NGTL is required to file and implement a Caribou Habitat Restoration Implementation Report, a Caribou

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Habitat Restoration and Offset Measures Monitoring Program, Caribou Monitoring Reports, and a Caribou Habitat Offset Measures Implementation Report. NGTL is also required to file construction progress reports which include how work on the Project will be avoided, where feasible, during the restricted times to reduce impacts to pregnant cows and their calves. Other commitments include mitigation measures specific to caribou ranges and continuing discussions with Alberta Environment and Parks on the identification of priority offset locations.

Furthermore, in the event that restoration and offset activities by NGTL are not successful, the Minister of Environment and Climate Change could take further steps under the Species at Risk Act to protect critical habitat on provincial lands, including caribou habitat. A protection order, if approved, could halt development activities in the region while further conservation efforts are put in place.

CCAR at 35-36; AR, volume 21 at 3657-3658.

[76] On the basis of the foregoing, combined with the fact that Bigstone did not proactively participate in the post-NEB consultation process, did not specifically raise the issue of the

Project’s potential impact on Caribou at either meeting with the MPMO, and did not avail itself of the opportunity to provide comments on the draft CCAR, I am of the view that Bigstone failed to establish that its concerns were not heard and accommodated. When viewed as a whole, the consultation process resulted in reasonable efforts to inform, consult and accommodate as required by the Crown’s fiduciary obligations.

IV. Conclusion

[77] In light of the conclusion that I have reached, I need not comment on NGTL’s further submissions that Bigstone’s application for judicial review was filed for the ulterior motive of gaining leverage in its negotiations for contracting opportunities on the Project, and that in any event it is moot. Suffice it to say that the declarations sought by Bigstone about the Crown’s alleged breaches of its duties were not moot, despite the construction of the Project on Bigstone’s

Page: 38 traditional territory being completed, as the Project has a long life cycle and the declarations could have had an impact on future interactions and negotiations between the Crown and

Aboriginal groups.

[78] I propose that the application be dismissed with costs. As the parties sought the right to make submissions in respect of the amount of such costs, I propose that should they be unable to agree on such amount, they be entitled to make submissions on the following basis. Within seven days of the issuance of these reasons, the respondents shall either advise the Court that they do not wish to make a submission on costs (in which case no separate judgment will be issued), or they shall serve and file a submission on costs not exceeding three pages, double-spaced. The submissions may include a request that costs be fixed as a lump sum inclusive of disbursements.

Within seven days of service of the submissions, the applicant may submit a response of not more than three pages, double-spaced.

“Yves de Montigny” J.A.

“I agree Johanne Gauthier J.A.”

“I agree D. G. Near J.A.”

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: A-31-17 STYLE OF CAUSE: BIGSTONE CREE NATION v. NOVA GAS TRANSMISSION LTD. AND THE ATTORNEY GENERAL OF CANADA AND NATIONAL ENERGY BOARD PLACE OF HEARING: CALGARY, ALBERTA

DATE OF HEARING: OCTOBER 30, 2017

REASONS FOR JUDGMENT BY: DE MONTIGNY J.A.

CONCURRED IN BY: GAUTHIER J.A. NEAR J.A. DATED: MAY 8, 2018

APPEARANCES:

Kennedy Bear Robe FOR THE APPLICANT Robin Dean Amyn Lalji

Olivia Dixon FOR THE RESPONDENT Sander Duncanson NOVA GAS TRANSMISSION LTD. Bruce Hughson FOR THE RESPONDENT Susan Eros THE ATTORNEY GENERAL OF CANADA Mark Watton FOR THE INTERVENER Jana Nicholson

Page: 2

SOLICITORS OF RECORD:

Miller Thomson LLP FOR THE APPLICANT Barristers and Solicitors Vancouver, British Columbia

Osler, Hoskin & Harcourt LLP FOR THE RESPONDENT Barristers and Solicitors NOVA GAS TRANSMISSION Calgary, Alberta LTD.

Nathalie G. Drouin FOR THE RESPONDENT Deputy Attorney General of Canada THE ATTORNEY GENERAL OF CANADA National Energy Board FOR THE INTERVENER Calgary, Alberta