NATIONAL ENERGY BOARD
IN THE MATTER OF the National Energy Board Act, R.S.C. 1985, c N-7, as amended and the regulations made thereunder;
AND IN THE MATTER OF an application by Trans Mountain Pipeline ULC as General Partner of Trans Mountain Pipeline L.P. for a Certificate of Public Convenience and Necessity and other related approvals pursuant to Part II of the NEBA for the Trans Mountain Expansion Project;
AND IN THE MATTER OF the National Energy Board's reconsideration of aspects of its Recommendation Report, Hearing Order MH-052, File OF-Fac-Oil-T260-2013-03 59, as directed by the Governor in Council through Order in Council P.C. 2018 1177
To: Ms. Sheri Young Secretary of the Board National Energy Board Suite 210, 517 10 Ave SW Calgary, AB T2R 0A8
GOVERNMENT OF ALBERTA
BOOK OF AUTHORITIES FOR ITS LETTER IN RESPONSE TO THE NATIONAL ENERGY BOARD'S REQUEST FOR COMMENTS, DATED NOVEMBER 21, 2018
NATIONAL ENERGY BOARD HEARING ORDER MH—052-2018
FILE OF-FAC-OIL-T260-2013-03 59
November 30, 2018 TABLE OF CONTENTS
Item Page (PDF) Jurisprudence Re Rizzo & Rizzo Shoes Ltd, [1998] 1 SCR 27 3 Tsleil-Waututh Nation v Canada (Attorney General), 2018 FCA 153 14 Montreal (Ville) v 2952-1366 Quebec inc, 2005 SCC 62 140 Bell ExpressVu Ltd Partnership v Rex 178 NAV Canada c Wilmington Trust Co, 2006 SCC 24 197 Canada (Canadian Environmental Assessment Agency) v Taseko Mines Limited, 2018 BCSC 219 1034 Johnny v Adams Lake Indian Band, 2017 FCA 146 234 IWA, Local 2-69 v Consolidated Bathurst Packaging Ltd, [1990] 1 SCR 282 243 Board Decisions National Energy Board, "Ruling No 122 – Pro Information Pro Environment United People's 276 Network – 30 December 2015 Request for Review of Ruling No 101" (1 March 2016) (A4Y4G2) Legislation National Energy Board Act, RSC 1985, c N-7 279 Canadian Environmental Assessment Act, 2012, SC 2012, c 19, s 52 286 National Energy Board Rules of Practice and Procedure, 1995, SOR 95/208 295 United Nations Convention of the Law of the Sea, 1982, 1833 UNTS, 21 ILM 1261 (entered 300 into force 16 December 1994, ratified by Canada 7 November 2003) Secondary Sources National Energy Board, "Filing Manual – Guide O – Review, Rehearing or Variance 312 Applications (NEB Act s. 21)" (January 2012) online: https://www.neb- one.gc.ca/bts/ctrg/gnnb/flngmnl/fmgdo-eng.html Ruth Sullivan, Statutory Interpretation, 3d ed (Toronto: Irwin Law, 2016) 314 Canadian Environmental Assessment Agency, "Guide to Preparing a Description of a 322 Designated Project under the Canadian Environmental Assessment Act, 2012" (March 2015) online: https://www.canada.ca/en/environmental-assessment-agency/services/policy- guidance/guide-preparing-description-designated-project-under-canadian-environmental- assessment-act-2012.html Anne Bardin, "Coastal State's Jurisdiction over Foreign Vessels" (2002) 14:1 Pace L Rev 27 334
1998 CarswellOnt 1 Supreme Court of Canada
Rizzo & Rizzo Shoes Ltd., Re
1998 CarswellOnt 1, 1998 CarswellOnt 2, [1998] 1 S.C.R. 27, [1998] S.C.J. No. 2, 106 O.A.C. 1, 154 D.L.R. (4th) 193, 221 N.R. 241, 33 C.C.E.L. (2d) 173, 36 O.R. (3d) 418 (headnote only), 50 C.B.R. (3d) 163, 76 A.C.W.S. (3d) 894, 98 C.L.L.C. 210-006, J.E. 98-201
Philippe Adrien, Emilia Berardi, Paul Creador, Lorenzo Abel Vasquez and Lindy Wagner on their own behalf and on behalf of the other former employees of Rizzo & Rizzo Shoes Limited, Appellants v. Zittrer, Siblin & Associates, Inc., Trustees in Bankruptcy of the Estate of Rizzo & Rizzo Shoes Limited, Respondent and The Ministry of Labour for the Province of Ontario, Employment Standards Branch, Party
Gonthier, Cory, McLachlin, Iacobucci, Major JJ.
Heard: October 16, 1997 Judgment: January 22, 1998 Docket: 24711
Proceedings: reversing (1995), 30 C.B.R. (3d) 1 (C.A.); reversing (1991), 11 C.B.R. (3d) 246 (Ont. Gen. Div.)
Counsel: Steven M. Barrett and Kathleen Martin, for the appellants. Raymond M. Slattery, for the respondent. David Vickers, for the Ministry of Labour for the Province of Ontario, Employment Standards Branch.
The judgment of the court was delivered by Iacobucci J.:
1 This is an appeal by the former employees of a now bankrupt employer from an order disallowing their claims for termination pay (including vacation pay thereon) and severance pay. The case turns on an issue of statutory interpretation. Specifically, the appeal decides whether, under the relevant legislation in effect at the time of the bankruptcy, employees are entitled to claim termination and severance payments where their employment has been terminated by reason of their employer's bankruptcy.
1. Facts
2 Prior to its bankruptcy, Rizzo & Rizzo Shoes Limited ("Rizzo") owned and operated a chain of retail shoe stores across Canada. Approximately 65% of those stores were located in Ontario. On April 13, 1989, a petition in bankruptcy was filed against the chain. The following day, a receiving order was made on consent in respect of Rizzo's property. Upon the making of that order, the employment of Rizzo's employees came to an end.
3 Pursuant to the receiving order, the respondent, Zittrer, Siblin & Associates, Inc. (the "Trustee") was appointed as trustee in bankruptcy of Rizzo's estate. The Bank of Nova Scotia privately appointed Peat Marwick Limited ("PML") as receiver and manager. By the end of July, 1989, PML had liquidated Rizzo's property and assets and closed the stores. PML paid all wages, salaries, commissions and vacation pay that had been earned by Rizzo's employees up to the date on which the receiving order was made.
1 4 In November 1989, the Ministry of Labour for the Province of Ontario (Employment Standards Branch) (the "Ministry") audited Rizzo's records to determine if there was any outstanding termination or severance pay owing to former employees under the Employment Standards Act, R.S.O. 1980, c. 137, as amended (the "ESA"). On August 23, 1990, the Ministry delivered a proof of claim to the respondent Trustee on behalf of the former employees of Rizzo for termination pay and vacation pay thereon in the amount of approximately $2.6 million and for severance pay totalling $14,215. The Trustee disallowed the claims, issuing a Notice of Disallowance on January 28, 1991. For the purposes of this appeal, the relevant ground for disallowing the claim was the Trustee's opinion that the bankruptcy of an employer does not constitute a dismissal from employment and thus, no entitlement to severance, termination or vacation pay is created under the ESA.
5 The Ministry appealed the Trustee's decision to the Ontario Court (General Division) which reversed the Trustee's disallowance and allowed the claims as unsecured claims provable in bankruptcy. On appeal, the Ontario Court of Appeal overturned the trial court's ruling and restored the decision of the Trustee. The Ministry sought leave to appeal from the Court of Appeal judgment, but discontinued its application on August 30, 1993. Following the discontinuance of the appeal, the Trustee paid a dividend to Rizzo's creditors, thereby leaving significantly less funds in the estate. Subsequently, the appellants, five former employees of Rizzo, moved to set aside the discontinuance, add themselves as parties to the proceedings, and requested an order granting them leave to appeal. This Court's order granting those applications was issued on December 5, 1996.
2. Relevant Statutory Provisions
6 The relevant versions of the Bankruptcy Act (now the Bankruptcy and Insolvency Act) and the Employment Standards Act for the purposes of this appeal are R.S.C. 1985, c. B-3 (the "BA"), and R.S.O. 1980, c. 137, as amended to April 14, 1989 (the "ESA") respectively:
Employment Standards Act, R.S.O. 1980, c. 137, as amended:
7.--
(5) Every contract of employment shall be deemed to include the following provision:
All severance pay and termination pay become payable and shall be paid by the employer to the employee in two weekly instalments beginning with the first full week following termination of employment and shall be allocated to such weeks accordingly. This provision does not apply to severance pay if the employee has elected to maintain a right of recall as provided in subsection 40a (7) of the Employment Standards Act.
40.-- (1) No employer shall terminate the employment of an employee who has been employed for three months or more unless the employee gives,
(a) one weeks notice in writing to the employee if his or her period of employment is less than one year;
(b) two weeks notice in writing to the employee if his or her period of employment is one year or more but less than three years;
(c) three weeks notice in writing to the employee if his or her period of employment is three years or more but less than four years;
2 (d) four weeks notice in writing to the employee if his or her period of employment is four years or more but less than five years;
(e) five weeks notice in writing to the employee if his or her period of employment is five years or more but less than six years;
(f) six weeks notice in writing to the employee if his or her period of employment is six years or more but less than seven years;
(g) seven weeks notice in writing to the employee if his or her period of employment is seven years or more but less than eight years;
(h) eight weeks notice in writing to the employee if his or her period of employment is eight years or more,
and such notice has expired...... (7) Where the employment of an employee is terminated contrary to this section,
(a) the employer shall pay termination pay in an amount equal to the wages that the employee would have been entitled to receive at his regular rate for a regular non-overtime work week for the period of notice prescribed by subsection (1) or (2), and any wages to which he is entitled; . . . . . 40a ...
(1a) Where,
(a) fifty or more employees have their employment terminated by an employer in a period of six months or less and the terminations are caused by the permanent discontinuance of all or part of the business of the employer at an establishment; or
(b) one or more employees have their employment terminated by an employer with a payroll of $2.5 million or more,
the employer shall pay severance pay to each employee whose employment has been terminated and who has been employed by the employer for five or more years.
Employment Standards Amendment Act, 1981, S.O. 1981, c. 22
2.--(1) Part XII of the said Act is amended by adding thereto the following section:
(3) Section 40a of the said Act does not apply to an employer who became a bankrupt or an insolvent person within the meaning of the Bankruptcy Act (Canada) and whose assets have been distributed among his creditors or to an employer whose proposal within the meaning of the Bankruptcy Act (Canada) has been accepted by his creditors in the period from and including the 1st day of January, 1981, to and including the day immediately before the day this Act receives Royal Assent.
Bankruptcy Act, R.S.C. 1985, c. B-3
121. (1) All debts and liabilities, present or future, to which the bankrupt is subject at the date of the bankruptcy or to which he may become subject before his discharge by reason of any obligation
3 incurred before the date of the bankruptcy shall be deemed to be claims provable in proceedings under this Act.
Interpretation Act, R.S.O. 1990, c. I.11
10. Every Act shall be deemed to be remedial, whether its immediate purport is to direct the doing of any thing that the Legislature deems to be for the public good or to prevent or punish the doing of any thing that it deems to be contrary to the public good, and shall accordingly receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit...... 17. The repeal or amendment of an Act shall be deemed not to be or to involve any declaration as to the previous state of the law.
3. Judicial History
A. Ontario Court (General Division) (1991), 6 O.R. (3d) 441 (Ont. Gen. Div.)
7 Having disposed of several issues which do not arise on this appeal, Farley J. turned to the question of whether termination pay and severance pay are provable claims under the BA. Relying on U.F.C.W., Local 617P v. Royal Dressed Meats Inc. (Trustee of) (1989), 76 C.B.R. (N.S.) 86 (Ont. S.C.), he found that it is clear that claims for termination and severance pay are provable in bankruptcy where the statutory obligation to provide such payments arose prior to the bankruptcy. Accordingly, he reasoned that the essential matter to be resolved in the case at bar was whether bankruptcy acted as a termination of employment thereby triggering the termination and severance pay provisions of the ESA such that liability for such payments would arise on bankruptcy as well.
8 In addressing this question, Farley J. began by noting that the object and intent of the ESA is to provide minimum employment standards and to benefit and protect the interests of employees. Thus, he concluded that the ESA is remedial legislation and as such it should be interpreted in a fair, large and liberal manner to ensure that its object is attained according to its true meaning, spirit and intent.
9 Farley J. then held that denying employees in this case the right to claim termination and severance pay would lead to the arbitrary and unfair result that an employee whose employment is terminated just prior to a bankruptcy would be entitled to termination and severance pay, whereas one whose employment is terminated by the bankruptcy itself would not have that right. This result, he stated, would defeat the intended working of the ESA.
10 Farley J. saw no reason why the claims of the employees in the present case would not generally be contemplated as wages or other claims under the BA. He emphasized that the former employees in the case at bar had not alleged that termination pay and severance pay should receive a priority in the distribution of the estate, but merely that they are provable (unsecured and unpreferred) claims in a bankruptcy. For this reason, he found it inappropriate to make reference to authorities whose focus was the interpretation of priority provisions in the BA.
11 Even if bankruptcy does not terminate the employment relationship so as to trigger the ESA termination and severance pay provisions, Farley J. was of the view that the employees in the instant case would nevertheless be entitled to such payments as these were liabilities incurred prior to the date of the bankruptcy by virtue of s. 7(5) of the ESA. He found that s. 7(5) deems every employment contract to include a provision to provide termination and severance pay following the termination of employment and concluded that a contingent obligation is thereby created for a bankrupt employer to make such payments from the outset of the relationship, long before the bankruptcy.
4 12 Farley J. also considered s. 2(3) of the Employment Standards Amendment Act, 1981, S.O. 1981, c. 22 (the "ESAA"), which is a transitional provision that exempted certain bankrupt employers from the newly introduced severance pay obligations until the amendments received royal assent. He was of the view that this provision would not have been necessary if the obligations of employers upon termination of employment had not been intended to apply to bankrupt employers under the ESA. Farley J. concluded that the claim by Rizzo's former employees for termination pay and severance pay could be provided as unsecured and unpreferred debts in a bankruptcy. Accordingly, he allowed the appeal from the decision of the Trustee.
B. Ontario Court of Appeal (1995), 22 O.R (3d) 385
13 Austin J.A., writing for a unanimous court, began his analysis of the principal issue in this appeal by focussing upon the language of the termination pay and severance pay provisions of the ESA. He noted, at p. 390, that the termination pay provisions use phrases such as "[n]o employer shall terminate the employment of an employee" (s. 40(1)), "the notice required by an employer to terminate the employment" (s. 40(2)), and "[a]n employer who has terminated or proposes to terminate the employment of employees" (s. 40(5)). Turning to severance pay, he quoted s. 40a(1)(a) (at p. 391) which includes the phrase "employees have their employment terminated by an employer". Austin J.A. concluded that this language limits the obligation to provide termination and severance pay to situations in which the employer terminates the employment. The operation of the ESA, he stated, is not triggered by the termination of employment resulting from an act of law such as bankruptcy.
14 In support of his conclusion, Austin J.A. reviewed the leading cases in this area of law. He cited Re Malone Lynch Securities Ltd., [1972] 3 O.R. 725 (Ont. S.C.), wherein Houlden J. (as he then was) concluded that the ESA termination pay provisions were not designed to apply to a bankrupt employer. He also relied upon Re Kemp Products Ltd. (1978), 27 C.B.R. (N.S.) 1 (Ont. S.C.), for the proposition that the bankruptcy of a company at the instance of a creditor does not constitute dismissal. He concluded as follows at p. 395:
The plain language of ss. 40 and 40a does not give rise to any liability to pay termination or severance pay except where the employment is terminated by the employer. In our case, the employment was terminated, not by the employer, but by the making of a receiving order against Rizzo on April 14, 1989, following a petition by one of its creditors. No entitlement to either termination or severance pay ever arose.
15 Regarding s. 7(5) of the ESA, Austin J.A. rejected the trial judge's interpretation and found that the section does not create a liability. Rather, in his opinion, it merely states when a liability otherwise created is to be paid and therefore it was not considered relevant to the issue before the court. Similarly, Austin J.A. did not accept the lower court's view of s. 2(3), the transitional provision in the ESAA. He found that that section had no effect upon the intention of the Legislature as evidenced by the terminology used in ss. 40 and 40a.
16 Austin J.A. concluded that, because the employment of Rizzo's former employees was terminated by the order of bankruptcy and not by the act of the employer, no liability arose with respect to termination, severance or vacation pay. The order of the trial judge was set aside and the Trustee's disallowance of the claims was restored.
4. Issues
17 This appeal raises one issue: does the termination of employment caused by the bankruptcy of an employer give rise to a claim provable in bankruptcy for termination pay and severance pay in accordance with the provisions of the ESA?
5 5. Analysis
18 The statutory obligation upon employers to provide both termination pay and severance pay is governed by ss. 40 and 40a of the ESA, respectively. The Court of Appeal noted that the plain language of those provisions suggests that termination pay and severance pay are payable only when the employer terminates the employment. For example, the opening words of s. 40(1) are: "No employer shall terminate the employment of an employee...." Similarly, s. 40a(1) begins with the words, "Where...fifty or more employees have their employment terminated by an employer...." Therefore, the question on which this appeal turns is whether, when bankruptcy occurs, the employment can be said to be terminated "by the employer".
19 The Court of Appeal answered this question in the negative, holding that, where an employer is petitioned into bankruptcy by a creditor, the employment of its employees is not terminated "by the employer", but rather by operation of law. Thus, the Court of Appeal reasoned that, in the circumstances of the present case, the ESA termination pay and severance pay provisions were not applicable and no obligations arose. In answer, the appellants submit that the phrase "terminated by the employer" is best interpreted as reflecting a distinction between involuntary and voluntary termination of employment. It is their position that this language was intended to relieve employers of their obligation to pay termination and severance pay when employees leave their jobs voluntarily. However, the appellants maintain that where an employee's employment is involuntarily terminated by reason of their employer's bankruptcy, this constitutes termination "by the employer" for the purpose of triggering entitlement to termination and severance pay under the ESA.
20 At the heart of this conflict is an issue of statutory interpretation. Consistent with the findings of the Court of Appeal, the plain meaning of the words of the provisions here in question appears to restrict the obligation to pay termination and severance pay to those employers who have actively terminated the employment of their employees. At first blush, bankruptcy does not fit comfortably into this interpretation. However, with respect, I believe this analysis is incomplete.
21 Although much has been written about the interpretation of legislation (see, e.g., Ruth Sullivan, Statutory Interpretation (1997); Ruth Sullivan, Driedger on the Construction of Statutes (3rd ed. 1994) (hereinafter "Construction of Statutes"); Pierre-André Côté, The Interpretation of Legislation in Canada (2nd ed. 1991), Elmer Driedger in Construction of Statutes (2nd ed. 1983) best encapsulates the approach upon which I prefer to rely. He recognizes that statutory interpretation cannot be founded on the wording of the legislation alone. At p. 87 he states:
Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.
Recent cases which have cited the above passage with approval include: Canada (Procureure générale) c. Hydro-Québec, (sub nom. R. v. Hydro-Québec) [1997] 3 S.C.R. 213 (S.C.C.); Royal Bank v. Sparrow Electric Corp., [1997] 1 S.C.R. 411 (S.C.C.); Verdun v. Toronto Dominion Bank, [1996] 3 S.C.R. 550 (S.C.C.); Friesen v. R., [1995] 3 S.C.R. 103 (S.C.C.).
22 I also rely upon s. 10 of the Interpretation Act, R.S.O. 1980, c. 219, which provides that every Act "shall be deemed to be remedial" and directs that every Act shall "receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit."
6 23 Although the Court of Appeal looked to the plain meaning of the specific provisions in question in the present case, with respect, I believe that the court did not pay sufficient attention to the scheme of the ESA, its object or the intention of the legislature; nor was the context of the words in issue appropriately recognized. I now turn to a discussion of these issues.
24 In Machtinger v. HOJ Industries Ltd., [1992] 1 S.C.R. 986 (S.C.C.), at p. 1002, the majority of this Court recognized the importance that our society accords to employment and the fundamental role that it has assumed in the life of the individual. The manner in which employment can be terminated was said to be equally important (see also Wallace v. United Grain Growers Ltd. (1997), 219 N.R. 161 (S.C.C.). It was in this context that the majority in Machtinger described, at p. 1003, the object of the ESA as being the protection of "...the interests of employees by requiring employers to comply with certain minimum standards, including minimum periods of notice of termination." Accordingly, the majority concluded, at p. 1003, that, "...an interpretation of the Act which encourages employers to comply with the minimum requirements of the Act, and so extends its protection to as many employees as possible, is to be favoured over one that does not."
25 The objects of the termination and severance pay provisions themselves are also broadly premised upon the need to protect employees. Section 40 of the ESA requires employers to give their employees reasonable notice of termination based upon length of service. One of the primary purposes of this notice period is to provide employees with an opportunity to take preparatory measures and seek alternative employment. It follows that s. 40(7)(a), which provides for termination pay in lieu of notice when an employer has failed to give the required statutory notice, is intended to "cushion" employees against the adverse effects of economic dislocation likely to follow from the absence of an opportunity to search for alternative employment. (Innis Christie, Geoffrey England and Brent Cotter, Employment Law in Canada (2nd ed. 1993), at pp. 572-81.
26 Similarly, s. 40a, which provides for severance pay, acts to compensate long-serving employees for their years of service and investment in the employer's business and for the special losses they suffer when their employment terminates. In R. v. TNT Canada Inc. (1996), 27 O.R. (3d) 546 (Ont. C.A.), Robins J.A. quoted with approval at pp. 556-57 from the words of D.D. Carter in the course of an employment standards determination in Telegram Publishing Co. v. Zwelling (1972), 1 L.A.C. (2d) 1 (Ont. Arb. Bd.), at p. 19, wherein he described the role of severance pay as follows:
Severance pay recognizes that an employee does make an investment in his employer's business -- the extent of this investment being directly related to the length of the employee's service. This investment is the seniority that the employee builds up during his years of service....Upon termination of the employment relationship, this investment of years of service is lost, and the employee must start to rebuild seniority at another place of work. The severance pay, based on length of service, is some compensation for this loss of investment.
27 In my opinion, the consequences or effects which result from the Court of Appeal's interpretation of ss. 40 and 40a of the ESA are incompatible with both the object of the Act and with the object of the termination and severance pay provisions themselves. It is a well established principle of statutory interpretation that the legislature does not intend to produce absurd consequences. According to Côté, supra, an interpretation can be considered absurd if it leads to ridiculous or frivolous consequences, if it is extremely unreasonable or inequitable, if it is illogical or incoherent, or if it is incompatible with other provisions or with the object of the legislative enactment (at pp. 378-80). Sullivan echoes these comments noting that a label of absurdity can be attached to interpretations which defeat the purpose of a statute or render some aspect of it pointless or futile (Sullivan, Construction of Statutes, supra, at p. 88).
7 28 The trial judge properly noted that, if the ESA termination and severance pay provisions do not apply in circumstances of bankruptcy, those employees 'fortunate' enough to have been dismissed the day before a bankruptcy would be entitled to such payments, but those terminated on the day the bankruptcy becomes final would not be so entitled. In my view, the absurdity of this consequence is particularly evident in a unionized workplace where seniority is a factor in determining the order of lay-off. The more senior the employee, the larger the investment he or she has made in the employer and the greater the entitlement to termination and severance pay. However, it is the more senior personnel who are likely to be employed up until the time of the bankruptcy and who would thereby lose their entitlements to these payments.
29 If the Court of Appeal's interpretation of the termination and severance pay provisions is correct, it would be acceptable to distinguish between employees merely on the basis of the timing of their dismissal. It seems to me that such a result would arbitrarily deprive some employees of a means to cope with the economic dislocation caused by unemployment. In this way the protections of the ESA would be limited rather than extended, thereby defeating the intended working of the legislation. In my opinion, this is an unreasonable result.
30 In addition to the termination and severance pay provisions, both the appellants and the respondent relied upon various other sections of the ESA to advance their arguments regarding the intention of the legislature. In my view, although the majority of these sections offer little interpretive assistance, one transitional provision is particularly instructive. In 1981, s. 2(1) of the Employment Standards Amendment Act, 1981, ("ESAA") introduced s.40a, the severance pay provision, to the ESA. Section 2(2) deemed that provision to come into force on January 1, 1981. Section 2(3), the transitional provision in question provided as follows:
2. ...
(3) Section 40a of the said Act does not apply to an employer who became bankrupt or an insolvent person within the meaning of the Bankruptcy Act (Canada) and whose assets have been distributed among his creditors or to an employer whose proposal within the meaning of the Bankruptcy Act (Canada) has been accepted by his creditors in the period from and including the 1st day of January, 1981, to and including the day immediately before the day this Act receives Royal Assent.
31 The Court of Appeal found that it was neither necessary nor appropriate to determine the intention of the legislature in enacting this provisional subsection. Nevertheless, the court took the position that the intention of the legislature as evidenced by the introductory words of ss. 40 and 40a was clear, namely, that termination by reason of a bankruptcy will not trigger the severance and termination pay obligations of the ESA. The court held that this intention remained unchanged by the introduction of the transitional provision. With respect, I do not agree with either of these findings. Firstly, in my opinion, the use of legislative history as a tool for determining the intention of the legislature is an entirely appropriate exercise and one which has often been employed by this Court (see, e.g., R. v. Vasil, [1981] 1 S.C.R. 469 (S.C.C.), at p. 487; R. v. Paul, [1982] 1 S.C.R. 621 (S.C.C.), at pp. 635, 653 and 660). Secondly, I believe that the transitional provision indicates that the Legislature intended that termination and severance pay obligations should arise upon an employers' bankruptcy.
32 In my view, by extending an exemption to employers who became bankrupt and lost control of their assets between the coming into force of the amendment and its receipt of royal assent, s. 2(3) necessarily implies that the severance pay obligation does in fact extend to bankrupt employers. It seems to me that, if this were not the case, no readily apparent purpose would be served by this transitional provision.
8 33 I find support for my conclusion in the decision of Saunders J. in Royal Dressed Meats Inc., supra. Having reviewed s. 2(3) of the ESAA, he commented as follows:
...any doubt about the intention of the Ontario Legislature has been put to rest, in my opinion, by the transitional provision which introduced severance payments into the ESA...it seems to me an inescapable inference that the legislature intended liability for severance payments to arise on a bankruptcy. That intention would, in my opinion, extend to termination payments which are similar in character.
34 This interpretation is also consistent with statements made by the Minister of Labour at the time he introduced the 1981 amendments to the ESA. With regard to the new severance pay provision he stated:
The circumstances surrounding a closure will govern the applicability of the severance pay legislation in some defined situations. For example, a bankrupt or insolvent firm will still be required to pay severance pay to employees to the extent that assets are available to satisfy their claims...... the proposed severance pay measures will, as I indicated earlier, be retroactive to January 1 of this year. That retroactive provision, however, will not apply in those cases of bankruptcy and insolvency where the assets have already been distributed or where an agreement on a proposal to creditors has already been reached. [Ontario, Legislative Assembly, Debates, No. 36, at pp. 1236-37 (June 4, 1981)]
Moreover, in the legislative debates regarding the proposed amendments the Minister stated:
For purposes of retroactivity, severance pay will not apply to bankruptcies under the Bankruptcy Act where assets have been distributed. However, once this Act receives royal assent, employees in bankruptcy closures will be covered by the severance pay provisions. [Ontario, Legislative Assembly, Debates, No. 48, at p. 1699 (June 16, 1981)]
35 Although the frailties of Hansard evidence are many, this Court has recognized that it can play a limited role in the interpretation of legislation. Writing for the Court in R. v. Morgentaler, [1993] 3 S.C.R. 463 (S.C.C.), at p. 484, Sopinka J. stated:
...until recently the courts have balked at admitting evidence of legislative debates and speeches....The main criticism of such evidence has been that it cannot represent the "intent" of the legislature, an incorporeal body, but that is equally true of other forms of legislative history. Provided that the court remains mindful of the limited reliability and weight of Hansard evidence, it should be admitted as relevant to both the background and the purpose of legislation.
36 Finally, with regard to the scheme of the legislation, since the ESA is a mechanism for providing minimum benefits and standards to protect the interests of employees, it can be characterized as benefits- conferring legislation. As such, according to several decisions of this Court, it ought to be interpreted in a broad and generous manner. Any doubt arising from difficulties of language should be resolved in favour of the claimant (see, e.g., Abrahams v. Canada (Attorney General), [1983] 1 S.C.R. 2 (S.C.C.), at p. 10; Hills v. Canada (Attorney General), [1988] 1 S.C.R. 513 (S.C.C.), at p. 537). It seems to me that, by limiting its analysis to the plain meaning of ss. 40 and 40a of the ESA, the Court of Appeal adopted an overly restrictive approach that is inconsistent with the scheme of the Act.
37 The Court of Appeal's reasons relied heavily upon the decision in Malone Lynch, supra. In Malone Lynch, Houlden J. held that s. 13, the group termination provision of the former ESA, R.S.O. 1970, c. 147, and the predecessor to s. 40 at issue in the present case, was not applicable where termination resulted from the bankruptcy of the employer. Section 13(2) of the ESA then in force provided that, if an employer wishes
9 to terminate the employment of 50 or more employees, the employer must give notice of termination for the period prescribed in the regulations, "and until the expiry of such notice the terminations shall not take effect." Houlden J. reasoned that termination of employment through bankruptcy could not trigger the termination payment provision, as employees in this situation had not received the written notice required by the statute, and therefore could not be said to have been terminated in accordance with the Act.
38 Two years after Malone Lynch was decided, the 1970 ESA termination pay provisions were amended by the Employment Standards Act, 1974, S.O. 1974, c. 112. As amended, s. 40(7) of the 1974 ESA eliminated the requirement that notice be given before termination can take effect. This provision makes it clear that termination pay is owing where an employer fails to give notice of termination and that employment terminates irrespective of whether or not proper notice has been given. Therefore, in my opinion it is clear that the Malone Lynch decision turned on statutory provisions which are materially different from those applicable in the instant case. It seems to me that Houlden J.'s holding goes no further than to say that the provisions of the 1970 ESA have no application to a bankrupt employer. For this reason, I do not accept the Malone Lynch decision as persuasive authority for the Court of Appeal's findings. I note that the courts in Royal Dressed Meats, supra, and British Columbia (Director of Employment Standards) v. Eland Distributors Ltd. (Trustee of) (1996), 40 C.B.R. (3d) 25 (B.C. S.C.), declined to rely upon Malone Lynch based upon similar reasoning.
39 The Court of Appeal also relied upon Re Kemp Products Ltd., supra, for the proposition that although the employment relationship will terminate upon an employer's bankruptcy, this does not constitute a "dismissal". I note that this case did not arise under the provisions of the ESA. Rather, it turned on the interpretation of the term "dismissal" in what the complainant alleged to be an employment contract. As such, I do not accept it as authoritative jurisprudence in the circumstances of this case. For the reasons discussed above, I also disagree with the Court of Appeal's reliance on Mills-Hughes v. Raynor (1988), 63 O.R. (2d) 343 (Ont. C.A.), which cited the decision in Malone Lynch, supra with approval.
40 As I see the matter, when the express words of ss. 40 and 40a of the ESA are examined in their entire context, there is ample support for the conclusion that the words "terminated by the employer" must be interpreted to include termination resulting from the bankruptcy of the employer. Using the broad and generous approach to interpretation appropriate for benefits-conferring legislation, I believe that these words can reasonably bear that construction (see R. v. Z. (D.A.), [1992] 2 S.C.R. 1025 (S.C.C.)). I also note that the intention of the Legislature as evidenced in s. 2(3) of the ESSA, clearly favours this interpretation. Further, in my opinion, to deny employees the right to claim ESA termination and severance pay where their termination has resulted from their employer's bankruptcy, would be inconsistent with the purpose of the termination and severance pay provisions and would undermine the object of the ESA, namely, to protect the interests of as many employees as possible.
41 In my view, the impetus behind the termination of employment has no bearing upon the ability of the dismissed employee to cope with the sudden economic dislocation caused by unemployment. As all dismissed employees are equally in need of the protections provided by the ESA, any distinction between employees whose termination resulted from the bankruptcy of their employer and those who have been terminated for some other reason would be arbitrary and inequitable. Further, I believe that such an interpretation would defeat the true meaning, intent and spirit of the ESA. Therefore, I conclude that termination as a result of an employer's bankruptcy does give rise to an unsecured claim provable in bankruptcy pursuant to s. 121 of the BA for termination and severance pay in accordance with ss. 40 and 40a of the ESA. Because of this conclusion, I do not find it necessary to address the alternative finding of the trial judge as to the applicability of s. 7(5) of the ESA.
42 I note that subsequent to the Rizzo bankruptcy, the termination and severance pay provisions of the ESA underwent another amendment. Sections 74(1) and 75(1) of the Labour Relations and Employment
10 Statute Law Amendment Act, 1995, S.O. 1995, c. 1, amend those provisions so that they now expressly provide that where employment is terminated by operation of law as a result of the bankruptcy of the employer, the employer will be deemed to have terminated the employment. However, s. 17 of the Interpretation Act directs that, "the repeal or amendment of an Act shall be deemed not to be or to involve any declaration as to the previous state of the law." As a result, I note that the subsequent change in the legislation has played no role in determining the present appeal.
6. Disposition and Costs
43 I would allow the appeal and set aside paragraph 1 of the order of the Court of Appeal. In lieu thereof, I would substitute an order declaring that Rizzo's former employees are entitled to make claims for termination pay (including vacation pay due thereon) and severance pay as unsecured creditors. As to costs, the Ministry of Labour led no evidence regarding what effort it made in notifying or securing the consent of the Rizzo employees before it discontinued its application for leave to appeal to this Court on their behalf. In light of these circumstances, I would order that the costs in this Court be paid to the appellant by the Ministry on a party-and-party basis. I would not disturb the orders of the courts below with respect to costs. Appeal allowed.
Pourvoi accueilli.
11 2018 CAF 153, 2018 FCA 153 Federal Court of Appeal
Tsleil-Waututh Nation v. Canada (Attorney General)
2018 CarswellNat 4685, 2018 CarswellNat 4686, 2018 CAF 153, 2018 FCA 153, 295 A.C.W.S. (3d) 775, EYB 2018-301376
TSLEIL-WAUTUTH NATION, CITY OF VANCOUVER, CITY OF BURNABY, THE SQUAMISH NATION (also known as the SQUAMISH INDIAN BAND), XÀLEK/SEKYÚ SIÝAM, CHIEF IAN CAMPBELL on his own behalf and on behalf of all members of the Squamish Nation, COLDWATER INDIAN BAND, CHIEF LEE SPAHAN in his capacity as Chief of the Coldwater Band on behalf of all members of the Coldwater Band, AITCHELITZ, SKOWKALE, SHXWHÁ:Y VILLAGE, SOOWAHLIE, SQUIALA FIRST NATION, TZEACHTEN, YAKWEAKWIOOSE, SKWAH, CHIEF DAVID JIMMIE on his own behalf and on behalf of all members of the TS'ELXWÉYEQW TRIBE, UPPER NICOLA BAND, CHIEF RON IGNACE and CHIEF FRED SEYMOUR on their own behalf and onbehalf of all other members of the STK'EMLUPSEMC TE SECWEPEMC of the SECWEPEMC NATION, RAINCOAST CONSERVATION FOUNDATION and LIVING OCEANS SOCIETY (Applicants) and ATTORNEY GENERAL OF CANADA, NATIONAL ENERGY BOARD and TRANS MOUNTAIN PIPELINE ULC (Respondents)
Eleanor R. Dawson J.A., Yves de Montigny J.A., Judith Woods J.A.
Heard: October 2, 2017; October 3, 2017; October 4, 2017; October 5, 2017; October 10, 2017; October 12, 2017; October 13, 2017 Judgment: August 30, 2018 Docket: A-78-17, A-217-16, A-218-16, A-223-16, A-224-16, A-225-16, A-232-16, A-68-17, A-74-17, A-75-17, A-76-17, A-77-17, A-84-17, A-86-17
Counsel: Maxime Faille, Scott A. Smith, Paul Seaman, for Applicant, Tsleil-Waututh Nation Susan Horne, K. Michael Stephens, Rebecca Robb, for Applicant, City of Vancouver Gregory McDade, Michelle Bradley, for Applicant, City of Burnaby F. Matthew Kirchner, Emma K. Hume, Michelle Bradley, for Applicants, Squamish Nation (Also known as The Squamish Indian Band), Xàlek/Sekyú Siyam, Chief Ian Campbell on his own behalf and on behalf of all Members of The Squamish Nation, Coldwater Indian Band, Chief Lee Spahan in his capacity as Chief of the Coldwater Band on behalf of all Members of The Coldwater Band Crystal Reeves, Elin Sigurdson, for Applicant, Upper Nicola Band Jana McLean, Joelle Walker, for Applicants, Aitchelitz, Skowkale, Shxwhá:y Village, Soowahlie, Squiala First Nation, Tzeachten, Yakweakwioose, Skwah, Chief David Jimmie on his own behalf and on behalf of all Members of The Ts'elxwéyeqw Tribe Sarah D. Hansen, Megan Young, for Applicants, Chief Ron Ignace and Chief Fred Seymour on their own behalf and on behalf of all other Members of The Stk'emlupsemc Te Secwepemc of The Secwepemc Nation Margot Venton, Dyna Tuytel, for Applicants, Raincoast Conservation Foundation and Living Oceans Society
1 Jan Brongers, Bruce Hughson, Dayna Anderson, Liliane Bantourakis, Sarah Bird, Jon Khan, Ashley Caron, for Respondent, Attorney General of Canada Maureen Killoran, Q.C., Olivia Dixon, Sean Sutherland, for Respondent, Trans Mountain Pipeline ULC Paul Johnston, Keith Bergner, Toby Kruger, for Respondent, National Energy Board Marta Burns, Doreen Mueller, for Intervener, Attorney General of Alberta Thomas R. Berger, Q.C., Monique Pongracic-Speier, for Intervener, Attorney General of British Columbia
Eleanor R. Dawson J.A.:
I. Introduction
1 On May 19, 2016, the National Energy Board issued its report concerning the proposed expansion of the Trans Mountain pipeline system. The Board's report recommended that the Governor in Council approve the expansion. The Board's recommendation was based on the Board's findings that the expansion is in Canada's public interest, and that if certain environmental protection procedures and mitigation measures are implemented, and if the conditions the Board recommended are implemented, the expansion is not likely to cause significant adverse environmental effects.
2 On November 29, 2016, the Governor in Council accepted the Board's recommendation and issued Order in Council P.C. 2016-1069. The Order in Council recited the Governor in Council's acceptance of the Board's recommendation, and directed the Board to issue a certificate of public convenience and necessity approving the construction and operation of the expansion project, subject to the conditions recommended by the Board.
3 A number of applications for judicial review of the Board's report and the Order in Council were filed in this Court. These applications were consolidated. These are the Court's reasons for judgment in respect of the consolidated proceeding. Pursuant to the order consolidating the applications, a copy of these reasons shall be placed in each file.
A. Summary of Conclusions
4 While a number of applicants challenge the report of the National Energy Board, as explained below, the Order in Council is legally the only decision under review. Its validity is challenged on two principal grounds: first, the Board's process and findings were so flawed that the Governor in Council could not reasonably rely on the Board's report; second, Canada failed to fulfil the duty to consult owed to Indigenous peoples.
5 Applying largely uncontested legal principles established by the Supreme Court of Canada to the factual record, a factual record that is also largely not contested, I conclude that most of the flaws asserted against the Board's process and findings are without merit. However, the Board made one critical error. The Board unjustifiably defined the scope of the Project under review not to include Project-related tanker traffic. The unjustified exclusion of marine shipping from the scope of the Project led to successive, unacceptable deficiencies in the Board's report and recommendations. As a result, the Governor in Council could not rely on the Board's report and recommendations when assessing the Project's environmental effects and the overall public interest.
6 Applying the largely uncontested legal principles that underpin the duty to consult Indigenous peoples and First Nations set out by the Supreme Court, I also conclude that Canada acted in good faith and selected an appropriate consultation framework. However, at the last stage of the consultation process prior to the decision of the Governor in Council, a stage called Phase III, Canada's efforts fell well short of the mark set by the Supreme Court of Canada. Canada failed in Phase III to engage, dialogue meaningfully and
2 grapple with the real concerns of the Indigenous applicants so as to explore possible accommodation of those concerns. The duty to consult was not adequately discharged.
7 Accordingly, for the following reasons, I would quash the Order in Council and remit the matter back to the Governor in Council for appropriate action, if it sees fit, to address these flaws and, later, proper redetermination.
8 These reasons begin by describing: (i) the expansion project; (ii) the applicants who challenge the Board's report and the Order in Council; (iii) the pending applications for judicial review; (iv) the legislative regime; (v) the report of the Board; and, (vi) the decision of the Governor in Council. The reasons then set out the factual background relevant to the challenges before the Court before turning to the issues raised in these applications and the consideration of those issues.
II. The Project
9 No company may operate an interprovincial or international pipeline in Canada unless the National Energy Board has issued a certificate of public convenience and necessity, and given leave to the company to open the pipeline (subsection 30(1) of the National Energy Board Act, R.S.C. 1985, c. N-7).
10 Trans Mountain Pipeline ULC is the general partner of Trans Mountain Pipeline L.P. (together referred to as Trans Mountain). Trans Mountain owns and holds operating certificates issued by the National Energy Board for the existing Trans Mountain pipeline system. This system includes a pipeline approximately 1,147 kilometres long that moves crude oil, and refined and semi-refined petroleum products from Edmonton, Alberta to marketing terminals and refineries in the central region and lower mainland area of British Columbia, as well as to the Puget Sound area in Washington State.
11 On December 16, 2013, Trans Mountain submitted an application to the National Energy Board for a certificate of public convenience and necessity (and certain amended certificates) for the Trans Mountain Expansion Project (Project).
12 The application described the Project to consist of a number of components, including: (i) twinning the existing pipeline system with approximately 987 kilometres of new pipeline segments, including new proposed pipeline corridors and rights-of-way, for the purpose of transporting diluted bitumen from Edmonton, Alberta to Burnaby, British Columbia; (ii) new and modified facilities, including pump stations and tanks (in particular, an expanded petroleum tank farm in Burnaby which would be expanded from 13 to 26 storage tanks); (iii) a new and expanded dock facility, including three new berths, at the Westridge Marine Terminal in Burnaby; and, (iv) two new pipelines running from the Burnaby storage facility to the Westridge Marine Terminal.
13 The Project would increase the number of tankers loaded at the Westridge Marine Terminal from approximately five Panamax and Aframax class tankers per month to approximately 34 Aframax class tankers per month. Aframax tankers are larger and carry more product than Panamax tankers. The Project would increase the overall capacity of Trans Mountain's existing pipeline system from 300,000 barrels per day to 890,000 barrels per day.
14 Trans Mountain's application stated that the primary purpose of the Project is to provide additional capacity to transport crude oil from Alberta to markets in the Pacific Rim, including Asia. If built, the system would continue to transport crude oil — primarily diluted bitumen.
III. The Applicants
3 15 A number of First Nations and two large cities are significantly concerned about the Project and its impact upon them, and challenge its approval. Two non-governmental agencies also challenge the Project. These applicants are described below.
A. Tsleil-Waututh Nation
16 The applicant Tsleil-Waututh Nation is a Coast Salish Nation. It is a band within the meaning of the Indian Act, R.S.C. 1985, c. I-5 and its members are Aboriginal peoples within the meaning of section 35 of the Constitution Act, 1982 and paragraph 5(1)(c) of the Canadian Environmental Assessment Act, 2012, S.C. 2012, c. 19, s. 52.
17 In the traditional dialect of Halkomelem, the name Tsleil-Waututh means "People of the Inlet". Tsleil- Waututh's asserted traditional territory extends approximately from the vicinity of Mount Garibaldi to the north to the 49th parallel and beyond to the south. The traditional territory extends west to Gibsons and east to Coquitlam Lake. The traditional territory includes areas across British Columbia's Lower Mainland, including sections of the Lower Fraser River, Howe Sound, Burrard Inlet and Indian Arm.
18 Tsleil-Waututh's traditional territory encompasses the proposed Westridge Marine Terminal and fuel storage facility expansion, and approximately 18 kilometres of pipeline right-of-way. Approximately 45 kilometres of marine shipping route will pass within Tsleil-Waututh's asserted traditional territory.
19 Much of Tsleil-Waututh's population of 500 people live in its primary community of Tsleil-Waututh, which is located on the north shore of Burrard Inlet, approximately 3 kilometres across the Inlet from the Westridge Marine Terminal.
20 Tsleil-Waututh asserts Aboriginal title to the land, water, air, marine foreshore and resources in Eastern Burrard Inlet. It also asserts freestanding stewardship, harvesting and cultural rights in this area. The Crown states that it assessed its duty to consult with Tsleil-Waututh on the deeper end of the consultation spectrum.
B. City of Vancouver
21 The City of Vancouver is the third most densely populated city in North America, after New York City and San Francisco. It has 69.8 kilometres of waterfront along Burrard Inlet, English Bay, False Creek and the Fraser River, with 18 kilometres of beaches and a 22-kilometre long seawall.
22 Approximately 25,000 residents of Vancouver live within 300 metres of the Burrard Inlet and English Bay shorelines.
C. City of Burnaby
23 The City of Burnaby is the third largest city in British Columbia, with a population of over 223,000 people.
24 A number of elements of the Project infrastructure will be located in Burnaby: (i) the new Westridge Marine Terminal; (ii) the Burnaby Terminal, including thirteen new storage tanks and one replacement storage tank; (iii) two new delivery lines following a new route connecting the Burnaby Terminal to the Westridge Marine Terminal through a new tunnel to be drilled under the Burnaby Mountain Conservation Area; and, (iv) a portion of the main pipeline along a new route to the Burnaby Terminal.
D. The Squamish Nation
4 25 The applicant Squamish Nation is a Coast Salish Nation. It is a band within the meaning of the Indian Act and its members are Aboriginal peoples within the meaning of section 35 of the Constitution Act, 1982 and paragraph 5(1)(c) of the Canadian Environmental Assessment Act, 2012. There are currently just over 4,000 registered members of the Squamish Nation.
26 The Squamish assert that since a time before contact with Europeans, Squamish have used and occupied lands and waters on the southwest coast of what is now British Columbia, extending from the Lower Mainland north to Whistler. This territory includes Burrard Inlet, English Bay, Howe Sound and the Squamish Valley. The boundaries of asserted Squamish territory thus encompass all of Burrard Inlet, English Bay and Howe Sound, as well as the rivers and creeks that flow into these bodies of water.
27 Squamish has three reserves located in and at the entrance to Burrard Inlet:
i. Seymour Creek Reserve No. 2 (ch'ích'elxwi7kw) on the North shore close to the Westridge Marine Terminal;
ii. Mission Reserve No. 1 (eslhá7an); and,
iii. Capilano Reserve No. 5 (xwmelchstn).
Also located in the area are Kitsilano Reserve No. 6 (senákw) near the entrance to False Creek, and three other waterfront reserves in Howe Sound.
28 Project infrastructure, including portions of the main pipeline, the Westridge Marine Terminal, the Burnaby Terminal, two new delivery lines connecting the terminals, and sections of the tanker routes for the Project will be located in Squamish's asserted traditional territory and close to its reserves across the Burrard Inlet. The shipping route for the Project will also travel past three Squamish reserves through to the Salish Sea.
29 Squamish asserts Aboriginal rights, including title and self-government, within its traditional territory. Squamish also asserts Aboriginal rights to fish in the Fraser River and its tributaries. The Crown assessed its duty to consult Squamish at the deeper end of the consultation spectrum.
E. Coldwater Indian Band
30 The applicant Coldwater is a band within the meaning of section 2 of the Indian Act. Its members are Aboriginal peoples within the meaning of section 35 of the Constitution Act, 1982 and paragraph 5(1)(c) of the Canadian Environmental Assessment Act, 2012. Coldwater, together with 14 other bands, comprise the Nlaka'pamux Nation.
31 The Nlaka'pamux Nation's asserted traditional territory encompasses part of south-central British Columbia extending from the northern United States to north of Kamloops. This territory includes the Lower Thompson River area, the Fraser Canyon, the Nicola and Coldwater Valleys and the Coquihalla area.
32 Coldwater's registered population is approximately 850 members. Approximately 330 members live on Coldwater's reserve lands. Coldwater holds three reserves: (i) Coldwater Indian Reserve No. 1 (Coldwater Reserve) approximately 10 kilometres southwest of Merritt, British Columbia; (ii) Paul's Basin Indian Reserve No. 2 located to the southwest of the Coldwater Reserve, upstream on the Coldwater River; and, (iii) Gwen Lake Indian Reserve No. 3 located on Gwen Lake.
5 33 Approximately 226 kilometres of the proposed pipeline right-of-way and four pipeline facilities (the Kamloops Terminal, the Stump Station, the Kingsvale Station and the Hope Station) will be located within the Nlaka'pamux Nation's asserted traditional territory. The Kingsvale Station is located in the Coldwater Valley. The approved pipeline right-of-way skirts the eastern edges of the Coldwater Reserve. The existing Trans Mountain pipeline system transects both the Coldwater Reserve and the Coldwater Valley.
34 Coldwater asserts Aboriginal rights and title in, and the ongoing use of, the Coldwater and Nicola Valleys and the Nlaka'pamux territory more generally. The Crown assessed its duty to consult Coldwater at the deeper end of the consultation spectrum.
F. The Stó:l? Collective
35 One translation of the term "Stó:l?" is "People of the River", referencing the Fraser River. The Stó:l? are a Halkomelem-speaking Coast Salish people. Traditionally, they have been tribally organized.
36 The "Stó:l? Collective" was formed for the sole purpose of coordinating and representing the interests of its membership before the National Energy Board and in Crown consultations about the Project. The Stó:l? Collective represents the following applicants:
(a) Aitchelitz, Skowkale, Tzeachten, Squiala First Nation, Yakweakwioose, Shxwa:y Village and Soowahlie, each of which are villages and also bands within the meaning of section 2 of the Indian Act (the Ts'elxweyeqw Villages). The Ts'elxweyeqw Villages collectively comprise the Ts'elxweyeqw Tribe. Members of the Ts'elxweyeqw Villages are Stó:l? people and Aboriginal peoples within the meaning of section 35 of the Constitution Act, 1982 and paragraph 5(1)(c) of the Canadian Environmental Assessment Act, 2012; and,
(b) Skwah and Kwaw-Kwaw-Apilt, each of whom are villages and also bands within the meaning of section 2 of the Indian Act (the Pil'Alt Villages). The Pil'Alt Villages are members of the Pil'Alt Tribe. Members of the Pil'Alt Villages are Stó:l? people and Aboriginal peoples within the meaning of section 35 of the Constitution Act, 1982 and paragraph 5(1)(c) of the Canadian Environmental Assessment Act, 2012. The Pil'Alt Villages are represented by the Ts'elxweyeqw Tribe in matters relating to the Project. (On March 6, 2018, Kwaw-Kwaw-Apilt filed a notice of discontinuance.)
37 The Stó:l?'s asserted traditional territory, known as S'olh Temexw, includes the lower Fraser River watershed.
38 The Stó:l? live in many villages, all of which are located in the lower Fraser River watershed.
39 The existing Trans Mountain pipeline crosses, and the Project's proposed new pipeline route would cross, approximately 170 kilometres of the Stó:l? Collective applicants' asserted traditional territory, beginning from an eastern point of entry near the Coquihalla Highway and continuing to the Burrard Inlet.
40 The Stó:l? possess established Aboriginal fishing rights on the Fraser River (R. v. Van der Peet, [1996] 2 S.C.R. 507, 137 D.L.R. (4th) 289 (S.C.C.)). The Crown assessed its duty to consult Stó:l? at the deeper end of the consultation spectrum.
G. Upper Nicola Band
41 The applicant Upper Nicola is a member community of the Syilx (Okanagan) Nation and a band within the meaning of section 2 of the Indian Act. Upper Nicola and Syilx are an Aboriginal people within the meaning of section 35 of the Constitution Act, 1982 and paragraph 5(1)(c) of the Canadian Environmental Assessment Act, 2012.
6 42 The Syilx Nation's asserted traditional territory extends from the north past Revelstoke around Kinbasket to the south to the vicinity of Wilbur, Washington. It extends from the east near Kootenay Lake to the west to the Nicola Valley. Upper Nicola currently has eight Indian Reserves within Upper Nicola's/ Syilx's asserted territory. The primary residential communities are Spaxomin, located on Upper Nicola Indian Reserve No. 3 on the western shore of Douglas Lake, and Quilchena, located on Upper Nicola Indian Reserve No. 1 on the eastern shore of Nicola Lake.
43 Approximately 130 kilometres of the Project's proposed new pipeline will cross through Upper Nicola's area of responsibility within Syilx territory. The Stump Station and the Kingsvale Station are also located within Syilx/Upper Nicola's asserted territory.
44 Upper Nicola asserts responsibility to protect and preserve the claimed Aboriginal title and harvesting and other rights held collectively by the Syilx, particularly within its area of responsibility in the asserted Syilx territory. The Crown assessed its duty to consult Upper Nicola at the deeper end of the consultation spectrum.
H. Stk'emlupsemc te Secwepemc of the Secwepemc Nation
45 The Secwepemc are an Aboriginal people living in the area around the confluence of the Fraser and Thompson Rivers. The Secwepemc Nation is comprised of seven large territorial groupings referred to as "Divisions". The Stk'emlupsemc te Secwepemc Division (SSN) is comprised of the Skeetchestn Indian Band and the Kamloops (or Tk'emlups) Indian Band. Both are bands within the meaning of section 2 of the Indian Act. SSN's members are also Aboriginal peoples within the meaning of section 35 of the Constitution Act, 1982 and paragraph 5(1)(c) of the Canadian Environmental Assessment Act, 2012.
46 The Skeetchestn Indian Band is located along the northern bank of the Thompson River, approximately 50 kilometres west of Kamloops and has four reserves. Its total registered population is 533. The Tk'emlups Indian Band is located in the Kamloops area and has six reserves. Its total registered population is 1,322. Secwepemc Territory is asserted to be a substantial landmass which encompasses many areas, including the area in the vicinity of Kamloops Lake.
47 The existing and proposed pipeline right-of-way crosses through SSN's asserted traditional territory for approximately 350 kilometres. Approximately 80 kilometres of the proposed pipeline right-of-way and two pipeline facilities, the Black Pines Station and the Kamloops Terminal, will be located within SSN's asserted traditional territory.
48 The SSN claim Aboriginal title over its traditional territory. The Crown assessed its duty to consult SSN at the deeper end of the consultation spectrum.
I. Raincoast Conservation Foundation and Living Oceans Society
49 These applicants are not-for-profit organizations. Their involvement in the National Energy Board review process focused primarily on the effects of Project-related marine shipping.
IV. The applications challenging the report of the National Energy Board and the Order in Council
50 As will be discussed in more detail below, two matters are challenged in this consolidated proceeding: first, the report of the National Energy Board which recommended that the Governor in Council approve the Project and direct the Board to issue the necessary certificate of public convenience and necessity; and, second, the decision of the Governor in Council to accept the recommendation of the Board and issue the Order in Council directing the Board to issue the certificate.
7 51 The following applicants applied for judicial review of the report of the National Energy Board:
• Tsleil-Waututh Nation (Court File A-232-16)
• City of Vancouver (Court File A-225-16)
• City of Burnaby (Court File A-224-16)
• The Squamish Nation and Xálek/Sekyú Siý am, Chief Ian Campbell on his own behalf and on behalf of all members of Squamish (Court File A-217-16)
• Coldwater Indian Band and Chief Lee Spahan in his capacity as Chief of Coldwater on behalf of all members of Coldwater (Court File A-223-16)
• Raincoast Conservation Foundation and Living Oceans Society (Court File A-218-16).
52 The following applicants applied, with leave, for judicial review of the decision of the Governor in Council:
• Tsleil-Waututh Nation (Court File A-78-17)
• City of Burnaby (Court File A-75-17)
• The Squamish Nation and Xálek/Sekyú Siý am, Chief Ian Campbell on his own behalf and on behalf of all members of Squamish (Court File A-77-17)
• Coldwater Indian Band and Chief Lee Spahan in his capacity as Chief of Coldwater on behalf of all members of Coldwater (Court File A-76-17)
• The Stó:l? Collective applicants (Court File A-86-17)
• Upper Nicola Band (Court File A-74-17)
• Chief Ron Ignace and Chief Fred Seymour, on their own behalf and on behalf of all other members of Stk'emlupsemc te Secwepemc of the Secwepemc Nation (Court File A-68-17)
• Raincoast Conservation Foundation and Living Oceans Society (Court File A-84-17).
V. The legislative regime
53 For ease of reference the legislative provisions referred to in this section of the reasons are set out in the Appendix to these reasons.
A. The requirements of the National Energy Board Act
54 As explained above, no company may operate an interprovincial or international pipeline in Canada unless the National Energy Board has issued a certificate of public convenience and necessity, and, after the pipeline is built, has given leave to the company to open the pipeline.
55 Trans Mountain's completed application for a certificate of public convenience and necessity for the Project triggered the National Energy Board's obligation to assess the Project pursuant to section 52 of the National Energy Board Act. Subsection 52(1) of that Act requires the Board to prepare and submit to the Minister of Natural Resources, for transmission to the Governor in Council, a report which sets out the Board's recommendation as to whether the certificate should be granted, together with all of the terms and
8 conditions that the Board considers the certificate should be subject to if issued. The Board is to provide its reasons for its recommendation. When considering whether to recommend issuance of a certificate the Board is required to take into account "whether the pipeline is and will be required by the present and future public convenience and necessity".
56 The Board's recommendation is, pursuant to subsection 52(2) of the National Energy Board Act, to be based on "all considerations that appear to it to be directly related to the pipeline and to be relevant" and the Board may have regard to five specifically enumerated factors which include "any public interest that in the Board's opinion may be affected by the issuance of the certificate or the dismissal of the application."
57 If an application relates to a "designated" project, as defined in section 2 of the Canadian Environmental Assessment Act, 2012, the Board's report must also set out the Board's environmental assessment of the project. This assessment is to be prepared under the Canadian Environmental Assessment Act, 2012 (subsection 52(3) of the National Energy Board Act). A designated project is defined in section 2 of the Canadian Environmental Assessment Act, 2012:
designated project means one or more physical activities that
(a) are carried out in Canada or on federal lands;
(b) are designated by regulations made under paragraph 84(a) or designated in an order made by the Minister under subsection 14(2); and
(c) are linked to the same federal authority as specified in those regulations or that order.
It includes any physical activity that is incidental to those physical activities.
projet désigné Une ou plusieurs activités concrètes:
a) exercées au Canada ou sur un territoire domanial;
b) désignées soit par règlement pris en vertu de l'alinéa 84a), soit par arrêté pris par le ministre en vertu du paragraphe 14(2);
c) liées à la même autorité fédérale selon ce qui est précisé dans ce règlement ou cet arrêté.
Sont comprises les activités concrètes qui leur sont accessoires.
58 The remaining subsections in section 52 deal with the timeframe in which the Board must complete its report. Generally, a report must be submitted to the Minister within the time limit specified by the Chair of the Board. The specified time limit must not be longer than 15 months after the completed application has been submitted to the Board.
B. The requirements of the Canadian Environmental Assessment Act, 2012
59 Pursuant to subsection 4(3) of the Regulations Designating Physical Activities, SOR/2012-147, and section 46 of the Schedule thereto, because the Project includes a new onshore pipeline longer than 40 kilometres, the Project is a designated project as defined in part (b) of the definition of "designated project" set out in paragraph 57 above. In consequence, the Board was required to conduct an environmental assessment under the Canadian Environmental Assessment Act, 2012. For this purpose, subsection 15(b) of the Canadian Environmental Assessment Act, 2012 designated the National Energy Board to be the sole responsible authority for the environmental assessment.
9 60 As the responsible authority, the Board was required to take into account the environmental effects enumerated in subsection 5(1) of the Canadian Environmental Assessment Act, 2012. These effects include changes caused to the land, water or air and to the life forms that inhabit these elements of the environment. The effects to be considered are to include the effects upon Aboriginal peoples' health and socio-economic conditions, their physical and cultural heritage, their current use of lands and resources for traditional purposes, and any structure, site or thing that is of historical, archaeological, paleontological or architectural significance.
61 Subsection 19(1) of the Canadian Environmental Assessment Act, 2012 required the Board to take into account a number of enumerated factors when conducting the environmental assessment, including:
• the environmental effects of the designated project (including the environmental effects of malfunctions or accidents that may occur in connection with the designated project) and any cumulative environmental effects that are likely to result from the designated project in combination with other physical activities that have been or will be carried out;
• mitigation measures that are technically and economically feasible and that would mitigate any significant adverse environmental effects of the designated project;
• alternative means of carrying out the designated project that are technically and economically feasible, and the environmental effects of any such alternative means; and
• any other matter relevant to the environmental assessment that the responsible authority, here the Board, requires to be taken into account.
62 The Board was also required under subsection 29(1) of the Canadian Environmental Assessment Act, 2012 to make recommendations to the Governor in Council with respect to the decision to be made by the Governor in Council under paragraph 31(1)(a) of that Act — a decision about the existence of significant adverse environmental effects and whether those effects can be justified in the circumstances.
C. Consideration by the Governor in Council
63 Once in receipt of the report prepared in accordance with the requirements of the National Energy Board Act and the Canadian Environmental Assessment Act, 2012, the Governor in Council may make its decision concerning the proponent's application for a certificate.
64 Three decisions are available to the Governor in Council. It may, by order:
i. "direct the Board to issue a certificate in respect of the pipeline or any part of it and to make the certificate subject to the terms and conditions set out in the report" (paragraph 54(1)(a) of the National Energy Board Act); or
ii. "direct the Board to dismiss the application for a certificate" (paragraph 54(1)(b) of the National Energy Board Act); or
iii. "refer the recommendation, or any of the terms and conditions, set out in the report back to the Board for reconsideration" and specify a time limit for the reconsideration (subsections 53(1) and (2) of the National Energy Board Act).
65 Subsection 54(2) of the National Energy Board Act requires that the Governor in Council's order "must set out the reasons for making the order."
10 66 Subsection 54(3) of the National Energy Board Act requires the Governor in Council to issue its order within three months after the Board's report is submitted to the Minister. The Governor in Council may, on the recommendation of the Minister, extend this time limit.
67 Additionally, once the National Energy Board as the responsible authority for the designated project has submitted its report with respect to the environmental assessment, pursuant to subsection 31(1) of the Canadian Environmental Assessment Act, 2012, the Governor in Council may, by order made under subsection 54(1) of the National Energy Board Act, "decide, taking into account the implementation of any mitigation measures specified in the report with respect to the environmental assessment ... that the designated project":
(i) is not likely to cause significant adverse environmental effects,
(ii) is likely to cause significant adverse environmental effects that can be justified in the circumstances, or les circonstances,
(iii) is likely to cause significant adverse environmental effects that cannot be justified in the circumstances;
(i) n'est pas susceptible d'entraîner des effets environnementaux négatifs et importants,
(ii) est susceptible d'entraîner des effets environnementaux négatifs et importants qui sont justifiables dans
(iii) est susceptible d'entraîner des effets environnementaux négatifs et importants qui ne sont pas justifiables dans les circonstances;
VI. The report of the National Energy Board
68 On May 19, 2016, the Board issued its report which recommended approval of the Project. The recommendation was based on a number of findings, including:
• With the implementation of Trans Mountain's environmental protection procedures and mitigation measures, and the Board's recommended conditions, the Project is not likely to cause significant adverse environmental effects.
• However, effects from the operation of Project-related marine vessels would contribute to the total cumulative effects on the Southern resident killer whales, and would further impede the recovery of that species. Southern resident killer whales are an endangered species that reside in the Salish Sea. Project- related marine shipping follows a route through the Salish Sea to the open ocean that travels through the whales' critical habitat as identified in the Recovery Strategy for the Northern and Southern resident killer whales. The Board's finding was that "the operation of Project-related marine vessels is likely to result in significant adverse effects to the Southern resident killer whale, and that it is likely to result in significant adverse effects on Aboriginal cultural uses associated with these marine mammals."
• The likelihood of a spill from the Project or from a Project-related tanker would be very low in light of the mitigation and safety measures to be implemented. However, the consequences of large spills could be high.
• The Board's recommendation and decisions with respect to the Project were consistent with subsection 35(1) of the Constitution Act, 1982.
11 • The Project would be in the Canadian public interest and would be required by the present and future public convenience and necessity.
• If approved, the Board would attach 157 conditions to the certificate of public convenience and necessity. The conditions dealt with a broad range of matters, including the safety and integrity of the pipeline, emergency preparedness and response and ongoing consultation with affected entities, including Indigenous communities.
VII. The decision of the Governor in Council
69 On November 29, 2016, the Governor in Council issued the Order in Council, accepting the Board's recommendation that the Project be approved and directing the Board to issue a certificate of public convenience and necessity to Trans Mountain.
70 The Order in Council contained a number of recitals, two of which are relevant to these applications. First, the Governor in Council stated its satisfaction "that the consultation process undertaken is consistent with the honour of the Crown and the [Aboriginal] concerns and interests have been appropriately accommodated". Second, the Governor in Council accepted the Board's recommendation that the Project is required by present and future public convenience and necessity and that it will not likely cause significant adverse environmental effects.
71 The Order in Council was followed by a 20-page explanatory note which was stated not to form part of the Order in Council. The Explanatory Note described the Project and its objectives and the review process before the National Energy Board, and summarized the issues raised before the Board. The Explanatory Note also dealt with matters that post-dated the Board's report and set out the government's "response to what was heard".
VIII. Factual background
A. Canada's consultation process
72 The first step in the consultation process was determining the Indigenous groups whose rights and interests might be adversely impacted by the Project. In order to do this, a number of federal departments and the National Energy Board coordinated research and analysis on the proximity of Indigenous groups' traditional territories to elements of the Project, including the proposed pipeline right- of-way, the marine terminal expansion, and the designated shipping lanes. Approximately 130 Indigenous groups were identified, including all of the Indigenous applicants.
73 On August 12, 2013, the National Energy Board wrote to the identified Indigenous groups to advise that Trans Mountain had filed a Project description on May 23, 2013, and to provide preliminary information about the upcoming review process. This letter also attached a letter from the Major Projects Management Office of Natural Resources Canada. The Major Projects Management Office's letter advised that Canada would rely on the National Energy Board's public hearing process:
to the extent possible, to fulfil any Crown duty to consult Aboriginal groups for the proposed Project. Through the [National Energy Board] process, the [Board] will consider issues and concerns raised by Aboriginal groups. The Crown will utilise the [National Energy Board] process to identify, consider and address the potential adverse impacts of the proposed Project on established or potential Aboriginal and treaty rights.
74 In subsequent letters sent to Indigenous groups between August 2013 and February 19, 2016, the Major Projects Management Office directed Indigenous groups that could be impacted by the Project to participate
12 in and communicate their concerns through the National Energy Board public hearings. Additionally, Indigenous groups were advised that Canada viewed the consultation process to be as follows:
i. Canada would rely, to the extent possible, on the Board's process to fulfil its duty to consult Indigenous peoples about the Project;
ii. There would be four phases of Crown consultation:
a. "Phase I": early engagement, from the submission of the Project description to the start of the National Energy Board hearing;
b. "Phase II": the National Energy Board hearing, commencing with the start of the Board hearing and continuing until the close of the hearing record;
c. "Phase III": consideration by the Governor in Council, commencing with the close of the hearing record and continuing until the Governor in Council rendered its decision in relation to the Project; and
d. "Phase IV": regulatory authorization should the Project be approved, commencing with the decision of the Governor in Council and continuing until the issuance of department regulatory approvals, if required.
iii. Natural Resources Canada's Major Projects Management Office would serve as the Crown Consultation Coordinator for the Project.
iv. Following Phase III consultations, an adequacy of consultation assessment would be prepared by the Crown. The assessment would be based upon the depth of consultation owed to each Indigenous group. The depth of consultation owed would in turn be based upon the Project's potential impact on each group and the strength of the group's claim to potential or established Aboriginal or treaty rights.
75 On May 25, 2015, towards the end of Phase II, the Major Projects Management Office wrote to Indigenous groups, including the applicants, to provide additional information on the scope and timing of Phase III Crown consultation. Indigenous groups were advised that:
i. Canada intended to submit summaries of the concerns and issues Indigenous groups had brought forward to date and to seek feedback on the completeness and accuracy of the summaries. The summaries would be issued in the form of Information Requests, a Board hearing process explained below. Canada would also seek Indigenous groups' views on adverse impacts not yet addressed by Trans Mountain's mitigation measures. The Crown would use the information provided by Indigenous groups to "refine our current understanding of the potential impacts of the project on asserted or established Aboriginal or treaty rights."
ii. Phase III consultation would focus on two questions:
a. Are there outstanding concerns with respect to Project-related impacts to potential or established Aboriginal or treaty rights?
b. Are there incremental accommodation measures that should be considered by the Crown to address any outstanding concerns?
iii. Information made available to the Crown throughout each phase of the consultation process would be consolidated into a "Crown Consultation Report". "This report will summarize both the procedural aspects of consultations undertaken and substantive issues raised by Aboriginal groups, as well as how
13 these issues may be addressed in the process". The section of the Crown Consultation Report dealing with each Indigenous group would be provided to the group for review and comment before the report was placed before the Governor in Council.
iv. If Indigenous groups identified outstanding concerns there were a number of options which might "be considered and potentially acted upon." The options were described to be:
The Governor in Council has the option of asking the [National Energy Board] to reconsider its recommendation and conditions. Federal and provincial governments could undertake additional consultations prior to issuing additional permits and/or authorizations. Finally, federal and provincial governments can also use existing or new policy and program measures to address outstanding concerns.
(underlining added)
B. Prehearing matters and the Project application
76 To facilitate participation in the National Energy Board hearing process, the Board operates a participant funding program. On July 22, 2013, the Board announced that it was making funding available under this program to assist landowners, Indigenous groups and other interested parties to participate in the Board's consideration of the Project. To apply for funding, a party required standing as an intervener in the Board's process.
77 On July 29, 2013, the Board released its "list of issues" which identified the topics the Board would consider in its review of the Project. The following issues of relevance to these applications were included:
• the need for the proposed Project.
• the potential environmental and socio-economic effects of the proposed Project, including any cumulative environmental effects that were likely to result from the Project, including those the Board's Filing Manual required to be considered.
• the potential environmental and socio-economic effects of marine shipping activities that would result from the proposed Project, including the potential effects of accidents or malfunctions that might occur.
• the terms and conditions to be included in any recommendation to approve the Project that the Board might issue.
• the potential impacts of the Project on Indigenous interests.
• contingency plans for spills, accidents or malfunctions, during construction and operation of the Project.
78 On September 10, 2013, the Board issued "Filing Requirements Related to the Potential Environmental and Socio-Economic Effects of Increased Marine Shipping Activities." This was a guidance document intended to assist the proponent. The document described requirements that supplemented those set out in the Board's Filing Manual.
79 In particular, this guidance document required Trans Mountain's assessment of accidents and malfunctions to deal with a number of things, including measures to reduce the potential for accidents and malfunctions, credible worst case spill scenarios together with smaller spill scenarios and information on the fate and behaviour of any spilled hydrocarbons. For all mitigation measures Trans Mountain proposed, it was required to describe the roles, responsibilities and capabilities of each relevant organization
14 in implementing mitigation measures, and the level of care and control Trans Mountain would have in overseeing or implementing the measures.
80 On December 16, 2013, Trans Mountain formally filed its application, seeking approval to construct and operate the Project.
C. The scoping decision and the hearing order
81 On April 2, 2014, the Board issued a number of decisions setting the parameters of the Project's environmental assessment and establishing the hearing process for the Project. Three of these decisions are of particular relevance to these applications.
82 First, the Board issued a hearing order which set out timelines and a process for the hearing. The hearing order did not allow any right of oral cross-examination. Instead, the hearing order provided a process whereby interveners and the Board could submit written interrogatories, referred to as Information Requests, to Trans Mountain. The hearing order also set out a process for interveners and the Board to compel adequate responses to their Information Requests, an opportunity for Indigenous groups to provide oral traditional evidence, and allowed both written arguments in chief and summary oral arguments.
83 Next, in the decision referred to as the "scoping" decision, the Board defined the "designated project" to be assessed, and described the factors to be assessed under the Canadian Environmental Assessment Act, 2012 (and the scope of each factor). In defining the "designated project", the Board did not include marine shipping activities as part of the "designated project". Rather, the Board stated that it would consider the effects of increased marine shipping under the National Energy Board Act. To the extent there was potential for environmental effects of the designated project to interact with the effects of the marine shipping, the Board would consider those effects under the cumulative effects portion of the Canadian Environmental Assessment Act, 2012 environmental assessment.
84 Finally, the Board ruled on participation rights in the hearing. The Board granted participation status to 400 interveners and 1,250 commentators. All of the applicants before the Court applied for, and were granted, intervener status. Additionally, a number of government departments were granted intervener status; both Health Canada and the Pacific Pilotage Authority were granted commentator status.
D. Challenges to the hearing order and the scoping decision
85 Of relevance to issues raised in these applications are two challenges brought against the hearing order and the scoping decision.
86 The first challenge requested that all evidence filed in the hearing be subject to oral cross-examination. The Board dismissed this request in Ruling No. 14. In Ruling No. 51, the Board dismissed motions seeking reconsideration of Ruling No. 14.
87 The second challenge was brought by Tsleil-Waututh to aspects of both the hearing order and the scoping decision. Tsleil-Waututh asserted, among other things, that the Board erred in law by failing to include marine shipping activities in the Project description. This Court granted Tsleil-Waututh leave to appeal this and other issues. On September 6, 2016, this Court dismissed the appeal ([Tsleil-Waututh Nation v. Canada (National Energy Board)] 2016 FCA 219 (F.C.A.)). The dismissal of the appeal was expressly stated, at paragraph 21 of the Court's reasons, to be without prejudice to Tsleil-Waututh's right to raise the issue of the proper scope of the Project "in subsequent proceedings".
E. The TERMPOL review process
88 In view of the Project's impact on marine shipping, it is useful to describe this process.
15 89 Trans Mountain requested that the marine transportation components of the Project be assessed under the voluntary Technical Review Process of Marine Terminal Systems and Transshipment Sites (TERMPOL). The review process was chaired by Transport Canada and the review committee was composed of representatives of other federal agencies and Port Metro Vancouver.
90 The purpose of the review process was to objectively appraise operational vessel safety, route safety and cargo transfer operations associated with the Project, with a focus on improving, where possible, elements of the Project.
91 The review committee did not identify regulatory concerns for the tankers, tanker operations, the proposed route, navigability, other waterway users or the marine terminal operations associated with tankers supporting the Project. It found that Trans Mountain's commitments to the existing marine safety regime would provide for a higher level of safety for tanker operations appropriate to the increase in traffic.
92 The review committee also proposed certain measures to provide for a high level of safety for tanker operations. Examples of such proposed measures were the extended use of tethered and untethered tug escorts and the extension of the pilot disembarkation zone. Trans Mountain agreed to adopt each of the recommended measures.
93 The TERMPOL report formed part of Transport Canada's written evidence before the National Energy Board.
F. The applicants' participation in the hearing before the Board
94 The applicants, as interveners before the Board, were entitled to:
• issue Information Requests to Trans Mountain and others;
• file motions, including motions to compel adequate responses to Information Requests;
• file written evidence;
• comment on draft conditions; and,
• present written and oral summary argument.
95 All of the applicants issued Information Requests, filed or supported motions and filed written evidence. Interveners who filed evidence were required to respond in writing to written questions about their evidence from the Board, Trans Mountain or other interveners.
96 All of the applicants filed written submissions commenting on draft conditions except for the City of Vancouver and SSN.
97 All of the applicants filed written arguments and all of the applicants except SSN delivered oral summary arguments.
98 Indigenous interveners could adduce traditional Indigenous evidence, either orally or in writing. Oral evidence could be questioned orally by other interveners, Trans Mountain or the Board. Tsleil-Waututh, Squamish, Coldwater, SSN, and Upper Nicola provided oral, Indigenous traditional evidence. The Stó:l? Collective formally objected to the Board's procedure for introducing Indigenous oral traditional evidence and did not provide such evidence.
G. Participant funding
16 99 As previously mentioned, the Board operated a participant funding program. Additional funding was available through the Major Projects Management Office and Trans Mountain.
100 It is fair to say that the participant funding provided to the applicants by the Board and the Major Projects Management Office was generally viewed to be inadequate by them (see for example the affidavit of Chief Ian Campbell of the Squamish Nation). Concerns were also expressed about delays in funding. Funds provided by the Board could only be applied to work conducted after the funding was approved and a funding agreement was executed.
101 The following funds were paid or offered.
1. Tsleil-Waututh Nation
102 Tsleil-Waututh requested $766,047 in participant funding. It was awarded $40,000, plus travel costs for two members to attend the hearing. Additionally, the Major Projects Management Office offered to pay $14,000 for consultation following the close of the hearing record and $12,000 following the release of the Board's report. These offers were not accepted.
2. The Squamish Nation
103 Squamish applied for $293,350 in participant funding. It was awarded $44,720, plus travel costs for one person to attend the hearing. The Major Projects Management Office offered $12,000 for consultations following the close of the Board's hearing record, and $14,000 to support participation in consultations following the release of the Board's report. These funds were paid.
3. Coldwater Indian Band
104 Coldwater was awarded $48,490 in participant funding from the Board. Additionally, the Major Projects Management Office offered an additional $52,000 in participant funding.
4. The Stó:l? Collective
105 The Stó:l? Collective was awarded $42,307 per First Nation band in participant funding from the Board. Additionally, the Major Projects Management Office offered $4,615.38 per First Nation band for consultation following the close of the Board's hearing record, and $5,384.61 per First Nation band following the release of the Board's report.
5. Upper Nicola Band
106 Upper Nicola was awarded $40,000 plus travel costs for two members to attend the hearing and an additional $10,000 in special funding through the Board's participant funding program. Additionally, the Major Projects Management Office offered Upper Nicola Band and the Okanagan Nation Alliance $11,977 and $24,000 respectively in participant funding for consultations following the close of the Board's hearing record. The Okanagan Nation Alliance was offered an additional $26,000 following the release of the Board's report.
6. SSN
107 SSN applied for participant funding in excess of $300,000 in order to participate in the Board's hearing. It was awarded $36,920 plus travel costs for two members to attend the hearing. Additionally, the Major Projects Management Office offered $18,000 in participation funding for consultations following the close of the Board's hearing record and $21,000 for consultations following the release of the Board's report.
17 7. Raincoast Conservation Foundation and Living Oceans Society
108 Raincoast was awarded $111,100 plus travel costs for two people to attend the hearing from the Board's participant funding program. Living Oceans was awarded $89,100 plus travel costs for two persons to attend the hearing through the participant funding program.
H. Crown consultation efforts — a brief summary
1. Phase I (from 2013 to April 2014)
109 In this initial engagement phase some correspondence was exchanged between the Crown and some of the Indigenous applicants. Canada does not suggest that any of this correspondence contained any discussion about any substantive matter.
2. Phase II (from April 2014 to February 2016)
110 During the Board's hearing process and continuing until the close of its hearing record, Canada continued to exchange correspondence with some of the Indigenous applicants. Additionally, some informational meetings were held; however, these meetings did not allow for any substantive discussion about any group's title, rights or interests, or the impact of the Project on the group's title, rights or interests.
111 To illustrate, Crown representatives met with Squamish officials on September 11, 2015, and November 27, 2015. At these meetings Squamish raised a number of concerns, including its concerns that Squamish had not been involved in the design of the consultation process, that the consultation process was inadequate to assess impacts on Squamish rights and title and that inadequate funding was provided for participation in the Board's hearing. Squamish also expressed confusion about the respective roles of the Board and Trans Mountain in consultations with Squamish.
112 Similarly, informational meetings were held with the Stó:l? Collective on July 18, 2014 and December 3, 2015. Again, no substantive discussion took place about Stó:l?'s title, rights and interests or the impact of the Project thereon. The Stó:l? also expressed their concerns about the consultation process, including their concerns that the Board failed to compel Trans Mountain to respond adequately to Information Requests and the lack of specificity of the Board's draft terms and conditions.
113 Informational hearings of this nature were also held with Upper Nicola and SSN in 2014.
114 It is fair to say that in Phase II Canada continued to rely upon the National Energy Board process to fulfil the Crown's duty to consult. Canada's efforts in Phase II were largely directed to using the Information Request process to solicit concerns and potential mitigation measures from First Nations. Canada prepared tables to record potential Project impacts and concerns and to record and monitor whether those potential impacts and concerns were addressed in Trans Mountain's commitments, the Board's draft terms and conditions or other mitigation measures.
3. Phase III (February to November 2016)
115 Crown representatives met with all of the Indigenous applicants in Phase III. Generally, the Indigenous applicants expressed dissatisfaction with the National Energy Board process and the Crown's reliance on that process. Individual concerns raised by individual Indigenous applicants will be discussed in the context of consideration of the adequacy of Canada's consultation efforts.
116 Towards the latter part of Phase III, on August 16, 2016, the Major Projects Management Office and the British Columbia Environmental Assessment Office jointly sent a letter to Indigenous groups
18 confirming that they were responsible for conducting consultation efforts for the Project, and that they were coordinating by participating in joint consultation meetings, sharing information and by preparing the draft "Joint Federal/Provincial Consultation and Accommodation Report for the Trans Mountain Expansion Project" (Crown Consultation Report).
117 Canada summarized its consultation efforts in the Crown Consultation Report, which included appendices specific to individual Indigenous groups. Indigenous groups were generally provided with a first draft of the Crown Consultation Report, together with the appendix relevant to that group, in August of 2016. Comments and corrections were to be provided in September 2016. A second draft of the Crown Consultation Report, together with relevant appendices, was provided to Indigenous groups in November of 2016, with comments due by mid-November.
I. Post National Energy Board report events
1. The Interim Measures for Pipeline Reviews
118 On January 27, 2016, Canada introduced this initiative as part of a strategy to review Canada's environmental assessment processes. The Interim Measures set out five guiding principles to guide the approval of major pipeline projects:
i. No proponent would be required to return to the beginning of the approval process. That is, no proponent would be required to begin the approval process afresh.
ii. Decisions about pipeline approval would be based on science, traditional knowledge of Indigenous peoples and other relevant evidence.
iii. The views of the public and affected communities would be sought and considered.
iv. Indigenous peoples would be meaningfully consulted, and, where appropriate, accommodated.
v. The direct and upstream greenhouse gas emissions linked to a project under review would be assessed.
119 Canada advised that it planned to apply the Interim Measures to the Project and that in order to do so it would: undertake deeper consultations with Indigenous peoples and provide funding to support participation in these deeper consultations; assess the upstream gas emissions associated with the Project and make this information public; and, appoint a ministerial representative to engage local communities and Indigenous groups in order to obtain their views and report those views back to the responsible Minister.
120 The Minister of Natural Resources sought and obtained a four-month extension of time to permit implementation of the Interim Measures. The deadline for the Governor in Council to make its decision on Project approval was, therefore, on or before December 19, 2016.
2. The Ministerial Panel
121 On May 17, 2016, the Minister announced he was striking a three-member independent Ministerial Panel that would engage local communities and Indigenous groups as contemplated in Canada's implementation of the Interim Measures for the Project.
122 The Ministerial Panel held a series of public meetings in Alberta and British Columbia, received emails and received responses to an online questionnaire. The Ministerial Panel submitted its report to the Minister on November 1, 2016, in which it identified six "high-level questions" that "remain unanswered" that it commended to Canada for serious consideration.
19 123 The report of the Ministerial Panel expressly stated that the panel's work was "not intended as part of the federal government's concurrent commitment to direct consultation with First Nations" and that "full-scale consultation" was never the intent of the panel "especially in the case of First Nations, where the responsibility for consultation fell elsewhere". It follows that no further consideration of the Ministerial Panel is required in the context of consideration of the adequacy of Canada's consultation efforts.
3. Greenhouse gas assessment
124 For completeness, I note that in November 2016, Environment Canada did publish an assessment estimating the upstream greenhouse gas emissions from the Project.
IX. The issues to be determined
125 Broadly speaking, the applicants' submissions require the Court to address the following questions.
126 First, is there merit in any of the preliminary issues raised by the parties?
127 Second, under the applicable legislative scheme, can the report of the National Energy Board be judicially reviewed?
128 Finally, should the decision of the Governor in Council be set aside? This in turn requires the Court to consider:
i. What is the standard of review to be applied to the decision of the Governor in Council?
ii. Did the Governor in Council err in determining whether the Board's process of assembling, analyzing, assessing and studying the evidence before it was so deficient that the report submitted by it to the Governor in Council did not qualify as a "report" within the meaning of the National Energy Board Act? This will require the Court to consider:
a. was the process adopted by the Board procedurally fair?
b. did the Board err by failing to assess Project-related marine shipping under the Canadian Environmental Assessment Act, 2012?
c. did the Board err in its treatment of the Species at Risk Act, S.C. 2002, c. 29?
d. did the Board impermissibly fail to decide certain issues before it recommended approval of the Project?
e. did the Board impermissibly fail to consider alternatives to the Westridge Marine Terminal?
iii. Did the Governor in Council fail to comply with the statutory requirement to give reasons?
iv. Did the Governor in Council err by concluding that the Indigenous applicants were adequately consulted and, if necessary, accommodated?
X. Consideration of the issues
A. The preliminary issues
129 Before turning to the substantive issues raised in this application it is necessary to deal with three preliminary issues raised by the parties. They may be broadly characterized as follows.
20 130 First, as described above, a number of the applicants commenced applications challenging the report of the National Energy Board. Trans Mountain moves to strike on a preliminary basis the six applications for judicial review commenced in respect of the report of the National Energy Board on the ground that the report is not amenable to judicial review.
131 Second, the applicants ask that the two affidavits sworn on behalf of Trans Mountain by Robert Love, or portions thereof, be struck or given no weight on a number of grounds, including that Mr. Love had no personal knowledge of the bulk of the matters sworn to in his affidavits.
132 Finally, the applicants object to the "Consultation Chronologies" found in Canada's compendium.
1. Trans Mountain's motion to strike
133 In Gitxaala Nation v. Canada, 2016 FCA 187, [2016] 4 F.C.R. 418 (F.C.A.), at paragraph 125, this Court concluded that applications for judicial review do not lie against reports made pursuant to section 52 of the National Energy Board Act recommending whether a certificate of public convenience and necessity should issue for all or any portion of a pipeline. Accordingly, Trans Mountain seeks orders striking the six notices of application (listed above at paragraph 51) that challenge the Board's report.
134 A comparison of the parties enumerated in paragraph 51 with those parties who challenge the decision of the Governor in Council (enumerated in paragraph 52) shows that all but one of the applicants who challenge the report of the National Energy Board also challenge the decision of the Governor in Council. For reasons not apparent on the record, the City of Vancouver elected to challenge only the report of the Board.
135 The City of Vancouver, supported by the City of Burnaby, Tsleil-Waututh, Raincoast and Living Oceans, responds to Trans Mountain by arguing that Gitxaala was wrongly decided on this point and that in any event, the applications should not be struck on a preliminary basis.
136 Those applicants who challenge both decisions are able to argue, and do argue, that in Gitxaala this Court determined that the decision of the Governor in Council cannot be considered in isolation from the Board's report; it is for the Governor in Council to determine whether the process followed by the Board in assembling, analyzing, assessing, and studying the evidence before it was so deficient that its report does not qualify as a "report" within the meaning of the National Energy Board Act.
137 Put another way, a statutory pre-condition for a valid Order in Council is a report from the Board prepared in accordance with all legislative requirements. The Governor in Council is therefore required to be satisfied that the report was prepared in accordance with the governing legislation. This makes practical sense as well because the Board's report formed the factual basis for the decision of the Governor in Council.
138 It is in the context of these arguments that I turn to consider whether the applications should be struck on a preliminary basis.
139 The jurisprudence of this Court is uniformly to the effect that motions to strike applications for judicial review are to be resorted to sparingly: see, for example, League for Human Rights of B'Nai Brith Canada v. R., 2009 FCA 82, 387 N.R. 376 (F.C.A.), at paragraph 5, citing Pharmacia Inc. v. Canada (Minister of National Health & Welfare) (1994), [1995] 1 F.C. 588, 176 N.R. 48 (Fed. C.A.).
140 The rationale for this approach is that judicial review proceedings are designed to proceed with celerity; motions to strike carry the potential to unduly and unnecessarily delay the expeditious determination of an application. Therefore justice is better served by allowing the Court to deal at one time with all of the issues raised by an application.
21 141 This rationale is particularly applicable in the present case where striking the applications would still leave intact the ability of all but one of the applicants to argue the asserted flaws in the Board's report in the context of the Court's review of the decision of the Governor in Council. Little utility would be achieved in deciding the motions when the arguments in support of them will be considered now, in the Court's determination of the merits of the applications.
142 For this reason, in the exercise of my discretion I would dismiss Trans Mountain's motion to strike the applications brought challenging the report of the National Energy Board. I deal with the merits of the argument that the report is not amenable to judicial review below at paragraph 170 and following.
2. The applicants' motion asking that the two affidavits of Robert Love, or portions thereof, be struck or given no weight
143 The applicants argue that the Love affidavits, or portions thereof, should be struck or given no weight on three grounds. First, the applicants argue that Mr. Love had no personal knowledge of the bulk of the matters sworn to in his affidavits so that his evidence should be disregarded as inadmissible hearsay. Second, the applicants argue that the affidavits contain irrelevant and impermissible evidence about Trans Mountain's engagement and consultations with the Indigenous applicants. Finally, the applicants argue that the second affidavit impermissibly augments the evidence that was before the Board and the Governor in Council.
(a) The hearsay objection
144 In both impugned affidavits Mr. Love swore that "I have personal knowledge of the matters in this Affidavit, except where stated to be based on information and belief, in which case I believe the same to be true." Notwithstanding this statement, on cross-examination, Mr. Love admitted that his first affidavit was based almost entirely on facts of which he had no personal knowledge and that his affidavit failed to disclose that he relied on information and belief to assert those facts. He largely relied on Trans Mountain's lawyers to prepare the paragraphs of his affidavit of which he had no direct knowledge. The basis of his belief that his affidavit was truthful and accurate was his "trust in other people". He frequently admitted that there were other Trans Mountain employees who had direct knowledge of the matters set out in his affidavit (cross-examination of Robert Love, June 19, 2017, by counsel for the City of Burnaby, page 14, line 17 to page 50, line 8).
145 Similarly, under cross-examination Mr. Love admitted that he had no personal knowledge of the contents of his second affidavit which dealt with Trans Mountain's consultation with Squamish (cross- examination Robert Love, June 22, 2017, by counsel for Squamish, page 2, line 7 to page 11, line 4). When cross-examined by counsel for Coldwater, Mr. Love admitted that he was "largely" not involved with Trans Mountain's engagement with Coldwater. Rather, "[i]t was the aboriginal engagement team who did the communications." (cross-examination of Robert Love, June 22, 2017, by counsel for Coldwater, page 2, line 9 to page 2, line 21).
146 Mr. Love is the Manager, Land and Rights-of-Way for Kinder Morgan Canada Inc., a company related to Trans Mountain. During his cross-examination by counsel for Squamish he described his role to be responsible for securing "all of the private land interest for the Trans Mountain Expansion Project and to obtain all utility crossings". He was also responsible "for undertaking the land rights necessary to go through about 10 reserves that we have agreements with." Later, on his cross-examination, he explained that prior to swearing his affidavit he "sat down with Regan Schlecker and went through most of the First Nation's engagement and high-level [government] engagements that were happening here" because he had no direct involvement in those engagements. Regan Schlecker was Trans Mountain's Aboriginal affairs manager.
22 147 On the basis of Mr. Love's many admissions the applicants argue that Mr. Love's evidence should be struck or given no weight.
148 Trans Mountain argues in response that the City of Burnaby failed to object to the Love affidavits on a timely basis. It also argues that on judicial review the parties can provide background explanations and summaries regarding the administrative proceeding below and that no applicant points to any important statements in the affidavits that were shown to be based on hearsay.
149 I begin by rejecting Trans Mountain's argument that the arguments raised by Burnaby were raised too late and so should not be considered. While Burnaby may well not have raised its hearsay objection on a timely basis (see the order of the case management Judge issued on July 25, 2017), both the City of Vancouver and Squamish did object to the Love affidavits on a timely basis. Squamish adopts Burnaby's objections (Squamish's memorandum of fact and law, paragraph 133) and the City of Vancouver relies upon the cross-examination of Mr. Love conducted by counsel for Burnaby (Vancouver's memorandum of fact and law, paragraph 109). On this basis, in my view, Burnaby's arguments are properly before the Court.
150 With respect to Trans Mountain's argument on the merits, I begin by noting that to the extent background statements and summaries are admissible on an application for judicial review, this admissibility is for the sole and limited purpose of orienting the reviewing Court. In any event and more importantly, affidavits must always fully and candidly disclose if an affiant is relying on information and belief and what portions of the affidavit are based on information and belief. In that event, the affiant must disclose both the sources of the information relied upon and the bases for the affiant's belief in the truth of the information sworn to. This was not done in the present case.
151 Notwithstanding this failure, I do not see the need to strike portions of the Love affidavits. The affidavits are relevant for the purpose of orienting the Court. However, it is unsafe to rely on the contents of the Love affidavits for the purpose of establishing the truth of their contents unless Mr. Love had personal knowledge of a particular fact or matter. Because Mr. Love did not demonstrate any material, personal knowledge of Trans Mountain's engagement with the Indigenous applicants, and because there is no explanation as to why an individual directly involved in that engagement could not have provided evidence, evidence of Trans Mountain's engagement must come from other sources — such as the consultation logs Trans Mountain placed in evidence before the Board.
152 As I have determined that it is unsafe except in limited circumstances to rely upon the contents of the Love affidavits to establish the truth of their contents, it is unnecessary for me to consider the applicants' objection to the second affidavit on the ground that it impermissibly supplemented the consultation logs in evidence before the Board.
(b) Relevance of evidence of Trans Mountain's engagement with the Indigenous applicants
153 In answer to an Information Request issued by Squamish inquiring whether Canada delegated any procedural aspects of consultation to Trans Mountain, Canada responded:
The Crown has not delegated the procedural aspects of its duty to consult to Trans Mountain. The Crown does rely on the [National Energy Board] review process to the extent possible to fulfill this duty, a process that requires the proponent to work with and potentially accommodate Aboriginal groups impacted by the project. The [National Energy Board] filing manual provides information to the proponent on the requirement to engage potentially affected Aboriginal groups. This does not constitute delegation of the duty to consult.
(underlining added)
23 154 Based on this response, the Indigenous applicants argue that evidence of Trans Mountain's engagement with them is irrelevant. It is necessary to consider this submission because it is an issue that transcends the Love affidavits — there is other evidence of Trans Mountain's engagement.
155 I accept Trans Mountain's submission that proper evidence of its engagement with the Indigenous applicants is relevant. I reach this conclusion for the following reasons.
156 First, the Indigenous applicants were informed by the Major Projects Management Office's letter of August 12, 2013, that Canada would rely on the Board's public hearing process "to the extent possible" to fulfil the Crown's duty to consult. As Canada noted in its response to the Information Request, the Board's hearing process required Trans Mountain to work with, and potentially accommodate, Indigenous groups impacted by the Project. Thus the Major Projects Management Office's August 12 letter encouraged Indigenous groups with Project-related concerns to discuss those concerns directly with Trans Mountain. Unresolved concerns were to be directed to the National Energy Board. It follows from this that the Indigenous applicants were informed before the commencement of the Board's hearing process that the Board and, in turn, Canada would rely in part on Trans Mountain's engagement with them.
157 Thereafter, the Board required Trans Mountain "to make all reasonable efforts to consult with potentially affected Aboriginal groups and to provide information about those consultations to the Board." The Board expressly required this information to include "evidence on the nature of the interests potentially affected, the concerns that were raised and the manner and degree to which those concerns have been addressed. Trans Mountain was expected to report to the Board on all Aboriginal concerns that were expressed to it, even if it was unable or unwilling to address those concerns". (Report of the National Energy Board, page 46).
158 Trans Mountain's consultation was guided by the Board's Filing Manual requirements and directions given by the Board during the Project Description phase.
159 This demonstrates that Trans Mountain's consultation was central to the decision of the Board. Therefore, evidence of Trans Mountain's efforts is relevant.
160 My second reason for finding proper evidence of Trans Mountain's engagement to be relevant is that, consistent with Canada's response to Squamish's Information Request, a review of the Crown Consultation Report shows that in Section 3 Canada summarized "the procedural elements and chronology of Aboriginal consultations and engagement activities undertaken by the proponent, the [Board] and the Crown." Elements of Trans Mountain's engagement were summarized in the Crown Consultation Report, and therefore put before the Governor in Council so it could assess the adequacy of consultation. Elements that were summarized include Trans Mountain's Aboriginal Engagement Program and the Mutual Benefit Agreements Trans Mountain entered into with Indigenous groups. Trans Mountain's Aboriginal Engagement Program was noted to have provided approximately $12 million in capacity funding to potentially affected groups. As well, Trans Mountain provided funding to conduct traditional land and resource use and traditional marine resource use studies. As for the Mutual Benefit Agreements, as of November 2016, Canada was aware that 33 potentially affected Indigenous groups had signed such agreements with Trans Mountain. These included a letter of support for the Project.
161 Canada's reliance on Trans Mountain's engagement also makes evidence about that engagement relevant.
162 Finally on this point, some Indigenous applicants assert that Trans Mountain's engagement efforts were inadequate. Evidence of Trans Mountain's engagement, including its provision of capacity funding, is relevant to this allegation and to the issue of the adequacy of available funding.
24 3. Canada's compendium — The Consultation Chronologies
163 In its compendium, Canada included schedules in the form of charts (referred to as "Consultation Chronologies") which describe events said to have taken place. The Indigenous applicants assert that the schedules are interpretive, inaccurate, and incomplete and that they should not be received by the Court for two reasons.
164 First, the Indigenous applicants argue that the Consultation Chronologies summarize the facts as perceived by the Crown. As such, the material should have appeared in Canada's affidavit and in its memorandum of fact and law. It is argued that Canada should not be permitted to circumvent page length restrictions on the length of its memorandum by creating additional resources in its compendium.
165 Second, the Indigenous applicants argue that the Consultation Chronologies are not evidence. Instead, the summaries are newly created documents that were not before the Board or the Governor in Council. Their admission is also argued to be prejudicial to the Indigenous applicants.
166 Canada responds that, as the case management Judge noted in his direction of September 7, 2017, "parties often include material in their compendia as an aid to argument. As long as the aid to argument is brief and helpful and is not anything resembling a memorandum of fact and law and as long as the aid to argument presents or is based entirely upon facts and data from the evidentiary record without adding to it, hearing panels of this Court usually permit it. Of course, there is a limit to this."
167 I agree with the Indigenous applicants that the Consultation Chronologies must be approached with caution. For example, the Consultation Chronology in respect of the Coldwater Indian Band recites that on May 3, 2016, Canada emailed Coldwater a letter dated November 3, 2015 sent in response to Coldwater's letter of August 20, 2015. The Consultation Chronology also recites that the letter contained an offer to meet with Coldwater to discuss the consultation process and Project-related issues. However, Coldwater points to the sworn evidence of its Chief Councillor to the effect that the November 3, 2015 letter did not actually address the concerns detailed in Coldwater's letter of August 20, 2015, and that the meeting was never arranged because the November 3, 2015 letter was not provided to Coldwater until May 3, 2016.
168 Thus, I well understand the concern of the Indigenous applicants. This said, this Court's understanding of the evidence is not based upon a summary in chart form which briefly summarizes the consultation process. The Court will base its decision upon the evidentiary record properly before it, which includes the record before the Board and the Governor in Council, the affidavits sworn in this proceeding, the cross-examinations thereon, the statement of agreed facts, and the contents of the agreed book of documents. The sole permissible use of the Consultation Chronologies is as a form of table of contents or finding aid that directs a reader to a particular document in the record. On the basis of this explanation of the limited permissible use of the Consultation Chronologies there is no need to strike them, a point conceded by counsel for Coldwater and Squamish in oral argument.
169 For completeness, I note that Upper Nicola moved on a preliminary basis to strike portions of the second Love affidavit on the ground that the affidavit impermissibly recited confidential information. That motion is the subject of brief, confidential reasons issued contemporaneously with these reasons. After the parties to the motion have the opportunity to make submissions, a public version of the confidential reasons will issue.
B. Is the report of the National Energy Board amenable to judicial review?
25 170 While I would dismiss Trans Mountain's motion to strike the application on a preliminary basis, because some applicants do challenge the report of the National Energy Board it is necessary to decide whether judicial review lies, notwithstanding this Court's conclusion to the contrary in Gitxaala.
171 The applicants who argue that, contrary to Gitxaala, the Board's report is amenable to judicial review acknowledge the jurisprudence of this Court to the effect that the test applied for overruling a decision of another panel of this Court is whether the previous decision is "manifestly wrong" in the narrow sense that the Court overlooked a relevant statutory provision, or a case that ought to have been followed: see, for example, Miller v. Canada (Attorney General), 2002 FCA 370, 220 D.L.R. (4th) 149 (Fed. C.A.), at paragraph 10. The applicants argue that Gitxaala was manifestly wrong in deciding that the Board's report was not justiciable. The specific errors asserted are:
a. Gitxaala was manifestly wrong in holding that only "decisions about legal or practical interests are judicially reviewable". The Court did not address case law that has interpreted subsection 18.1(1) of the Federal Courts Act, R.S.C. 1985, c. F-7 more broadly.
b. The Court failed to deal with the prior decision of this Court in Forestethics Advocacy v. Canada (Attorney General), 2014 FCA 71, 390 D.L.R. (4th) 376 (F.C.A.).
c. The Court failed to deal with prior jurisprudence of the Federal Court and this Court which did review environmental assessment reports prepared by a joint review panel.
d. The Court referred to provisions of the Canadian Environmental Assessment Act, 2012 that were inapplicable.
e. The Gitxaala decision impermissibly thwarts the right to seek judicial review of the decision of the National Energy Board.
172 I will deal with each argument in turn after first reviewing this Court's analysis in Gitxaala.
1. The decision of this Court in Gitxaala
173 The Court's consideration of the justiciability of the report of the Joint Review Panel began with its detailed analysis of the legislative scheme (reasons, paragraphs 99 to 118). The Court then turned to consider the proper characterization of the legislative scheme, which the Court described to be "a complete code for decision-making regarding certificate applications." The Court then reasoned:
[120] The legislative scheme shows that for the purposes of review the only meaningful decision-maker is the Governor in Council.
[121] Before the Governor in Council decides, others assemble information, analyze, assess and study it, and prepare a report that makes recommendations for the Governor in Council to review and decide upon. In this scheme, no one but the Governor in Council decides anything.
[122] In particular, the environmental assessment under the Canadian Environmental Assessment Act, 2012 plays no role other than assisting in the development of recommendations submitted to the Governor in Council so it can consider the content of any decision statement and whether, overall, it should direct that a certificate approving the project be issued.
[123] This is a different role — a much attenuated role — from the role played by environmental assessments under other federal decision-making regimes. It is not for us to opine on the
26 appropriateness of the policy expressed and implemented in this legislative scheme. Rather, we are to read legislation as it is written.
[124] Under this legislative scheme, the Governor in Council alone is to determine whether the process of assembling, analyzing, assessing and studying is so deficient that the report submitted does not qualify as a "report" within the meaning of the legislation:
• In the case of the report or portion of the report setting out the environmental assessment, subsection 29(3) of the Canadian Environmental Assessment Act, 2012 provides that it is "final and conclusive," but this is "[s]ubject to sections 30 and 31." Sections 30 and 31 provide for review of the report by the Governor in Council and, if the Governor in Council so directs, reconsideration and submission of a reconsideration report by the Governor in Council.
• In the case of the report under section 52 of the National Energy Board Act, subsection 52(11) of the National Energy Board Act provides that it too is "final and conclusive," but this is "[s]ubject to sections 53 and 54." These sections empower the Governor in Council to consider the report and decide what to do with it.
[125] In the matter before us, several parties brought applications for judicial review against the Report of the Joint Review Panel. Within this legislative scheme, those applications for judicial review did not lie. No decisions about legal or practical interests had been made. Under this legislative scheme, as set out above, any deficiency in the Report of the Joint Review Panel was to be considered only by the Governor in Council, not this Court. It follows that these applications for judicial review should be dismissed.
[126] Under this legislative scheme, the National Energy Board also does not really decide anything, except in a formal sense. After the Governor in Council decides that a proposed project should be approved, it directs the National Energy Board to issue a certificate, with or without a decision statement. The National Energy Board does not have an independent discretion to exercise or an independent decision to make after the Governor in Council has decided the matter. It simply does what the Governor in Council has directed in its Order in Council.
(underlining added)
174 Having reviewed Gitxaala, I now turn to the asserted errors.
2. Was Gitxaala wrongly decided on this point?
(a) Did the Court err by stating that only "decisions about legal or practical interests" are judicially reviewable?
175 Subsection 18.1(1) of the Federal Courts Act provides that an application for judicial review may be made by "anyone directly affected by the matter in respect of which relief is sought" (underlining added). In Air Canada v. Toronto Port Authority, 2011 FCA 347, [2013] 3 F.C.R. 605 (F.C.A.), this Court considered the scope of subsection 18.1(1) as follows:
[24] Subsection 18.1(1) of the Federal Courts Act provides that an application for judicial review may be made by the Attorney General of Canada or by anyone directly affected by "the matter in respect of which relief is sought." A "matter" that can be subject of judicial review includes not only a "decision or order," but any matter in respect of which a remedy may be available under section 18 of the Federal Courts Act: Krause v. Canada, [1999] 2 F.C. 476 (C.A.). Subsection 18.1(3) sheds further light on this, referring to relief for an "act or thing," a failure, refusal or delay to do an "act or thing," a "decision," an "order" and a "proceeding." Finally, the rules that govern applications for judicial review apply to
27 "applications for judicial review of administrative action," not just applications for judicial review of "decisions or orders": Rule 300 of the Federal Courts Rules.
. . .
[28] The jurisprudence recognizes many situations where, by its nature or substance, an administrative body's conduct does not trigger rights to bring a judicial review.
[29] One such situation is where the conduct attacked in an application for judicial review fails to affect legal rights, impose legal obligations, or cause prejudicial effects: Irving Shipbuilding Inc. v. Canada (Attorney General), 2009 FCA 116, [2010] 2 F.C.R. 488; Democracy Watch v. Conflict of Interest and Ethics Commission, 2009 FCA 15, (2009), 86 Admin. L.R. (4th) 149.
(underlining added)
176 To similar effect, in Democracy Watch v. Canada (Conflict of Interest & Ethics Commissioner), 2009 FCA 15, 387 N.R. 365 (F.C.A.), the Court wrote, at paragraph 10, that when "administrative action does not affect an applicant's rights or carry legal consequences, it is not amenable to judicial review".
177 On the basis of these authorities the City of Vancouver, supported by the City of Burnaby and Raincoast and Living Oceans, argues that this Court erred by writing in paragraph 125 in Gitxaala that only "decisions about legal or practical interests" are reviewable. The Court is said to have overlooked the established jurisprudence to the effect that "matter" as used in subsection 18.1(1) denotes a broader category than merely decisions.
178 In my view, when the Court's analysis in Gitxaala is read in its entirety no such statement was made and no such error was made.
179 In Gitxaala, the Court found that the only action to carry legal consequences was the decision of the Governor in Council. The environmental assessment conducted by the Joint Review Panel under the Canadian Environmental Assessment Act, 2012 did not affect legal rights or carry legal consequences. Instead, the assessment played "no role other than assisting in the development of recommendations submitted to the Governor in Council" (reasons, paragraph 122). The same could be said of the balance of the report prepared pursuant to the requirements of the National Energy Board Act.
180 Put another way, on the basis of the legislative scheme enacted by Parliament, the report of the Joint Review Panel constituted a set of recommendations to the Governor in Council that lacked any independent legal or practical effect. It followed that judicial review did not lie from it.
181 Both the determination about the effect of the report of the Joint Review Panel and the conclusion that it was not justiciable were wholly consistent with Air Canada and Democracy Watch. It was therefore unnecessary for the Court to expressly deal with these decisions, or with subsection 18.1(1).
182 To complete this analysis, I note that the City of Vancouver also argues that it was prejudiced because the report of the National Energy Board did not comply with section 19 of the Canadian Environmental Assessment Act, 2012 and because the Board's process was unfair. However, any detrimental effects upon the City of Vancouver could have been remedied through a challenge to the decision of the Governor in Council; the City has not asserted that it suffered any prejudice in the interval between the issuance of the Board's report and the issuance of the Order in Council by the Governor in Council.
(b) Forestethics Advocacy v. Canada (Attorney General)
28 183 In this decision, a single Judge of this Court decided whether this Court or the Federal Court had jurisdiction to entertain applications for judicial review brought in respect of the Report of the Joint Review Panel for the Enbridge Northern Gateway Project. Justice Sharlow found jurisdiction to lie in this Court. The City of Vancouver argues that implicit in this decision is the conclusion the reports prepared by joint review panels under the Canadian Environmental Assessment Act, 2012 are judicially reviewable.
184 I respectfully disagree. At issue in Forestethics was the proper interpretation of section 28 of the Federal Courts Act. The Court made no finding about whether the report is amenable to judicial review — its only finding was that the propriety of the report (which would include whether it was amenable to judicial review) was a matter for this Court, not the Federal Court.
(c) The jurisprudence which reviewed environmental assessment reports
185 The City of Vancouver also points to jurisprudence in which environmental assessment reports prepared by joint review panels were judicially reviewed, and argues that this Court erred by failing to deal with this jurisprudence. The authorities relied upon by Vancouver are: Alberta Wilderness Assn. v. Cardinal River Coals Ltd., [1999] 3 F.C. 425, 15 Admin. L.R. (3d) 25 (Fed. T.D.); Friends of the West Country Assn. v. Canada (Minister of Fisheries & Oceans) (1999), [2000] 2 F.C. 263, 169 F.T.R. 298 (note) (Fed. C.A.); Pembina Institute for Appropriate Development v. Canada (Attorney General), 2008 FC 302, 80 Admin. L.R. (4th) 74 (F.C.); Grand Riverkeeper, Labrador Inc. v. Canada (Attorney General), 2012 FC 1520, 422 F.T.R. 299 (Eng.) (F.C.); and, Greenpeace Canada v. Canada (Attorney General), 2014 FC 463, 455 F.T.R. 1 (F.C.), rev'd on appeal, [Ontario Power Generation Inc. v. Greenpeace Canada] 2015 FCA 186, 475 N.R. 247 (F.C.A.).
186 All of these authorities predate Gitxaala. They do not deal with the "complete code" of legislation that was before the Court in Gitxaala. But, more importantly, in none of these decisions was the availability of judicial review put in issue — this availability was assumed. In Gitxaala the Court reviewed the legislative scheme and explained why the report of the Joint Review Panel was not justiciable. The Court did not err by failing to refer to case law that had not considered this issue.
(d) The reference to inapplicable provisions of the Canadian Environmental Assessment Act, 2012
187 The City of Vancouver also argues that Gitxaala is distinguishable because it dealt with section 38 of the Canadian Environmental Assessment Act, 2012, a provision that has no application to the process at issue here. The City also notes that Gitxaala, at paragraph 124, referred to sections 30 and 31 of the Canadian Environmental Assessment Act, 2012. These sections are said not to apply to the Joint Review Panel at issue in Gitxaala.
188 I accept that pursuant to subsection 126(1) of the Canadian Environmental Assessment Act, 2012 the environmental assessment of the Northern Gateway project (at issue in Gitxaala) was continued under the process established under the Canadian Environmental Assessment Act, 2012. Subsection 126(1) specified that such continuation was to be as if the assessment had been referred to a review panel under section 38 of the Canadian Environmental Assessment Act, 2012, and that the Joint Review Panel which continued the environmental assessment was considered to have been established under section 40 of the Canadian Environmental Assessment Act, 2012.
189 It followed that sections 29 through 31 of the Canadian Environmental Assessment Act, 2012 did not apply to the Northern Gateway project, and ought not to have been referenced by the Court in Gitxaala in its analysis of the legislative scheme.
29 190 This said, the question that arises is whether these references were material to the Court's analysis. To assess the materiality, if any, of this error I begin by reviewing the content of the provisions said to be erroneously referred to in Gitxaala.
191 Section 29 of the Canadian Environmental Assessment Act, 2012, discussed above at paragraph 62, requires a responsible authority to ensure that its environmental assessment report sets out its recommendation to the Governor in Council concerning the decision the Governor in Council must make under paragraph 31(1)(a) of the Canadian Environmental Assessment Act, 2012. Section 30 allows the Governor in Council to refer any recommendation made by a responsible authority back to the responsible authority for reconsideration. Section 31 sets out the options available to the Governor in Council after it receives a report from a responsible authority. Paragraph 31(1)(a), discussed at paragraph 67 above, sets out the three choices available to the Governor in Council with respect to its assessment of the likelihood that a project will cause significant adverse environmental effects and, if so, whether such effects can be justified.
192 These provisions, without doubt, do apply to the Project at issue in these proceedings. Therefore, the Project is to be assessed under the legislative scheme analyzed in Gitxaala. It follows that Gitxaala cannot be meaningfully distinguished.
193 As to the effect, if any, of the erroneous references in Gitxaala, the statutory framework applicable to the Northern Gateway project originated in three sources: the National Energy Board Act; the Canadian Environmental Assessment Act, 2012; and, transitional provisions found in section 104 of the Jobs, Growth and Long-Term Prosperity Act, S.C. 2012, c.19 (Jobs Act).
194 Provisions relevant to the present analysis are:
• subsection 104(3) of the Jobs Act which required the Joint Review Panel to set out in its report an environmental assessment prepared under the Canadian Environmental Assessment Act, 2012;
• subsection 126(1) of the Canadian Environmental Assessment Act, 2012 which continued the environmental assessment under the process established under that Act; and,
• paragraph 104(4)(a) of the Jobs Act which made the Governor in Council the decision-maker under section 52 of the Canadian Environmental Assessment Act, 2012 (thus, it was for the Governor in Council to determine if the Project was likely to cause significant adverse environmental effects and, if so, whether such effects could be justified).
195 These provisions are to the same effect as sections 29 and 31 of the Canadian Environmental Assessment Act, 2012. I dismiss the relevance of section 30 to this analysis because it had no application to the environmental assessment under review in Gitxaala. Further, and more importantly, section 30 played no significant role in the Court's analysis.
196 It follows that the analysis in Gitxaala was based upon a proper understanding of the legislative scheme, notwithstanding the Court's reference to sections 29 and 31 of the Canadian Environmental Assessment Act, 2012 instead of the applicable provisions.
197 Put another way, the error was in no way material to the Court's analysis of the respective roles of the Joint Review Panel, which prepared the report to the Governor in Council, and the Governor in Council, which received the panel's recommendations and made the decisions required under the legislative scheme.
198 Indeed, the technical nature of the erroneous references was acknowledged by Raincoast in its application for leave to appeal the Gitxaala decision to the Supreme Court of Canada. At paragraph 49 of its memorandum of argument it described the Court's error to be "technical in nature" (Trans Mountain's
30 Compendium, volume 2, tab 35). To the same effect, Vancouver does not argue that the Court's error was material to its analysis. Vancouver simply notes the error in footnote 118 of its memorandum of fact and law.
199 Accordingly, I see no error in the Gitxaala decision that merits departing from its analysis.
(e) Gitxaala thwarts review of the decision of the National Energy Board
200 Finally, Vancouver argues that subsection 54(1) of the National Energy Board Act and 31(1) of the Canadian Environmental Assessment Act, 2012 both make the Board's report a prerequisite to the decision of the Governor in Council. As the Governor in Council is not an adjudicative body, meaningful review must come in the form of judicial review of the report of the Board. The decision in Gitxaala thwarts such review.
201 I respectfully disagree. As this Court noted in Gitxaala at paragraph 125, the Governor in Council is required to consider any deficiency in the report submitted to it. The decision of the Governor in Council is then subject to review by this Court under section 55 of the National Energy Board Act. The Court must be satisfied that the decision of the Governor in Council is lawful, reasonable and constitutionally valid. If the decision of the Governor in Council is based upon a materially flawed report the decision may be set aside on that basis. Put another way, under the legislation the Governor in Council can act only if it has a "report" before it; a materially deficient report, such as one that falls short of legislative standards, is not such a report. In this context the Board's report may be reviewed to ensure that it was a "report" that the Governor in Council could rely upon. The report is not immune from review by this Court and the Supreme Court.
(f) Conclusion on whether the report of the National Energy Board is amenable to judicial review
202 For these reasons, I have concluded that the report of the National Energy Board is not justiciable. It follows that I would dismiss the six applications for judicial review which challenge that report. In the circumstance where the arguments about justiciability played a small part in the hearing I would not award costs in respect of these six applications.
203 As the City of Vancouver did not seek and obtain leave to challenge the Order in Council, it follows that the City is precluded from challenging the Order in Council.
C. Should the decision of the Governor in Council be set aside on administrative law grounds?
1. The standard of review to be applied to the decision of the Governor in Council
204 In Gitxaala, when considering the standard of review to be applied to the decision of the Governor in Council, the Court wrote that it was not legally permissible to adopt a "one-size-fits-all" approach to any particular administrative decision-maker. Rather, the standard of review must be assessed in light of the relevant legislative provisions, the structure of the legislation and the overall purpose of the legislation (Gitxaala, paragraph 137).
205 I agree. Particularly in the present case it is necessary to draw a distinction between the standard of review applied to what I will refer to as the administrative law components of the Governor in Council's decision and that applied to the constitutional component which required the Governor in Council to consider the adequacy of the process of consultation and, if necessary, accommodation. This is an approach accepted and urged by the parties.
(a) The administrative law components of the decision
206 In Gitxaala, the Court conducted a lengthy standard of review analysis (Gitxaala, paragraphs 128-155) and concluded that, because the Governor in Council's decision was a discretionary decision founded on
31 the widest considerations of policy and public interest, the standard of review was reasonableness (Gitxaala, paragraph 145).
207 Canada, Trans Mountain and the Attorney General of Alberta submit that Gitxaala was correctly decided on this point.
208 Tsleil-Waututh, Raincoast and Living Oceans submit that the governing authority is not Gitxaala, but rather is the earlier decision of this Court in Council of the Innu of Ekuanitshit v. Canada (Attorney General), 2014 FCA 189, 376 D.L.R. (4th) 348 (F.C.A.). In this case the Court found the reasonableness standard of review applied to a decision of the Governor in Council approving the federal government's response to a report of a joint review panel prepared under the now repealed Canadian Environmental Assessment Act, S.C. 1992, c. 37 (Canadian Environmental Assessment Act, 1992). The Court rejected the submission that the correctness standard applied to the question of whether the Governor in Council and the responsible authorities had respected the requirements of the Canadian Environmental Assessment Act, 1992 before making their decisions under subsections 37(1) and 37(1.1) of that Act. Under these provisions the Governor in Council and the responsible authorities were required to review the report of the joint review panel and determine whether the project at issue was justified despite its adverse environmental effects.
209 This said, while deference was owed to decisions made pursuant to subsections 37(1) and 37(1.1), the Court wrote that "a reviewing court must ensure that the exercise of power delegated by Parliament remains within the bounds established by the statutory scheme." (Innu of Ekuanitshit, paragraph 44).
210 To the submission that Innu of Ekuanitshit is the governing authority, Tsleil-Waututh adds two additional points: first and, in any event, the "margin of appreciation" approach followed in Gitxaala is no longer good law; and, second, issues of procedural fairness are to be reviewed on the standard of correctness. Tsleil-Waututh's additional submissions are adopted by the City of Burnaby.
211 I see no inconsistency between the Innu of Ekuanitshit and Gitxaala for the following reasons.
212 First, the Court in Gitxaala acknowledged that it was bound by Innu of Ekuanitshit. However, because of the very different legislative scheme at issue in Gitxaala, the earlier decision did not satisfactorily determine the standard of review to be applied to the decision of the Governor in Council at issue in Gitxaala (Gitxaala, paragraph 136). This Court did not doubt the correctness of Innu of Ekuanitshit or purport to overturn it.
213 Second, in each case the Court determined the standard of review to be applied to the decision of the Governor in Council was reasonableness. It was within the reasonableness standard that the Court found in Innu of Ekuanitshit that the Governor in Council's decision must still be made within the bounds of the statutory scheme.
214 Third, and finally, the conclusion in Innu of Ekuanitshit that a reviewing court must ensure that the Governor in Council's decision was exercised "within the bounds established by the statutory scheme" (Innu of Ekuanitshit, paragraph 44) is consistent with the requirement in Gitxaala that the Governor in Council must determine and be satisfied that the Board's process and assessment complied with the legislative requirements, so that the Board's report qualified as a proper prerequisite to the decision of the Governor in Council. Then, it is for this Court to be satisfied that the decision of the Governor in Council was lawful, reasonable and constitutionally valid. To be lawful and reasonable the Governor in Council must comply with the purview and rationale of the legislative scheme.
215 Reasonableness review requires a court to assess whether the decision under review falls within a range of possible, acceptable outcomes which are defensible on the facts and the law (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 (S.C.C.), at paragraph 47).
32 216 Reasonableness review is a contextual inquiry. Reasonableness "takes its colour from the context" (Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 (S.C.C.), at paragraph 59; Canada (Attorney General) v. Igloo Vikski Inc., 2016 SCC 38, [2016] 2 S.C.R. 80 (S.C.C.), at paragraph 57); in every case the fundamental question "is the scope of decision-making power conferred on the decision-maker by the governing legislation." (Catalyst Paper Corp. v. North Cowichan (District), 2012 SCC 2, [2012] 1 S.C.R. 5 (S.C.C.), at paragraph 18).
217 Thus, when a court reviews a decision made in the exercise of a statutory power, reasonableness review requires the decision to have been made in accordance with the terms of the statute: see, for example, Public Mobile Inc. v. Canada (Attorney General), 2011 FCA 194, [2011] 3 F.C.R. 344 (F.C.A.), at paragraphs 29-30. Put another way, an administrative decision-maker is constrained in the outcomes it may reach by the statutory wording (Canada (Attorney General) v. Almon Equipment Ltd., 2010 FCA 193, [2011] 4 F.C.R. 203 (F.C.A.), at paragraph 21).
218 The Supreme Court recently considered this in the context of a review of a decision of the Specific Claims Tribunal. The Tribunal is required by its governing legislation to adjudicate specific claims "in accordance with law and in a just and timely manner." The majority of the Court observed that the Tribunal's mandate expressly tethered "the scope of its decision-making power to the applicable legal principles." and went on to note that the "range of reasonable outcomes available to the Tribunal is therefore constrained by these principles" (Williams Lake Indian Band v. Canada (Aboriginal Affairs and Northern Development), 2018 SCC 4, 417 D.L.R. (4th) 239 (S.C.C.), at paragraphs 33-34).
219 With respect to Tsleil-Wauthuth's two additional points, I believe the first point was addressed above. Reasonableness "takes its colour from the context." To illustrate, reasonableness review of a policy decision affecting many entities is of a different nature than reasonableness review of, say, a decision on the credibility of evidence before an adjudication tribunal.
220 The second point raises the question of the standard of review to be applied to questions of procedural fairness.
221 As this Court noted in Bergeron v. Canada (Attorney General), 2015 FCA 160, 474 N.R. 366 (F.C.A.), at paragraph 67, the standard of review for questions of procedural fairness is currently unsettled.
222 As Trans Mountain submits, in cases such as Forest Ethics Advocacy Assn. v. National Energy Board, 2014 FCA 245, [2015] 4 F.C.R. 75 (F.C.A.), at paragraphs 70-72, this Court has applied the standard of correctness with some deference to the decision-maker's choice of procedure (see also Khela v. Mission Institution, 2014 SCC 24, [2014] 1 S.C.R. 502 (S.C.C.), at paragraphs 79 and 89).
223 This said, in my view it is not necessary to resolve any inconsistency in the jurisprudence because, as will be explained below, even on a correctness review I find there is no basis to set aside the Order in Council on the basis of procedural fairness concerns.
(b) The constitutional component
224 As explained above, a distinction exists between the standard of review applied to the administrative law components of the Governor in Council's decision and the standard applied to the component which required the Governor in Council to consider the adequacy of the process of consultation with Indigenous peoples, and if necessary, accommodation.
225 Citing Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511 (S.C.C.), at paragraphs 61-63, the parties agree that the existence and extent of the duty to consult are legal
33 questions reviewable on the standard of correctness. The adequacy of the consultation is a question of mixed fact and law which is reviewable on the standard of reasonableness. I agree.
226 Reasonableness review does not require perfect satisfaction (Gitxaala, paragraphs 182-183 and the cases cited therein). The question to be answered is whether the government action "viewed as a whole, accommodates the collective aboriginal right in question". Thus, "[s]o long as every reasonable effort is made to inform and to consult, such efforts would suffice." (Haida Nation, paragraph 62, citing R. v. Gladstone, [1996] 2 S.C.R. 723 (S.C.C.) and R. v. Nikal, [1996] 1 S.C.R. 1013 (S.C.C.)). The focus of the analysis should not be on the outcome, but rather on the process of consultation and accommodation (Haida Nation, paragraph 63).
227 Having set out the governing standards of review, I next consider the various flaws that are said to vitiate the decision of the Governor in Council.
2. Did the Governor in Council err in determining that the Board's report qualified as a report so as to be a proper condition precedent to the Governor in Council's decision?
228 The Board's errors said to vitiate the decision of the Governor in Council were briefly summarized above at paragraph 128. For ease of reference I reorganize and repeat that the applicants variously assert that the Board erred by:
a. breaching the requirements of procedural fairness;
b. failing to decide certain issues before it recommended approval of the Project;
c. failing to consider alternatives to the Westridge Marine Terminal;
d. failing to assess Project-related marine shipping under the Canadian Environmental Assessment Act, 2012; and,
e. erring in its treatment of the Species at Risk Act.
The effect of each of these errors is said to render the Board's report materially deficient such that it was not a "report" that the Governor in Council could rely upon. A decision made by the Governor in Council without a "report" before it must be unreasonable; the statute makes it clear that the Governor in Council can only reach a decision when informed by a "report" of the Board.
229 I now turn to consider each alleged deficiency.
(a) Was the Board's process procedurally fair?
(i) Applicable legal principles
230 The Board, as a public authority that makes administrative decisions that affect the rights, privileges or interests of individuals, owes a duty of procedural fairness to the parties before it. However, the existence of a duty of fairness does not determine what fairness requires in a particular circumstance.
231 It is said that the concept of procedural fairness is eminently variable, and that its content is to be decided in the context and circumstances of each case. The concept is animated by the desire to ensure fair play. The purpose of the participatory rights contained within the duty of fairness has been described to be:
... to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional, and social context, with an opportunity for
34 those affected by the decision to put forward their views and evidence fully and have them considered by the decision-maker.
(Baker v. Canada (Minister of Citizenship & Immigration), [1999] 2 S.C.R. 817, 174 D.L.R. (4th) 193 (S.C.C.), at paragraph 22).
232 In Baker, the Supreme Court articulated a non-exhaustive list of factors to be considered when determining what procedural fairness requires in a given set of circumstances: the nature of the decision being made and the process followed in making it; the nature of the statutory scheme, including the existence of an appeal procedure; the importance of the decision to the lives of those affected; the legitimate expectations of the person challenging the decision; and, the choice of procedures made by the decision- maker.
233 Applying these factors, the City of Burnaby argues that the content of the procedural duty owed to it was significant.
234 Other applicants and the respondents did not make submissions on the content of the procedural duty of fairness.
235 Having regard to the adjudicative nature of the decision at issue, the court-like procedures prescribed by the National Energy Board Rules of Practice and Procedure, 1995, SOR/95-208, the absence of an unrestricted statutory right of appeal (subsection 22(1) of the National Energy Board Act permits an appeal on a question of law or jurisdiction only with leave of this Court) and the importance of the Board's decision to the parties, I accept Burnaby's submission that the content of the duty of fairness owed by the Board to the parties was significant. The parties were entitled to a meaningful opportunity to present their cases fully and fairly. Included in the right to present a case fully is the right to effectively challenge evidence that contradicts that case. I will consider below more precisely the content of this duty.
236 Having briefly summarized the legal principles that apply to issues of procedural fairness, I next enumerate the assertions of procedural unfairness.
(ii) The asserted breaches of procedural fairness
237 The City of Burnaby asserts that the Board breached a duty of fairness owed to it by:
a. failing to hold an oral hearing;
b. failing to provide Burnaby with an opportunity to test Trans Mountain's evidence by cross- examination;
c. failing to require Trans Mountain to respond to Burnaby's written Information Requests and denying Burnaby's motions to compel further and better responses to the Information Requests;
d. delegating the assessment of critically important information until after the Board's report and the Governor in Council's decision;
e. failing to provide sufficient reasons concerning:
i. alternative means of carrying out the Project;
ii. the risks, including seismic risk, related to fire and spills;
iii. the suitability of the Burnaby Mountain Tunnel;
35 iv. the protection of municipal water sources; and,
v. whether, and on what basis, the Project is in the public interest.
238 Tsleil-Waututh submits that the Board breached the duty of fairness by restricting its ability to test Trans Mountain's evidence and by permitting Trans Mountain to file improper reply evidence.
239 The Stó:l? submit that it was procedurally unfair to subject their witnesses who gave oral traditional Indigenous evidence to cross-examination when Trans Mountain's witnesses were not cross-examined.
240 Squamish briefly raised the issue of inadequate response to their Information Request to Natural Resources Canada, and the Board's terse rejection of their requests for further and better responses from Natural Resources Canada, the Department of Fisheries and Oceans and Trans Mountain.
241 Each assertion will be considered.
(iii) The failure to hold a full oral hearing and to allow cross-examination of Trans Mountain's witnesses
242 It is convenient to deal with these two asserted errors together.
243 The applicants argue that the Board's decision precluding oral cross-examination was "a stark departure from the previous practice for a project of this scale." (Burnaby's memorandum of fact and law, paragraph 160) that deprived the Board of an important and established method for determining the truth. The applicants argue that this was particularly unfair because Trans Mountain failed to participate in good faith in the Information Request process with the result that the process did not provide an effective, alternative method to test Trans Mountain's evidence.
244 The respondents Canada and Trans Mountain answer that:
• The Board has discretion to determine whether a hearing proceeds as a written or oral hearing, and the Board is entitled to deference with respect to its choice of procedure.
• The process was tailored to take into account the number of participants, the volume of evidence and the technical nature of the information to be received by the Board.
• Many aspects of the hearing were conducted orally: the oral Indigenous traditional evidence, Trans Mountain's oral summary argument, the interveners' oral summary arguments and any reply arguments.
• Cross-examination is never an absolute right. A decision-maker may refuse or limit cross-examination so long as there is an effective means to challenge and test evidence.
245 I acknowledge the importance of cross-examination at common law. However, because the content of the duty of fairness varies according to context and circumstances, the duty of fairness does not always require the right of cross-examination. For example, in a multi-party public hearing related to the public interest, fairness was held not to require oral cross-examination (Unicity Taxi Ltd. v. Taxicab Board (1992), 80 Man. R. (2d) 241, [1992] 6 W.W.R. 35 (Man. Q.B.); aff'd (1992), 83 Man. R. (2d) 305, [1992] M.J. No. 608 (Man. C.A.)). The Court dismissed the allegation of unfairness because "in the conduct of multi-faceted and multi-party public hearings [cross-examination] tends to become an unwieldy and even dangerous weapon that may lead to disturbance, disruption and delay."
246 Similarly, in Chippewas of the Thames First Nation v. Enbridge Pipelines Inc., 2017 SCC 41, [2017] 1 S.C.R. 1099 (S.C.C.), the Supreme Court found that the Chippewas of the Thames were given
36 an adequate opportunity to participate in the decision-making process of the Board (reasons, paragraph 51). This finding was supported by the Court's enumeration of the following facts: the Board held an oral hearing; provided early notice of the hearing process to affected Indigenous groups and sought their formal participation; granted intervener status to the Chippewas of the Thames; provided participant funding to allow the Chippewas of the Thames to tender evidence and pose formal Information Requests to the project proponent, to which they received written responses; and permitted the Chippewas of the Thames to make oral closing submissions. No right of oral cross-examination was granted (reasons, paragraph 52), yet the process provided an adequate right to participate.
247 These decisions are of course not determinative of the requirements of fairness in the present context.
248 The relevant context is discussed by the Board in its Ruling No. 14, which dealt with a motion requesting that the hearing order be amended to include a phase for oral cross-examination of witnesses. After quoting an administrative law text to the effect that procedural fairness is not a fixed concept, but rather is one that varies with the context and the interest at stake, the Board wrote:
Here, the context is that the Board will be making a recommendation to the Governor in Council. The recommendation will take into account whether the pipeline is and will be required by the present and future public convenience and necessity. The Board's recommendation will be polycentric in nature as it involves a wide variety of considerations and interests. Persons directly affected by the Application include Aboriginal communities, land owners, governments, commercial interests, and other stakeholders. The motion and several of the comments in support of it appear to place significant reliance on the potential credibility of witnesses. The Board notes that this is not a criminal or civil trial. The Board's hearing also does not involve an issue of individual liberty. It is a process for gathering and testing evidence for the Board's preparation, as an expert tribunal, of its recommendation to the Governor in Council about whether to issue a certificate under section 52 of the NEB Act. The Board will also be conducting an environmental assessment and making a recommendation under CEAA 2012.
Hearing processes are designed individually and independently by the Board based on the specific circumstances of the application. Each process is designed to provide for a fair hearing, but the processes are not necessarily the same. For this Application, the Hearing Order provides two opportunities to ask written information requests. There is also an opportunity to file written evidence, and to provide both written and oral final argument. For Aboriginal groups that also wish to present Aboriginal traditional evidence orally, there is an opportunity to do this.
Regarding the nature of the statutory scheme, section 8 of the NEB Act authorizes the Board to make rules about the conduct of hearings before the Board. The Rules provide that public hearings may be oral or written, as determined by the Board. The Board has previously held fully written hearings for section 52 oil and gas pipeline applications. Hearings can also be oral, with significant written components, as is the case here. In addition to the hearing procedures set out in the Rules, the Board makes rules about hearing procedures in its Hearing Order and associated rulings and bulletins.
. . .
Additional legislative requirements for the Board's public hearings are found in subsection 11(4) of the NEB Act, which requires that applications before the Board are to be dealt with as expeditiously as the circumstances and considerations of fairness permit, and within the time limit provided. This subsection of the NEB Act was added in 2012. For this Application, the legislated time limit, which is 15 months after the completeness determination is made, is 2 July 2015.
37 As the legislative time limits are recent, there is no legitimate expectation as to the hearing procedures that will be used to test the evidence. In this case, the Board has provided notice about the procedures that will apply.
In the Board's view, the legislation makes it clear that the Board is master of its own procedure and can establish its own procedures for each public hearing with regard to the conduct of hearings. This includes the authority to determine for a particular public hearing the manner in which evidence will be received and tested. In the circumstances of this hearing, where there are 400 intervenors and much of the information is technical in nature, the Board has determined that it is appropriate to test the evidence through written processes. All written evidence submitted will be subject to written questioning by up to 400 parties, and the Board.
(underlining added, footnotes omitted)
249 Further aspects of the relevant context are discussed in the Board's final report at page 4:
For the Board's review of the Project application, the hearing had significant written processes as well as oral components. With the exception of oral traditional evidence described below, evidence was presented in writing, and testing of that evidence was carried out through written questions, known as Information Requests (IRs). Intervenors submitted over 15,000 questions to Trans Mountain over two major rounds of IRs. Hundreds of other questions were asked in six additional rounds of IRs on specific evidence. If an intervenor believed that Trans Mountain provided inadequate responses to its questions, it could ask the Board to compel Trans Mountain to provide a more complete response. Trans Mountain could do the same in respect of IRs it posed to intervenors on their evidence. There was also written questioning on various additional evidence, including supplemental, replacement, late and Trans Mountain's reply evidence.
The Board decided, in its discretion in determining its hearing procedure, to allow testing of evidence by IRs and determined that there would not be cross examination in this hearing. The Board decided that, in the circumstances of this hearing where there were 400 intervenors and legislated time limits, and taking into consideration the technical nature of the information to be examined, it was appropriate to test the evidence through written processes. In the final analysis, the written evidence submitted was subjected to extensive written questioning by up to 400 participants and the Board. The Board is satisfied that the evidence was appropriately tested in its written process and that its hearing was fair for all parties and met natural justice requirements. ...
(underlining added, footnote omitted)
250 Having set out the context relevant to determining the content of the duty of fairness, and the Board's discussion of the context, the next step is to apply the contextual factors enumerated in Baker to determine whether the absence of oral cross-examination was inconsistent with the participatory rights required by the duty of fairness. The heart of this inquiry is directed to whether the parties had a meaningful opportunity to present their case fully and fairly.
251 Applying the first Baker factor, the nature of the Board's decision is different from a judicial decision. The Board is required to apply its expertise to the record before it in order to make recommendations about whether the Project is and will be required by public convenience and necessity, and whether the Project is likely to cause significant adverse environmental effects that can or cannot be justified in the circumstances. Each recommendation requires the Board to consider a broad spectrum of considerations and interests, many of which depend on the Board's discretion. For example, subsection 52(2) of the National Energy Board Act requires the Board's recommendation to be based on "all considerations that appear to it to be
38 directly related to the pipeline and to be relevant". The Board's environmental assessment is to take into account "any other matter relevant to the environmental assessment that the [Board] requires to be taken into account" (paragraph 19(1)(j) of the Canadian Environmental Assessment Act, 2012). The nature of the decision points in favour of more relaxed requirements under the duty of fairness.
252 The statutory scheme also points to more relaxed requirements. The Board may determine that a pipeline application be dealt with wholly in writing (Rule 22(1), National Energy Board Rules of Practice and Procedure, 1995). The Board is required to deal with matters expeditiously, and within the legislated time limit. When the hearing order providing for Information Requests, not oral cross-examination, was issued on April 2, 2014, the Board was required to deliver its report by July 2, 2015. In legislating this time limit Parliament must be presumed to have contemplated that pipeline approval projects could garner significant public interest such that, as in this case, 400 parties successfully applied for leave to intervene. One aspect of the statutory scheme does point to a higher duty of fairness: the legislation does not provide for a right of appeal (save with leave on a question of law or jurisdiction). However, as discussed at length above, the Board's decision is subject to scrutiny in proceedings such as this.
253 The importance of the decision is a factor that points toward a heightened fairness requirement.
254 For the reasons given by the Board, I do not see any basis for a legitimate expectation that oral cross-examination would be permitted. To the Board's reasons I would add that such an expectation would be contrary to the Board's right to determine that an application be reviewed wholly in writing. While the Board did permit oral cross-examination in its review of the Northern Gateway Pipeline, in that case the Board's report discloses that intervener status was granted to 206 entities — roughly half the number of entities given intervener status in this case.
255 Finally, the Board's choice of procedure, while not determinative, must be given some respect, particularly where the legislation gives the Board broad leeway to choose its own procedure, and the Board has experience in deciding appropriate hearing procedures.
256 I note that when the Board rendered its decision on the request that it reconsider Ruling No. 14 so as to allow oral cross-examination, the applicants had received Trans Mountain's responses to their first round of Information Requests; many had brought motions seeking fuller and better answers. The Board ruled on the objections on September 26, 2014. Therefore, the Board was well familiar with the applicants' stated concerns, as is seen in Ruling No. 51 when it declined to reconsider its earlier ruling refusing to amend the hearing order to allow oral cross-examination.
257 Overall, while the importance of the decision and the lack of a statutory appeal point to stricter requirements under the duty of fairness, the other factors point to more relaxed requirements. Balancing these factors, I conclude that the duty of fairness was significant. Nevertheless, the duty of fairness was not breached by the Board's decisions not to allow oral cross-examination and not to allow a full oral hearing. The Board's procedure did allow the applicants a meaningful opportunity to present their cases fully and fairly.
258 Finally on this issue, the Board allowed oral traditional Indigenous evidence because "Aboriginal people have an oral tradition that cannot always be shared adequately in writing." (Ruling No. 14, page 5). With respect to Stó:l?'s concerns about permitting oral questioning of oral traditional evidence, the Board permitted "Aboriginal groups [to] choose to answer any questions in writing or orally, whichever is practical or appropriate by their determination." (Ruling No. 14, page 5). This is a complete answer to the concerns of the Stó:l?.
259 I now turn to the next asserted breach of procedural fairness.
39 (iv) Trans Mountain's responses to the Information Requests
260 The City of Burnaby and Squamish argue that Trans Mountain provided generic, incomplete answers to the Information Requests and the Board failed in its duty to compel further and better responses.
261 During the oral hearing before this Court Burnaby reviewed in detail: Burnaby's first Information Request questioning Trans Mountain about its consideration of alternatives to expanding the pipeline, tank facilities and marine terminal in a major metropolitan area; Trans Mountain's response; the Board's denial of Burnaby's request for a fuller answer; Burnaby's second Information Request; Trans Mountain's response; the Board's denial of Burnaby's request for a fuller answer; the Board's first Information Request to Trans Mountain questioning alternative means of carrying out the Project; Trans Mountain's response; the Board's second Information Request; and, Trans Mountain's response to the Board's second Information Request. Burnaby argues that Trans Mountain provided significantly more information to the Board than it did to Burnaby, but the information Trans Mountain provided was still insufficient.
262 Squamish made brief reference in oral argument to the Board's failure to order fuller answers about the Crown's assessment of the strength of its claims to Aboriginal rights and title.
263 As can be seen from Burnaby's oral submission, it brought motions before the Board to compel better answers in respect of both of Trans Mountain's responses to Burnaby's Information Requests.
264 I begin consideration of this issue by acknowledging that most, but not all, of Burnaby's requests for fuller answers were denied by the Board. However, procedural fairness does not guarantee a completely successful outcome. The Board did order some further and better answers in respect of each motion. Burnaby must prove more than just that the Board did not uphold all of its objections.
265 The Board's reasons for declining to compel further answers are found in two of the Board's rulings: Ruling No. 33 (A4 C4 H7) in respect of the first round of Information Requests directed to Trans Mountain by the interveners, and Ruling No. 63 (A4 K8 G4) in respect of the second round of the interveners' Information Requests. Each ruling was set out in the form of a letter which attached an appendix. The appendix listed each question included in the motions to compel, organized by intervener, and provided "the primary reason" the motion to compel was granted or denied. Each ruling also provided in the body of the decision "overall comments about the motions and the Board's decision".
266 The Board set out the test it applied when considering motions to compel in the following terms:
...the Board looks at the relevance of the information sought, its significance, and the reasonableness of the request. The Board balances these factors so as to satisfy the purpose of the [Information Request] process, while preventing an intervenor from engaging in a 'fishing expedition' that could unfairly burden the applicant.
267 In its decision the Board also provided general information describing circumstances that led it to decline to compel further answers. Of relevance are the following two situations:
• In some instances, Trans Mountain provided a full answer to the question asked, but the intervener disagreed with the answer. In these cases, rather than seeking to compel a further answer, the Board advised the interveners to file their own evidence in response or to provide their views during final argument.
• In some cases, Trans Mountain may not have answered all parts of an intervener's Information Request. However, in those cases where the Board was of the view that the response provided sufficient
40 information and detail for the Board to consider the application, the Board declined to compel a further response.
268 It is clear that the Board viewed Burnaby's requests for fuller answers about Trans Mountain's consideration and rejection of alternate locations for the marine terminal to fall within the second situation described above.
269 The Board's second Information Request to Trans Mountain on this point was answered by Trans Mountain on July 21, 2014, and its answer was served upon all of the interveners. Therefore, the Board was aware of this response when on September 26, 2014, it rejected Burnaby's motion in Ruling No. 33.
270 That the Board found Trans Mountain's answer to its second Information Request to be sufficient is reflected in the Board's report, where at pages 241 to 242 the Board relied on the content of Trans Mountain's response to its second Information Request to articulate Trans Mountain's consideration of the alternatives to the Westridge Marine Terminal. At page 244 of the report, the Board found Trans Mountain's "alternative means assessment" to be appropriate. The Board went on to acknowledge Burnaby's concern that Trans Mountain had not provided an assessment of the risks, impacts and effects of the alternate marine terminal locations at Kitimat or Roberts Bank. However, the Board disagreed, finding that "Trans Mountain has provided an adequate assessment, including consideration of the technical, socio-economic and environmental effects, of technically and economically feasible alternative marine terminal locations."
271 Obviously, Burnaby disagrees with this assessment. However, it has not demonstrated how the Board's conduct concerning Burnaby's Information Requests breached the requirements of procedural fairness. For example, Burnaby has not pointed to evidence that contradicted Trans Mountain's stated reasons for rejecting alternative marine terminal locations. Trans Mountain stated that its assessment was based on feasibility of coincident marine and pipeline access, and technical, economic and environmental considerations of the screened alternative locations. Any demonstrated conflict in the evidence on these points may have supported a finding that meaningful participation required Trans Mountain to provide more detailed information.
272 In support of its submission concerning procedural fairness Squamish pointed to a question it directed to Natural Resources Canada. It asked whether that entity had "assessed the strength of Squamish's claim to aboriginal rights in the area of the proposed Project" and if so, to provide "that assessment and any material upon which that assessment is based."
273 The response Squamish received to its Information Request was:
The Crown has conducted preliminary depth of consultation assessments for all Aboriginal groups, including Squamish Nation, whose traditional territory intersects with or is proximate to the proposed pipeline right of way, marine terminal expansion and designated marine shipping lanes. (Depth of consultation assessments consider both potential impacts to rights and the strength of claim to rights.) The Crown's depth of consultation assessment is iterative and is expected to evolve as the [Board] review process unfolds and as Aboriginal groups submit their evidence to the [Board] and engage in Phase III consultations with the Crown. The Crown has assessed depth of consultation for the Squamish Nation as "high." This preliminary conclusion was filed into evidence [by the Major Projects Management Office] on May 27, 2015.
The starting point for these assessments is to work with information the Crown has in hand, but Squamish Nation is invited to provide information that they believe could assist the Crown in understanding the nature and scope of their rights.
(underlining added)
41 274 Squamish objected to the Board that its request was only partly addressed, and requested that Natural Resources Canada provide the material on which its assessment was based.
275 In reply to Squamish's motion to compel a further answer, Natural Resources Canada responded:
In the context of the current hearing process, it is the view of [the Major Projects Management Office] that the further information and records sought by Squamish Nation will not be of assistance to the Panel in fulfilling its mandate.
However, the Crown will communicate with the Squamish Nation in August 2015 to provide further information on Phase III Crown consultation and the Crown's approach to considering adverse impacts of the Project on potential or established Aboriginal and treaty rights. This forthcoming correspondence will summarize the Crown's understanding of the strength of Squamish Nation's claim for rights and title.
276 The Board denied Squamish's request for a fuller answer on the primary ground that the information Squamish sought "would not contribute to the record in any substantive way and, therefore, would not be material to the Board's assessment."
277 Given the mandate of the Board, the iterative nature of the consultation process and the fact that direct Crown consultation would take place in Phase III following the release of the Board's report, Squamish has not shown that it was a breach of procedural fairness for the Board not to compel a fuller answer to its question.
(v) The asserted deferral and delegation of the assessment of important information
278 The City of Burnaby next argues that the Board impermissibly deferred "the provision of critically important information to after the Report stage, and after the [Governor in Council's decision]" (memorandum of fact and law, paragraph 164). Burnaby says that by doing so, the Board acted contrary to the statutory regime and breached the principle of delagatus non potest delgare. At this point in its submissions, Burnaby did not suggest what specific aspect of the statutory regime was contravened, or how the Board or the Governor in Council improperly delegated their statutory responsibility. At this stage, Burnaby deals with this as an issue of procedural fairness. I deal with the statutory scheme argument commencing at paragraph 322.
279 Burnaby points to a number of issues where it alleges that the Board failed to weigh the evidence and expert opinions put before it. Burnaby says:
• It provided expert evidence that the Project presents serious and unacceptable safety risks to the neighbourhoods that are proximate to the Burnaby Terminal as a result of fire, explosion and boil- over, and that Trans Mountain had failed to assess these risks.
• It established gaps in Trans Mountain's geotechnical investigation of the tunnel option and a lack of analysis of the feasibility of the tunnel option.
• It identified significant information gaps with respect to the Westridge Marine Terminal, including gaps concerning: the final design; spill risk; fire risk; geotechnical risk; and, the ability to respond to these risks.
• It adduced evidence that the available fire response resources were inadequate.
42 • It demonstrated the risk to Simon Fraser University following an incident at the Burnaby Terminal because of the tunnel's proximity to the only evacuation route from the University.
280 Burnaby argues that the Board declined to compel further information from Trans Mountain on these points, and instead imposed conditions that required Trans Mountain to do certain specified things in the future. For example, the Board imposed conditions requiring Trans Mountain to file with the Board for approval a report to revise the terminal risk assessments, including the Burnaby Terminal risk assessment, to include consideration of the risks not assessed (Board Conditions 22 and 129). Board Condition 22 had to be met at least six months before Trans Mountain commenced construction; Condition 129 had to be met at least three months before Trans Mountain applied to open each terminal. Burnaby also notes that many conditions imposed by the Board were not subject to subsequent Board approval.
281 Burnaby argues that this process prevented meaningful testing of information filed after the Board issued its report recommending that the Project be approved. Further, the Governor in Council did not have access to the material to be filed in response to the Board's conditions when it made its determination of the public interest.
282 Underpinning these arguments is Burnaby's assertion that the "Board's rulings deprived Burnaby of the ability to review and assess the validity of the alternatives assessment (or to confirm that one was made)." (memorandum of fact and law, paragraph 41).
283 I can well understand Burnaby's concern — the consequence of a serious spill or explosion and fire in a densely populated metropolitan area might be catastrophic. However, in my respectful view, Burnaby's understandable desire to be able to independently review and assess the validity of the assessment of alternatives to the expansion of the Westridge Marine Terminal, or other matters that affect the City, is inconsistent with the regulatory scheme enacted by Parliament. Parliament has vested in the Board the authority and responsibility to consider and then make recommendations to the Governor in Council on matters of public interest; the essence of the Board's responsibility is to balance the Project-related benefits against the Project-related burdens and residual burdens, and to then make recommendations to the Governor in Council. In this legislative scheme, the Board is not required to facilitate an interested party's independent review and assessment of a project. It is not for this Court to opine on the appropriateness of the policy expressed and implemented in the National Energy Board Act. Rather, the Court's role is to apply the legislation as Parliament has enacted.
284 The Supreme Court has recognized the Board's "expertise in the supervision and approval of federally regulated pipeline projects" and described the Board to be "particularly well positioned to assess the risks posed by such projects". The Supreme Court went on to note the Board's "broad jurisdiction to impose conditions on proponents to mitigate those risks" and to acknowledge that it is the Board's "ongoing regulatory role in the enforcement of safety measures [which] permits it to oversee long-term compliance with such conditions" (Chippewas of the Thames First Nation, paragraph 48). While the Supreme Court was particularly focused on the Board's expertise in the context of its ability to assess risks posed to Indigenous groups, the Board's expertise extends to the full range of risks inherent in the operation of a pipeline, including the risks raised by Burnaby.
285 Burnaby's submission must be assessed in the light of the Board's approval process. I will set out the Board's approval process at some length because of the importance of this issue to the City of Burnaby and other applicants.
286 The Board described its approval process in Section 1.3 of its report:
43 Trans Mountain's Application was filed while the Project was at an initial phase of the regulatory lifecycle, as is typical of applications under section 52 of the NEB Act. As set out in the Board's Filing Manual, the Board requires a broad range of information when a section 52 application is filed. At the end of the hearing, the level of information available to the Board must be sufficient to allow it to make a recommendation to the GIC that the Project is or is not in the public interest. There also must be sufficient information to allow the Board to draft conditions that would attach to any new and amended CPCNs, and other associated regulatory instruments (Instruments), should the Project be approved by the GIC.
The Board does not require final information about every technical detail during the application stage of the regulatory process. For example, much of the information filed with respect to the engineering design would be at the conceptual or preliminary level. Site-specific engineering information would not be filed with the Board until after the detailed routing is confirmed, which would be one of the next steps in the regulatory process should the Project be approved. Completion of the detailed design of the project, as well as subsequent construction and operations, would have to comply with:
• the NEB Act, regulations, including the National Energy Board Onshore Pipeline Regulations (OPR), referenced standards and applicable codes;
• the company's conceptual design presented, and commitments made in the Application and hearing proceedings; and
• conditions which the Board considers necessary.
The Board may impose conditions requiring a company to submit detailed information for review (and in some cases, for approval) by the Board before the company is permitted to begin construction. Further information, such as pressure testing results, could be required in future leave to open applications before a company would be permitted to begin pipeline operations. In compliance with the OPR, a company is also required to fully develop an emergency response plan prior to beginning operations. In some cases, the Board has imposed conditions with specific requirements for the development, content and filing of the emergency response plan (see Table 1). This would be filed and fully assessed at a condition compliance stage once detailed routing is known. Because the detailed routing information is necessary to perform this assessment, it would be premature to require a fully detailed emergency response plan to be filed at the time of the project application.
While the project application stage is important, as set out in Chapter 3, there are further detailed plans, studies and specifications that are required before the project can proceed. Some of these are subject to future Board approval, and others are filed with the Board for information, disclosure, and/ or future compliance enforcement purposes. The Board's recommendation on the project application is not a final determination of all issues. While some hearing participants requested the final detailed engineering or emergency response plans, the Board does not require further detailed information and final plans at this stage of the regulatory lifecycle.
To set the context for its reasons for recommendation, the Board finds it helpful to identify the fundamental consideration used in reaching any section 52 determination. The overarching consideration for the Board's public interest determination at the application stage is: can this pipeline be constructed, operated and maintained in a safe manner. The Board found this to be the case. While this initial consideration is fundamental, a finding that a pipeline could be constructed, operated and maintained in a safe manner does not mean a pipeline is necessarily in the public interest as there are other considerations that the Board must weigh, as discussed below. However, the analysis would go no
44 further if the answer to this fundamental question were answered in the negative, as an unsafe pipeline can never be in the public interest.
(underlining added, footnote omitted)
287 The Board went on to describe how projects are regulated through their lifecycle in Chapter 3, particularly in Sections 3.1 to 3.5:
3.0 Regulating through the Project lifecycle
The approval of a project, through issuance of one or more Certificate of Public Convenience and Necessity (CPCN) and/or orders incorporating applicable conditions, forms just one phase in the Board's lifecycle regulation. The Board's public interest determination relies upon the subsequent execution of detailed design, construction, operation, maintenance and, ultimately, abandonment of a project in compliance with applicable codes, commitments and conditions, such as those discussed in Chapter 1. Throughout the lifecycle of an approved project, as illustrated in Figure 4, the Board holds the pipeline company accountable for meeting its regulatory requirements in order to keep its pipelines and facilities safe and secure, and protect people, property and the environment. To accomplish this, the Board reviews or assesses condition filings, tracks condition compliance, verifies compliance with regulatory requirements, and employs appropriate enforcement measures where necessary to quickly and effectively obtain compliance, prevent harm, and deter future non-compliance.
After a project application is assessed and the Board makes its section 52 recommendation (as described in Chapter 2, section 2.1), the project cannot proceed until and unless the Governor in Council approves the project and directs the Board to issue the necessary CPCN. If approved, the company would then prepare plans showing the proposed detailed route of the pipeline and notify landowners. A detailed route hearing may be required, subject to section 35 of the National Energy Board Act (NEB Act). The company would also proceed with the detailed design of the project and could be required to undertake additional studies, prepare plans or meet other requirements pursuant to NEB conditions on any CPCN or related NEB order. The company would be required to comply with all conditions to move forward with its project, prior to and during construction, and before commencing operations. While NEB specialists would review all condition filings, those requiring approval of the Board would require this approval before the project could proceed.
Once construction is complete, the company would need to apply for the Board's permission (or "leave") to open the project and begin operations. While some conditions may apply for the life of a pipeline, typically the majority must be satisfied prior to beginning operations or within the first few months or years of operation. However, the company must continue to comply with the National Energy Board Onshore Pipeline Regulations (OPR) and other regulatory requirements to operate the pipeline safely and protect the environment.
. . .
If the Project is approved, the Board would employ its established lifecycle compliance verification and enforcement approach to hold Trans Mountain accountable for implementing the proposed conditions and other regulatory requirements during construction, and the subsequent operation and maintenance of the Project.
3.1 Condition compliance
If the Project is approved and Trans Mountain decides to proceed, it would be required to comply with all conditions that are included in the CPCNs and associated regulatory instruments (Instruments).
45 The types of filings that would be required to fulfill the conditions imposed on the Project, if approved, are summarized in Table 4.
If the Project is approved, the Board would oversee condition compliance, make any necessary decisions respecting such conditions, and eventually determine, based on filed results of field testing, whether the Project could safely be granted leave to open.
Documents filed by Trans Mountain on condition compliance and related Board correspondence would be available to the public on the NEB website. All condition filings, whether or not they are for approval, would be reviewed and assessed to determine whether the company has complied with the condition, and whether the filed information is acceptable within the context of regulatory requirements and standards, best practices, professional judgement and the goals the condition sought to achieve. If a condition is "for approval," the company must receive formal approval, by way of a Board letter, for the condition to be fulfilled.
If a filing fails to fulfill the condition requirements or is determined to be inadequate, the Board would request further information or revisions from the company by a specified deadline, or may direct the company to undertake additional steps to meet the goals that the condition was set out to achieve.
3.2 Construction phase
During construction, the Board would require Trans Mountain to have qualified inspectors onsite to oversee construction activities. The Board would also conduct field inspections and other compliance verification activities (as described in section 3.5) to confirm that construction activities meet the conditions of the Project approval and other regulatory requirements, to observe whether the company is implementing its own commitments and to monitor the effectiveness of the measures taken to meet the condition goals, and ensure worker and public safety and protection of the environment.
3.3 Leave to open
If the Project is approved and constructed, the Board will require Trans Mountain to also apply, under section 47 of the NEB Act, for leave to open the pipelines and most related facilities. This is a further step that occurs after conditions applicable to date have been met and the company wishes to begin operating its pipeline and facilities. The Board reviews the company's submissions for leave to open, including the results of field pressure testing, and may seek additional information from the company. Before granting leave to open, the Board must be satisfied that the pipeline or facility has been constructed in compliance with requirements and that it can be operated safely. The Board can impose further terms and conditions on a leave to open order, if needed.
(underlining added, figures and tables omitted)
288 In Section 3.5 the Board set out its compliance and enforcement programs noting that:
While all companies are subject to regulatory oversight, some companies receive more than others. In other words, high consequence facilities, challenging projects and those companies who are not meeting the Board's regulatory expectations and goals can expect to see the Board more often than those companies and projects with routine operations.
289 No applicant challenged the accuracy of the Board's formulation of its approval process and subsequent compliance verification and enforcement approach. The City of Burnaby has not shown how the Board's multi-step approval process is either procedurally unfair or an improper delegation of authority. Implicit in the Board's imposition of a condition, such as a condition requiring a revised risk assessment,
46 or a condition requiring information regarding tunnel location, construction methods, and the like, is the Board's expectation that the condition may realistically be complied with, and that compliance with the condition will allow the pipeline to be constructed, operated and maintained in a safe manner. Also implicit in the Board's imposition of a condition is its understanding of its ability to assess condition filings (whether or not the condition requires formal approval), and its ability to oversee compliance with its conditions.
290 Transparency with respect to Trans Mountain's compliance with conditions is provided by the Board publishing on its website all documents filed by Trans Mountain relating to condition compliance and all related, responsive Board correspondence.
291 As for the role of the Governor in Council in such a tiered approval process, the recitals to the Order in Council show that the Board's conditions were placed before the Governor in Council. Therefore, the Governor in Council must be seen to have been aware of the extent of the matters left for future review by the Board, and to have accepted the Board's assessment and recommendation about the public interest on that basis.
(vi) Failing to provide adequate reasons
292 The City of Burnaby next argues that the Board erred by failing to provide sufficient reasons on the following issues:
a. alternative means of carrying out the Project;
b. risks relating to fire and spills (including seismic risk);
c. the suitability of the Burnaby Mountain Tunnel;
d. the protection of municipal water sources; and,
e. whether, and on what basis, the Project is in the public interest.
293 I begin my analysis by noting that the adequacy of reasons is not a "stand-alone basis for quashing a decision". Rather, reasons are relevant to the overall assessment of reasonableness. Further, reasons "must be read together with the outcome and serve the purpose of showing whether the result falls within a range of possible outcomes." (N.L.N.U. v. Newfoundland & Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708 (S.C.C.), at paragraph 14).
294 This is consistent with the Court's reasoning in Dunsmuir where the Supreme Court explained the notion of reasonableness review and spoke of the role reasons play in reasonableness review:
[47] Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.
[48] The move towards a single reasonableness standard does not pave the way for a more intrusive review by courts and does not represent a return to pre-Southam formalism. In this respect, the concept
47 of deference, so central to judicial review in administrative law, has perhaps been insufficiently explored in the case law. What does deference mean in this context? Deference is both an attitude of the court and a requirement of the law of judicial review. It does not mean that courts are subservient to the determinations of decision makers, or that courts must show blind reverence to their interpretations, or that they may be content to pay lip service to the concept of reasonableness review while in fact imposing their own view. Rather, deference imports respect for the decision-making process of adjudicative bodies with regard to both the facts and the law. The notion of deference "is rooted in part in a respect for governmental decisions to create administrative bodies with delegated powers" (Canada (Attorney General) v. Mossop, 2008 SCC 9, [1993] 1 S.C.R. 554, at p. 596, per L'Heureux-Dubé J., dissenting). We agree with David Dyzenhaus where he states that the concept of "deference as respect" requires of the courts "not submission but a respectful attention to the reasons offered or which could be offered in support of a decision": "The Politics of Deference: Judicial Review and Democracy", in M. Taggart, ed., The Province of Administrative Law (1997), 279, at p. 286 (quoted with approval in Baker, at para. 65, per L'Heureux-Dubé J.; Ryan, at para. 49).
(underlining added)
295 Reasons need not include all of the relevant arguments, statutory provisions or jurisprudence. A decision-maker need not make an explicit finding on each constituent element leading to the final conclusion. Reasons are adequate if they allow the reviewing court to understand why the decision-maker made its decision and permit the reviewing court to determine whether the conclusion is within the range of acceptable outcomes.
296 I now turn to consider Burnaby's submissions in the context of the Board's reasons.
Alternative means of carrying out the Project
297 Burnaby's concern about alternative means of carrying out the Project centers on the Board's treatment of alternative locations for the marine terminal. In Section 11.1.2 the Board dealt with the requirement imposed by paragraph 19(1)(g) of the Canadian Environmental Assessment Act, 2012 that an environmental assessment of a designated project must take into account "alternative means of carrying out the designated project that are technically and economically feasible". The views of the Board are expressed in this section on pages 244 through 245.
298 Of particular relevance to Burnaby's concern are the first two paragraphs of the Board's reasons:
The Board finds that Trans Mountain's route selection process, route selection criteria, and level of detail for its alternative means assessment are appropriate. The Board further finds that aligning the majority of the proposed pipeline route alongside, and contiguous to, existing linear disturbances is reasonable, as this would minimize the environmental and socio-economic impacts of the Project.
The Board acknowledges the concern raised by the City of Burnaby that Trans Mountain did not provide an assessment of the risks, impacts and effects of the alternate marine terminal locations at Kitimat, B.C., or Roberts Bank in Delta, B.C. The Board finds that Trans Mountain has provided an adequate assessment, including consideration of technical, socio-economic and environmental effects, of technically and economically feasible alternative marine terminal locations.
299 In my view, these reasons allowed the Governor in Council and allow this Court to know why the Board found Trans Mountain's assessment of alternative means to be adequate or appropriate — the Board accepted the facts conveyed by Trans Mountain and found that these facts provided an appropriately detailed consideration of the alternative means. In my further view, the reasons, when read with the record, also allow the Court to consider whether the Board's treatment of alternatives to the Westridge Marine
48 Terminal were so materially flawed that the Board's report was not a "report" that the Governor in Council could rely upon. This is a substantive issue I deal with below commencing at paragraph 322.
Assessment of risks
300 Burnaby's concerns about the assessment of risks centre on the Burnaby Terminal risk assessment, the Westridge Marine Terminal risk assessment, the Emergency Fire Response plan and the evacuation of Simon Fraser University.
Burnaby Terminal
301 The Board's consideration of terminal expansions generally is found in Section 6.4 of its report. The Burnaby Terminal is discussed at pages 92 through 95 of the Board's report. After setting out the evidence, including Burnaby's evidence, at page 95 the Board expressed its reasons on the Burnaby Terminal as follows:
The Burnaby Terminal is uphill of the neighborhood of Forest Grove. An issue of potential concern is the possibility, however remote, of a multiple-tank failure in a common impounding area exceeding the available secondary containment capacity under certain conditions. The Board would impose a condition requiring Trans Mountain to demonstrate that the secondary containment system would be capable of draining large spills away from Tank 96, 97 or 98 to the partial RI. Trans Mountain must also demonstrate that the secondary containment system has the capacity to contain a spill from a multiple-tank rupture scenario (Condition 24).
The City of Burnaby and the City of Burnaby Fire Department raised concerns about fire and safety risks at the Burnaby Terminal following, in particular, those associated with boil-overs. Trans Mountain claimed that boil-over events are unlikely, yet did not quantify the risks through rigorous analysis. The Board is of the view that a complete assessment of risk requires consideration of the cumulative risk from all tanks at a terminal. The Board would impose conditions requiring Trans Mountain to revise the terminal risk assessments, including the Burnaby Terminal, to demonstrate how the mitigation measures will reduce the risks to levels that are As Low As Reasonably Practicable (ALARP) while complying with the Major Industrial Accidents Council of Canada (MIACC) criteria considering all tanks in each respective terminal (Conditions 22 and 129).
302 With respect to the geotechnical design, the Board wrote at page 97:
The Board acknowledges the concerns of participants regarding the preliminary nature of the geotechnical design evidence provided. However, the Board is of the view that the design information and the level of detail provided by Trans Mountain with respect to the geotechnical design for the Edmonton Terminal West Tank Area and the Burnaby Terminal are sufficient for the Board at the application stage. The Board notes that more extensive geotechnical work will be completed for the detailed engineering and design phase of the Project.
. . .
With regard to the selection of Seismic Use Group (SUG) for the design of the tanks, the Board notes that Trans Mountain has not made a final determination. Nevertheless, should the Project be approved, the Board will verify that Trans Mountain's tanks have secondary controls to prevent public exposure, in accordance with SUG I design criteria, by way of Conditions 22, 24 and 129.
303 In my view, these reasons adequately allow the Court to understand why the Board rejected Burnaby's evidence and why it imposed the conditions it did.
49 Westridge Marine Terminal
304 The Board dealt with the Westridge Marine Terminal expansion in Section 6.5 of its report.
305 The Board expressed its views at pages 100 through 102. With respect to the design approach the Board wrote:
Trans Mountain has committed to design, construct, and operate the Westridge Marine Terminal (WMT) in accordance with applicable regulations, standards, codes and industry best practices. The Board accepts Trans Mountain's design approach, including Trans Mountain's effort to eliminate two vapour recovery tanks in the expanded WMT by modifying the vapour recovery technology. The Board considers this to be a good approach for eliminating potential spills and fire hazards. The Board would impose Condition 21 requiring Trans Mountain to provide its decision as well as its rationale to either retain or eliminate the proposed relief tank.
306 With respect to the geotechnical design, the Board wrote:
The Board acknowledges the City of Burnaby's concern regarding the level of detail of the geotechnical information provided in the hearing for the Westridge Marine Terminal (WMT) offshore facilities. However, the Board is of the view that Trans Mountain has demonstrated its awareness of the requirements for the geotechnical design of the offshore facilities and accepts Trans Mountain's geotechnical design approach.
To confirm that soil conditions have been adequately assessed for input to the final design of the WMT offshore facilities, the Board would impose conditions requiring Trans Mountain to file a final preliminary geotechnical report for the design of the offshore facilities, and the final design basis for the offshore pile foundation layout once Trans Mountain has selected the pile design (Conditions 34 and 83).
To verify the geotechnical design approach for the WMT onshore facilities the Board would impose Condition 33 requiring Trans Mountain to file a preliminary geotechnical report for the onshore facilities prior to the commencement of construction.
The Board would examine the geotechnical reports upon receipt and advise Trans Mountain of any further requirements for the fulfilment of the above conditions prior to the commencement of construction.
307 I have previously dealt with Burnaby's concern with the Board's failure to compel further and better information from Trans Mountain at the hearing stage, and to instead impose conditions requiring Trans Mountain to do certain things in future. Burnaby's concerns relating to the assessment of risks centre on this approach taken by the Board. Burnaby has not demonstrated how the Board's reasons with respect to the Westridge Marine Terminal risk assessment are inadequate.
Emergency fire response
308 The Board responded to Burnaby's concerns about adequate resources to respond to a fire as follows at page 156:
The Board shares concerns raised by the City of Burnaby Fire Department and others about the need for adequate resources to respond in the case of a fire. The Board finds the 6-12 hour response time proposed by Trans Mountain for industrial firefighting contractors to arrive on site as inadequate, should they be needed immediately for a response to a fire at the Burnaby Terminal. The Board
50 would impose conditions requiring Trans Mountain to complete a needs assessment with respect to the development of appropriate firefighting capacity for a safe, timely, and effective response to a fire at the Westridge Marine Terminal (WMT) and at the Edmonton, Sumas, and Burnaby Terminals. The conditions would require Trans Mountain to assess and evaluate resources and equipment to address fires, and a summary of consultation with appropriate municipal authorities and first responders that will help inform a Firefighting Capacity Framework (Conditions 118 and 138).
309 Again, Burnaby's concern is not so much with respect to the adequacy of the Board's reasons, but rather with the Board's approach to dealing with Burnaby's concerns through the imposition of conditions — in this case conditions that do not require formal Board approval. On this last point, the Board's explanation of its process for the review of conditions supports the conclusion that an inadequate response to a condition, even a condition not requiring formal Board approval, would be detected by the Board's specialists. Further, the Board oversees compliance with the conditions it imposes.
310 In any event, I see no inadequacy in the Board's reasons.
Suitability of the Burnaby Mountain Tunnel
311 The Board deals with the Burnaby Mountain Tunnel in Sections 6.2.2 and 6.2.3. The Board's views, in part, are expressed as follows at pages 81 and 82:
Regarding the City of Burnaby's concern with Trans Mountain's geotechnical investigation, the Board is of the view that the level of detail of the geotechnical investigation for the tunnel option is sufficient for the purpose of assessing the feasibility of constructing the tunnel. The Board notes that a second phase of drilling is planned for the development of construction plans at the tunnel portals, and that additional surface boreholes or probe holes could be drilled from the tunnel face during construction. The Board is of the view that both the tunnel and street options are technically feasible, and accepts Trans Mountain's proposal that the streets option be considered as an alternative to the tunnel option.
The Board is not aware of the use of the concrete or grout-filled tunnel installation method for other hydrocarbon pipelines in Canada. The Board is concerned that damage to the pipe or coating may occur during installation of the pipelines or grouting, and that there will be limited accessibility for future maintenance and repairs. The Board is also concerned that there may be voids or that cracks could form in the grout. The Board would require Trans Mountain to address these and other matters, including excavation, pipe handing, backfilling, pressure testing, cathodic protection, and leak detection, through the fulfillment of Conditions 26, 27 and 28 on tunnel design, construction, and operation.
The Board would impose Condition 29 regarding the quality and quantity of waste rock from the tunnel and Trans Mountain's plans for its disposal.
The Board would also impose Condition 143 requiring Trans Mountain to conduct baseline inspections, including in-line inspection surveys, of the new delivery pipelines in accordance with the timelines and descriptions set out in the condition. The Board is of the view that these inspections would aid in mitigating any manufacturing and construction related defects, and in establishing re- inspection intervals.
312 Burnaby has not demonstrated how these reasons are inadequate.
Protection of municipal water sources
313 While Burnaby enumerated this as an issue on which the Board gave inadequate reasons, Burnaby made no submissions on this point and did not point to any particular section of the Board's reasons said
51 to be deficient. In the absence of submissions on the point, Burnaby has not demonstrated the reasons to be inadequate.
Public interest
314 Again, while Burnaby enumerated this issue as an issue on which the Board gave inadequate reasons, Burnaby made no submissions on the point.
315 The Board's finding with respect to public interest is contained in Chapter 2 of the Board's report where, among other things, the Board described the respective benefits and burdens of the Project and then balanced the benefits and burdens in order to conclude that the Project "is in the present and future public convenience and necessity, and in the Canadian public interest". In the absence of submissions on the point, Burnaby has not demonstrated the reasons to be inadequate.
(vii) Trans Mountain's reply evidence
316 At paragraph 71 of its memorandum of fact and law, Tsleil-Waututh makes the bare assertion that the Board "permitted [Trans Mountain] to file improper reply evidence". While Tsleil-Waututh referenced in a footnote its motion record filed in response to Trans Mountain's reply evidence, it did not make any submissions on how the Board erred or how the reply evidence was improper. Nor did Tsleil-Waututh reference the Board's reasons issued in response to its motion.
317 Tsleil-Waututh argued before the Board that, rather than testing Tsleil-Waututh's evidence through Information Requests, Trans Mountain filed extensive new or supplementary evidence in reply. Tsleil- Waututh alleged that the reply evidence was substantially improper in nature. Tsleil-Waututh sought an order striking portions of Trans Mountain's reply evidence. In the alternative Tsleil-Waututh sought, among other relief, an order allowing it to issue Information Requests to Trans Mountain about its reply evidence and allowing it to file sur-reply evidence.
318 The Board, in Ruling No. 96, found that Trans Mountain's reply evidence was not improper. In response to the objections raised before it, the Board found that:
• Trans Mountain's reply evidence was not evidence that Trans Mountain ought to have brought forward as evidence-in-chief in order to meet its onus.
• Trans Mountain's reply evidence was filed in response to new evidence adduced by the interveners.
• Given the large volume of evidence filed by the interveners, the length of Trans Mountain's reply evidence was not a sufficient basis on which to find it to be improper.
• To the extent that portions of the reply evidence repeated evidence already presented, this caused no prejudice to the interveners who had already had an opportunity to test the evidence and respond to it.
319 The Board allowed Tsleil-Waututh to test the reply evidence through one round of Information Requests. The Board noted that the final argument stage was the appropriate stage for interveners and Trans Mountain to make submissions to the Board about the weight to be given to the evidence.
320 Tsleil-Waututh has not demonstrated any procedural unfairness arising from the Board's dismissal of its motion to strike portions of Trans Mountain's reply evidence.
(viii) Conclusion on procedural fairness
52 321 For all the above reasons the applicants have not demonstrated that the Board breached any duty of procedural fairness.
(b) Did the Board fail to decide certain issues before recommending approval of the Project?
322 Both Burnaby and Coldwater make submissions on this issue. Additionally, Coldwater, Squamish and Upper Nicola make submissions about the Board's failure to decide certain issues in the context of the Crown's duty to consult. The latter submissions will be considered in the analysis of the adequacy of the Crown's consultation process.
323 Burnaby's and Coldwater's submissions may be summarized as follows.
324 Burnaby raises two principal arguments: first, the Board failed to consider and assess the risks and impacts of the Project to Burnaby, instead deferring the collection of information relevant to the risks and impacts and consideration of that information until after the decision of the Governor in Council when Trans Mountain was required to comply with the Board's conditions; and, second, the Board failed to consider alternative means of carrying out the Project and their environmental effects. Instead, contrary to paragraph 19(1)(g) of the Canadian Environmental Assessment Act, 2012, the Board failed to require Trans Mountain to include with its application an assessment of the Project's alternatives and failed to require Trans Mountain to provide adequate answers in response to Burnaby's multiple Information Requests about alternatives to the Project.
325 With respect to the first error, Burnaby asserts that it is a "basic principle of law that a tribunal or a court must weigh and decide conflicting evidence. It cannot defer determinations post- judgment." (Burnaby's memorandum of fact and law, paragraph 142). In breach of this principle, the Board did not require Trans Mountain to provide further evidence, nor did the Board weigh or decide conflicting evidence. Instead, the Board deferred assessment of critical issues by imposing a series of conditions on Trans Mountain.
326 With respect to the second error, Burnaby states that Trans Mountain failed to provide evidence about alternative routes and locations for portions of the Project, including the Burnaby Terminal and the Westridge Marine Terminal. Thus, Burnaby says the Board "had no demonstrated basis on the record to decide" about preferred options or to decide that Trans Mountain used "criteria that justify and demonstrate how the proposed option was selected and why it is the preferred option." (Burnaby's memorandum of fact and law, paragraph 133).
327 Coldwater asserts that contrary to paragraph 19(1)(g) of the Canadian Environmental Assessment Act, 2012, the Board failed to look at the West Alternative as an alternative means of carrying out the Project. Briefly stated, the West Alternative is an alternative route for a segment of the new pipeline. The approved route for this segment of the new pipeline passes through the recharge zone of the aquifer that supplies the sole source of drinking water for 90% of the residents of the Coldwater Reserve and crosses two creeks which are the only known, consistent sources of water that feed the aquifer. The West Alternative is said by Coldwater to pose the least apparent danger to the aquifer.
328 Trans Mountain responds that the Board considered the risks and impacts of the Project to Burnaby and determined that there was sufficient evidence to conclude that the Project can be constructed, operated and maintained in a safe manner. Further, it was reasonable for the Board to implement conditions requiring Trans Mountain to submit additional information for Board review or approval throughout the life of the Project. This Court's role is not to reweigh evidence considered by the Board.
53 329 Trans Mountain notes that the proponent's application and the subsequent Board hearing represent the process by which the Board collects enough information to ensure that a project can be developed safely and that its impacts are mitigated. At the end of the hearing, the Board requires sufficient information to assess the Project's impacts, and whether the Project can be constructed, operated and maintained safely, and to draft terms and conditions to attach to a certificate of public convenience and necessity, should the Governor in Council approve the Project. It follows that the Board did not improperly defer its consideration of Project impacts to the conditions.
330 To the extent that some applicants suggest that the Board acted contrary to the "precautionary principle" Trans Mountain responds that the precautionary principle must be applied with the corollary principle of "adaptive management". Adaptive management responds to the difficulty, or impossibility, of predicting all of the environmental consequences of a project on the basis of existing knowledge. Adaptive management permits a project with uncertain, yet potentially adverse, environmental impacts to proceed based on mitigation measures and adaptive management techniques designed to identify and deal with unforeseen effects (Canadian Parks & Wilderness Society v. Canada (Minister of Canadian Heritage), 2003 FCA 197, [2003] 4 F.C. 672 (Fed. C.A.), at paragraph 24).
331 With respect to the assessment of alternative means, Trans Mountain notes that it presented evidence that it had conducted a feasibility analysis of alternative locations to the Westridge Marine Terminal and the Burnaby Terminal. Based on technical, economic and environmental considerations Trans Mountain had eliminated these options because of the significantly increased costs and larger environmental impacts associated with these alternatives.
332 Trans Mountain also argues that it presented evidence to confirm that its routing criteria followed the existing pipeline alignment and other linear facilities wherever possible. Additionally, it presented various routing alternatives to the Board. Trans Mountain's preferred corridor through Burnaby Mountain was developed in response to requests that it consider a trenchless option through Burnaby Mountain (as opposed to routing the new pipeline through residential streets). Further, while it had initially considered the West Alternative route around the Coldwater Reserve, Trans Mountain rejected this alternative because it necessitated two crossings of the Coldwater River and involved geo-technical challenges and greater environmental disturbances.
333 Based on the evidence before it the Board found that:
• Trans Mountain provided an adequate assessment of technically and economically feasible alternatives, including alternative locations;
• the Burnaby Mountain corridor minimized Project impacts and risks;
• Trans Mountain's route selection process and criteria, and the level of detail it provided for its alternative means assessment, were appropriate; and
• the Board imposed Condition 39 to deal with Coldwater's concerns regarding the aquifer. This condition required Trans Mountain to file with the Board, at least six months prior to commencing construction between two specified points, a hydrogeological report relating to Coldwater's aquifer. This report must describe, delineate and characterize a number of things. For example, based on the report's quantification of the risks posed to the groundwater supplies for the Coldwater Reserve, the report must "describe proposed measures to address identified risks, including but not limited to considerations related to routing, project design, operational measures, or monitoring".
54 334 Trans Mountain submits that while the applicants disagree with the Board's finding about the range of alternatives, the Board has discretion to determine the range of alternatives it must consider and it is not this Court's role to reweigh the Board's assessment of the facts.
(i) Did the Board fail to assess the risks and impacts posed by the Project to Burnaby?
335 At paragraphs 278 to 291 I dealt with Burnaby's argument that the Board breached the duty of procedural fairness by deferring and delegating the assessment of important information. This argument covers much of the same ground, except it is not couched in terms of procedural fairness.
336 The gist of Burnaby's concern is reflected in its argument that "[i]t is a basic principle of law that a tribunal or court must weigh and decide conflicting evidence. It cannot defer determinations post- judgment."
337 This submission is best considered in concrete terms. The risks the Board is said not to have assessed are the risks posed by the Burnaby Terminal, the tunnel route through Burnaby Mountain, the Westridge Marine Terminal, the lack of available emergency fire response resources to respond to a fire at the Westridge Marine and Burnaby terminals and, finally, the risk in relation to the evacuation of Simon Fraser University following an incident at the Burnaby Terminal. Illustrative of Burnaby's concerns is its specific and detailed argument with respect to the assessment of the risk associated with the Burnaby Terminal.
338 With respect to the assessment of the risks associated with the Burnaby Terminal, Burnaby points to the report of its expert, Dr. Ivan Vince, which identified deficiencies or information gaps in Trans Mountain's risk assessment for the Burnaby Terminal. A second report prepared by Burnaby's Deputy Fire Chief identified gaps in Trans Mountain's analysis of fire risks and fire response capability.
339 Burnaby acknowledges that the Board recognized these gaps and deficiencies. Thus, it found that while Trans Mountain claimed that boil-over events are unlikely, Trans Mountain "did not quantify the risks through a rigorous analysis" and that "a complete assessment of risk requires consideration of the cumulative risk from all tanks at a terminal". Burnaby argues, however, that despite recognizing this deficiency, the Board then failed to require Trans Mountain to provide further information and assessment prior to the issuance of the Board's report. Instead, the Board imposed conditions requiring Trans Mountain to file for the Board's approval a report revising the terminal risk assessments, including the Burnaby Terminal risk assessment, and including consideration of the risks not assessed (Conditions 22 and 129).
340 Condition 22 specifically required the revised risk assessment to quantify and/or include the following:
a. the effect of any revised spill burn rates;
b. the potential consequences of a boil-over;
c. the potential consequences of flash fires and vapour cloud explosions;
d. the cumulative risk based on the total number of tanks in the terminal, considering all potential events (pool fire, boil-over, flash fire, vapour cloud explosion);
e. the domino (knock-on) effect caused by a release of the contents of one tank on other tanks within the terminals and impoundment area(s), or other tanks in adjacent impoundment areas; and,
f. risk mitigation measures, including ignition source control methods.
55 341 The Board required that for those risks that could not be eliminated "Trans Mountain must demonstrate in each risk assessment that mitigation measures will reduce the risks to levels that are As Low As Reasonably Practicable (ALARP) while complying with the Major Industrial Accidents Council of Canada (MIACC) criteria for risk acceptability."
342 Burnaby concludes its argument on this point by stating that this demonstrates that when the Board completed its report and made its recommendation to the Governor in Council the Board did not have information on the risks enumerated in Condition 22, or information on whether these risks could be mitigated. It follows, Burnaby submits, that the Board failed in its duty to weigh and decide conflicting evidence.
343 Burnaby advances similar arguments in respect of the other risks described above.
344 In my view, Burnaby's argument illustrates that the Board did look critically at the competing expert evidence about risk assessment. After weighing the competing expert reports, the Board determined that Burnaby's evidence did reveal gaps and deficiencies in Trans Mountain's risk assessments. Burnaby's real complaint is not that the Board did not consider and weigh conflicting evidence. Rather, its complaint is that the Board did not then require Trans Mountain to in effect re-do its risk assessment.
345 However this, in my respectful view, overlooks the Board's project approval process, a process described in detail at paragraphs 285 to 287 above.
346 This process does not require a proponent to file in its application information about every technical engineering detail. What is required is that by the end of the Board's hearing the Board have sufficient information before it to allow it to form its recommendation to the Governor in Council about whether the project is in the public interest and, if approved, what conditions should attach to the project. Included in the consideration of the public interest is whether the project can be constructed, operated and maintained safely.
347 This process reflects the technical complexity of projects put before the Board for approval. What was before the Board for consideration was Trans Mountain's study and application for approval of a 150 metre-wide pipeline corridor for the proposed pipeline route. At the hearing stage much of the information filed with the Board about the engineering design was at a conceptual or preliminary level.
348 Once a project is approved, one of the next steps in the regulatory process is a further hearing for the purpose of confirming the detailed routing of a project. Only after the detailed route is approved by the Board can site-specific engineering information be prepared and filed with the Board. Similarly, detailed routing information is necessary before things such as a fully detailed emergency response plan acceptable to the Board may be prepared and filed (report, page 7).
349 The Board describes the approval of a project to be "just one phase" in the Board's lifecycle regulation. Thereafter the Board's public interest determination "relies upon the subsequent execution of detailed design, construction, operation, maintenance and, ultimately, abandonment of a project in compliance with applicable codes, commitments and conditions" (report, page 19).
350 As stated above, implicit in the Board's imposition of a condition is the Board's expert view that the condition can realistically be complied with, and that compliance with the condition will allow the pipeline to be constructed, operated and maintained in a safe manner. After the Board imposes conditions, mechanisms exist for the Board to assess information filed in response to its conditions and to oversee compliance with its conditions.
56 351 Burnaby obviously disagrees with the Board's assessment of risk. However, Burnaby has not shown that the Board's approval process is in any way contrary to the legislative scheme. Nor has it demonstrated that the approval process impermissibly defers determinations post-judgment. Courts cannot determine issues after a final judgment is rendered because of the principle of functus officio. While this principle has some application to administrative decision-makers it has less application to the Board whose mandate is ongoing to regulate through a project's entire lifecycle.
(ii) Did the Board fail to consider alternative means of carrying out the Project?
352 As explained above, Burnaby's concern is that Trans Mountain did not provide sufficient information to allow the Board to conclude that Trans Mountain's assessment of alternatives was adequate. Burnaby says that the Board simply accepted Trans Mountain's unsupported assertion that the alternatives would result in "significantly greater cost, larger footprint and additional environmental effects, as compared to expanding existing facilities" without testing Trans Mountain's assertion. Burnaby argues that evidence is required to support that assertion "so that the evidence may be tested by intervenors and weighed by the Board in determining whether the preferred location is the best environmental alternative and in the public interest." (Burnaby's memorandum of fact and law, paragraph 136).
353 I begin consideration of Burnaby's submission with the observation that Burnaby's challenge is a challenge to the Board's assessment of the sufficiency of the evidence before it. The Board, as an expert Tribunal, is entitled to significant deference when making such a fact-based assessment.
354 Moreover, in my respectful view, Burnaby's submission fails to take into account that paragraph 19(1)(g) of the Canadian Environmental Assessment Act, 2012 does not require the Board to have regard to any and all alternative means of carrying out a designated project. The Board is required to consider only those alternative means that are "technically and economically feasible".
355 While Burnaby relies upon guidance from the Canadian Environmental Assessment Agency as to the steps to be followed in the assessment of alternative means, and also relies upon the guidance set out in the Board's Filing Manual about the filing requirements for the consideration of alternatives, these criteria apply only to the treatment of true alternatives, that is alternatives that are technically and economically feasible.
356 I now turn to Burnaby's specific concern that the Board simply accepted Trans Mountain's assertion that Project alternatives would result in "significantly greater cost, larger footprint and additional environmental effects, as compared to expanding existing facilities" without testing this assertion. Burnaby argues that the Board was obliged to require that Trans Mountain provide evidence about alternative routes and locations for the Burnaby Terminal and the Westridge Marine Terminal so that the evidence could be tested by it and other interveners.
357 The impugned quotation comes from Trans Mountain's response to Burnaby's first Information Request (Exhibit H to the affidavit of Derek Corrigan). As previously referred to above at paragraph 269, in addition to Burnaby's Information Requests, the Board also served two Information Requests on Trans Mountain questioning it about alternative marine terminals.
358 The preamble to the Board's second Information Request referenced Trans Mountain's first response to the Board in which it stated that it had considered potential alternative marine terminal locations based on the feasibility of coincident marine and pipeline access, and screened them based on technical, economic, and environmental considerations. The preamble also referenced Trans Mountain's response that it had ultimately concluded that constructing and operating a new marine terminal and supporting infrastructure would result in significantly greater cost, a larger footprint and significantly greater environmental effects
57 as compared to the existing facilities. Based on this conclusion Trans Mountain did not continue with a further assessment of alternative termini for the Project.
359 One of the specific inquiries directed to Trans Mountain by the Board in its second Information Request was:
Please elaborate on Trans Mountain's rationale for the Westridge Marine Terminal as the preferred alternative, including details to justify Trans Mountain's statement in [Trans Mountain's response to the Board's first Information Request] that constructing and operating a new marine terminal and supporting infrastructure would result in significantly greater cost, a larger footprint, and additional environmental effects, as compared to expanding existing facilities.
360 In its response to the Board, Trans Mountain began by explaining the consideration it had given the option of a northern terminal. Trans Mountain's assessment ultimately "favoured expansion of the existing system south over a new northern lateral [pipeline] and terminal." This assessment was based on the following considerations. The northern option involved:
• A 250 kilometre longer pipeline with a concomitant 10% to 20% higher project capital cost.
• Greater technical challenges, including routing through high alpine areas of the Coast Mountains, or extensive tunneling to avoid these areas. These technical challenges, while not determined to be insurmountable, resulted in greater uncertainty for both cost and construction schedule.
• Fewer opportunities to benefit from existing operations, infrastructure and relationships. These benefits involved both using the existing Trans Mountain right-of-way, facilities, programs and personnel, and the synergies flowing from other existing infrastructure such as road access, power, and marine infrastructure. The inability to benefit from existing operations would increase the footprint and the potential impact of the northern option.
361 Based on these considerations, Trans Mountain concluded that expansion along the existing Trans Mountain pipeline route was the more favourable option because of the higher costs and the greater uncertainty of both cost and schedule that accompanied the northern option.
362 Trans Mountain then turned to explain its consideration of the alternative southern terminals. Five southern alternative locations were considered: (i) Howe Sound, which was eliminated because there was no feasible pipeline access west of Hope, it would require a new lateral pipeline from the Kamloops area, it involved extreme terrain and there was limited land available in close proximity for storage facilities; (ii) Vancouver Harbour, which was eliminated because there were no locations with coincident feasible pipeline access and no land for storage facilities; (iii) Sturgeon Bank, which was eliminated because there was no feasible land available in close proximity for storage facilities; (iv) Washington State, which was eliminated because it involved a longer pipeline and complex regulatory issues (including additional permits required by both Washington State and federal authorities); and, (v) Boundary Bay, which was eliminated because of insufficient water depth.
363 This left for consideration Roberts Bank. Trans Mountain conducted a screening level assessment based on "desktop studies" of technical, economic and environmental considerations for marine access, storage facilities and pipeline routing for a terminal at that location.
364 After setting out the assumed technical configuration for the Roberts Bank dock, storage and pipeline, Trans Mountain reviewed the engineering and geotechnical considerations. While no unsurmountable engineering or geotechnical issues were identified, Trans Mountain's assessment showed that relative to the Westridge Marine Terminal, the Roberts Bank alternative "required a significantly larger dock structure, a
58 large new footprint for the storage terminal, a longer right of way, and a greater diversion from the existing corridor. The extent and cost of ground improvement necessary for the dock and storage terminal also presented a significant source of uncertainty."
365 Trans Mountain then reviewed the relevant environmental considerations. Trans Mountain's assessment showed that while both Westridge and Roberts Bank:
... have unique and important environmental values, based on the setting the environmental conditions at Roberts Bank appeared to be more substantial and uncertain than at Westridge Terminal, particularly given the larger footprint required for the dock and storage terminal. Without effective mitigation accidents or malfunctions at Roberts Bank could result in greater and more immediate consequences for the natural [environment].
366 Trans Mountain then detailed the salient First Nations' considerations. For the purpose of the screening assessment, Trans Mountain assumed First Nation concerns and interests to be similar to those for the Westridge Terminal and likely to include concerns for impacts on traditional rights, environmental protection, and potential interest in economic opportunities.
367 Trans Mountain then reviewed the land use considerations, concluding that relative to the Westridge Terminal "the Roberts Bank alternative would result in a greater change in land use both for the storage terminal and the dock structure. As surrounding development is less than that for Westridge accidents or malfunctions at this location would be expected to affect fewer people."
368 Trans Mountain's assessment next looked to the estimated cost differences. While operating costs were not quantified for comparison purposes, "given the additional dock and storage terminal required these costs would be higher for the Roberts Bank alternative."
369 The assessment then looked at marine access considerations. While Roberts Bank offered a shorter and relatively less complex marine transit:
[T]here is an existing well established marine safety system for vessels calling at Westridge. Although Roberts Bank would allow service to larger vessels which would result in potentially lower transport costs for shippers and lower probability of oil spill accidents larger cargos result in potentially larger spill volumes. While the overall effect on marine spill risk was not determined it is expected that larger cargos would require a greater investment in spill response.
370 Trans Mountain then set out the conclusions it drew from its assessment. While the Westridge and Roberts Bank terminal alternatives each had positive and negative attributes, especially when viewed from any one perspective, overall Trans Mountain's rationale for the Westridge Marine Terminal as a preferred alternative was based on the expectation that Roberts Bank would result in:
• Significantly greater cost — Trans Mountain estimated a $1.2 billion higher capital cost and assumed higher operating costs for the Roberts Bank alternative.
• A larger footprint and additional environmental effects — Roberts Bank would result in an additional storage terminal with an estimated 100 acres of land required, a larger dock structure with a 7 kilometre trestle, and a 14 kilometre longer pipeline that diverges further from the existing pipeline corridor.
371 I have set out Trans Mountain's response to the Board at some length because of the importance of this issue to Burnaby. In my view, two points arise from Trans Mountain's response to the Board.
372 First, its response was not as conclusory as Burnaby's submission might suggest. Second, Trans Mountain's explanation for eliminating a northern alternative and the six, southern alternatives on the
59 ground they were not technically or economically feasible was based on factual and technical considerations well within the expertise of the Board. To illustrate, the Board would have an understanding of the technical challenges posed when routing through high alpine areas. It would also be familiar with considerations such as the expense and environmental impact that accompany the construction of a longer pipeline, away from an existing pipeline corridor, or a new storage facility. The Board would have an appreciation of the need for coincident pipeline access and land for storage facilities and of the efficiencies that flow from things such as the use of existing infrastructure and relationships.
373 In relevant part, the Board's conclusion on alternative means was:
The Board finds that Trans Mountain's route selection process, route selection criteria, and level of detail for its alternative means assessment are appropriate. The Board further finds that aligning the majority of the proposed pipeline route alongside, and contiguous to, existing linear disturbances is reasonable, as this would minimize the environmental and socio-economic impacts of the Project.
The Board acknowledges the concern raised by the City of Burnaby that Trans Mountain did not provide an assessment of the risks, impacts and effects of the alternate marine terminal locations at Kitimat, B.C., or Roberts Bank in Delta, B.C. The Board finds that Trans Mountain has provided an adequate assessment, including consideration of technical, socio-economic and environmental effects, of technically and economically feasible alternative marine terminal locations.
(underlining added)
374 Burnaby has not demonstrated that the Board's finding that Trans Mountain provided an appropriate level of detail in its alternative means assessment was flawed. This was a fact-based assessment well within the Board's area of expertise.
(iii) Did the Board fail to look at the West Alternative as an alternative route for the new pipeline?
375 In its project application, Trans Mountain initially proposed four alternative routes for the new pipeline through the Coldwater River Valley. These were referred to as the Modified Reserve Route, the East Alternative, the Modified East Alternative and the West Alternative. While initially its preferred route was identified to be the East Alternative, Trans Mountain later changed its preferred route to be the Modified East Alternative. Coldwater alleges that at some point early in the process Trans Mountain unilaterally withdrew the West Alternative from consideration without notice to Coldwater. Coldwater also alleges that the East and Modified East Alternatives pose the greatest risk of contaminating the aquifer that supplies drinking water to the Coldwater Reserve, and that the West Alternative is the only route to pose no apparent threat to the aquifer.
376 Before the Board, Coldwater argued that Trans Mountain did not adequately assess alternative locations for the new pipeline through the Coldwater River Valley. Coldwater requested that the Board require a re-examination of routing options for the Coldwater River Valley before any recommendation on the Project was made.
377 The Board, in its report, acknowledged Coldwater's concerns at pages 241, 285 and 289.
378 The Board noted, at page 245, that "the detailed route for the Project has not been finalized, and that this hearing assessed the general route for the Project, the potential environmental and socio-economic effects of the Project, as well as all evidence and commitments made by Trans Mountain regarding the design, construction and safe operation of the pipeline and associated facilities."
60 379 At page 290 the Board found that Trans Mountain had not sufficiently shown that there was no potential interaction between the aquifer underlying the Coldwater Reserve and the proposed Project route. Therefore, the Board imposed Condition 39 requiring Trans Mountain to file a hydrogeological study to more precisely determine the potential for interactions and impacts on the aquifer and to assess the need for any additional measures to protect the aquifer, including monitoring measures (Condition 39 was described in greater detail above at paragraph 333).
380 Coldwater argues that the Board breached its statutory obligation to consider alternative means of carrying out the designated project. Further, this breach cannot be cured at the detailed route hearing because at a detailed route hearing the Board can only consider limited routing options within the approved pipeline corridor. The West Alternative is well outside the approved corridor. Coldwater submits that the Board's only option at the detailed route hearing is to decline to approve the detailed routing and to reject Trans Mountain's Plan, Profile and Book of Reference (PPBoR); Coldwater says this is an option the Board would be unwilling to pursue given the Project's post-approval momentum.
381 I agree that at a detailed route hearing the Board may only approve, or refuse to approve, a proponent's PPBoR. However, this does not mean that at a detailed route hearing the Board is precluded from considering routes outside of the approved pipeline corridor.
382 Subsection 36(1) of the National Energy Board Act requires the Board "to determine the best possible detailed route of the pipeline and the most appropriate methods and timing of constructing the pipeline." This provision does not limit the Board to considering the best possible detailed route within the approved pipeline corridor. This was recognized by the Board in Emera Brunswick Pipeline Company Ltd. (Re), 2008 LNCNEB 10, at page 30.
383 Additionally, section 21 of the National Energy Board Act permits the Board to review, vary or rescind any decision or order, and in Emera the Board recognized, at page 31, that where a proposed route is denied on the basis of evidence of a better route outside of the approved pipeline corridor an application may be made under section 21 to vary the corridor in that location.
384 It follows that the Board would be able to vary the route of the new pipeline should the hydrogeological study to be filed pursuant to Condition 39 require an alternative route, such as the West Alternative route, in order to avoid risk to the Coldwater aquifer.
385 As the pipeline route through the Coldwater River Valley remains a live issue, depending on the findings of the hydrogeological report, it follows that Coldwater has not demonstrated that the Board breached its statutory obligation to consider alternative means.
386 The next error said to vitiate the Board's report is its alleged failure to consider alternatives to the Westridge Marine Terminal.
(c) Did the Board fail to consider alternatives to the Westridge Marine Terminal?
387 In my view, this issue was fully canvassed in the course of considering Burnaby's argument that the Board impermissibly failed to decide certain issues for recommended approval of the Project.
(d) Did the Board err by failing to assess Project-related marine shipping under the Canadian Environmental Assessment Act, 2012?
388 Tsleil-Waututh argues that the Board breached the requirements of the Canadian Environmental Assessment Act, 2012 by excluding Project-related marine shipping from the definition of the "designated project" which was to be assessed under that Act. In turn, the Governor in Council is said to have
61 unreasonably exercised its discretion when it relied upon the Board's materially flawed report — in effect the Governor in Council did not have a "report" before it and, thus, could not proceed to its decision. Tsleil- Waututh adds that the Board failed to comply with the requirements of subsection 31(1) of the Canadian Environmental Assessment Act, 2012 by:
i. failing to determine whether the environmental effects of Project-related marine shipping are likely, adverse and significant;
ii. concluding that the Project is not likely to cause significant adverse environmental effects; and,
iii. failing to determine whether the significant adverse environmental effects likely to be caused by Project-related marine shipping can be justified under the circumstances.
389 The significant adverse effect of particular concern to Tsleil-Waututh are the Project's significant adverse effects upon the endangered Southern resident killer whales and their use by Indigenous peoples.
390 Tsleil-Waututh's submissions are adopted by Raincoast and Living Oceans. To these submissions they add that the Board's decision to exclude Project-related shipping from the definition of the "designated project" was not a discretionary scoping decision as Trans Mountain argues. Rather, the Board erroneously interpreted the statutory definition of "designated project".
391 The definition of "designated project" is found in section 2 of the Canadian Environmental Assessment Act, 2012: see paragraph 57 above. The parties agree that the issue of whether Project-related marine shipping ought to have been included as part of the defined designated project turns on whether Project- related marine shipping is a "physical activity that is incidental" to the pipeline component of the Project. This is not a pure issue of statutory interpretation. Rather, it is a mixed question of fact and law heavily suffused by evidence.
392 In response to the submissions of Tsleil-Waututh, Raincoast and Living Oceans, Canada and Trans Mountain make two submissions. First, they submit that the Board reasonably concluded that the increase in marine shipping was not part of the designated project. Second, and in any event, they argue that the Board conducted an extensive review of marine shipping. Therefore, the question for the Court becomes whether the Board's assessment was substantively adequate, such that the Governor in Council still had a "report" before it such that the Board's assessment could be relied upon. Canada and Trans Mountain answer that question in the affirmative.
393 Before commencing my analysis, it is important to situate the Board's scoping decision and the exclusion of Project-related shipping from the definition of the Project. The definition of the designated project truly frames the scope of the Board's analysis. Activities included as part of the designated project are assessed under the Canadian Environmental Assessment Act, 2012 with its prescribed list of factors to be considered. Further, as the Board acknowledged in Chapter 10 of its report, the Species at Risk Act imposes additional obligations on the Board when a designated project is likely to affect a listed wildlife species. These obligations are discussed below, commencing at paragraph 442.
394 This assessment is to be contrasted with the assessment of activities not included in the definition of the designated project. These excluded activities are assessed under the National Energy Board Act if the Board is of the opinion that any public interest may be affected by the issuance of a certificate of public convenience and necessity, or by the dismissal of the proponent's application. On this assessment the Board is to have regard to all considerations that "appear to it to be directly related to the pipeline and to be relevant". Parenthetically, to the extent that there is potential for the effects of excluded activities to interact with the environmental effects of a project, these effects are generally assessed under the cumulative effects portion of the Canadian Environmental Assessment Act, 2012 environmental assessment.
62 395 I begin my analysis with Trans Mountain's application to the Board for a certificate of public convenience and necessity for the Project. In Volume 1 of the application, at pages 1-4, Trans Mountain describes the primary purpose of the Project to be "to provide additional transportation capacity for crude oil from Alberta to markets in the Pacific Rim including BC, Washington State, California and Asia." In Volume 2 of the application, at pages 2-27, Trans Mountain describes the marine shipping activities associated with the Project. Trans Mountain notes that of the 890,000 barrels per day capacity of the expanded system, up to 630,000 barrels per day, or 71%, could be delivered to the Westridge Marine Terminal for shipment by tanker. To place this in perspective, currently in a typical month five tankers are loaded with diluted bitumen at the Westridge Marine Terminal, some of which are the smaller, Panamax tankers. The expanded system would be capable of serving up to 34 of the larger, Aframax tankers per month (with actual demand influenced by market conditions).
396 This evidence demonstrates that marine shipping is, at the least, an element that accompanies the Project. Canada argues that an element that accompanies a physical activity while not being a major part of the activity is not "incidental" to the physical activity. Canada says that this was what the Board implicitly found.
397 The difficulty with this submission is that it is difficult to infer that this was indeed the Board's finding, albeit an implicit finding. I say this because in its scoping decision the Board gave no reasons for its conclusion. In the second paragraph of the decision, under the introductory heading, the Board simply set out its conclusion:
For the purposes of the environmental assessment under the CEAA 2012, the designated project includes the various components and physical activities as described by Trans Mountain in its 16 December 2013 application submitted to the NEB. The Board has determined that the potential environmental and socio-economic effects of increased marine shipping activities to and from the Westridge Marine Terminal that would result from the designated project, including the potential effects of accidents or malfunctions that may occur, will be considered under the NEB Act (see the NEB's Letter of 10 September 2013 for filing requirements specific to these marine shipping activities). To the extent that there is potential for environmental effects of the designated project to interact with the effects of the marine shipping, the Board will consider those effects under the cumulative effects portion of the CEAA 2012 environmental assessment.
(underlining added)
398 Having defined the designated project not to include the increase in marine shipping, the Board dealt with the Project-related increase in marine shipping activities in Chapter 14 of its report. Consistent with the scoping decision, at the beginning of Chapter 14 the Board stated, at page 323:
As described in Section 14.2, marine vessel traffic is regulated by government agencies, such as Transport Canada, Port Metro Vancouver, Pacific Pilotage Authority and the Canadian Coast Guard, under a broad and detailed regulatory framework. The Board does not have regulatory oversight of marine vessel traffic, whether or not the vessel traffic relates to the Project. There is an existing regime that oversees marine vessel traffic. The Board's regulatory oversight of the Project, as well as the scope of its assessment of the Project under the Canadian Environmental Assessment Act (CEAA 2012), reaches from Edmonton to Burnaby, up to and including the Westridge Marine Terminal (WMT). However, the Board determined that potential environmental and socio-economic effects of Project- related tanker traffic, including the potential effects of accidents or malfunctions that may occur, are relevant to the Board's consideration of the public interest under the NEB Act. Having made this
63 determination, the Board developed a set of Filing Requirements specific to the issue of the potential effects of Project-related marine shipping activities to complement the Filing Manual.
(underlining added, footnotes omitted)
399 Two points emerge from this passage. The first point is the closest the Board came to explaining its scoping decision was that the Board did not have regulatory oversight over marine vessel traffic. There is no indication that the Board grappled with this important issue.
400 The issue is important because the Project is intended to bring product to tidewater; 71% of this product could be delivered to the Westridge Marine Terminal for shipment by tanker. Further, as explained below, if Project-related shipping forms part of the designated project additional requirements apply under the Species at Risk Act. Finally, Project-related tankers carry the risk of significant, if not catastrophic, adverse environmental and socio-economic effects should a spill occur.
401 Neither Canada nor Trans Mountain point to any authority to the effect that a responsible authority conducting an environmental assessment under the Canadian Environmental Assessment Act, 2012 must itself have regulatory oversight over a particular subject matter in order for the responsible authority to be able to define a designated project to include physical activities that are properly incidental to the Project. The effect of the respondents' submission is to impermissibly write the following italicized words into the definition of "designated project": "It includes any physical activity that is incidental to those physical activities and that is regulated by the responsible authority."
402 In addition to being impermissibly restrictive, the Board's view that it was required to have regulatory authority over shipping in order to include shipping as part of the Project is inconsistent with the purposes of the Canadian Environmental Assessment Act, 2012 enumerated in subsection 4(1). These purposes include protecting the components of the environment that are within the legislative authority of Parliament and ensuring that designated projects are considered in a careful and precautionary manner to avoid significant adverse environmental effects.
403 The second point that arises is that the phrase "incidental to" is not defined in the Canadian Environmental Assessment Act, 2012. It is not clear that the Board expressly directed its mind to whether Project-related marine shipping was in fact an activity "incidental" to the Project. Had it done so, the Canadian Environmental Assessment Agency's "Guide to Preparing a Description of a Designated Project under the Canadian Environmental Assessment Act, 2012" provides a set of criteria relevant to the question of whether certain activities should be considered "incidental" to a project. These criteria are:
i. the nature of the proposed activities and whether they are subordinate or complementary to the designated project;
ii. whether the activity is within the care and control of the proponent;
iii. if the activity is to be undertaken by a third party, the nature of the relationship between the proponent and the third party and whether the proponent has the ability to "direct or influence" the carrying out of the activity;
iv. whether the activity is solely for the benefit of the proponent or is available for other proponents as well; and,
v. the federal and/or provincial regulatory requirements for the activity.
404 The Board does not advert to, or grapple with, these criteria in its report. Had the Board grappled with these criteria it would have particularly considered whether marine shipping is subordinate
64 or complementary to the Project and whether Trans Mountain is able to "direct or influence" aspects of tanker operations.
405 In this regard, Trans Mountain stated in its application, on pages 8A-33 to 8A-34, that while it did not own or operate the vessels calling at the Westridge Marine Terminal, "it is an active member in the maritime community and works with BC maritime agencies to promote best practices and facilitate improvements to ensure the safety and efficiency of tanker traffic in the Salish Sea." Trans Mountain also referenced its Tanker Acceptance Standard whereby it can prevent any tanker not approved by it from loading at the Westridge Marine Terminal.
406 The Board recognized Trans Mountain's ability to give directions to tanker operators in Conditions 133, 134 and 144 where, among other things, the Board required Trans Mountain to:
• confirm that it had implemented its commitments to enhanced tug escort by prescribing minimum tug capabilities required to escort outbound, laden tankers and by including these minimum capabilities as part of its Tanker Acceptance Standard;
• file an updated Tanker Acceptance Standard and a summary of any revisions made to the Standard; and,
• file annually a report documenting the continued implementation of Trans Mountain's marine shipping-related commitments noted in Condition 133, any instances of non-compliance with Trans Mountain's requirements and the steps taken to correct instances of non-compliance.
407 To similar effect, as discussed below in more detail, Trans Mountain committed in the TERMPOL review process to require, through its tanker acceptance process, that tankers steer a certain course upon exiting the Juan de Fuca Strait.
408 Trans Mountain's ability to "direct or influence" tanker operations was a relevant factor for the Board to consider.
409 The Board's reasons do not well-explain its scoping decision, do not grapple with the relevant criteria and appear to be based on a rationale that is not supported by the statutory scheme. As explained in more detail below, it follows that the Board failed to comply with its statutory obligation to scope and assess the Project so as to provide the Governor in Council with a "report" that permitted the Governor in Council to make its decision.
410 It follows that it is necessary to consider the respondents' alternate submission that the assessment the Board conducted was, nevertheless, substantially adequate such that the Governor in Council could rely upon it for the purpose of assessing the public interest and the environmental effects of the Project. To do this I will first consider the deficiencies said to arise from the assessment of Project-related shipping under the National Energy Board Act, as opposed to its assessment under the Canadian Environmental Assessment Act, 2012. I will then turn to the Board's findings, as set out in its report, in order to determine whether the Board's report was materially deficient or substantially adequate.
(i) The deficiencies said to arise from the Board's assessment of Project-related marine shipping under the National Energy Board Act
411 Had the Project been defined to include Project-related marine shipping, subsection 19(1) of the Canadian Environmental Assessment Act, 2012 would have required the Board to consider, and make findings, concerning the factors enumerated in section 19. In the present case, these include:
65 • the environmental effects of marine shipping, including the environmental effects of malfunctions or accidents that may occur in connection with the designated project, and any cumulative effects likely to result from the designated project in combination with other physical activities that have or will be carried out;
• the significance of these effects;
• mitigation measures that are technically and economically feasible that would mitigate any significant adverse effects of marine shipping; and,
• alternative means of carrying out the designated project that are technically and economically feasible. This would include alternate shipping routes.
412 I now turn to address the Board's consideration of Project-related shipping.
(ii) The Board's consideration of Project-related marine shipping and its findings
413 I begin by going back to the Board's statement, quoted above at paragraph 398, that "potential environmental and socio-economic effects of Project-related tanker traffic, including the potential effects of accidents or malfunctions that may occur" were relevant to the Board's consideration of the public interest under the National Energy Board Act. In this context, in order to ensure that the Board had sufficient information about those effects, the Board developed the specific filing requirements referred to by the Board in the passage quoted above.
414 These filing requirements required Trans Mountain to provide a detailed description of the increase in marine shipping activities including: the frequency of passages, passage routing, speed, and passage transit time; and, the alternatives considered, such as passage routing, frequency of passages and tanker type utilized.
415 Trans Mountain's assessment of accidents and malfunctions related to the increase in marine shipping was required to include descriptions of matters such as:
• measures to reduce the potential for accidents and malfunctions to occur, including an overview of relevant regulatory regimes;
• credible worst case spill scenarios and smaller spill scenarios;
• the fate and behaviour of any hydrocarbons that may be spilled;
• the potential environmental and socio-economic effects of credible worst case spill scenarios and smaller spill scenarios, taking into account the season-specific behaviour, trajectory, and fate of the hydrocarbon(s) spilled, as well as the range of weather and marine conditions that could prevail during the spill event; and,
• Trans Mountain's preparedness and response planning, including an overview of the relevant regulatory regimes.
416 Trans Mountain was required to provide information on navigation and safety including:
• an overview of the relevant regulatory regimes and the role of the different organizations involved;
• any additional mitigation measures in compliance with, or exceeding regulatory requirements, proposed by Trans Mountain to further facilitate marine shipping safety; and,
66 • an explanation of how the regulatory regimes and any additional measures promote the safety of the increase in marine shipping activities.
417 The filing requirements also required specific information relating to all mitigation measures related to the increase in marine shipping activities.
418 I now turn to specifically consider Chapter 14 of the Board's report and its consideration of the Project-related increase in marine shipping activities. Because the applicants' primary concern centers on the Project's impact on the Southern resident killer whales and their use, I will focus on the Board's consideration of this endangered species, including spill prevention and the effects of spills. The Board did also consider and make findings about the impact of increased Project-related shipping on air emissions, greenhouse gases, marine and fish habitat, marine birds, socio-economic effects, heritage resources and human health effects.
419 The Board began by describing the extent of existing, future, and Project-related shipping activities. It then moved to a review of the regulatory framework and some federal improvement initiatives. The Board's report describes how marine shipping is regulated under the Canada Shipping Act, 2001, S.C. 2001, c. 26 and administered by Transport Canada, the Canadian Coast Guard and other government departments.
420 The Board then moved, in Section 14.3, to the assessment of the effects of increased marine shipping, focusing on changes to the environmental and socio-economic setting caused by the routine operation of Project-related marine vessels. It noted that while it assessed the potential environmental and socio- economic factors of increased marine shipping as part of its public interest determination under the National Energy Board Act, the Board "followed an approach similar to the environmental assessment conducted under [the Canadian Environmental Assessment Act, 2012] ... to the extent it was appropriate, to inform the Board's public interest determination."
421 The Board went on to explain that in order to consider whether the effects of marine shipping were likely to cause significant environmental effects, it considered the existing regulatory scheme in the absence of any specific mitigation measures. This reflected the Board's view that since marine shipping was beyond its regulatory authority, it did not have the ability to impose specific mitigation conditions to address environmental effects of Project-related marine shipping. The Board also explained that it considered any cumulative effects that were likely to arise from Project-related shipping, in combination with environmental effects arising from other current or reasonably foreseeable marine vessel traffic in the area.
422 Finally, before turning to its assessment of the Project's effects, the Board stated that its assessment had considered:
• adverse impacts of Project-related marine shipping on Species at Risk Act (SARA)-listed wildlife species and their critical habitat;
• all reasonable alternatives to Project-related marine shipping that would reduce impact on SARA- listed species' critical habitat; and,
• measures to avoid or lessen any adverse impacts, consistent with applicable recovery strategies or action plans.
423 The Board then went on to make the following findings and statements with respect to marine mammals generally:
67 • Underwater noise from Project-related marine vessels would result in sensory disturbances to marine mammals. The disturbance is expected to be long-term as it is likely to occur for the duration of operations of Project-related vessel traffic.
• When assessing the impact of Project-related shipping on specific species, the Board's approach was to consider the temporal and spatial impact, and its reversibility.
• Project-related marine vessels have the potential to strike a marine mammal, which could result in lethal or non-lethal effects. Further, the increase in Project-related marine traffic would contribute to the cumulative risk of marine mammal vessel strikes. The Board acknowledged Trans Mountain's commitment to provide explicit guidance for reporting both marine mammal vessel strikes and mammals in distress to appropriate authorities.
• The Board accepted the evidence of the Department of Fisheries and Oceans and Trans Mountain to the effect that there were no direct mitigation measures that Trans Mountain could apply to reduce or eliminate potential adverse effects from Project-related tankers. It recognized that altering vessel operations, for example by shifting shipping lanes away from marine mammal aggregation areas or reducing marine vessel speed, could be an effective mitigation measure. However, these specific measures were outside of the Board's regulatory authority, and out of Trans Mountain's control. The Board encouraged other regulatory authorities, such as Transport Canada or Fisheries and Oceans Canada to explore initiatives that would aim to reduce the potential effects of marine vessels on marine mammals.
• The Board recognized initiatives currently underway, or proposed, and noted Trans Mountain's commitment to participate in some of these initiatives. The Board imposed Condition 132 requiring Trans Mountain to develop a Marine Mammal Protection Program, and to undertake or support initiatives that focus on understanding and mitigating Project-related effects. Such Protection Program is to be filed prior to the commencement of Project operations.
• The Board explained that Condition 132 was meant to ensure that Trans Mountain fulfilled its commitments to participate in the development of industry-wide shipping practices in conjunction with the appropriate authorities. At the same time, the Board recognized that the Marine Mammal Protection Program offered no assurance that effective mitigation would be developed and implemented to address Project-related effects on marine mammals.
• The Board acknowledged the recommendation of the Department of Fisheries and Oceans that Trans Mountain explore the use of marine mammal on-board observers on Project-related marine vessels. The Board expressed its agreement and set out its expectation that it would see an initiative of this type incorporated as part of Trans Mountain's Marine Mammal Protection Program.
424 The Board also acknowledged Trans Mountain's commitment to require Project-related marine vessels to meet any future guidelines or standards for reducing underwater noise from commercial vessels as they come into force.
425 The Board went on to make the following findings with specific reference to the Southern resident killer whale:
• The Southern resident killer whale population has crossed a threshold where any additional adverse environmental effects would be considered significant. The current level of vessel traffic in the regional study area and the predicted future increase of vessel traffic in that area, even excluding Project-
68 related marine vessels, "have and would increase the pressure on the Southern resident killer whale population."
• The Board expressed its expectation that Project-related marine vessels would represent a maximum of 13.9% of all vessel traffic in the regional study area, excluding the Burrard Inlet, and would decrease over time as the volume of marine vessel movements in the area is anticipated to grow. Therefore, while the effects from Project-related marine vessels would be a small fraction of the total cumulative effects, the Board acknowledged that this increase in marine vessels associated with the Project "would further contribute to cumulative effects that are already jeopardizing the recovery of the Southern resident killer whale. The effects associated with Project-related marine vessels will impact numerous individuals of the Southern resident killer whale population in a habitat identified as critical to the recovery". The Board classified these effects as "high magnitude". Consequently, the Board found that "the operation of Project-related marine vessels is likely to result in significant adverse effects to the Southern resident killer whale."
• The Board recognized that the "Recovery Strategy for the Northern and Southern Resident Killer Whale" prepared by the Department of Fisheries and Oceans identified vessel noise as "a threat to the acoustic integrity of Southern resident killer whale critical habitat, and that physical and acoustic disturbance from human activities may be key factors causing depletion or preventing recovery of resident killer whale populations."
• The Board noted that the death of a Southern resident killer whale from a Project-related marine vessel collision, despite the low likelihood of such an event, would have population level consequences. The Board acknowledged that Project-related marine vessels would encounter a killer whale relatively often, however, "given the limited number of recorded killer whale marine vessel strikes and the potential avoidance behaviors of killer whales" the Board accepted the evidence of Trans Mountain and the Department of Fisheries and Oceans that the probability of a Project-related marine mammal vessel strike on a Southern resident killer whale was low.
• The Board expressed the view that the recovery of the Southern resident killer whale requires complex, multi-party initiatives, and that the Department of Fisheries and Oceans and other organizations are currently undertaking numerous initiatives to support the recovery of the species, including finalizing an action plan. The Board acknowledged Trans Mountain's commitment to support the objectives and recovery measures identified in the action plan. The draft action plan included a detailed prioritized list of initiatives. The Board expressed its expectation that Trans Mountain would support these initiatives within the Marine Mammal Protection Program. The Board encouraged initiatives, including initiatives of the federal government, to prioritize and implement specific measures to promote recovery of the species.
• Finally, the Board concluded that "the operation of Project-related marine vessels is likely to result in significant adverse effects to the Southern resident killer whale."
426 The Board then considered the impact of marine shipping on the traditional use of marine resources by Indigenous communities, finding that:
• There would be disruptions to Indigenous marine vessels and harvesters, and this may disrupt activities or access to specific sites. However, in the Board's view these disruptions would be temporary, occurring only during the period of time when Project-related tanker vessels are in transit. Thus, it was of the view that Indigenous marine vessel users would maintain the ability to continue to harvest marine resources and to access subsistence and cultural sites in the presence of these periodic and short- term disruptions.
69 • Therefore, the Board found that, with the exception of the effects on the Southern resident killer whale, the magnitude of effects of Project-related marine vessel traffic on traditional marine resource uses, activities and sites would be low.
• Given the low frequency, duration and magnitude of effects associated with potential disruptions, and Trans Mountain's commitments to provide regular updated information on Project-related marine vessel traffic to Indigenous communities, the Board found that adverse effects on traditional marine resource uses, activities and sites were not likely and that, overall, Project-related marine traffic's contribution to overall effects related to changes in traditional marine use patterns was not likely to be significant.
• Project-related marine traffic's contribution to cumulative effects was found to be of low to medium magnitude, and reversible in the long term. The Board therefore found significant adverse cumulative effects associated with Project-related marine vessel traffic on traditional marine resource use was not likely to be significant, with the exception of effects associated with the traditional use of the Southern resident killer whale, which were considered significant.
• Recognizing the cultural importance of the killer whale to certain Indigenous groups, the Board found that "the increase in marine vessel traffic associated with the Project is likely to result in significant adverse effects on the traditional Aboriginal use associated with the Southern resident killer whale."
427 Finally, in Sections 14.4 to 14.6 the Board considered spill prevention. It made the following findings:
• The Board accepted the evidence filed by Trans Mountain regarding marine shipping navigation and safety, including the reports filed as part of the TERMPOL Review Process.
• Although a large spill from a tanker associated with the Project would result in significant adverse environmental and socio-economic effects, such an event is not likely.
• Even with response efforts, any large spill would result in significant adverse environmental and socio- economic effects.
• Trans Mountain, in conjunction with the Western Canada Marine Response Corporation, proposed appropriate measures to respond to potential oil spills from Project-related tankers. These proposed measures exceed regulatory requirements and would result in a response capacity that is double, and a delivery time that is half, that required by the existing planning standards. The Board gave substantial weight to the fact that the TERMPOL Review Committee and the Canadian Coast Guard did not identify any particular concerns with marine spill response planning associated with the Project.
• The environmental effects of a spill from a tanker would be highly dependent on the particular circumstances, such as the amount and the type of product(s) spilled, the location of the spill, the response time, the effectiveness of containment and cleanup, the valued components that were impacted, and the weather and time of year of the spill.
• A small spill, quickly contained, could have adverse effects of low magnitude, whereas a credible worst-case spill could have adverse effects of larger geographic extent and longer duration, and such effects would probably be significant. Moreover, spills could impact key marine habitats such as salt marshes, eelgrass beds and kelp forests, which could, in turn, affect the numerous species that rely upon them. Spills could also affect terrestrial species along the coastline, including SARA-listed terrestrial plant species.
70 • Although impacts from a credible worst-case spill would probably be adverse and significant, natural recovery of the impacted areas and species would likely return most biological conditions to a state generally similar to pre-spill conditions. Such recovery might be as quick as a year or two for some valued components, or might take as long as a decade or more for others. Valuable environmental values and uses could be lost or diminished in the interim. For some valued components, including certain SARA-species, recovery to pre-spill conditions might not occur.
• Mortality of individuals of SARA-listed species could result in population level impacts and could jeopardize recovery. For example, the impact on a Southern resident killer whale of exposure to an oil spill potentially would be catastrophic.
• There is a very low probability of a credible worst-case event.
• The effects of a credible worst-case spill on the current use of lands, waters and resources for traditional purposes by Indigenous people would likely be adverse and significant. However, the probability of such a worst-case event is very low.
428 With respect to the Board's reference to the report of the TERMPOL Review Committee, one of the topics dealt with in that report was Project routing. It was noted, in Section 3.2, that the "shipping route to and from Trans Mountain's terminal to the open sea is well-established and used by deep sea tankers as well as other vessel types such as cargo vessels, cruise ships and ferries." Later in the report it was noted that "Aframax class tankers currently use the proposed route, demonstrating that tanker manoeuvrability issues are not a concern."
429 Notwithstanding, the Review Committee did make one finding with respect to the shipping route. Finding 9 was to the effect that "Trans Mountain's commitment to require via its tanker acceptance process that Project tankers steer a course no more northerly than due West (270°) upon exiting the Juan de Fuca Strait will enhance safety and protection of the marine environment by providing the shortest route out of the Canadian" economic exclusion zone.
430 Returning to the Board's report, the end result of the Board's assessment of the Project was that, notwithstanding the impacts of the Project upon the Southern resident killer whales and Indigenous cultural uses associated with them, with the implementation of Trans Mountain's environmental protection procedures and mitigation, and the Board's recommended conditions, the Project is not likely to cause significant adverse environmental effects. This was the Board's recommendation under section 29 of the Canadian Environmental Assessment Act, 2012.
(iii) Was the Board's assessment of Project-related marine shipping substantially adequate?
431 I begin with the Board's description of its approach to the assessment of marine shipping. It "followed an approach similar to the environmental assessment conducted under" the Canadian Environmental Assessment Act, 2012 "to the extent it was appropriate". Consistent with this approach, the Board's filing requirements in respect of marine shipping required Trans Mountain to provide information about mitigation measures and alternatives — factors which subsection 19(1) of the Canadian Environmental Assessment Act, 2012 require be considered in an environmental assessment.
432 Bearing in mind that the primary focus of the applicants' concern about the Board's assessment of Project-related marine shipping is the Board's assessment of the adverse effects of the Project on Southern resident killer whales, the previous review of the Board's findings demonstrates that the Board considered the Project's effects on the Southern resident killer whales, including the environmental effects of malfunctions or accidents that might occur, the significance of those effects and the cumulative effects of the Project on
71 efforts to promote recovery of the species. The Board found the operation of the Project-related tankers was likely to result in significant, adverse effects to the Southern resident killer whale population.
433 Given the Board's finding that the Project was likely to result in significant adverse effects on the Southern resident killer whale, and its finding that Project-related marine vessel traffic would further contribute to the total cumulative effects (which were determined to be significant), the Board found that the increase in marine vessel traffic associated with the Project is likely to result in significant adverse effects on the traditional Indigenous use associated with the Southern resident killer whale.
434 The Board then considered mitigation measures through the limited lens of its regulatory authority. It found there were no direct mitigation measures Trans Mountain could apply to reduce or eliminate potential adverse effects from Project-related tankers.
435 The Board stated that it considered all reasonable alternatives to Project-related marine shipping that would reduce the impact on SARA-listed species' critical habitat. This would include the critical habitat of the Southern resident killer whale. As part of this consideration, the Board directed Information Request No. 2 to Trans Mountain. In material part, Trans Mountain responded that the only known potential mitigation measures relevant to the Salish Sea to reduce the risk of marine mammal vessel strikes would be to alter the shipping lanes in order to avoid sensitive habitat (that is areas where whales aggregate), and to set speed restrictions. Trans Mountain advised that shipping lanes and speed restrictions are set at the discretion of Transport Canada.
436 Thereafter, the Board issued an Information Request to Transport Canada that, among other things, requested Transport Canada to summarize any initiatives it was currently supporting or undertaking that evaluated potential alternative shipping lanes or vessel speed reductions along the southern coast of British Columbia with the intent of reducing impacts on marine mammals from marine shipping. Transport Canada responded that it was "not currently contemplating alternative shipping lanes or vessel speed restrictions for the purpose of reducing impacts on marine mammals from marine shipping in British Columbia". However, Transport Canada noted it was participating in the Enhancing Cetacean Habitat and Observation Program led by Port Metro Vancouver.
437 Transport Canada's statement that it had no current intent to make alterations to shipping lanes or to impose vessel speed restrictions would seem to have pre-empted further consideration of routing alternatives by the Board.
438 This review of the Board's report has shown that the Board in its assessment of Project-related marine shipping considered:
• the effects of Project-related marine shipping on Southern resident killer whales;
• the significance of the effects;
• the cumulative effect of Project-related marine shipping on the recovery of the Southern resident killer whale population;
• the resulting significant, adverse effects on the traditional Indigenous use associated with the Southern resident killer whale;
• mitigation measures within its regulatory authority; and,
• reasonable alternatives to Project-related marine shipping.
72 439 Given the Board's approach to the assessment and its findings, the Board's report was adequate for the purpose of informing the Governor in Council about the effects of Project-related marine shipping on the Southern resident killer whales and their use by Indigenous groups. The Board's report adequately informed the Governor in Council of the significance of these effects, the Board's view there were no direct mitigation measures Trans Mountain could apply to reduce potential adverse effects from Project-related tankers, and that there were potential mitigation measures beyond the Board's regulatory authority and so not the subject of proper consideration by the Board or conditions. Perhaps most importantly, the report put the Governor in Council on notice that the Board defined the Project not to include Project-related marine shipping. This decision excluded the effects of Project-related shipping from the definition of the Project as a designated project and allowed the Board to conclude that, as it defined the Project, the Project was not likely to cause significant adverse effects.
440 The Order in Council and its accompanying Explanatory Note demonstrate that the Governor in Council was fully aware of the manner in which the Board had assessed Project-related marine shipping under the National Energy Board Act. The Governor in Council was also fully aware of the effects of Project- related marine shipping identified by the Board and that the operation of Project-related vessels is likely to result in significant adverse effects upon both the Southern resident killer whale and Indigenous cultural uses of this endangered species.
441 Having found that the Governor in Council understood the Board's approach and resulting conclusions, it remains to consider the reasonableness of the Governor in Council's reliance on the Board's report to approve the Project. This is considered below, after considering the applicants' submissions with respect to the Species at Risk Act.
(e) Did the Board err in its treatment of the Species at Risk Act?
442 The purposes of the Species at Risk Act are: to prevent wildlife species from being extirpated or becoming extinct; to provide for the recovery of wildlife species that are extirpated, endangered or threatened as a result of human activity; and, to manage species of special concern to prevent them from becoming endangered or threatened (section 6).
443 Important protections are found in section 77 of the Act, which is intended to protect the critical habitat of listed wildlife species, and section 79, which is intended to protect listed wildlife species and their critical habitat from new projects. Listed wildlife species are those species listed in Schedule 1 of the Act, a list of wildlife species at risk. Sections 77 and 79 are set out in the Appendix to these reasons.
444 Raincoast and Living Oceans argue that as a result of unreasonably defining the designated project not to include Project-related marine shipping, the Board failed to meet the requirement of subsection 79(2) of the Species at Risk Act. As a result of this error they say it was unreasonable for the Governor in Council to rely upon the Board's report without first ensuring that the Board had complied with subsection 79(2) of the Act with respect to Southern resident killer whales. They also argue that it was unreasonable for the Governor in Council not to comply with its additional, independent obligations under subsection 77(1) of the Species at Risk Act.
445 I will deal first with the applicability of section 79 of the Act.
(i) Did the Board err by concluding that section 79 of the Species at Risk Act did not apply to its consideration of the effects of Project-related marine shipping?
446 Section 79 obligates every person required "to ensure that an assessment of the environmental effects of a project is conducted" to:
73 i. promptly notify the competent minister or ministers if the project "is likely to affect a listed wildlife species or its critical habitat." (subsection 79(1));
ii. identify the adverse effects of the project on the listed wildlife species and its critical habitat (subsection 79(2)); and,
iii. if the project is carried out, ensure that measures are taken "to avoid or lessen those effects and to monitor them." The measures taken must be taken in a way that is consistent with any applicable recovery strategy and action plans (subsection 79(2)).
447 Subsection 79(3) defines a "project" to mean, among other things, a designated project as defined in subsection 2(1) of the Canadian Environmental Assessment Act, 2012.
448 The Board acknowledged its obligations under section 79 of the Species at Risk Act in the course of its environmental assessment (Chapter 10, page 161). However, because it had not defined the designated project to include Project-related marine shipping, the Board rejected Living Oceans' submission that the Board's obligations under section 79 of the Species at Risk Act applied to its consideration of the effects of Project-related marine shipping on the Southern resident killer whale (Chapter 14, page 332). Notwithstanding this conclusion that section 79 did not apply, for reasons that are not explained in its report, the Board did comply with the obligation under subsection 79(1) to notify the responsible ministers that the Project might affect Southern resident killer whales and their habitat. The Board did this by letter dated April 23, 2014 (a letter sent approximately three weeks after the Board made its scoping decision).
449 I have found that the Board unjustifiably excluded Project-related marine shipping from the Project's description. It follows that the failure to apply section 79 of the Species at Risk Act to its consideration of the effects of Project-related marine shipping on the Southern resident killer whale was also unjustified.
450 Both Canada and Trans Mountain argue that, nonetheless, the Board substantially complied with its obligations under section 79 of the Species at Risk Act. Therefore, as with the issue of Project-related marine shipping, the next question is whether the Board substantially complied with its obligations under section 79.
(ii) Did the Board substantially comply with its obligations under section 79 of the Species at Risk Act?
451 The respondents argue that, in addition to complying with the notification requirement found in subsection 79(1), the Board considered:
• the adverse impacts of marine shipping on listed wildlife species and their critical habitat;
• all reasonable alternatives to marine shipping that would reduce impact on listed species' critical habitat; and
• measures, consistent with the applicable recovery strategies or action plans, to avoid or lessen any adverse impacts of the Project.
452 Canada and Trans Mountain submit that as a result the Board met its requirements "where possible." (Trans Mountain's memorandum of fact and law, paragraph 120). On this last point, Trans Mountain submits that the Board lacked authority to impose conditions or otherwise ensure that measures were taken to avoid or lessen the effects of marine shipping on species at risk. Thus, while the Board could identify potential mitigation measures, and encourage the appropriate regulatory authorities to take further action, it could not ensure compliance with subsection 79(2) of the Species at Risk Act.
74 453 Canada and Trans Mountain have accurately summarized the Board's findings that are relevant to its consideration of Project-related shipping in the context of the Species at Risk Act. However, I do not accept their submission that the Board's consideration of the Project's impact on the Southern resident killer whale substantially complied with its obligation under section 79 of the Species at Risk Act. I reach this conclusion for the following reason.
454 By defining the Project not to include Project-related marine shipping, the Board failed to consider its obligations under the Species at Risk Act when it considered the Project's impact on the Southern resident killer whale. Had it done so, in light of its recommendation that the Project be approved, subsection 79(2) of the Species at Risk Act required the Board to ensure, if the Project was carried out, that "measures are taken to avoid or lessen" the Project's effects on the Southern resident killer whale and to monitor those measures.
455 While I recognize the Board could not regulate shipping, it was nonetheless obliged to consider the consequences at law of its inability to "ensure" that measures were taken to ameliorate the Project's impact on the Southern resident killer whale. However, the Board gave no consideration in its report to the fact that it recommended approval of the Project without any measures being imposed to avoid or lessen the Project's significant adverse effects upon the Southern resident killer whale.
456 Because marine shipping was beyond the Board's regulatory authority, it assessed the effects of marine shipping in the absence of mitigation measures and did not recommend any specific mitigation measures. Instead it encouraged other regulatory authorities "to explore any such initiatives" (report, page 349). While the Board lacked authority to regulate marine shipping, the final decision-maker was not so limited. In my view, in order to substantially comply with section 79 of the Species at Risk Act the Governor in Council required the Board's exposition of all technically and economically feasible measures that are available to avoid or lessen the Project's effects on the Southern resident killer whale. Armed with this information the Governor in Council would be in a position to see that, if approved, the Project was not approved until all technically and economically feasible mitigation measures within the authority of the federal government were in place. Without this information the Governor in Council lacked the necessary information to make the decision required of it.
457 The reasonableness of the Governor in Council's reliance on the Board's report is considered below.
458 For completeness I now turn to the second argument advanced by Raincoast and Living Oceans: it was unreasonable for the Governor in Council to fail to comply with its additional, independent obligations under subsection 77(1) of the Species at Risk Act.
(iii) Was the Governor in Council obliged to comply with subsection 77(1) of the Species at Risk Act?
459 Subsection 77(1) applies when any person or body, other than a competent minister, issues or approves "a licence, a permit or any other authorization that authorizes an activity that may result in the destruction of any part of the critical habitat of a listed wildlife species". The person or body may authorize such an activity only if they have consulted with the competent minister, considered the impact on the species' critical habitat and formed the opinion that: (a) all reasonable alternatives to the activity that would reduce the impact on the critical habitat have been considered and the best solution has been adopted; and (b) all feasible mitigation measures will be taken to minimize the impact on the critical habitat.
460 The Board accepted that:
... vessel noise is considered a threat to the acoustic integrity of Southern resident killer whale critical habitat, and that physical and acoustic disturbance from human activities may be key factors causing depletion or preventing recovery of resident killer whale populations.
75 (report, page 350)
461 It also accepted that the impact of a Southern resident killer whale being exposed to an oil spill "is potentially catastrophic" (report, page 398).
462 Based on these findings, Raincoast and Living Oceans submit that Project-related shipping "may destroy" critical habitat so that subsection 77(1) was engaged.
463 I respectfully disagree. The Order in Council directed the Board to issue a certificate of public convenience and necessity approving the construction and operation of the expansion project. The Governor in Council did not issue or approve a licence, permit or other authorization that authorized marine shipping.
464 Further, subsection 77(1.1) of the Species at Risk Act provides that subsection 77(1) does not apply to the Board when, as in the present case, it issues a certificate pursuant to an order made by the Governor in Council under subsection 54(1) of the National Energy Board Act. I accept Canada's submission that Parliament would not have intended to exempt the Board from the application of subsection 77(1) while at the same time contemplating that the Governor in Council was not exempted and was obliged to comply with subsection 77(1). This is particularly so given the Board's superior expertise in assessing impacts on habitat and mitigation measures. If subsection 77(1) applied, the Board's ability to meet its obligations was superior to that of the Governor in Council.
(f) Conclusion: the Governor in Council erred by relying upon the Board's report as a proper condition precedent to the Governor in Council's decision
465 Trans Mountain's application was complex, raising challenging issues on matters as diverse as Indigenous rights and concerns, pipeline integrity, the fate and behaviours of spilled hydrocarbons in aquatic environments, emergency prevention, preparedness and response, the need for the Project and its economic feasibility and the effects of Project-related shipping activities.
466 The approval process was long and demanding for all participants; after the hearing the Board was left to review tens of thousands of pages of evidence.
467 Many aspects of the Board's report are not challenged in this proceeding.
468 This said, I have found that the Board erred by unjustifiably excluding Project-related marine shipping from the Project's definition. While the Board's assessment of Project-related shipping was adequate for the purpose of informing the Governor in Council about the effects of such shipping on the Southern resident killer whale, the Board's report was also sufficient to put the Governor in Council on notice that the Board had unjustifiably excluded Project-related shipping from the Project's definition.
469 It was this exclusion that permitted the Board to conclude that section 79 of the Species at Risk Act did not apply to its consideration of the effects of Project-related marine shipping. This exclusion then permitted the Board to conclude that, notwithstanding its conclusion that the operation of Project-related marine vessels is likely to result in significant adverse effects to the Southern resident killer whale, the Project (as defined by the Board) was not likely to cause significant adverse environmental effects. The Board could only reach this conclusion by defining the Project not to include Project-related shipping.
470 The unjustified exclusion of Project-related marine shipping from the definition of the Project thus resulted in successive deficiencies such that the Board's report was not the kind of "report" that would arm the Governor in Council with the information and assessments it required to make its public interest determination and its decision about environmental effects and their justification. In the language
76 of Gitxaala this resulted in a report so deficient that it could not qualify as a "report" within the meaning of the legislation and it was unreasonable for the Governor in Council to rely upon it. The Board's finding that the Project was not likely to cause significant adverse environmental effects was central to its report. The unjustified failure to assess the effects of marine shipping under the Canadian Environmental Assessment Act, 2012 and the resulting flawed conclusion about the effects of the Project was so critical that the Governor in Council could not functionally make the kind of assessment of the Project's environmental effects and the public interest that the legislation requires.
471 I have considered the reference in the Explanatory Note to the Order in Council to the government's commitment to the proposed Action Plan for the Southern resident killer whale and the then recently announced Oceans Protection Plan. These inchoate initiatives, while laudable and to be encouraged, are by themselves insufficient to overcome the material deficiencies in the Board's report because the "report" did not permit the Governor in Council to make an informed decision about the public interest and whether the Project is likely to cause significant adverse environmental effects as the legislation requires.
472 There remains to consider the issue of the remedy which ought to flow from the unreasonable reliance upon the Board's report. In my view, this is best dealt with following consideration of the adequacy of the Crown's consultation process.
473 My conclusion that the Board's report was so flawed that it was unreasonable for the Governor in Council to rely upon it arguably makes it unnecessary to deal with the argument advanced on behalf of the Attorney General of British Columbia. It is nonetheless important that it be briefly considered.
3. The challenge of the Attorney General of British Columbia
474 As explained above at paragraphs 64 and 65, after the Board submits a report to the Governor in Council setting out the Board's recommendation under section 52 of the National Energy Board Act about whether a certificate of public convenience and necessity should issue, the Governor in Council may, among other options, by order direct the Board to issue a certificate of public convenience and necessity. Irrespective of the option selected, the Governor in Council's order "must set out the reasons for making the order" (subsection 54(2) of the National Energy Board Act). The Attorney General of British Columbia intervened in this proceeding to argue that, in breach of this statutory obligation, the Governor in Council failed to give reasons explaining why the Project is not likely to cause significant adverse environmental effects and why the Project is in the public interest.
475 The Attorney General also argued in its written memorandum, but not orally, that the Governor in Council failed to consider the "disproportionate impact of Project-related marine shipping spill risks on the Province of British Columbia". This failure is said to render the Governor in Council's decision unreasonable.
476 In consequence, the Attorney General of British Columbia supports the request of the applicants that the Governor in Council's Order in Council be set aside.
(a) Did the Governor in Council fail to comply with the obligation to give reasons?
477 The lynchpin of the Attorney General's argument is his submission that the Governor in Council's reasons must be found "within the four corners of the Order in Council" and nowhere else. Thus, the Attorney General submits that it is impermissible to have regard to the accompanying Explanatory Note or to documents referred to in the Explanatory Note, including the Board's report and the Crown Consultation Report. Read in this fashion, the Order in Council does not explain why the Governor in Council found the Project is not likely to cause any significant adverse environmental effects or was in the public interest.
77 478 I respectfully reject the premise of this submission. Subsection 54(2) does not dictate the form the Governor in Council's reasons should take, requiring only that the "order must set out the reasons". Given the legislative nature and the standard format of an Order in Council (generally a series of recitals followed by an order) Orders in Council are not well-suited to the provision of lengthy reasons. In the present case, the two-page Order in Council was accompanied by the 20-page Explanatory Note. They were published together in the Canada Gazette. Given this joint publication, it would, in my view, be unduly formalistic to set aside the Order in Council on the ground that the reasons found in the attached Explanatory Note were placed in an attachment to the order, and not within the "four square corners" of the order.
479 Similarly, it would be unduly formalistic not to look to the content of the Board's report that informed the Governor in Council when rendering its decision. The Order in Council specifically referenced the Board's report and the terms and conditions set out in an appendix to the report, and expressly accepted the Board's public interest recommendation. This conclusion that the Order in Council may be read with the Board's report is consistent with this Court's decision in Gitxaala, where the Court accepted Canada's submission that the Order in Council should be read together with the findings and recommendations in the report of the joint review panel. This Court read the Order in Council together with the report and other documents in the record and found that the Governor in Council had met its statutory obligation to give reasons.
480 I therefore find that the Governor in Council also in this case complied with its statutory obligation to give reasons.
(b) Did the Governor in Council fail to consider the impact of Project-related shipping spill risks on the Province of British Columbia?
481 I disagree that the Governor in Council failed to consider the impact of shipping spill risks. The Explanatory Note shows the Governor in Council considered that:
• The Board found the risk of a major crude oil spill occurring was low (Explanatory Note, page 10).
• The Board imposed conditions relating to accidents and malfunctions (Explanatory Note, page 13).
482 Under the heading "Government response to what was heard" the Explanatory Note set out the following about the risk of spills:
Communities are deeply concerned about the risk and impacts that oil spills pose to their land, air, water and communities. In addition to the terms and conditions related to spills identified by the NEB, land-based oil spills are subject to both federal and provincial jurisdiction. Federally regulated pipelines are subject to NEB regulation and oversight, which requires operators to develop comprehensive emergency management programs and collaborate with local responders in the development of these programs. B.C. also recently implemented regulations under the provincial Environmental Management Act to strengthen provincial oversight and require industry and government to collaborate in response to spills in B.C.
The Government recently updated its world-leading pipeline safety regime through the Pipeline Safety Act, which came into force in June 2016. The Act implements $1 billion in "absolute liability" for companies operating major crude oil pipelines to clarify that operators will be responsible for all costs associated with spills irrespective of fault up to $1 billion; operators remain liable on an unlimited basis
78 beyond this amount when they are negligent or at fault. The Act also requires proponents to carry cash on hand to ensure they are in a position to immediately respond to emergencies.
With respect to ship source spills, the Government recently announced $1.5 billion in new investment in a national Oceans Protection Plan to enhance its world-leading marine safety regime. The Oceans Protection Plan has four main priority areas:
• creating a world-leading marine safety system that improves responsible shipping and protects Canada's waters, including new preventative and response measures;
• restoring and protecting the marine ecosystems and habitats, using new tools and research;
• strengthening partnerships and launching co-management practices with Indigenous communities, including building local emergency response capacity; and
• investing in oil spill cleanup research and methods to ensure that decisions taken in emergencies are evidence-based.
The Plan responds to concerns related to potential marine spills by strengthening the Coast Guard's ability to take command in marine emergencies, toughening requirements for industry response to incidents, and by enhancing Indigenous partnerships.
483 While the Attorney General of British Columbia disagrees with the Governor in Council's assessment of the risk of a major spill from Project-related shipping, there is no merit to the submission that the Governor in Council failed to consider the risk of spills posed by Project-related shipping.
484 I now turn to consider the adequacy of the consultation process.
D. Should the decision of the Governor in Council be set aside on the ground that Canada failed to consult adequately with the Indigenous applicants?
1. The applicable legal principles
485 Before commencing the analysis, it is helpful to discuss briefly the principles that have emerged from the jurisprudence which has considered the scope and content of the duty to consult. As explained in the opening paragraphs of these reasons, the applicable principles are not in dispute; what is in dispute is whether, on the facts of this case (which are largely agreed), Canada fulfilled its constitutional duty to consult.
486 The duty to consult is grounded in the honour of the Crown and the protection provided for "existing aboriginal and treaty rights" in subsection 35(1) of the Constitution Act, 1982. The duties of consultation and, if required, accommodation form part of the process of reconciliation and fair dealing (Haida Nation, paragraph 32).
487 The duty arises when the Crown has actual or constructive knowledge of the potential existence of Indigenous rights or title and contemplates conduct that might adversely affect those rights or title (Haida Nation, paragraph 35). The duty reflects the need to avoid the impairment of asserted or recognized rights caused by the implementation of a specific project.
488 The extent or content of the duty of consultation is fact specific. The depth or richness of the required consultation increases with the strength of the prima facie Indigenous claim and the seriousness of the potentially adverse effect upon the claimed right or title (Haida Nation, paragraph 39; Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43, [2010] 2 S.C.R. 650 (S.C.C.), paragraph 36).
79 489 When the claim to title is weak, the Indigenous interest is limited or the potential infringement is minor, the duty of consultation lies at the low end of the consultation spectrum. In such a case, the Crown may be required only to give notice of the contemplated conduct, disclose relevant information and discuss any issues raised in response to the notice (Haida Nation, paragraph 43). When a strong prima facie case for the claim is established, the right and potential infringement is of high significance to Indigenous peoples, and the risk of non-compensable damage is high, the duty of consultation lies at the high end of the spectrum. While the precise requirements will vary with the circumstances, a deep consultative process might entail: the opportunity to make submissions; formal participation in the decision-making process; and, the provision of written reasons to show that Indigenous concerns were considered and how those concerns were factored into the decision (Haida Nation, paragraph 44).
490 Parliament may choose to delegate procedural aspects of the duty to consult to a tribunal.
491 The Supreme Court has found the Board to possess both the procedural powers necessary to implement consultation and the remedial powers to accommodate, where necessary, affected Indigenous claims and Indigenous and treaty rights. The Board's process can, therefore, be relied on by the Crown to fulfil, in whole or in part, the Crown's duty to consult (Clyde River (Hamlet) v. Petroleum Geo-Services Inc., 2017 SCC 40, [2017] 1 S.C.R. 1069 (S.C.C.), paragraph 34).
492 As referenced above at paragraph 284, the Supreme Court has described the Board as having considerable institutional expertise both in conducting consultations and in assessing the environmental impacts of proposed projects. Where the effects of a proposed project on Indigenous or treaty rights substantially overlap with the project's potential environmental impact, the Board "is well situated to oversee consultations which seek to address these effects, and to use its technical expertise to assess what forms of accommodation might be available" (Clyde River, paragraph 33).
493 When the Crown relies on a regulatory or environmental assessment process to fulfil the duty to consult, such reliance is not delegation of the Crown's ultimate responsibility to ensure consultation is adequate. Rather, it is a means by which the Crown can be satisfied that Indigenous concerns have been heard and, where appropriate, accommodated (Haida Nation, paragraph 53).
494 The consultation process does not dictate a particular substantive outcome. Thus, the consultation process does not give Indigenous groups a veto over what can be done with land pending final proof of their claim. What is required is a process of balancing interests — a process of give and take. Nor does consultation equate to a duty to agree; rather, what is required is a commitment to a meaningful process of consultation (Haida Nation, paragraphs 42, 48 and 62).
495 Good faith consultation may reveal a duty to accommodate. Where there is a strong prima facie case establishing the claim and the consequence of proposed conduct may adversely affect the claim in a significant way, the honour of the Crown may require steps to avoid irreparable harm or to minimize the effects of infringement (Haida Nation, paragraph 47).
496 Good faith is required on both sides in the consultative process: "The common thread on the Crown's part must be 'the intention of substantially addressing [Aboriginal] concerns' as they are raised [...] through a meaningful process of consultation" (Haida Nation, paragraph 42). The "controlling question in all situations is what is required to maintain the honour of the Crown and to effect reconciliation between the Crown and the Aboriginal peoples with respect to the interests at stake" (Haida Nation, paragraph 45).
497 At the same time, Indigenous claimants must not frustrate the Crown's reasonable good faith attempts, nor should they take unreasonable positions to thwart the government from making decisions or
80 acting in cases where, despite meaningful consultation, agreement is not reached (Haida Nation, paragraph 42).
498 In the present case, much turns on what constitutes a meaningful process of consultation.
499 Meaningful consultation is not intended simply to allow Indigenous peoples "to blow off steam" before the Crown proceeds to do what it always intended to do. Consultation is meaningless when it excludes from the outset any form of accommodation (Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69, [2005] 3 S.C.R. 388 (S.C.C.), paragraph 54).
500 The duty is not fulfilled by simply providing a process for exchanging and discussing information. There must be a substantive dimension to the duty. Consultation is talking together for mutual understanding (Clyde River, paragraph 49).
501 As the Supreme Court observed in Haida Nation at paragraph 46, meaningful consultation is not just a process of exchanging information. Meaningful consultation "entails testing and being prepared to amend policy proposals in the light of information received, and providing feedback." Where deep consultation is required, a dialogue must ensue that leads to a demonstrably serious consideration of accommodation. This serious consideration may be demonstrated in the Crown's consultation-related duty to provide written reasons for the Crown's decision.
502 Where, as in this case, the Crown must balance multiple interests, a safeguard requiring the Crown to explain in written reasons the impacts of Indigenous concerns on decision-making becomes more important. In the absence of this safeguard, other issues may overshadow or displace the issue of impacts on Indigenous rights (Gitxaala, paragraph 315).
503 Further, the Crown is obliged to inform itself of the impact the proposed project will have on an affected First Nation, and, if appropriate in the circumstances, communicate its findings to the First Nation and attempt to substantially address the concerns of the First Nation (Mikisew Cree First Nation, paragraph 55).
504 Consultation must focus on rights. In Clyde River, the Board had concluded that significant environmental effects to marine mammals were not likely and effects on traditional resource use could be addressed through mitigation measures. The Supreme Court held that the Board's inquiry was misdirected for the purpose of consultation. The Board was required to focus on the Inuit's treaty rights; the "consultative inquiry is not properly into environmental effects per se. Rather, it inquires into the impact on the right" (emphasis in original) (Clyde River, paragraph 45). Mitigation measures must provide a reasonable assurance that constitutionally protected rights were considered as rights in themselves — not just as an afterthought to the assessment of environmental concerns (Clyde River, paragraph 51).
505 When consulting on a project's potential impacts the Crown must consider existing limitations on Indigenous rights. Therefore, the cumulative effects and historical context may inform the scope of the duty to consult (Chippewas of the Thames, paragraph 42).
506 Two final points. First, where the Crown knows, or ought to know, that its conduct may adversely affect the Indigenous right or title of more than one First Nation, each First Nation is entitled to consultation based upon the unique facts and circumstances pertinent to it (Gitxaala, paragraph 236).
507 Second, it is important to understand that the public interest and the duty to consult do not operate in conflict. As a constitutional imperative, the duty to consult gives rise to a special public interest that supersedes other concerns commonly considered by tribunals tasked with assessing the public interest. In the
81 case of the Board, a project authorization that breaches the constitutionally protected rights of Indigenous peoples cannot serve the public interest (Clyde River, paragraph 40).
2. The standard to which Canada is to be held in fulfilling the duty
508 As briefly explained above at paragraph 226, Canada is not to be held to a standard of perfection in fulfilling its duty to consult. The Supreme Court of Canada has expressed this concept as follows:
Perfect satisfaction is not required; the question is whether the regulatory scheme or government action "viewed as a whole, accommodates the collective aboriginal right in question": Gladstone, supra, at para. 170. What is required is not perfection, but reasonableness. As stated in Nikal, supra, at para. 110, "in ... information and consultation the concept of reasonableness must come into play. ... So long as every reasonable effort is made to inform and to consult, such efforts would suffice." The government is required to make reasonable efforts to inform and consult. This suffices to discharge the duty.
(Haida Nation, paragraph 62)
(underlining added)
509 As in Gitxaala, in this case "the subjects on which consultation was required were numerous, complex and dynamic, involving many parties. Sometimes in attempting to fulfil the duty there can be omissions, misunderstandings, accidents and mistakes. In attempting to fulfil the duty, there will be difficult judgment calls on which reasonable minds will differ." (Gitxaala, paragraph 182).
510 Against this legal framework, I turn to the design and execution of Canada's four-phase consultation process. This process began in May 2013 with the filing of the Project description and ended in November 2016 with the decision of the Governor in Council to approve the Project and direct the issuance of a certificate of public convenience and necessity.
3. Application of the legal principles to the evidence
511 The Indigenous applicants express a myriad of concerns and asserted deficiencies with respect to the consultation process. Broadly speaking, they challenge both the design of the process and the execution of the process.
512 I will deal first with the asserted deficiencies in the design of the process selected and followed by Canada, and then consider the asserted deficiencies in the execution of the process.
(a) Was the consultation process deficient because of the design of the process selected and followed by Canada?
513 Generally speaking, the most salient concerns expressed with respect to the design of the consultation process are the assertions that:
i. The consultation framework was unilaterally imposed.
ii. The National Energy Board process is inadequate for fulfilling consultation obligations.
iii. Insufficient funding was provided.
iv. The process allowed the Project to be approved when essential information was lacking.
514 Each assertion will be considered in turn.
(i) The consultation framework was unilaterally imposed
82 515 There was no substantive consultation with the Indigenous applicants about the four-phase consultation process.
516 However, as Canada argues, the Crown possesses a discretion about how it structures a consultation process and how it meets its consultation obligations (Gitxaala, paragraph 203, citing Cold Lake First Nations v. Alberta (Minister of Tourism, Parks and Recreation), 2013 ABCA 443, 566 A.R. 259 (Alta. C.A.), at paragraph 39). What is required is a process that allows Canada to make reasonable efforts to inform and consult (Haida Nation, at paragraph 62).
517 Canada's four-phase consultation process is described above at paragraphs 72 through 75. While I deal below with the asserted frailties of the Board's hearing process in this particular case, the Supreme Court has recently re-affirmed that the Crown may rely on a regulatory agency to fulfil the Crown's duty to consult so long as the agency possesses the statutory powers to do what the duty to consult requires in the particular circumstances (Chippewas of the Thames, paragraph 32). In the present case, no applicant asserts that the National Energy Board lacked any necessary statutory power so as to be able to fulfil in part the Crown's duty to consult. It follows that Canada could rely upon a consultation process which relied in part on the Board's hearing process, so long as Canada remained mindful of its constitutional obligation to ensure before approving the Project that consultation was adequate.
518 Canada implemented a five-phase consultation framework for the review of the Northern Gateway Project. In Gitxaala, this Court found that the framework was reasonable (Gitxaala, paragraph 8). When the two consultation frameworks are compared there is little to distinguish them. An additional first phase was required in the Northern Gateway framework simply because the project was reviewed by a joint review panel, not the Board.
519 Given Canada's discretion as to how the consultation process is structured and the similarity of this consultation process to that previously found by this Court to be reasonable, I am satisfied that Canada did not act in breach of the duty to consult by selecting the four-phase consultation process it adopted.
(ii) The Board's process is said to be inadequate for fulfilling consultation obligations
520 A number of deficiencies are asserted with respect to the Board's process and its adequacy for fulfilling, to the extent possible, consultation obligations. The asserted deficiencies include:
• The Board's decision not to allow cross-examination of Trans Mountain's evidence.
• The Board's treatment of oral traditional evidence.
• The Board's timeframe which is said not to have provided sufficient time for affected Indigenous groups to inform themselves of the complexity of the Project and to participate with knowledge of the issues and impacts on them.
• The Board's failure to consult with affected Indigenous groups about any of the decisions the Board made prior to or during the hearing, including the list of issues for the hearing, the panel members who would hear the application, the design of the regulatory review and the environmental assessment, the decision-making process and the report and its recommendations.
• The failure of the Board's process to provide the required dialogue and consultation directly with Canada in circumstances where it is said that consultation in Phase III would be too little, too late.
83 521 It is convenient to deal with the first four deficiencies together as the Board's choice of procedures, its decision-making process and its ultimate decision flow from its powers as a regulator under the National Energy Board Act and the Canadian Environmental Assessment Act, 2012.
522 As explained above, the Supreme Court has found that meaningful Crown consultation can be carried out wholly or in part through a regulatory process (Chippewas of the Thames, paragraph 32). Prior to this decision, concern had been expressed about the tension said to result if a tribunal such as the Board were required both to carry out consultation on behalf of the Crown and then adjudicate on the adequacy of the consultation. The Supreme Court responded that such concern is addressed by observing that while it is the Crown that owes the constitutional duty to consult, agencies such as the Board are required to make legal decisions that comply with the Constitution. The Supreme Court went on to explain, at paragraph 34, that:
When the [Board] is called on to assess the adequacy of Crown consultation, it may consider what consultative steps were provided, but its obligation to remain a neutral arbitrator does not change. A tribunal is not compromised when it carries out the functions Parliament has assigned to it under its Act and issues decisions that conform to the law and the Constitution.
(underlining added)
523 Applying these principles to the submissions before this Court, and bearing in mind that at this point I am only addressing submissions with respect to the adequacy of the design of the consultation process, the Board was required to provide a process that was impartial and fair and in accordance with its statutory framework and the Constitution.
524 As explained above, section 8 of the National Energy Board Act authorizes the Board to make rules about the conduct of hearings before it, and the Board's rules allow the Board to determine whether public hearings held before it are oral or written. Section 52 of the National Energy Board Act requires the Board to render its report to the Minister within strict timelines. It follows that the Board could decide not to allow oral cross-examination, could determine how oral traditional evidence would be received and could schedule the hearing to comply with section 52 of the National Energy Board Act so long as, at the end of the hearing, it was satisfied that it had exercised its responsibilities in a manner that was fair and impartial and consistent with its governing legislation and section 35 of the Constitution Act, 1982.
525 Similarly, the Board was authorized as a neutral arbitrator to make the decisions required of it under the legislation, including decisions about which issues would be decided during the hearing, the composition of the hearing panel and the content of its ultimate report. So long as these decisions were made in a manner that was fair and impartial, and in accordance with the legislative scheme and subsection 35(1) of the Constitution Act, 1982 they too were validly made. The Indigenous applicants have not shown that any additional dialogue or process was required between the Board and the Indigenous applicants in order for the Board's decision to be constitutionally sound.
526 Put another way, when the Board's process is relied on in whole or in part to fulfil the obligation to consult, the regulatory hearing process does not change and the Board's role as neutral arbitrator does not change. What changes is that the Board's process serves the additional purpose of contributing to the extent possible to the constitutional imperative not to approve a project if the duty to consult was not satisfied.
527 I now consider the last deficiency said to make the Board's process inadequate for fulfilling even in part the duty to consult: the failure of the Board's process to provide the required consultation directly with Canada.
84 528 The Indigenous applicants do not point to any jurisprudence to support their submission that Canada was required to dialogue directly with them during the Board's hearing process (that is, during Phase II) and I believe this submission may be dealt with briefly.
529 As stated above, meaningful Crown consultation can be carried out wholly through a regulatory process so long as where the regulatory process relied upon by the Crown does not achieve adequate consultation or accommodation, the Crown takes further steps to meet its duty to consult by, for example, filling any gaps in consultation on a case-by-case basis (Clyde River, paragraph 22).
530 In the present case, Phase III was designed in effect to fill the gaps left by the Phase II regulatory process — Phase III was to focus on outstanding concerns about the Project-related impacts upon potential or established Indigenous or treaty rights and on any incremental accommodation measures that Canada should address. Leaving aside the question of whether Phase III adequately addressed gaps in the consultation process, a point dealt with below, the Indigenous applicants have not shown that the consultation process required Canada's direct involvement in the regulatory process.
531 For all of these reasons, I am satisfied that the Board's process was adequate for fulfilling its consultation obligations.
532 The next concern with respect to the design of the consultation process is that it is said that insufficient participant funding was provided.
(iii) The funding provided is said to have been inadequate
533 Two Indigenous applicants raise the issue of inadequate funding: Squamish and SSN.
534 Squamish sought participant funding of $293,350 to participate in the Board process but was granted only $44,270, plus travel costs for one person to attend the hearing. Canada later provided $26,000 to Squamish to participate in consultation following the close of the Board hearing record. The Squamish appendix to the Crown Consultation Report notes that the British Columbia Environmental Assessment Office also offered Squamish $5,000 in capacity funding to participate in consultations.
535 Chief Campbell of the Squamish Nation provided evidence that the funding provided to Squamish was not adequate for Squamish to obtain experts to review and respond to the 8 volume, 15,000 page, highly technical Project application. Nor, in his view, was the funding adequate for Squamish to undertake a comprehensive assessment of the impacts of the Project on Squamish rights and title. He notes that Squamish's limited budget is fully subscribed to meet the needs of its members and that the sole purpose of Squamish's involvement in the hearing and consultation process was "defensive: to protect our rights and title."
536 SSN requested in excess of $300,000 for legal fees, expert fees, travel costs, meeting attendance costs and information collecting costs. It received $36,920 in participant funding, plus travel for two representatives to attend the hearing. Canada later offered $39,000 to SSN to participate in consultation following the close of the Board hearing record. The British Columbia Environmental Assessment Office also offered some capacity funding.
537 SSN states that Canada knew that SSN requested funding in largest part to complete a traditional land and resource use study. It states that Canada knew that such studies had been completed for other Indigenous groups in relation to the Project, but that neither Canada nor the proponent had undertaken such a study for SSN.
85 538 I accept that the level of participant funding provided constrained participation in the process before the National Energy Board by the Squamish and the SSN. However, as Canada submits, it is difficult to see the level of participant funding as being problematic in a systematic fashion when only two applicants address this issue.
539 In Gitxaala, this Court rejected the submission that inadequate funding had been provided for participation before the joint review panel and in the consultation process. The Court noted, at paragraph 210, that the evidence filed in support of the submissions did:
... not explain how the amounts sought were calculated, or detail any financial resources available to the First Nations outside of that provided by Canada. As such, the evidence fails to demonstrate that the funding available was so inadequate as to render the consultation process unreasonable.
540 Much the same can be said of the evidence filed on this application. While SSN did append its request for participant funding as Exhibit D to the affidavit of its affiant Jeanette Jules, at the time this application was submitted SSN had not determined which expert or experts would be hired, it could not advise as to how many hours the expert(s) would likely bill or what the expert(s)' hourly rate(s) would be. The information provided was simply that it was expected that $80,000 was required to prepare a traditional land use study and that an additional $30,000 was required as the approximate cost of a wildlife study. No information was provided by either applicant about financial resources available to it.
541 The evidence has not demonstrated that the level of participant funding was so inadequate as to render the entire consultation process unreasonable.
(iv) The process allowed the Project to be approved when essential information was lacking
542 The final deficiency asserted with respect to the structure of the consultation process relates to the nature of the Board's process for approving projects. A number of Indigenous applicants argue that Canada's reliance upon the Board's hearing process was unreasonable in circumstances where potential impacts to title and rights remained unknown because studies of those potential impacts, and of the measures proposed in the Board's report to mitigate potential impacts, were left to a later date after the Governor in Council approved the Project. It is argued that without identification of all of the impacts of the Project Canada cannot rely on the Board's assessment of impacts to fulfil the duty to consult.
543 Commencing at paragraph 286 above, I describe in some detail the Board's approval process in the context of the submission of the City of Burnaby that the Board's approval process was procedurally unfair because of what Burnaby characterized to be the deferral and delegation of the assessment of important information.
544 Beginning at paragraph 322 above, I deal with the submissions of the City of Burnaby and Coldwater that the Governor in Council erred in determining that the Board's report qualified as a report because the Board did not decide certain issues before recommending approval of the Project. Consideration of the concerns advanced by Coldwater with respect to the Board's failure to deal with the West Alternative begins at paragraph 375 above. At paragraphs 384 and 385, I conclude that the pipeline route through the Coldwater River Valley remains a live issue.
545 This places in context concerns raised by Coldwater and other applicants about the reasonableness of Canada's reliance on a process that left important issues unresolved at the time the Governor in Council approved the Project.
86 546 In my view, this concern is addressed by the Supreme Court's analysis in the companion cases of Clyde River and Chippewas of the Thames where the Supreme Court explained that the Board's approval process may itself trigger the duty to consult where that process may result in adverse impacts upon Indigenous and treaty rights (Clyde River, paragraphs 25 to 29; Chippewas of the Thames, paragraphs 29 to 31).
547 Examined in the context of Coldwater's concerns about the West Alternative and the protection of Coldwater's aquifer, this means that the Board's decision about the detailed pipeline routing in the vicinity of the Coldwater Reserve will trigger the duty to consult because Canada will have knowledge, real or constructive, of the potential impact of that decision upon Coldwater's aquifer located beneath the Coldwater Reserve. Once the duty is triggered, the Board may only make its decision if it informs itself of the impacts to the aquifer and takes the rights and interests of Coldwater into consideration before making its final decisions about pipeline routing and compliance with Condition 39 (Chippewas of the Thames, paragraph 48). Canada will remain responsible to ensure that the Board's decision upholds the honour of the Crown (Clyde River, paragraph 22). This is, I believe, a full answer to the concern that the consultation framework was deficient because certain decisions remain to be made after the Governor in Council approved the Project.
(v) Conclusion on the adequacy of the process selected and followed by Canada
548 In Clyde River and Chippewas of the Thames the Supreme Court provided helpful guidance about the indicia of a reasonable consultation process. Applying those indicia:
• The Indigenous applicants were given early notice of the Project, the Board's hearing process, the framework of the consultation process and Canada's intention to rely on the National Energy Board process, to the extent possible, to discharge Canada's duty to consult.
• Participant funding was provided to the Indigenous applicants both by the Board and Canada (and the provincial Crown as well).
• The Board's process permitted Indigenous applicants to provide written evidence and oral traditional evidence, to question both Trans Mountain and the federal government interveners through Information Requests and to make written and oral closing submissions.
• The regulatory framework permitted the Board to impose conditions upon Trans Mountain that were capable of mitigating risks posed by the Project to the rights and title of the Indigenous applicants.
• After the Board's hearing record closed and prior to the decision by the Governor in Council, Canada provided a further consultation phase, Phase III, designed to enable Canada to deal with concerns not addressed by the hearing, the Board's proposed conditions and Trans Mountain's commitments.
• Canada understood, and advised the Indigenous applicants, that if Indigenous groups identified outstanding concerns in Phase III there were a number of options available to Canada. These included asking the National Energy Board to reconsider its recommendations and conditions, undertaking further consultations prior to issuing additional permits or authorizations and the use of existing or new policy and program measures to address outstanding concerns.
549 I am satisfied that the consultation framework selected by Canada was reasonable. It was sufficient, if properly implemented, to enable Canada to make reasonable efforts to inform itself and consult. Put another way, this process, if reasonably implemented, could have resulted in mutual understanding on the core issues and a demonstrably serious consideration of accommodation.
(b) Was the consultation process deficient because of Canada's execution of the process?
87 550 Canada argues that the consultation process allowed for deep consultation both in form and in substance. In particular it notes that:
• The Indigenous applicants were given early notice of the proposed Project, the Board hearing process and the consultation process, as well as Canada's intention to rely on the Board's process, to the extent possible, to discharge Canada's duty to consult.
• The Board required that Trans Mountain extensively consult before filing its application so as to attempt to address potential impacts by way of project modifications and design.
• Participant funding was provided to the Indigenous applicants by both Canada and the Board.
• The Indigenous applicants were afforded the opportunity before the Board to provide oral traditional and written evidence, to ask questions of Trans Mountain and the Federal interveners, and to make both written and oral submissions. The Board's report formulated conditions to mitigate, avoid or otherwise address impacts on Indigenous groups, and explained how Indigenous concerns were considered and addressed.
• Canada ordered an extension of the legislative timeframe for the Governor in Council's decision and met and corresponded with the Indigenous applicants to discuss concerns that may not have been adequately addressed by the Board and to work together to identify potential accommodation measures.
• Canada developed the Crown Consultation Report to inform government decision-makers and sought feedback from the Indigenous applicants on two draft versions of the Crown Consultation Report.
• Canada reviewed upstream greenhouse gas emission estimates for the Project, struck a Ministerial Panel to seek public input and held a workshop in Kamloops.
• Canada developed additional accommodation measures including an Indigenous Advisory and Monitoring Committee, the Oceans Protection Plan and the Action Plan for the Recovery of the Southern Resident Killer Whale.
• Canada gave written reasons for conditionally approving the Project that showed how Indigenous concerns were considered and addressed.
551 While in Gitxaala this Court found that the consultation process followed for the Northern Gateway project fell well short of the mark, Canada submits that the flaws identified by the Court in Gitxaala were remedied and not repeated. Specific measures were taken to remedy the flaws found in the earlier consultation. Thus:
i. Canada extended the consultation process by four months to allow deeper consultation with potentially affected Indigenous groups, greater public engagement and an assessment of the greenhouse gas emissions associated with the Project.
ii. The Order in Council expressly stated that the Governor in Council was "satisfied that the consultation process undertaken is consistent with the honour of the Crown and that the concerns and interests have been appropriately accommodated". Reasons for this conclusion were given in the Explanatory Note.
88 iii. Canada shared its preliminary strength of claim assessments in August 2016 to allow Indigenous groups to comment on the assessments. Canada's ultimate assessments were set out in the Crown Consultation Report.
iv. Canada's officials met and dialogued with Indigenous groups. As well, several Ministers met with Indigenous groups. While the Governor in Council accepted the report of the National Energy Board, in addition to the Board's conditions the Crown Consultation Report contained a commitment to design, fund and implement an Indigenous Advisory and Monitoring Committee for the Project and the Explanatory Note referenced two new initiatives: the Economic Pathways Partnership and the Oceans Protection Plan.
v. In order to ensure that the Governor in Council received accurate information, two drafts of the Crown Consultation Report were distributed for comment and Indigenous groups were invited to provide their own submissions to the Governor in Council.
vi. The consultation was based on the unique facts and circumstances applicable to each Indigenous group. The Crown Consultation Report contained a detailed appendix for each potentially affected Indigenous group that dealt with: background information; a preliminary strength of claim assessment; a summary of the group's involvement in the Board and Crown Consultation process; a summary of the group's interests and concerns; accommodation proposals; the group's response to the Board's report; the potential impacts of the Project on the group's Indigenous interests; and the Crown's conclusions.
552 I acknowledge significant improvements in the consultation process. To illustrate, in Gitxaala this Court noted, among other matters, that:
• requests for extensions of time were ignored (reasons, paragraphs 247 and 250);
• inaccurate information was put before the Governor in Council (reasons, paragraphs 255-262);
• requests for information went unanswered (reasons, paragraphs 272, 275-278);
• Canada did not disclose its assessment of the strength of the Indigenous parties' claim to rights or title or its assessment of the Project's impacts (reasons, paragraphs 288-309); and,
• Canada acknowledged that the consultation on some issues fell well short of the mark (reasons, paragraph 254).
553 Without doubt, the consultation process for this project was generally well-organized, less rushed (except in the final stage of Phase III) and there is no reasonable complaint that information within Canada's possession was withheld or that requests for information went unanswered.
554 Ministers of the Crown were available and engaged in respectful conversations and correspondence with representatives of a number of the Indigenous applicants.
555 Additional participant funding was offered to each of the applicants to support participation in discussions with the Crown consultation team following the release of the Board's report and recommendations. The British Columbia Environmental Assessment Office also offered consultation funding.
556 The Crown Consultation Report provided detailed information about Canada's approach to consultation, Indigenous applicants' concerns and Canada's conclusions. An individualized appendix was prepared for each Indigenous group (as described above at paragraph 551(vi)).
89 557 However, for the reasons developed below, Canada's execution of Phase III of the consultation process was unacceptably flawed and fell short of the standard prescribed by the jurisprudence of the Supreme Court. As such, the consultation process fell short of the required mark for reasonable consultation.
558 To summarize my reasons for this conclusion, Canada was required to do more than receive and understand the concerns of the Indigenous applicants. Canada was required to engage in a considered, meaningful two-way dialogue. Canada's ability to do so was constrained by the manner in which its representatives on the Crown consultation team implemented their mandate. For the most part, Canada's representatives limited their mandate to listening to and recording the concerns of the Indigenous applicants and then transmitting those concerns to the decision-makers.
559 On the whole, the record does not disclose responsive, considered and meaningful dialogue coming back from Canada in response to the concerns expressed by the Indigenous applicants. While there are some examples of responsiveness to concerns, these limited examples are not sufficient to overcome the overall lack of response. The Supreme Court's jurisprudence repeatedly emphasizes that dialogue must take place and must be a two-way exchange. The Crown is required to do more than to receive and document concerns and complaints. As this Court wrote in Gitxaala, at paragraph 265, speaking of the limited mandate of Canada's representatives:
When the role of Canada's representatives is seen in this light, it is of no surprise that a number of concerns raised by Aboriginal groups — in our view, concerns very central to their legitimate interests — were left unconsidered and undiscussed. This fell well short of the conduct necessary to meet the duty to consult.
560 Further, Phase III was to focus on two questions: outstanding concerns about Project-related impacts and any required incremental accommodation measures. Canada's ability to consult and dialogue on these issues was constrained by two further limitations: first, Canada's unwillingness to depart from the Board's findings and recommended conditions so as to genuinely understand the concerns of the Indigenous applicants and then consider and respond to those concerns in a genuine and adequate way; second, Canada's erroneous view that it was unable to impose additional conditions on Trans Mountain.
561 Together these three factors led to a consultation process that fell short of the mark and was, as a result, unreasonable. Canada then exacerbated the situation by its late disclosure of its view that the Project did not have a high level of impact on the established and asserted rights of the Indigenous applicants — a disclosure made two weeks before they were required to submit their final response to the consultation process and less than a month before the Governor in Council approved the Project.
562 I begin the analysis by underscoring the need for meaningful two-way dialogue in the context of this Project and then move to describe in more detail the three significant impediments to meaningful consultation: the Crown consultation team's implementation of their mandate essentially as note-takers, Canada's reluctance to consider any departure from the Board's findings and recommended conditions, and Canada's erroneous view that it lacked the ability to impose additional conditions on Trans Mountain. I then discuss Canada's late disclosure of its assessment of the Project's impact on the Indigenous applicants. Finally, I review instances that show that as a result of these impediments the opportunity for meaningful dialogue was frustrated.
563 The jurisprudence of the Supreme Court on the duty to consult is clear. The Indigenous applicants were entitled to a dialogue that demonstrated that Canada not only heard but also gave serious consideration to the specific and real concerns the Indigenous applicants put to Canada, gave serious consideration to proposed accommodation measures, and explained how the concerns of the Indigenous
90 applicants impacted Canada's decision to approve the Project. The instances below show how Canada fell short of its obligations.
(i) The need for meaningful two-way dialogue
564 As a matter of well-established law, meaningful dialogue is a prerequisite for reasonable consultation. As explained above at paragraphs 499 to 501, meaningful consultation is not simply a process of exchanging information. Where, as in this case, deep consultation is required, a dialogue must ensue and the dialogue should lead to a demonstrably serious consideration of accommodation. The Crown must be prepared to make changes to its proposed actions based on information and insight obtained through consultation.
565 The need for meaningful dialogue exists and operates in a factual context. Here, Phase III was a critically important part of the consultation framework. This was so for a number of reasons.
566 First, Phase III was the first opportunity for the Indigenous applicants to dialogue directly with Canada about matters of substance, not process.
567 Second, the Board's report did not deal with all of the subjects on which consultation was required. For example, the Board did not make any determinations about the nature and scope of asserted or established Indigenous rights, including title rights. Nor did the Board consider the scope of the Crown's duty to consult or whether the duty was fulfilled. Nor did Trans Mountain in its application, or the Board in its report, assess how the residual effects of the Project, or the Project itself, could adversely impact traditional governance systems and claims to Aboriginal title (Crown Consultation Report, sections 1.4, 4.3.4 and 4.3.5). Canada was obliged to consult on these issues.
568 Third, neither Trans Mountain nor the Board assessed the Project's impacts on a specific basis for each affected Indigenous group. Rather, Trans Mountain assessed the effects related to Project construction and operations (including potential accidents and malfunctions) that might impact biophysical resources and socio-economic components within the Project area, and the Indigenous uses, practices and activities associated with those resources. This approach was accepted by the Board (Board report, pages 51 to 52).
569 Finally, Phase III began in earnest with the release of the Board's report and finalized conditions. This report contained findings of great importance to the applicants because the Board's findings led Canada to conclude that the Project had only a minor-to-moderate impact on the Indigenous applicants. As a matter of law, this conclusion directly affected both the depth of consultation required and the need for accommodation measures. The following two examples illustrate the importance of the Board's findings to the Indigenous applicants.
570 The first example concerns the assessment of the Project's potential impact on freshwater fishing. The Board found that the proposed watercourse crossings designs, mitigation measures, reclamation activities and post-construction monitoring were appropriate and that they would effectively reduce the extent of effects on fish and fish habitat. Watercourse crossings would be required to comply with federal and provincial laws and regulations and would require permits under the British Columbia Water Sustainability Act, S.B.C. 2014, c. 15. The Board agreed with Trans Mountain's self-assessment of the potential for serious harm in that the majority of proposed watercourse crossings would not constitute serious harm to fish for the purposes of the Fisheries Act, R.S.C. 1985, c. F-14 (Board report, pages 183 and 185).
571 The Stó:l? have a constitutionally protected right to fish on the Fraser River, a right affirmed by the Supreme Court of Canada. In the Stó:l? appendix to the Crown Consultation Report, Canada concluded that Project construction and routine maintenance during operation would be expected to result in a minor- to-moderate impact on the Stó:l?'s freshwater fishing and marine fishing and harvesting activities (Stó:l? appendix, pages 26 and 27). This assessment flowed directly from the Board's conclusion that Project-related
91 activities could result in low-to-moderate magnitude effects on freshwater and marine fish and fish habitat and the Board's conclusion that its conditions, if the Project was approved, would either directly or indirectly avoid or reduce potential environmental effects on fishing activities (Stó:l? appendix, pages 24 and 25).
572 The second example relates to the ability of Indigenous groups to use the lands, waters and resources for traditional purposes. The Board found that this ability would be temporarily impacted by construction and routine maintenance activities, and that some opportunities for certain activities, such as harvesting or accessing sites or areas of traditional land resource use, would be temporarily interrupted. The Board was of the view that these impacts would be short-term, as they would be limited to brief periods during construction and routine maintenance, and that these effects would be largely confined to the Project footprint for the pipeline, associated facilities and the on-shore portion of the Westridge Marine Terminal site. The Board found these effects would be reversible in the short to long term, and low in magnitude (Board report, page 279). The Board also found that:
• Project-related pipeline, facility and Westridge Marine Terminal construction and operation, and marine shipping activities were likely to have low-to-moderate magnitude environmental effects on terrestrial, aquatic and marine species harvested by Indigenous groups as a whole (Board report, pages 204, 221 to 224 and 362);
• Construction of the Westridge Marine Terminal, the pipeline and associated facilities were likely to cause short-term temporary disruptions to Indigenous community members accessing traditional hunting, trapping and plant gathering sites (Board report, page 279); and,
• Project-related marine shipping activities were likely to cause temporary disruptions to activities or access to sites during the period of time Project-related tankers were in transit (Board report, page 362).
573 Based on these findings, Canada concluded that the impact of Project construction and operation and Project-related marine shipping activities on Tsleil-Waututh's and Squamish's hunting, trapping and plant gathering activity would be negligible-to-minor. The Project's impact on these activities was assessed to be minor for the Stó:l? and SSN, and minor-to-moderate for Coldwater and Upper Nicola.
574 The critical importance of the Board's findings to the Indigenous applicants mandated meaningful dialogue about those findings. I now turn to consider Canada's execution of Phase III of the consultation process, commencing with the mandate of the Crown consultation team.
(ii) The implementation of the mandate of the Crown consultation team
575 While Canada submits that the members of the Crown consultation team were not mere note-takers, the preponderance of the evidence is to the effect that the members of the Crown consultation team acted on the basis that, for the most part, their role was that of note-takers who were to accurately report the concerns of the Indigenous applicants to the decision-makers.
576 My review of the evidence begins with the explanation of the team's mandate found in the Crown Consultation Report. I then move to the evidence of the interactions between the Crown consultation team and the Indigenous applicants during the consultation process.
577 First, a word of explanation about the source of the evidence cited below. Unless otherwise noted, the evidence comes from meeting notes prepared by Canada. It was Canada's practice to prepare meeting notes following each consultation meeting, to send the draft notes to the affected Indigenous group for comment, and then to revise the notes based on the comments received before distributing a final version. The parties did not take issue with the accuracy of meeting notes. As shown below, where there was any disagreement on what had been said, the minutes set out each party's view of what had been said.
92 a. The Crown Consultation Report
578 Section 3.3.4 of the Crown Consultation Report dealt with Phase III of the consultation process. Under the subheading "Post-NEB Hearing Phase Consultation" the report stated:
... The mandate of the Crown consultation team was to listen, understand, engage and report to senior officials, Aboriginal group perspectives. The Minister of Natural Resources and other Ministers were provided a summary of these meetings. b. The experience of Tsleil-Waututh
579 At a meeting held on April 5, 2016, Erin O'Gorman of Natural Resources Canada "highlighted her mandate to listen and understand [Tsleil-Waututh's] perspective on how consultations should be structured, and move this information for decision. No mandate to defend the current approach."
580 In the course of the introductions and opening remarks at a meeting held September 15, 2016, "Canada stressed that the Crown's ultimate goal is to understand the position and concerns of the [Tsleil- Waututh] on the proposed Trans Mountain Expansion project."
581 At a meeting held on October 20, 2016, Canada's representatives advised that "[o]ur intention is to provide a report to cabinet and include all first Nations consulted, we are open to having [Tsleil- Waututh] input review and representation in that report, together with mitigation and accommodation measures." In response, a representative of Tsleil-Waututh "indicated he did not want consultations and a report of concerns to [Governor in Council]: that has occurred and does not work." The response of the federal representatives to this was that "it was sufficient to convey information to the [Governor in Council] depending on how it's done." c. The experience of Squamish
582 On October 6, 2016, the Major Projects Management Office and the British Columbia Environmental Assessment Office jointly wrote to Squamish in response to a letter from Squamish setting out its views on the outstanding deficiencies in the Board review process and requesting a review of the consultation approach the Crown was taking to inform forthcoming federal and provincial decisions in respect of the Project. Under the heading "Procedural Concerns" Squamish was advised:
The Crown Consultation Team's objective has always been to work with Squamish and other Aboriginal groups to put forward the best information possible to decision makers within the available regulatory timeframe, via this Consultation and Accommodation Report. Comments and input provided by Squamish will help the Crown Consultation Team to accurately convey Squamish's interests, concerns, and any specific proposals.
The Crown is now focused on validating the key substantive concerns of Squamish, and has requested feedback on an initial draft report so that the Crown can include draft conclusions in a subsequent revision that will include the Crown's assessment of the seriousness of potential impacts from the Project on Aboriginal Interests, specific to each Aboriginal group.
. . .
At this stage in the process, following a four month extension of the federal legislated time limit, for a decision on the Project (required by December 19, 2016), we continue to want to ensure that Squamish's substantive concerns with respect to the Project, [Board] report (including recommended
93 terms and conditions), and related proposals for mitigation or accommodation are accurately and comprehensively documented in the Consultation and Accommodation Report.
(underlining added)
583 At the only consultation meeting held with Squamish, Canada's consultation lead referenced the ethics the team abided by during each meeting with Indigenous groups: "honesty, truth, pursuing the rightful path and ensuring that accurate and objective, representative information is put before decision-makers."
584 He later reiterated that "[i]t is the Crown's duty to ensure that accurate information on these outstanding issues is provided to decision-makers, including how Squamish perceives the project and any outstanding issues." d. The experience of Coldwater
585 At a meeting held with Coldwater on March 31, 2016, prior to the start of Phase III, the head of the Crown consultation team explained that:
... the work of the Crown consultation team, to develop a draft report that helps document the potential impacts of the project on [Coldwater] rights and interests, will be the vehicle through which the Crown documents potentially outstanding issues and accommodation proposals. It may appear as though the Crown is relying solely on the [Board] process, however it is not. It is leading its own consultation activities and will be overlaying a separate analytical framework (i.e. the impacts-on-rights lens).
586 At a meeting on May 4, 2016, discussing, among other things, the effect of the Project on Coldwater's aquifer the Crown consultation team advised:
For specifics such as detailed routing, it is the [Board] which decides those. The responsibility that the Crown consultation team has is to make sure these issues are reflected in the Crown consultation report, so they can be considered by decision makers.
(underlining added)
After Coldwater expressed its strong preference for the West Alternative Canada's representatives responded that:
[t]his issue is one which is very detailed, and will need to be recorded carefully and accurately in the Crown consultation Report. The Crown consultation report can highlight that project routing is a central issue for Coldwater.
(underlining added)
587 At a consultation meeting held on October 7, 2016, again in the context of discussions about Coldwater's aquifer, one of Canada's representatives:
... acknowledged that the aquifer hasn't been fully explored, but explained that the [Board] process has analysed the Project and that the Crown will not be taking an independent analysis beyond that. This is because the [Board] is a quasi-judicial tribunal with significant technical expertise. The Crown (federally and provincially) will not undertake an independent analysis of potential corridor routes. That said, the Crown will take Coldwater's concerns back to decision makers.
. . .
94 Coldwater asked what the point of consultation was if all that was coming from the Crown was a summary report to the [Governor in Council].
(underlining added)
588 In the later stages of the meeting during a discussion headed "Overview of Decision Making", Coldwater stated that based on the discussion with the Crown to date it did not seem likely that there would be a re-analysis of the West Alternative or any of the additional analysis Coldwater had asked for. Canada's representatives responded that:
[The Crown's] position is that the detailed route hearing process and Condition 39 provide avenues to consider alternative routes, however the Crown is not currently considering alternative routes because the [Board] concluded that the applied for pipeline corridor is satisfactory. The Crown will ensure that Coldwater's concerns about the route are provided to the Cabinet, it will then be up to Cabinet to decide if those concerns warrant reconsideration of the current route.
(underlining added) e. The experience of Stó:l?
589 An email sent from the Major Projects Management Office following an April 13, 2016, consultation meeting advised that:
The Crown consultation team for [the Trans Mountain expansion] and the forthcoming Ministerial Representative (or Panel) will hear views on the project and whether there are any outstanding issues not addressed in the [Board's] final report and conditions or [Environment Canada's] assessment of upstream greenhouse gas emissions. This will provide another avenue for participants to provide their views on the upstream [greenhouse gas] assessment for [Trans Mountain expansion]. Any comments will be received and given consideration by the Government of Canada.
(underlining added)
590 On May 12, 2016, the Stó:l? wrote to the Minister of Natural Resources, the Honourable James Carr. It wrote about the Crown Consultation Report that:
... we understood [Canada's representative] Mr. Neil to say that the federal decision-maker will be the Governor-in-Council and that [Natural Resources Canada], further to this Crown consultation, will not make recommendations with respect to this project. Instead, its report to the Governor-in- Council will be a summary of what it heard during its consultations with aboriginal peoples with some commentary. We further understood Mr. Whiteside [another federal representative] to say that the Governor-in-Council cannot, based on Crown consultations, add or make changes to the Terms and Conditions of the project as set out by the [Board]. If we have misunderstood these representations, we would appreciate being informed in writing. If we have not misunderstood these representations, we believe that [Natural Resources Canada] is misinterpreting its constitutional obligations and the authority of federal decision-makers.
(underlining added)
591 The Stó:l? went on to observe that "[a] high level of consultation means more than simply gathering information on aboriginal interests, cross checking those with the Terms and Conditions of the project and reporting those findings to the federal decision-maker." And that "[a] simple 'what we heard' report is inadequate to this task and the Governor-in-Council must be aware of its obligation to either reject or
95 make changes to the project to protect and preserve the aboriginal rights, title and interests of the Stó:l? Collective."
592 The Minister responded on July 15, 2016. The Minister agreed that addressing concerns required more than gathering and reporting information from consultation sessions and advised that if the Stó:l? Collective identified concerns that had not been fully addressed by the Board's terms and conditions consultation would "include efforts to preserve the Aboriginal rights in question." The Minister encouraged the Stó:l? Collective "to work with the Crown consultation team so that the Stó:l? Collective's interests are fully understood and articulated in the Crown Consultation and Accommodation Report" (underlining added). The Minister added that "[a]ny accommodation measures or proposals raised during Crown consultations will be included in this report and will inform the Government's decision on [the Project]." f. The experience of Upper Nicola
593 At a meeting held on March 31, 2016, after Chief McLeod expressed his desire for Upper Nicola's "intentions to be heard by decision makers, and asked that all of the information shared today be relayed to Minister Carr", Canada's representatives responded that "senior decision makers are very involved in this project and the Crown consultation team would be relaying the outcomes and the meeting records from the meeting today up the line." Canada's Crown consultation lead noted that "wherever possible he would like to integrate some of the Indigenous words Chief McLeod spoke about into the Crown consultation report as a mechanism to relay the important messages which the Chief is talking about."
594 At a meeting on May 3, 2016, immediately prior to the release of the Board's report and recommendations, Canada's consultation lead "reiterated the current mandate for the Crown consultation team, which is to listen, learn, understand, and to report up to senior decision makers" (underlining added). Upper Nicola's legal counsel responded that "the old consultation paradigm, where the Crown's officials meets with Aboriginal groups to hear from them their perspectives and then to report this information to decision makers, is no longer valid."
595 Towards the end of the meeting, in response to a question about a recent media story which claimed that the Prime Minister had instructed his staff to develop a strategy for approving Trans Mountain, a senior advisor to Indigenous and Northern Affairs Canada advised that he had "received no instructions from his department that would change his obligation as a public servant to ensure that he does all he can to remain objective and impartial and to ensure that the views of Aboriginal groups are appropriately and accurately relayed to decision makers." The Crown consultation lead added that the "Crown consultation team has no view on the project. Its job is to support decision makers with accurate information" (underlining added). g. The experience of SSN
596 In an email of July 7, 2015, sent prior to the release of the Board's draft conditions, SSN was advised by the Major Projects Management Office that the Federal "Crown's consultation will focus on an exchange of information and dialogue on two key documents", the Board's draft conditions and the draft Crown Consultation Report. With respect to the Crown Consultation Report, the email advised that the focus would be to determine "whether the Crown has adequately described the Aboriginal group's participation in the process, the substantive issues they have raised and the status of those issues (including Aboriginal groups' views on any outstanding concerns and residual issues arising from Phase III)" (underlining added).
597 In a later email of June 17, 2016, SSN were informed that:
The objective of the Crown consultation team moving forward is to consult collaboratively in an effort to reach consensus on outstanding issues and related impacts on constitutionally protected Aboriginal and treaty rights, as well as options for accommodating any impacts on rights that may need to be
96 considered as part of the decision-making process. The status of these discussions will be documented in a Consultation and Accommodation Report that will help inform future decisions on the proposed project and any accompanying rationale for the government's decisions.
(underlining added) h. Conclusion on the mandate of the Crown consultation team
598 As this review of the evidence shows, members of the Crown consultation team advised the Indigenous applicants on a number of occasions throughout the consultation process that they were there to listen and to understand the applicants' concerns, to record those concerns accurately in the Crown Consultation Report, and to pass the report to the Governor in Council. The meeting notes show the Crown consultation team acted in accordance with this role when discussing the Project, its impact on the Indigenous applicants and their concerns about the Project. The meeting notes show little or no meaningful responses from the Crown consultation team to the concerns of the Indigenous applicants. Instead, too often Canada's response was to acknowledge the concerns and to provide assurance the concerns would be communicated to the decision-makers.
599 As this Court explained in Gitxaala at paragraph 279, Canada was required to engage, dialogue and grapple with the concerns expressed to it in good faith by the Indigenous groups impacted by the Project. Meaningful dialogue required someone representing Canada empowered to do more than take notes — someone able to respond meaningfully to the applicants' concerns at some point in time.
600 The exchanges with the applicants demonstrate that this was missing from the consultation process. The exchanges show little to facilitate consultation and show how the Phase III consultation fell short of the mark.
601 The consultation process fell short of the required mark at least in part because the consultation team's implementation of its mandate precluded the meaningful, two-way dialogue which was both promised by Canada and required by the principles underpinning the duty to consult.
(iii) Canada's reluctance to depart from the Board's findings and recommended conditions and genuinely engage the concerns of the Indigenous applicants
602 During Phase III each Indigenous applicant expressed concerns about the suitability of the Board's regulatory review and environmental assessment. These concerns were summarized and reported in the appendix to the Crown Consultation Report maintained for each Indigenous applicant (Tsleil-Waututh appendix, pages 7-8; Squamish appendix, page 4; Coldwater appendix, pages 4-5; Stó:l? appendix, pages 12-14; Upper Nicola appendix, pages 5-6; SSN appendix, page 4). These concerns related to both the Board's hearing process and its findings and recommended conditions. The concerns expressed by the Indigenous applicants included:
• The exclusion of Project-related shipping from the definition of the "designated project" which was to be assessed under the Canadian Environmental Assessment Act, 2012.
• The inability to cross-examine Trans Mountain's witnesses, coupled with what were viewed to be inadequate responses by Trans Mountain to Information Requests.
• The Board's recommended terms and conditions were said to be deficient for a number of reasons, including their lack of specificity and their failure to impose additional conditions (for example, a condition that sacred sites be protected).
97 • The Board's findings were generic, thus negatively impacting Indigenous groups' ability to assess the potential impact of the Project on their title and rights.
• The Board's legislated timelines were extremely restrictive and afforded insufficient time to review the Project application and to participate meaningfully in the review process.
• The Board hearing process was an inappropriate forum for assessing impacts to Indigenous rights, and the Board's methods and conclusions regarding the significance and duration of the Project's impacts on Indigenous rights were flawed.
603 However, missing from both the Crown Consultation Report and the individual appendices is any substantive and meaningful response to these concerns. Nor does a review of the correspondence exchanged in Phase III disclose sufficient meaningful response to, or dialogue about, the various concerns raised by the Indigenous applicants. Indeed, a review of the record of the consultation process discloses that Canada displayed a closed-mindedness when concerns were expressed about the Board's report and was reluctant to depart from the findings and recommendations of the Board. With rare exceptions Canada did not dialogue meaningfully with the Indigenous applicants about their concerns about the Board's review. Instead, Canada's representatives were focused on transmitting concerns of the Indigenous applicants to the decision-makers, and nothing more. Canada was obliged to do more than passively hear and receive the real concerns of the Indigenous applicants.
604 The evidence on this point comes largely from Tsleil-Waututh and Coldwater.
605 I begin with the evidence of the Director of Tsleil-Waututh's Treaty, Lands and Resources Department, Ernie George. He affirmed that at a meeting held with representatives of Canada on October 21, 2016, to discuss Tsleil-Waututh's view that the Board's process was flawed such that the Governor in Council could not rely on its report and recommendations:
81. Canada expressed that it was extremely reluctant to discuss the fundamental flaws that [Tsleil- Waututh] alleged were present in relation to the [Board] process, and even prior to the meeting suggested that we might simply need to "agree to disagree" on all of those issues. In our view Canada had already determined that it was not willing to take any steps to address the issues that [Tsleil-Waututh] identified and submitted constituted deficiencies in the [Board] process, despite having the power to do so under CEAA and NEBA and itself stating that this was a realistic option at its disposal.
(underlining added)
606 Mr. George was not cross-examined on his affidavit.
607 Canada's reluctance was firmly expressed a few days later at a meeting held on October 27, 2016. Mr. George affirmed:
101. [Tsleil-Waututh] raised its concern that although the [Board] reached similar conclusions as [Tsleil- Waututh] that oil spills in Burrard Inlet would cause significant adverse environmental effects, it disagreed with Drs. Gunton and Broadbent's conclusions as to the likelihood of spills occurring. [Tsleil- Waututh] then asked Canada whether it agreed with those conclusions. Canada was unable to respond because it did not bring its risk experts to the meeting. [Tsleil-Waututh] rearticulated its view that such risks were far too high.
102. At this point, despite the critical importance of this issue, Canada advised [Tsleil-Waututh] that it was unwilling to revisit the [Board's] conclusions and would instead wholly rely on the [Board's] report on this issue. We stated that we did not accept Canada's position, that further engagement on this
98 subject was required, and that we would be willing to bring our experts to a subsequent meeting to consider any new material or new technology that Canada might identify.
(underlining added)
608 This evidence is consistent with the meeting notes prepared by Canada which reflect that Canada's representatives "indicated that government would rely on the [Board's] report". The notes then record that Tsleil-Waututh's representatives inquired "if the [Government of Canada] was going to rely on the [Board's] report, there was an openness to discuss matters related to gaps in the [Board's] report and what had been ignored." In response, "Canada acknowledged [Tsleil-Waututh's] views on the [Board] process, and indicated that it could neither agree or disagree: both [Tsleil-Waututh] and [Canada] had been intervenors and neither could know how the [Board] panel weighed information provided to it."
609 Coldwater provided similar evidence relating to its efforts to consult with Canada about the Project's impacts on its aquifer at meetings held on May 4, 2016 and October 7, 2016.
610 On May 4, 2016, representatives of Coldwater expressed their view that the West Alternative was a much better pipeline route that addressed issues the Board had not addressed adequately. As set out above, Canada's representatives responded that for "specifics such as detailed routing, it is the [Board] which decides those" and added that "[t]he responsibility that the Crown consultation team has is to make sure these issues are reflected in the Crown consultation report, so they can be considered by decision makers."
611 Canada again expressed the view that the Board's findings were not to be revisited in the Crown consultation process at the meeting of October 7, 2016. In response to a question about the West Alternative, Canada's representatives advised that in the Phase III consultation process it was not for Canada to consider the West Alternative as an alternate measure to mitigate or accommodate Coldwater's concerns. The meeting notes state:
The Crown replied that the [Board] concluded that the current route is acceptable; however the Panel imposed a condition requiring the Proponent to further study the interaction between the proposed pipeline and the aquifer. Tim Gardiner acknowledged that the aquifer hasn't been fully explored, but explained that the [Board] process has analyzed the Project and that the Crown will not be taking an independent analysis beyond that. This is because the [Board] is a quasi-judicial tribunal with significant technical expertise, the Crown (federally and provincially) will not undertake an independent analysis of potential corridor routes. That said, the Crown will take Coldwater's concerns back to decision makers.
(underlining added)
612 Canada went on to express its confidence in Board Condition 39 and the detailed route hearing process.
613 Later, in response to Coldwater's concern that the Board never considered the West Alternative, the meeting notes show that Canada's representatives:
... acknowledged Coldwater's concerns, and explained that when the West Alternative was no longer in the [Board's] consideration, the Crown was not able to question that. [Mr. Whiteside] acknowledged that from Coldwater's perspective this leaves a huge gap. Mr. Whiteside went on to explain that the Proponent's removal of the West Alternative "is not the Crown's responsibility. We are confined to the [Board] report."
(underlining added)
99 614 Finally, in the course of an overview of decision-making held at the end of the October 7, 2016 meeting, Canada advised it was not considering alternative routes "because the [Board] concluded that the applied for pipeline corridor is satisfactory." Canada added that "[t]he Crown will ensure that Coldwater's concerns about the route are provided to the Cabinet, [and] it will then be up to Cabinet to decide if those concerns warrant reconsideration of the current route."
615 As this Court had already explained in Gitxaala, at paragraph 274, Canada's position that it was confined to the Board's findings is wrong. As in Gitxaala, Phase III presented an opportunity, among other things, to discuss and address errors, omissions and the adequacy of the recommendations in the Board's report on issues that vitally concerned the Indigenous applicants. The consequence of Canada's erroneous position was to seriously limit Canada's ability to consult meaningfully on issues such as the Project's impact on each applicant and possible accommodation measures.
616 Other meeting notes do not record that Canada expressed its reluctance to depart from the Board's findings in the same terms to other Indigenous applicants. However, there is nothing inconsistent with this position in the notes of the consultation with the other applicants.
617 For example, in a letter sent to Squamish by the Major Projects Management Office on July 14, 2015, it was explained that the intent of Phase III was:
... not to repeat or duplicate the [Board] review process, but to identify, consider and potentially address any outstanding concerns that have been raised by Aboriginal groups (i.e. concerns that, in the opinion of the Aboriginal group, have not been addressed through the [Board] review process).
618 Later, Squamish met with the Crown consultation team on September 11, 2015, to discuss the consultation process. At this meeting Squamish raised concerns about, among other things, the adequacy of Canada's consultation process. In a follow-up letter counsel for Squamish provided more detail about the "Squamish Process" — a proposed process to enable consideration of the Project's impact upon Squamish's interests. The process included having community concerns inform the scope of the assessment with the goal of having these concerns substantively addressed by conditions placed on the Project proponent.
619 Canada responded by letter dated November 26, 2015, in which it reiterated its position that:
... there are good reasons for the Crown to rely on the [Board's] review of the Project to inform the consultation process. This approach ensures rigour in the assessment of the potential adverse effects of the Project on a broad range of issues including the environment, health and socio-economic conditions, as well as Aboriginal interests.
620 The letter went on to advise that:
Information from a formal community level or third-party review process can be integrated into and considered through the [Board] review process if submitted as evidence. For the Trans Mountain Expansion Project, the appropriate time to have done so would have been prior to the evidence filing deadline in May 2015.
621 Canada went on to express its confidence that the list of issues, scope of assessment and scope of factors examined by the Board would inform a meaningful dialogue between it and Squamish.
622 In other words, Canada was constrained by the Board's review of the Project. Canada required that evidence of any assessment or review process be first put before the Board, and any dialogue had to be informed by the Board's findings.
100 623 A similar example is found in the Crown's consultation with Upper Nicola. At the consultation meeting held on September 22, 2016, Upper Nicola expressed its concern with the Board's economic analysis. The Director General of the Major Projects Management Office responded that "as a rule, the [Governor in Council] is deferential to the [Board's] assessment, but they are at liberty to consider other information sources when making their decision and may reach a different conclusion than the [Board]." The Senior Advisor from Indigenous and Northern Affairs Canada added that "the preponderance of detail in the [Board] report weighs heavy on Ministers' minds."
624 No dialogue ensued about the legitimacy of Upper Nicola's concern about the Board's economic analysis, although Canada acknowledged "a strong view 'out there' that runs contrary to the [Board's] determination."
625 Matters were left that if Upper Nicola could provide more information about what it said was an incorrect characterization of the economic rationale and Indigenous interests, this information would be put before the Ministers.
626 Put another way, Canada was relying on the Board's findings. If Upper Nicola could produce information contradicting the Board that would be put before the Governor in Council; it would not be the subject of dialogue between Upper Nicola and Canada's representatives. Canada did not grapple with Upper Nicola's concerns, did not discuss with Upper Nicola whether the Board should be asked to reconsider its conclusion about the economics of the Project and did not explain why Upper Nicola's concern was found to lack sufficient merit to require Canada to address it meaningfully.
627 As explained above at paragraph 491, Canada can rely on the Board's process to fulfil, in whole or in part, the Crown's duty to consult. However, reliance on the Board's process does not allow Canada to rely unwaveringly upon the Board's findings and recommended conditions. When real concerns were raised about the hearing process or the Board's findings and recommended conditions, Canada was required to dialogue meaningfully about those concerns.
628 The Board is not immune from error and many of its recommendations were just that — proffered but not binding options for Canada to consider open-mindedly, assisted by its dialogue with the Indigenous applicants. Phase III of the consultation process afforded Canada the opportunity, and the responsibility, to dialogue about the asserted flaws in the Board's process and recommendations. This it failed to do.
(iv) Canada's erroneous view that the Governor in Council could not impose additional conditions on the proponent
629 Canada began and ended Phase III of the consultation process operating on the basis that it could not impose additional conditions on the proponent. This was wrong and limited the scope of necessary consultation.
630 Thus, on May 25, 2015, towards the end of Phase II, the Major Projects Management Office wrote to Indigenous groups to provide additional information on the scope and timing of Phase III consultation. If Indigenous groups identified outstanding concerns after the Board issued its report, the letter described the options available to Canada as follows:
The Governor in Council has the option of asking the [National Energy Board] to reconsider its recommendation and conditions. Federal and provincial governments could undertake additional consultations prior to issuing additional permits and/or authorizations. Finally, federal and provincial governments can also use existing or new policy and program measures to address outstanding concerns.
101 631 Canada expressed the position that these were the available options throughout the consultation process (see, for example, the meeting notes of the consultation meeting held on March 31, 2016, with Coldwater).
632 Missing was the option of the Governor in Council imposing additional conditions on Trans Mountain.
633 At a meeting held on April 13, 2016, after Canada's representatives expressed the view that the Crown could not add additional conditions, the Stó:l?'s then counsel expressed the contrary view. She asked that Canada's representatives verify with their Ministers whether Canada could attach additional conditions. By letter dated November 28, 2016 (the day before the Project was approved), Canada, joined by the British Columbia Environmental Assessment Office, advised that "the Governor in Council cannot impose its own conditions directly on the proponent as part of its decision" on the certificate of public convenience and necessity.
634 This was incorrect. In Gitxaala, at paragraphs 163 to 168, this Court explained that when considering whether Canada has fulfilled its duty to consult, the Governor in Council necessarily has the power to impose conditions on any certificate of public convenience and necessity it directs the National Energy Board to issue.
635 In the oral argument of these applications Canada acknowledged this power to exist, albeit characterizing it to be a power unknown to exist prior to this Court's judgment in Gitxaala.
636 Accepting that the power had not been explained by this Court prior to its judgment in Gitxaala, that judgment issued on June 23, 2016, five months before Canada wrote to the Stó:l? advising that the Governor in Council lacked such a power and five months before the Governor in Council approved the Project. The record does not contain any explanation as to why Canada did not correct its position after the Gitxaala decision.
637 The consequence of Canada's erroneous position that the Governor in Council lacked the ability to impose additional conditions on Trans Mountain seriously and inexplicably limited Canada's ability to consult meaningfully on accommodation measures.
(v) Canada's late disclosure of its assessment of the Project's impact on the Indigenous applicants
638 As explained above at paragraph 488, the depth of the required consultation increases with the seriousness of the potentially adverse effect upon the claimed title or right. Canada's assessment of the Project's effect on each Indigenous applicant was therefore a critical aspect of the consultation process.
639 Canada ultimately assessed the Project not to have a high level of impact on the exercise of the Indigenous applicants' "Aboriginal Interests" (a term defined in the Crown Consultation Report to include "asserted or established Aboriginal rights, including title and treaty rights."). The Project was assessed to have a minor impact on the exercise of the Aboriginal Interests of Squamish and SSN, a minor-to-moderate impact on the Aboriginal Interests of Coldwater and Stó:l? and a moderate impact on the Aboriginal Interests of Tsleil-Waututh and Upper Nicola.
640 This important assessment was not communicated to the Indigenous applicants until the first week of November 2016, when the second draft of the Crown Consultation Report was provided (the first draft contained placeholder paragraphs in lieu of an assessment of the Project's impact). Coldwater, Upper Nicola and SSN received the second draft of the Crown Consultation Report on November 1, 2016, Squamish
102 and Stó:l? on November 3, 2016 and Tsleil-Waututh on November 4, 2016. Each was given two weeks to respond to the draft Crown Consultation Report.
641 By this point in time Squamish, Coldwater, Stó:l? and SSN had concluded their consultation meetings with Canada and no further meetings were held.
642 Tsleil-Waututh did have further meetings with Canada, but these meetings were for the specific purposes of discussing greenhouse gases, the economic need for the Project and the Oceans Protection Plan.
643 Upper Nicola did have a consultation meeting with Canada on November 16, 2016, at which time it asked for an extension of time to respond to the second draft of the Crown Consultation Report. In response, Upper Nicola received a two-day extension until November 18, 2016, to provide its comments to Canada. Canada's representatives explained that "Cabinet typically requires material one month ahead of a decision deadline to enable time to receive and review the report, translate etc. and that we've already reduced this down to enable a second round of comments."
644 Importantly, Canada's Crown consultation lead acknowledged that other groups had asked for more time and the request had been "communicated to senior management and the Minister loud and clear." Canada's consultation lead went on to recognize that the time provided to review the second draft "may be too short for some to contribute detailed comments". There is no evidence that Canada considered granting the requested extension so that the Indigenous groups could provide detailed, thoughtful comments on the second draft of the Crown Consultation Report, particularly on Canada's assessment of the Project's impact. Nor does the record shed any light on why Canada did not consider granting the requested extension. The statutory deadline for Cabinet's decision was December 19, 2016, and the Indigenous applicants had been informed of this.
645 Ultimately, the Governor in Council approved the Project on November 29, 2016.
646 The consequence of Canada's late communication of its assessment of the Project's impact was mitigated to a degree by the fact that from the outset it had acknowledged, and continues to acknowledge, that it was obliged to consult with the Indigenous applicants at the deeper end of the consultation spectrum. Thus, the assessment of the required depth of consultation was not affected by Canada's late advice that the Project, in its view, did not have a high level of impact on the claimed rights and title of the Indigenous applicants.
647 This said, without doubt Canada's view of the Project's impact influenced its assessment of both the reasonableness of its consultation efforts and the extent that the Board's recommended conditions mitigated the Project's potential adverse effects and accommodated the Indigenous applicants' claimed rights and title. For this reason, the late delivery of Canada's assessment of the Project's impact until after all but one consultation meeting had been held contributed to the unreasonableness of the consultation process.
648 I now turn to review instances that illustrate Canada's failure to dialogue meaningfully with the Indigenous applicants.
(vi) Canada's failure to dialogue meaningfully a. The experience of Tsleil-Waututh
649 Tsleil-Waututh had conducted its own assessment of the Project's impact on Burrard Inlet and on Tsleil-Waututh's title, rights and interests and traditional knowledge. This assessment, based on the findings of six independent experts and the traditional knowledge of Tsleil-Waututh members, concluded, among other things that:
103 • The likelihood of oil spills in Burrard Inlet would increase if the Project is implemented, and because spilled oil cannot be cleaned up completely, the consequences in such circumstances would be dire for sensitive sites, habitat and species, and in turn for the Tsleil-Waututh's subsistence economy, cultural activities and contemporary economy.
• Any delay in spilled oil cleanup response would decrease significantly the total volume of oil which could be cleaned up, and in turn increase the negative effects and consequences of a spill.
• The direct effects of marine shipping are likely to add to the effects and consequences of spilled oil, which in turn will further amplify the negative effects of the Project on Tsleil-Waututh's title, rights and interests.
• Tsleil-Waututh could not accept the increased risks, effects and consequences of even another small incident like the 2007 spill at the Westridge Marine Terminal or the 2015 MV Marathassa oil spill, let alone a worst-case spill.
650 In the view of Tsleil-Waututh, the Board erred by excluding Project-related shipping from the Project's definition. Tsleil-Waututh was also of the view that the Board's conditions did not address their concerns about marine shipping. For example, Tsleil-Waututh noted that very few of the Board's conditions set out desired outcomes. Rather, they prescribed a means to secure an unspecified outcome.
651 At the consultation meeting of October 27, 2016, Canada's representatives repeatedly acknowledged Tsleil-Waututh's view that the Board's conditions were not sufficiently robust, that Project-related shipping ought to have been assessed under the Canadian Environmental Assessment Act, 2012 and that the Board's failure to do so resulted in the further failure to impose conditions on marine shipping.
652 However, when the discussion turned to how to address Tsleil-Waututh's concerns, federal representatives noted that "proposals to strengthen marine shipping management, including nation to nation relationships, would take time to develop and strengthen." They went on to express optimism:
... that progress toward a higher standard of care could occur over the next few years with First Nations, at a nation to nation level, particularly on spill response and emergency preparedness capacities. As baseline capacities increased, risks would be reduced.
653 This generic and vague response that concerns could be addressed in the future, outside the scope of the Project and its approval, was Canada's only response. Canada did not suggest any concrete measures, such as additional conditions, to accommodate Tsleil-Waututh's concerns about marine shipping.
654 Nor did Canada propose any accommodation measures at the meeting of October 28, 2016. At this meeting, Tsleil-Waututh sought further discussion about the Project's definition because, in its view, this issue had to be resolved if the Project was to be sent back to the Board for reconsideration. Canada's representatives responded that this was a matter for consideration by the Governor in Council and "it was understood that the scope of the [Board's] review would be litigated."
655 Nor did Canada respond meaningfully to Tsleil-Waututh's concerns in the Crown Consultation Report or in the Tsleil-Waututh appendix.
656 The appendix, after detailing Tsleil-Waututh's concerns responded as follows:
Sections 4.2.6 and 5.2 of this Report provide an overview of how the Crown has considered accommodation and mitigation measures to address outstanding issues identified by Aboriginal groups. Accommodations proposed by Tsleil-Waututh that the Crown has not responded to directly
104 via letter will be otherwise actively considered by decision-makers weighing Project costs and benefits with the impacts on Aboriginal Interests.
(underlining added)
657 Section 4.2.6 of the Crown Consultation Report referred to the proposed Indigenous Advisory and Monitoring Committee and to recognition of the historical impacts of the existing Trans Mountain pipeline. The nascent nature of the Indigenous Advisory and Monitoring Committee is shown by the listing of possible roles the committee "could" play.
658 Section 5.2 of the Crown Consultation Report dealt with Canada's assessment of the adequacy of consultation. It contains no response to Tsleil-Waututh's specific concerns that the Board's conditions were not sufficiently robust, that Project-related shipping ought to have been assessed under the Canadian Environmental Assessment Act, 2012, and that the Board's failure to do this resulted in the further failure to impose conditions on marine shipping. Section 5.2 did provide Canada's limited response to concerns about the appropriateness of the Board's review process:
With respect to perceived inadequacies in the [Board] review process, the Crown notes the Government's commitment to modernize the [Board] and to restore public trust in federal environmental assessment processes. The Crown further notes that consultations on these processes have been launched and will include the engagement of Indigenous groups. Overall, however, Government, through its Interim Strategy, indicated that no project proponent would be sent back to the beginning, which mean [sic] that project [sic] currently undergoing regulatory review would continue to do so within the current framework.
659 Canada has not pointed to any correspondence in which it meaningfully addressed Tsleil-Waututh's concern that the Board's conditions were not sufficiently robust and that Project-related shipping should not have been excluded from the Project's definition.
660 Tsleil-Waututh raised valid concerns that touched directly on its asserted title and rights. While Canada strove to understand those concerns accurately, it failed to respond to them in a meaningful way and did not appear to give any consideration to reasonable mitigation or accommodation measures, or to returning the issue of Project-related shipping to the Board for reconsideration.
661 While Canada moved to implement the Indigenous Advisory and Monitoring Committee and the Oceans Protection Plan, these laudable initiatives were ill-defined due to the fact that each was in its early planning stage. As such, these initiatives could not accommodate or mitigate any concerns at the time the Project was approved, and this record does not allow consideration of whether, as those initiatives evolved, they became something that could meaningfully address real concerns. b. The experience of Squamish
662 At the one consultation meeting held in Phase III with Squamish on October 18, 2016, Squamish took the position throughout the meeting that it had insufficient information about the Project's impact on Squamish to make a decision on the Project or to discuss mitigation measures. Reference was made to a lack of information about the fate and behaviour of diluted bitumen if spilled in a marine environment. Squamish also expressed the view that the Governor in Council was equally unable to make a decision on the Project because of research and information gaps about diluted bitumen.
663 Canada responded:
105 The Crown recognized that there are uncertainties and information gaps which factor into the project decision. Most decisions are not made with perfect certainty. For instance, fate and behaviour of diluted bitumen in the marine environment has been identified as an information gap. The Crown is happy to discuss the level of uncertainty but is unsure how the [Governor in Council] will weigh these issues, such as whether they will decide that uncertainties are acceptable for the project to move forward. It should be noted that the [Governor in Council] can send the [Board] recommendation and any terms and conditions back to the [Board] for reconsideration.
(underlining added)
664 The meeting notes do not reflect that any discussion ensued about the fate and behaviour of diluted bitumen in water. This is not surprising because the Crown consultation team had effectively told Squamish that any discussion would not factor into the Governor in Council's deliberation and ultimate decision.
665 In a letter dated the day before the Project was approved, Canada and the British Columbia Environmental Assessment Office wrote jointly to Squamish responding to issues raised by Squamish. With respect to diluted bitumen the letter stated:
Squamish Nation has identified concerns relating to potential spills as well as the fate and behaviour of diluted bitumen. The [Board's] Onshore Pipeline Regulations (OPR) requires a company to develop and implement management and protection programs in order to anticipate, prevent, mitigate and respond to conditions that may adversely affect the safety and security of the general public, the environment, property and, company's personnel and pipelines. A company must follow the legal requirements identified in the National Energy Board Act and its associated regulations, other relevant standards, and any conditions contained within the applicable Project certificates or orders.
666 This generic response is not a meaningful response to Squamish's concern that too little was known about how diluted bitumen would behave if spilled and that this uncertainty made it premature to approve the Project.
667 The letter went on to review Board conditions, planned government initiatives (such as the Area Response Planning Initiative, Transport Canada's commitment to engage with British Columbia First Nations on issues related to marine safety and the Oceans Protection Program). The letter also referenced research that the Government of Canada was conducting on the behaviour and potential impacts of a diluted bitumen spill in a marine environment. While laudable initiatives, they too did not respond meaningfully to Squamish's concern that more needed to be known before the Project was approved.
668 There is nothing in Canada's response to show that Squamish's concern about diluted bitumen was given real consideration or weight, and nothing to show any consideration was given to any meaningful and tangible accommodation or mitigation measures. c. The experience of Coldwater
669 Coldwater's concerns about the Project's impact on its aquifer were described above at paragraphs 609-610 in the context of Canada's unwillingness to depart from the Board's findings and recommended conditions.
670 As explained at paragraph 610, when, during the consultation process, Coldwater suggested an alternate route for the pipeline that in its view posed less risk to its drinking water, Canada advised that it is the Board that decides pipeline routing, and the role of the Crown consultation team was to make sure the
106 issue of an alternate route was reflected in the Crown Consultation Report so that it could be considered by the decision-makers.
671 Later during the May 4, 2016 meeting, in response to a question from Coldwater about a detailed route hearing, Brian Nesbitt, a contractor made available to answer questions about the Board, responded:
Brian explained that the Governor in Council would approve the approved, detailed route, but that if someone doesn't agree with that route they can intervene, say a detailed route hearing is required, and propose an alternative route. He stated that the burden of proof is essentially flipped and the landowner has the onus to show that the best route is somewhere other than the approved route.
Brian provided an overview of the Detailed Route Approval Process (DRAP). Alternative routes, even outside the approved ROW corridor, can be proposed. In those cases it falls to the intervening party to make the case for why that route is the best one. In Brian's experience, these arguments have been made in past hearings and sometimes they are successful. He provided the example of a pipeline going through a wooded area where inner city kids would go. If an alternative route is identified in the detailed route hearing, the proponent has to apply for a variance. This might require Governor in Council decisions, depending on how the CPCN is worded. Brian emphasized that the burden of establishing a better route lies with the landowner.
(underlining added)
672 A senior advisor for Indigenous and Northern Affairs Canada then agreed that Coldwater would require a very significant variance, a departure of about 10 kilometres from the approved pipeline right- of-way.
673 Counsel for Coldwater, Melinda Skeels, then replied:
Melinda stated that it does not sound reasonable to expect Coldwater to mount the kind of evidence needed to make the case for that alternative. In her view, this issue needs to be addressed before a certificate is issued. It cannot wait until after.
Melinda stated that it did not seem like a detailed route hearing is a realistic option that would assist in addressing Coldwater's routing concerns.
Coldwater's recollection is that: Joseph, Tim and Ross were in general agreement, particularly given the significance of the variance and the fact that the onus would be shifted to Coldwater.
The Crown's position is that: The Crown officials would neither have agreed with or disagreed with the above statement.
674 The senior advisor for Indigenous and Northern Affairs Canada responded:
... reflecting this concern in the Crown Consultation Report is one way to have it before decision makers prior to a decision on the certificate. He said that the routing issue goes to the heart of the CPCN and that the Crown may need to send the Project back to the [Board] to address this.
675 As explained at paragraph 587 above, Coldwater's request for an analysis of the pipeline route was revisited at the October 7, 2016, consultation meeting. Canada acknowledged that the aquifer had not been fully explored, but expressed confidence in the Board's Condition 39.
676 In response:
107 Coldwater expressed its concern that, given the momentum behind the project following a [Governor in Council] approval, it will take a major adverse finding in the Condition 39 report for the West Alternative to become viable. They argued that their aquifer concerns would not be sufficiently mitigated by moving the pipeline within the 150m approved route corridor as part of a detailed route hearing, because the West Alternative was well outside that recommended corridor. Coldwater asked if an approved route corridor had ever been changed because of a report released following a GIC approval.
The [Board] asserted that detailed route hearings in the past had led to routes being changed for various reasons; however he (Brian Nesbitt) was personally unaware of a route being moved outside an approved corridor. However, it is possible if the situation warrants.
. . .
The Crown replied that Condition 39 was put in place because the Board felt that evidence did not provide enough certainty about the impact of the Project on Coldwater's aquifer. That knowledge gap will have to be addressed, to the [Board's] satisfaction, prior to construction commencing. The Crown appreciates that the Condition does not provide certainty about the possibility of changing the pipeline corridor; however the presence of the Condition indicates that the [Board] is not satisfied with the information currently available.
(underlining added)
677 In the Crown Consultation Report Canada acknowledged that a pipeline spill associated with the Project could result in minor to serious impacts to Coldwater's Aboriginal Interests:
The Crown acknowledges the numerous factors that would influence the severity and types of effects associated with a pipeline spill, and that an impacts determination that relates the consequences of a spill to specific impacts on Aboriginal Interests has a high degree of uncertainty. The Crown acknowledges that Coldwater relies primarily on an aquifer crossed by the Project for their drinking water, as well as subsistence foods and natural resources, and are at greater risk for adverse effects from an oil spill. To address the concerns raised by Coldwater during the post-[Board] Crown consultation period, [Environmental Assessment Office] proposes a condition that would require, in addition to [Board] Condition 39, characterization of the aquifer recharge and discharge sources and aquifer confinement, and include an assessment of the vulnerability of the aquifer.
(underlining added, footnote omitted)
678 Throughout the consultation process, Canada worked to understand Coldwater's concerns, and the British Columbia Environmental Assessment Office imposed a condition requiring a second hydrogeological report for approval by it. However, missing from Canada's consultation was any attempt to explore how Coldwater's concerns could be addressed. Also missing was any demonstrably serious consideration of accommodation — a failure likely flowing from Canada's erroneous position that it was unable to impose additional conditions on the proponent.
679 Canada acknowledged that the Project would be located within an area of Coldwater's traditional territory where Coldwater was assessed to have a strong prima facie claim to Aboriginal title. In circumstances where Coldwater would bear the burden of establishing a better route for the pipeline, and where the advice given to Coldwater by the Board's technical expert was that he was personally unaware of a route being moved out of the approved pipeline corridor, Canada placed its reliance on Condition 39, and so advised Coldwater. However, as Canada acknowledged, this condition carried no certainty about
108 the pipeline route. Nor did the condition provide any certainty as to how the Board would assess the risk to the aquifer.
680 At the end of the consultation process, and at the time the Project was approved, Canada failed to meaningfully engage with Coldwater, and to discuss and explore options to deal with the real concern about the sole source of drinking water for its Reserve. d. The experience of Stó:l?
681 As part of the Stó:l?'s effort to engage with the Crown on the Project, Stó:l? prepared a detailed technical submission referred to as the "Integrated Cultural Assessment for the Proposed Trans Mountain Expansion Project", also referred to as "ICA". A copy of the ICA was filed with the Board.
682 The ICA was based on surveys, interviews, meetings and workshops held with over 200 community members from approximately 11 Stó:l? bands. The ICA concluded that the Project posed a significant risk to the unique Indigenous way of life of the Stó:l?, threatening the cultural integrity and survival of core relationships at the heart of the Stó:l? worldview, identity, health and well-being. The ICA also contained 89 recommendations which, if implemented by Trans Mountain or the Crown, were believed by Stó:l? to mitigate the Project's adverse effects on Stó:l?.
683 To illustrate the nature of the recommendations, section 17.2 of the ICA deals with recommendations to mitigate the Project's impact on fisheries. Section 17.2.1 deals with Management and Planning in the context of fisheries mitigation. The recommended Management and Planning mitigation measures are:
17.2.1 Management and Planning
5. Stó:l? Fishing representatives will participate in the development and review of Fisheries Management Plans and water course crossing EPPs before construction and mitigation plans are finalized.
6. Stó:l? representatives will provide input on proposed locations for Hydrostatic test water withdrawal and release.
7. [The proponent] will consult with Stó:l? representatives to develop the Emergency Response Plans in the study area.
8. Stó:l? representatives will consult with community members to determine appropriate restoration plans for water crossings including bank armouring, seed mixes or replanting requirements.
9. Stó:l? fishing representatives must be notified if isolation methods will not work and [the proponent] is considering another crossing method.
10. Stó:l? representatives must be notified as soon as a spill or leak, of any size, is detected.
11. During water quality monitoring program, anything that fails to meet or exceed established guidelines will be reported to a Stó:l? Fisheries Representative within 12 hours.
684 These measures are specific, brief and generally measured and reasonable. If implemented they would provide more detail to the Board's generic conditions on consultation and require timely notification to the Stó:l? of events that may adversely impact their interests.
685 During the Board's Information Request process, the Stó:l? pressed Trans Mountain to respond to their 89 recommendations but Trans Mountain did not provide a substantive response. Instead, Trans
109 Mountain provided a general commitment to work with Stó:l? to develop a mutually-acceptable plan for implementation.
686 The Board did not adopt any of the specific 89 recommendations made by the Stó:l? in its terms and conditions.
687 At a meeting held with the Crown consultation team on April 13, 2016, before the release of the Board's report, the Stó:l? provided an overview of the development of the ICA and expressed many concerns, including their dissatisfaction with their engagement with Trans Mountain.
688 The Stó:l? representative stated that, among other things, Trans Mountain was directed by the Board to include Indigenous knowledge in Project planning, but did not. By way of example, the Stó:l? explained that the Fraser River is a tidal (at least up to Harrison River), meandering river, with a wandering gravel bed that is hydrologically connected to many wetlands and waterways crossed by the Project. A map of historical waterways was provided in the ICA, along with a table listing local and traditional knowledge of waterways crossed by the Project. None of this information was considered in Trans Mountain's technical reports. In Stó:l?'s view, Trans Mountain's assumptions and maps about the Fraser River were wrong and did not include their traditional knowledge. A year after the ICA was provided to Trans Mountain the Stó:l? met with Trans Mountain's fisheries manager who had never seen the ICA or any of the technical information contained in it.
689 Additionally, Stó:l? provided details about deficiencies identified in Trans Mountain's evidence filed with the Board about Stó:l? title, rights, interests and Project impacts. For example, Trans Mountain's evidence was to the effect that the Stó:l? had no traditional plant harvesting areas within the Project area. However, the ICA identified and mapped several plant gathering sites within the proposed pipeline corridor. Another example of a deficiency was Trans Mountain's evidence that there were no habitation sites in the Project area; however, the ICA mapped three habitation sites within the proposed pipeline corridor and two habitation sites located within 50 metres of the pipeline corridor.
690 At a later consultation meeting held September 23, 2016, the Stó:l? reiterated that a key concern was their view that the Board's process had failed to hold the proponent accountable for integrating Stó:l?'s traditional use information into the assessment of the Project. The draft Crown Consultation Report overlooked evidence filed by Stó:l? about their traditional land use. Instead, the report repeated oversights in Trans Mountain's evidence presented to the Board. For example, Stó:l? noted the Crown was wrong to state that "[n]o plant gathering sites were identified within the proposed pipeline corridor". The Stó:l? had explained this at the April 13, 2016 meeting.
691 The Stó:l? Collective was not confident that Trans Mountain would follow through on commitments to include local Indigenous people or traditional knowledge in the development of the Project unless the Board's terms and conditions required Trans Mountain to regularly engage Stó:l? communities in a meaningful way.
692 Canada's representatives confirmed that the Stó:l? Collective was looking for stronger conditions, more community-specific commitments and more accountability placed on Trans Mountain so that conditions proposed by Stó:l? became regulatory requirements.
693 The Crown consultation team met with Stó:l? once after the release of the Board's report, on September 23, 2016.
694 During this meeting the "Collective noted with great concern that the [Board] report came out May 19th, that the [Governor in Council's] decision is due Dec. 19th, and that the Crown was just meeting now
110 (Sept. 23) to consult on the [Board] report with so many potential gaps left to discuss and seek to resolve with tight timelines to do so".
695 At this meeting the Crown consultation team presented slides summarizing the Board's conclusions. The Stó:l? noted their disagreement with the following findings of the Board:
• "Ability of Aboriginal groups to use the lands, waters and resources for traditional purposes would be temporarily impacted" by construction and routine maintenance activities, and that some opportunities for certain activities such as harvesting or accessing sites or areas of [Traditional Land and Resource Use] will be temporary interrupted.";
• "Project's contribution to potential broader cultural impacts related to access and use of natural resources is not significant."; and,
• "Impacts would be short term, limited to brief periods during construction and routine maintenance, largely confined to the Project footprint for the pipeline... Effects would be reversible in the short to long term, and low in magnitude."
(emphasis in original)
696 The Stó:l? pointed to the potential permanent impact of the Project on sites of critical cultural importance to Stó:l? and the Project's impacts related to access and use of natural resources.
697 With respect to sites of critical cultural importance, the Stó:l? explained that none of the information contained in their ICA influenced the design of the Project or was included in the Project alignment sheets. The failure to include information about cultural sites on the Project alignment sheets meant that various geographic features known to Stó:l? and the proponent were not being factored into Project effects, or avoidance or mitigation efforts. In response to questions, Stó:l? confirmed that even though Trans Mountain was well aware of Stó:l? sites of importance, as detailed in the ICA, Trans Mountain had not recognized them on the right-of-way corridor maps. Stó:l? believed this afforded the sites no protection if the Project was approved.
698 With respect to Lightning Rock, a culturally significant spiritual and burial site, the Stó:l? noted that Trans Mountain planned to put a staging area in proximity to the site which, in the view of the Stó:l?, would obliterate the site. The Board had imposed Condition 77 relating to Lightning Rock. This condition required Trans Mountain to file a report outlining the conclusions of a site assessment for Lightning Rock, including reporting on consultation with the Stó:l? Collective. However, Stó:l? Cultural Heritage experts had not been able to meet with Trans Mountain to participate in Lightning Rock management plans since September 2015. This was a source of great frustration.
699 The Stó:l? suggested that the Board's conditions should specifically list the Indigenous groups Trans Mountain was required to deal with instead of the generic "potentially affected Aboriginal groups" referenced in the Board's current conditions.
700 The Stó:l? also requested that they be involved in selecting the Aboriginal monitors working within their territory as contemplated by the Board's conditions. For example, Condition 98 required Trans Mountain to file a plan describing participation by "Aboriginal groups" in monitoring construction of the Project. Stó:l? wanted to ensure these monitors were sufficiently knowledgeable about issues of importance to the Stó:l?.
701 The September 23, 2016, meeting notes do not indicate any response or meaningful dialogue on the part of the Crown consultation team in response to any of Stó:l?'s concerns and suggestions.
111 702 Interestingly, at the November 16, 2016, consultation meeting with Upper Nicola, the last of the consultation meetings and the only consultation meeting held after Canada provided the second draft of the Crown Consultation Report setting out Canada's assessment of the Project's impacts, the Crown consultation lead explained:
... "potentially affected Aboriginal groups" has been noted by many Aboriginal groups as too vague in the recommended conditions, and this phrase is repeated throughout the 157 conditions. Makes reference to how the Crown's consultation and accommodation report does address specific Aboriginal groups. Discussed another point on the [Board] condition for "Aboriginal monitors" — where communities would not [sic] want locally knowledgeable Aboriginal people to fulfil this role and not someone from farther afield.
703 Notwithstanding apparently widespread concern about the Board's generic use of the phrase "potentially affected Aboriginal groups" and the need for locally-selected Indigenous monitors, and despite Canada's ability to add new conditions that would impose the desired specificity, Canada failed to meaningfully consider such accommodation.
704 Canada and the British Columbia Environmental Assessment Office purported to respond to two of Stó:l?'s concerns in their letter of November 28, 2016, to the Stó:l?: the concerns about Traditional Ecological Knowledge and sites of cultural importance.
705 The Crown "acknowledges the Stó:l? Collective's view that the [Board] and the proponent overlooked traditional knowledge within the development of the [Board] conditions and Project design." The Crown discusses these issues in Sections III and IV of the Stó:l? Collective appendix (pages 13, 29 and 30 respectively).
706 I deal with the Stó:l? appendix beginning at paragraph 712 below. As explained below, the Stó:l? appendix does not deal meaningfully with the concerns about Traditional Ecological Knowledge and sites of cultural importance.
707 The Crown made two more points independent of the Stó:l? Collective appendix. First, it expressed its understanding that the Stó:l? could trigger a detailed route hearing. Second, it encouraged the Stó:l? Collective to continue discussions with the proponent.
708 In connection with the detailed route hearing, the Crown advised that "[w]ithin the scope of such a hearing exists the potential for the right-of-way to move locations." There are three points to make about this response. First, as explained above at paragraphs 380 to 384, at a detailed route hearing the right of way may only move within the approved pipeline corridor, otherwise an application must be made to vary the pipeline corridor; second, the onus at a detailed route hearing is on the person requesting the alteration; and, third, Canada failed to consider its ability to impose additional conditions, likely because it was operating under the erroneous view it could not. The ability to trigger a detailed route hearing provided no certainty about how potential adverse effects to areas of significant importance to the Stó:l? would be dealt with. This was not a meaningful response on Canada's part.
709 As to the Crown's suggestion that the Stó:l? Collective continue its discussions with the proponent, no explanation is given as to why this was believed to be an appropriate response to the concerns of the Stó:l? in light of the information they had provided as to the proponent's unwillingness to deal directly with them on a timely basis, or in some cases, at all.
710 The November 28, 2016, letter also referenced the four accommodation measures the Stó:l? requested in their two-page submission to the Governor in Council. The first asked for a condition to "outline and
112 identify specifics regarding Trans Mountain's collaboration with and resourcing of the Stó:l? Collective to update construction alignment sheets and EPPs to reflect information provided in the Integrated Cultural Assessment" (March 2014). The Stó:l? were told "The recommendations included in the Stó:l? Collective's two-page submission of November 17, 2016 will be provided directly to federal and provincial decision makers."
711 Leaving aside the point that the letter was sent the day before the Project was approved, none of this is responsive, meaningful, two-way dialogue that the Supreme Court requires as part of the fulfillment of the duty to consult.
712 Nor is any meaningful response provided in the Stó:l? appendix to the Crown Consultation Report. This is illustrated by the following two examples. First, while the appendix recites that the Stó:l? Collective recommended 89 actions that would assist Trans Mountain to avoid or mitigate adverse effects on their Aboriginal Interests there is no discussion or indication that Canada seriously considered implementing any of the 89 recommended actions, and no explanation as to why Canada did not consider implementing any Stó:l? specific recommendation as an accommodation or mitigation measure. Second, while the appendix acknowledges that the Stó:l? provided examples of Traditional Ecological Knowledge which they felt the proponent and the Board ignored in the Project design, environmental assessment and mitigation planning, no analysis or response to the concern is given.
713 In the portion of the appendix that deals with Canada's assessment of the Project's impacts on the Stó:l?, the Crown relies on the conclusions of the Board to find that the impacts of the Project would be up to minor-to-moderate. Thus, for instance, the appendix repeats the Board's conclusion that if the Project is approved, the Board conditions would either directly or indirectly avoid or reduce potential environmental effects associated with hunting, trapping and gathering. In an attempt to deal with the specific concerns raised by the Stó:l? about the adequacy of the Board's report and its conditions, the appendix recites that:
... the proponent would implement several mitigation measures to reduce potential effects to species important for the Stó:l? Collective's hunting, trapping, and plant gathering activities. The proponent is committed to minimizing the Project footprint to the maximum extent feasible, and all sensitive resources identified on the Environmental Alignment Sheets and environmental tables within the immediate vicinity of the [right-of-way] will be clearly marked before the start of clearing.
714 While the second draft of the Crown Consultation Report was revised to reference the plant gathering sites identified by Stó:l? in the ICA and in the April and October consultation meetings, Canada continued to rely upon the Board's findings without explaining, for example, how the Board's finding that "Trans Mountain adequately considered all the information provided on the record by Aboriginal groups regarding their traditional uses and activities." (report, page 278) was reliable in the face of the information contained in the ICA.
715 Nor does Canada explain the source of its confidence in the proponent's commitments in light of the concerns expressed by the Stó:l? that Trans Mountain had failed to follow through on its existing commitments and that without further conditions Stó:l? feared the proponent would not follow through with its commitments to the Board.
716 With respect to the Stó:l?'s concerns about a Project staging area at Lightning Rock, the appendix noted that Lightning Rock was protected by Board Condition 77 which required the proponent to file with the Board an archaeological and cultural heritage field investigation undertaken to assess the potential impacts of Project construction and operations on the Lightning Rock site. The appendix goes on to note that:
113 However, given that this is a sacred site with burial mounds, Stó:l? Collective have noted that any Project routing through this area is inappropriate given the need to preserve the cultural integrity of the site and the surrounding area. For the Stó:l? Collective, the site surrounding Lightning Rock should be a "no go" area for the Project.
717 However, Stó:l?'s position that Lightning Rock should be a "no go" area is left unresolved and uncommented upon by Canada.
718 Another Stó:l? concern detailed by Canada in the appendix, but unaddressed, is the concern of the Stó:l? Collective that the locations of various other culturally important sites do not appear on Trans Mountain's detailed alignment sheets. Examples of such sites include bathing sites within the 150 metre pipeline right-of-way alignment at Bridal Veil Falls, and an ancient pit house located within the pipeline right-of-way. None of these sites are the subject of any Board condition.
719 The appendix recites Canada's conclusion on these concerns of the Stó:l? as follows:
With regards to specific risk concerns raised by the Stó:l? Collective, the proponent would implement several mitigation measures to reduce potential effects on physical and cultural heritage resources important for the Stó:l? Collective's traditional and cultural practices. The proponent has also committed to reduce potential disturbance to community assets and events by implementing several measures that include avoiding important community features and assets during [right-of- way] finalization, narrowing the [right-of-way] in select areas, scheduling construction to avoid important community events where possible, communication of construction schedules and plans with community officials, and other ongoing consultation and engagement with local and Aboriginal governments.
720 This is not meaningful, two-way dialogue in response to Stó:l?'s real and valid concerns about matters of vital importance to the Stó:l?.
721 Canada adopts a similar approach to its assessment of the Project's impact on freshwater fishing and marine fishing and harvesting at pages 24 to 27 of the Stó:l? appendix.
722 The section begins by acknowledging the Stó:l?'s deeply established connection to fishing and marine harvesting "which are core to Stó:l? cultural activities and tradition, subsistence and economic purposes."
723 After summarizing each concern raised by the Stó:l?, Canada responds by adopting the Board's conclusions that the Project's impact will be low-to-moderate and that Board conditions will either directly or indirectly avoid or reduce potential environmental effects on fishing activities.
724 In the course of this review Canada acknowledges the Board's finding that "Project-related activities could result in low to moderate magnitude effects on freshwater and marine fish and fish habitat, surface water and marine water quality." Appendix 12 to the Board report defines a moderate impact to be one that, among other things, noticeably affects the resource involved.
725 Canada also acknowledges that during the operational life of the Project fishing and harvesting activities directly affected by the construction and operation of the Westridge Marine Terminal would not occur within the expanded water lease boundaries.
726 Further, impacts on navigation, specifically in eastern Burrard Inlet, would exist for the lifetime of the Project, and would occur on a daily basis. Project-related marine vessels also would cause temporary disruption to the Stó:l? Collective's marine fishing and harvesting activities. These disruptions are said "likely to be temporary when accessing fishing sites in the Burrard Inlet that require crossing shipping lanes, as
114 community members would be able to continue their movements shortly after the tanker passes." This too would occur on a daily basis if the Westridge Marine Terminal were to serve 34 Aframax tankers per month.
727 Missing however from Canada's consultation analysis is any mention of the Stó:l?'s constitutionally protected right to fish, and how that constitutionally protected right was taken into account by Canada. Also missing is any explanation as to how the consultation process affected the Crown's ultimate assessment of the impact of the Project on the Stó:l?. Meaningful consultation required something more than simply repeating the Board's findings and conditions without grappling with the specific concerns raised by the Stó:l? about those same findings. e. The experience of Upper Nicola
728 Throughout the consultation process, Upper Nicola raised the issue of the Project's impact on Upper Nicola's asserted title and rights. The issue was raised at the consultation meetings of March 31, 2016, and May 3, 2016, but no meaningful dialogue took place. Canada's representatives advised at the March meeting that until the Board released its report Canada did not know how the Project could impact the environment and Upper Nicola's interests and so could not "yet extrapolate to how those changes could impact [Upper Nicola's] Aboriginal rights and title interests."
729 The issue was raised again, after the release of the Board's report, at the consultation meeting of September 22, 2016. Upper Nicola expressed its disagreement with Canada's assertion in the first draft of the Crown Consultation Report that potential impacts on its title claim for the pipeline right-of-way included temporary impacts related to construction, and longer-term impacts associated with Project operation. In Upper Nicola's view, construction did not have a temporary impact on its claim to title. Upper Nicola also stated that Canada had examined the Project's impact on title without considering impacts on governance and management, and concerns related to title, such as land and water issues. The meeting notes do not record any response to these concerns.
730 Nor did Canada respond meaningfully to Upper Nicola's position that the Project would render 16,000 hectares of land unusable or inaccessible for traditional activities. Upper Nicola viewed this to constitute a significant impact that required accommodation of their rights to stewardship, use and governance of the land and water. Canada's response was to acknowledge a letter sent to the Prime Minister in which numerous Indigenous groups had proposed a mitigation measure to ensure they would have a more active role in monitoring and stewardship of the Project. Canada stated that it saw merit in the proposal and that a response to the letter would be forthcoming.
731 On November 18, 2016, Upper Nicola wrote to the Crown consultation lead to highlight its key, ongoing concerns with the Project and the consultation process. With respect to title, Upper Nicola wrote:
There were areas which the Crown has determined that we have a strong prima facie claim to Aboriginal title and rights. The Crown must therefore acknowledge the significant impacts and infringements of the Project to Upper Nicola/Syilx Title and Rights, including the incidents of Aboriginal title which include: the right to decide how the land will be used; the right of enjoyment and occupancy of the land; the right to possess the land; the right to the economic benefits of the land; and the right to proactively use and manage the land and adequately accommodate these impacts, concerns and infringements. This has not yet been done.
(underlining added)
732 Canada and the British Columbia Environmental Assessment Office wrote to Upper Nicola on November 28, 2016, the day before the Project was approved, to respond to the issues raised by Upper Nicola. The only reference to Upper Nicola's asserted title is this brief reference:
115 Impacts and Mitigation: In response to comments received, the Crown has reviewed its analysis and discussion in the Consultation and Accommodation Report on the direct and indirect impacts of the Project on Syilx (Okanagan) Nation's rights and other interests. In addition, Upper Nicola identified that the study titled "Upper Nicola Band Traditional Use and Occupancy Study for the Kingsvale Transmission Line in Support of the Trans Mountain Expansion Project" (Kingsvale TUOS) had not been specifically referenced in the Syilx (Okanagan) Nation appendix. Upper Nicola resent the Kingsvale TUOS to the Crown on Friday, November 18 and in response to this information, the Crown reviewed the Kingsvale TUOS, summarized the study's findings in Syilx (Okanagan) Nation's appendix, and considered how this information changes the expected impacts of the Project on Syilx (Okanagan) Nation's Aboriginal rights and title. As a result, conclusions were revised upward for Project impacts on Syilx (Okanagan) Nation's freshwater fishing activities, other traditional and cultural activities, as well as potential impacts on Aboriginal title.
(underlining added)
733 No response was made to the request to acknowledge the Project's impacts and infringement of Upper Nicola's asserted title and rights.
734 In the Upper Nicola appendix, Canada acknowledged that the Project would be located within an area of Syilx Nation's asserted traditional territory where Syilx Nation was assessed to have a strong prima facie claim to Aboriginal title and rights. Canada then asserted the Project to have "minor-to-moderate impact on Syilx Nation's asserted Aboriginal title to the proposed Project area." Canada did not address Upper Nicola's governance or title rights in any detail. Canada did refer to section 4.3.5 of the Crown Consultation Report but this section simply reiterates the Board's findings and conditions and the requirement that the proponent continue consultation "with potentially affected Aboriginal groups".
735 Missing is any explanation as to why moderate impacts to title required no accommodation beyond the environmental mitigation measures recommended by the Board — mitigation measures that were generic and not specific to Upper Nicola.
736 Throughout Phase III, Upper Nicola had proposed numerous potential mitigation measures and had requested accommodation related to stewardship, use and governance of the water. No response was given as to why Canada rejected this request. This was not meaningful, two-way dialogue or reasonable consultation. f. The experience of SSN
737 Canada met with SSN twice during Phase III. At the first meeting, on August 3, 2016, SSN expressed the desire to have consultation go beyond the environmental assessment process which they felt was insufficient to tackle the issues that affected their territory. SSN sought to move forward on a nation to nation basis and wished to formalize a nation to nation consultation protocol using the Project as a starting point for further consultation.
738 In response, Canada and representatives of British Columbia asked that the SSN be prepared to review a draft memorandum of understanding for consultation about the Project (affidavit of Jeanette Jules, paragraph 70).
739 The meeting notes reflect that at the first meeting on August 3, 2016, SSN also raised as accommodation or mitigation measures that: the Project conditions be more specific with respect to safety and emergency preparedness response, warning notifications to communities and opportunities for training;
116 and, that there be provision for both a spillage fee and a revenue tax imposed on the proponent for the benefit of SSN. The meeting notes do not reflect any dialogue or response from Canada to these proposals.
740 On September 9, 2016, the Crown consultation lead sent a two-page draft memorandum of understanding to the SSN (two pages not including the signature page).
741 At the second and last meeting on October 6, 2016, the SSN advised that they desired the proponent to submit to a review of the Project by the SSN, but that the proponent was unwilling to undergo another review. The SSN also repeated their desire for the federal and provincial Crowns to allow SSN to impose a resource development tax on proponents whose projects are located in the SSN's traditional territory. In response, the Crown raised the difficulty in implementing the tax and having the Project undergo assessment by the SSN before the mandated decision deadline of December 19, 2016.
742 At this meeting Canada sought comments on the draft memorandum of understanding. Jeanette Jules, a counsellor with the Kamloops Indian Band swore in an affidavit filed in support of SSN's application for judicial review that:
At [the October 6, 2016] meeting, the majority of the time was spent on discussing the content of the [memorandum of understanding], that is, what would engagement with the Crowns on the Project look like. We did not spend any time discussing the routing of the pipeline Project at Pipsell or SSN's concerns about the taking up of new land in the Lac du Bois Grasslands Protected area, although I did voice concerns about those issues again at that meeting. At the end of the meeting, the Crowns committed to revising the [memorandum of understanding] and to setting up another meeting to discuss it with us.
(underlining added)
743 The meeting notes state that toward the end of the meeting SSN expressed the desire to have a terrestrial spill response centre stationed in their reserve. SSN contemplated that funding for the centre should be raised through a per-barrel spillage fee charged on product flowing through the pipeline.
744 Thereafter, no memorandum of understanding was finalized and no further meetings took place between Canada and the SSN. Ms. Jules swears that:
I fully expected that between our last meeting with Canada and the Province of BC and the [Governor in Council] decision to approve the Project, we would come to an agreement on the terms of a [memorandum of understanding] and have had meaningful engagement with the Crowns about pipeline routing and SSN's other concerns raised in its final argument.
745 Ms. Jules was not cross-examined on her affidavit.
746 In the November 28, 2016, letter sent to the SSN by Canada and the British Columbia Environmental Assessment Office they wrote:
We also would like to take this opportunity to provide you with additional information or responses to concerns that Stk'emlúps te Secwèpemc Nation has raised with the Crown.
At the October 6, 2016 meeting with SSN, in addition to reiterating SSN's plan on undertaking its own assessment of the project, SSN outlined a proposal for an SSN resource development tax that they charge directly to proponents whose projects are in their traditional territory, and that SSN wants the federal and provincial Crown's to make the jurisdictional room necessary for the tax to be implemented. These proposals have been added to the SSN specific appendix for consideration by decision makers.
117 747 This is not a meaningful response to the proposals made by the SSN. The only response made to the resource development tax during the consultation meetings was the difficulty this would pose to meeting Canada's decision deadline (notwithstanding that SSN had sought consultation on a broader basis than the Project — the Project was contemplated by SSN to be a starting point).
748 The SSN appendix to the Crown Consultation Report faithfully records SSN's concerns about the review process, noting, in part, that:
SSN stated that the [Board] hearing process is an inappropriate forum for assessing impacts to their Aboriginal rights. SSN also expressed concern about the [Board] process' legislated timelines and the way these timelines were unilaterally imposed on them. SSN considers this timeline extremely restrictive and does not believe it affords SSN sufficient time to review the application and participate meaningfully in the review process. SSN has stated that their ability to participate in the process is further hampered by a lack of capacity funding from either the [Board] or the Crown. SSN has expressed a view that related regulatory (i.e. permitting) processes are not well-coordinated, which they believe results in an incomplete sharing of potential effects to SSN Interests. They refer to the perceived disconnected process between the proposed Project and proposed Ajax Mine application review. SSN are not satisfied with the current crown engagement model and the lack of addressing SSN's needs for a nation-to-nation dialogue about their concerns and interests, and have proposed that the Crown develop a [memorandum of understanding] to address these issues and provide a framework for the dialogue moving forward.
. . .
SSN have requested Nation-to-Nation engagement related to the broader issue of land management and decision making within their territory. SSN requested a consultation protocol agreement be developed, starting with a [memorandum of understanding] for Nation-to-Nation consultation, which would take the form of a trilateral agreement between SSN, BC and Canada. SSN recommended a framework of sustainable Crown funding to participate in the [memorandum of understanding] process, leading to a sustainable funding model to support ongoing land use management within SSN's territory.
At the October 6, 2016 meeting, SSN outlined a proposal for an SSN resource development tax that they charge directly to proponents whose projects are in their traditional territory. SSN wants the federal and provincial Crown's [sic] to make the jurisdictional room necessary for the tax to be implemented.
(underlining added)
749 Missing from the appendix is any advice to the Governor in Council that Canada committed to providing a draft memorandum of understanding to SSN and any advice about the status of the memorandum of understanding. Also missing is any indication of what, if any, impact this had on Canada's view of the consultation process.
750 In the SSN appendix Canada acknowledged that "the Project would be located within an area of Tk'emlúps te Secwe'pemc and Skeetchestn's traditional territory assessed as having a strong prima facie claim to Aboriginal title". Canada had also assessed its duty to consult SSN as being at the deeper end of the consultation spectrum.
751 Notwithstanding, Canada did not provide any meaningful response to SSN's proposed mitigation measures, and conducted no meaningful, two-way dialogue about SSN's concerns documented on pages 3 to 7 of the SSN appendix.
118 752 This was not reasonable consultation as required by the jurisprudence of the Supreme Court of Canada.
(vii) Conclusion on Canada's execution of the consultation process
753 As explained above at paragraphs 513 to 549, the consultation framework selected by Canada was reasonable and sufficient. If Canada properly executed it, Canada would have discharged its duty to consult.
754 However, based on the totality of the evidence I conclude that Canada failed in Phase III to engage, dialogue meaningfully and grapple with the concerns expressed to it in good faith by the Indigenous applicants so as to explore possible accommodation of these concerns.
755 Certainly Canada's consultation team worked in good faith and assiduously to understand and document the concerns of the Indigenous applicants and to report those concerns to the Governor in Council in the Crown Consultation Report. That part of the Phase III consultation was reasonable.
756 However, as the above review shows, missing was a genuine and sustained effort to pursue meaningful, two-way dialogue. Very few responses were provided by Canada's representatives in the consultation meetings. When a response was provided it was brief, and did not further two-way dialogue. Too often the response was that the consultation team would put the concerns before the decision-makers for consideration.
757 Where responses were provided in writing, either in letters or in the Crown Consultation Report or its appendices, the responses were generic. There was no indication that serious consideration was given to whether any of the Board's findings were unreasonable or wrong. Nor was there any indication that serious consideration was given to amending or supplementing the Board's recommended conditions.
758 Canada acknowledged it owed a duty of deep consultation to each Indigenous applicant. More was required of Canada.
759 The inadequacies of the consultation process flowed from the limited execution of the mandate of the Crown consultation team. Missing was someone representing Canada who could engage interactively. Someone with the confidence of Cabinet who could discuss, at least in principle, required accommodation measures, possible flaws in the Board's process, findings and recommendations and how those flaws could be addressed.
760 The inadequacies of the consultation process also flowed from Canada's unwillingness to meaningfully discuss and consider possible flaws in the Board's findings and recommendations and its erroneous view that it could not supplement or impose additional conditions on Trans Mountain.
761 These three systemic limitations were then exacerbated by Canada's late disclosure of its assessment that the Project did not have a high level of impact on the exercise of the applicants' "Aboriginal Interests" and its related failure to provide more time to respond so that all Indigenous groups could contribute detailed comments on the second draft of the Crown Consultation Report.
762 Canada is not to be held to a standard of perfection in fulfilling its duty to consult. However, the flaws discussed above thwarted meaningful, two-way dialogue. The result was an unreasonable consultation process that fell well short of the required mark.
763 The Project is large and presented genuine challenges to Canada's effort to fulfil its duty to consult. The evaluation of Canada's fulfillment of its duty must take this into account. However, in largest part the concerns of the Indigenous applicants were quite specific and focussed and thus quite easy to discuss, grapple
119 with and respond to. Had Canada's representatives met with each of the Indigenous applicants immediately following the release of the Board's report, and had Canada's representatives executed a mandate to engage and dialogue meaningfully, Canada could well have fulfilled the duty to consult by the mandated December 19, 2016 deadline.
E. Remedy
764 In these reasons I have concluded that the Board failed to comply with its statutory obligation to scope and assess the Project so as to provide the Governor in Council with a "report" that permitted the Governor in Council to make its decision whether to approve the Project. The Board unjustifiably excluded Project-related shipping from the Project's definition.
765 This exclusion of Project-related shipping from the Project's definition permitted the Board to conclude that section 79 of the Species at Risk Act did not apply to its consideration of the effects of Project- related shipping. Having concluded that section 79 did not apply, the Board was then able to conclude that, notwithstanding its conclusion that the operation of Project-related vessels is likely to result in significant adverse effects to the Southern resident killer whale, the Project was not likely to cause significant adverse environmental effects.
766 This finding — that the Project was not likely to cause significant adverse environmental effects — was central to its report. The unjustified failure to assess the effects of Project-related shipping under the Canadian Environmental Assessment Act, 2012 and the resulting flawed conclusion about the environmental effects of the Project was critical to the decision of the Governor in Council. With such a flawed report before it, the Governor in Council could not legally make the kind of assessment of the Project's environmental effects and the public interest that the legislation requires.
767 I have also concluded that Canada did not fulfil its duty to consult with and, if necessary, accommodate the Indigenous applicants.
768 It follows that Order in Council P.C. 2016-1069 should be quashed, rendering the certificate of public convenience and necessity approving the construction and operation of the Project a nullity. The issue of Project approval should be remitted to the Governor in Council for prompt redetermination.
769 In that redetermination the Governor in Council must refer the Board's recommendations and its terms and conditions back to the Board, or its successor, for reconsideration. Pursuant to section 53 of the National Energy Board Act, the Governor in Council may direct the Board to conduct that reconsideration taking into account any factor specified by the Governor in Council. As well, the Governor in Council may specify a time limit within which the Board shall complete its reconsideration.
770 Specifically, the Board ought to reconsider on a principled basis whether Project-related shipping is incidental to the Project, the application of section 79 of the Species at Risk Act to Project-related shipping, the Board's environmental assessment of the Project in the light of the Project's definition, the Board's recommendation under subsection 29(1) of the Canadian Environmental Assessment Act, 2012 and any other matter the Governor in Council should consider appropriate.
771 Further, Canada must re-do its Phase III consultation. Only after that consultation is completed and any accommodation made can the Project be put before the Governor in Council for approval.
772 As mentioned above, the concerns of the Indigenous applicants, communicated to Canada, are specific and focussed. This means that the dialogue Canada must engage in can also be specific and focussed. This may serve to make the corrected consultation process brief and efficient while ensuring it is meaningful.
120 The end result may be a short delay, but, through possible accommodation the corrected consultation may further the objective of reconciliation with Indigenous peoples.
F. Proposed Disposition
773 For these reasons I would dismiss the applications for judicial review of the Board's report in Court Dockets A-232-16, A-225-16, A-224-16, A-217-16, A-223-16 and A-218-16.
774 I would allow the applications for judicial review of the Order in Council P.C. 2016-1069 in Court Dockets A-78-17, A-75-17, A-77-17, A-76-17, A-86-17, A-74-17, A-68-17 and A-84-17, quash the Order in Council and remit the matter to the Governor in Council for prompt redetermination.
775 The issue of costs is reserved. If the parties are unable to agree on costs they may make submissions in writing, such submissions not to exceed five pages.
776 Counsel are thanked for the assistance they have provided to the Court.
Yves de Montigny J.A.:
I agree.
Judith Woods J.A.:
I agree. Applications allowed.
Appendix
National Energy Board Act, R.S.C. 1985, c. N-7
52 (1) If the Board is of the opinion that an application for a certificate in respect of a pipeline is complete, it shall prepare and submit to the Minister, and make public, a report setting out
(a) its recommendation as to whether or not the certificate should be issued for all or any portion of the pipeline, taking into account whether the pipeline is and will be required by the present and future public convenience and necessity, and the reasons for that recommendation; and
(b) regardless of the recommendation that the Board makes, all the terms and conditions that it considers necessary or desirable in the public interest to which the certificate will be subject if the Governor in Council were to direct the Board to issue the certificate, including terms or conditions relating to when the certificate or portions or provisions of it are to come into force.
(2) In making its recommendation, the Board shall have regard to all considerations that appear to it to be directly related to the pipeline and to be relevant, and may have regard to the following:
(a) the availability of oil, gas or any other commodity to the pipeline;
(b) the existence of markets, actual or potential;
(c) the economic feasibility of the pipeline;
(d) the financial responsibility and financial structure of the applicant, the methods of financing the pipeline and the extent to which Canadians will have an opportunity to participate in the financing, engineering and construction of the pipeline; and
121 (e) any public interest that in the Board's opinion may be affected by the issuance of the certificate or the dismissal of the application.
(3) If the application relates to a designated project within the meaning of section 2 of the Canadian Environmental Assessment Act, 2012, the report must also set out the Board's environmental assessment prepared under that Act in respect of that project.
(4) The report must be submitted to the Minister within the time limit specified by the Chairperson. The specified time limit must be no longer than 15 months after the day on which the applicant has, in the Board's opinion, provided a complete application. The Board shall make the time limit public.
(5) If the Board requires the applicant to provide information or undertake a study with respect to the pipeline and the Board, with the Chairperson's approval, states publicly that this subsection applies, the period that is taken by the applicant to comply with the requirement is not included in the calculation of the time limit.
(6) The Board shall make public the dates of the beginning and ending of the period referred to in subsection (5) as soon as each of them is known.
(7) The Minister may, by order, extend the time limit by a maximum of three months. The Governor in Council may, on the recommendation of the Minister, by order, further extend the time limit by any additional period or periods of time.
(8) To ensure that the report is prepared and submitted in a timely manner, the Minister may, by order, issue a directive to the Chairperson that requires the Chairperson to
(a) specify under subsection (4) a time limit that is the same as the one specified by the Minister in the order;
(b) issue a directive under subsection 6(2.1), or take any measure under subsection 6(2.2), that is set out in the order; or
(c) issue a directive under subsection 6(2.1) that addresses a matter set out in the order.
(9) Orders made under subsection (7) are binding on the Board and those made under subsection (8) are binding on the Chairperson.
(10) A copy of each order made under subsection (8) must be published in the Canada Gazette within 15 days after it is made.
(11) Subject to sections 53 and 54, the Board's report is final and conclusive.
53 (1) After the Board has submitted its report under section 52, the Governor in Council may, by order, refer the recommendation, or any of the terms and conditions, set out in the report back to the Board for reconsideration.
(2) The order may direct the Board to conduct the reconsideration taking into account any factor specified in the order and it may specify a time limit within which the Board shall complete its reconsideration.
. . .
54 (1) After the Board has submitted its report under section 52 or 53, the Governor in Council may, by order,
122 (a) direct the Board to issue a certificate in respect of the pipeline or any part of it and to make the certificate subject to the terms and conditions set out in the report; or
(b) direct the Board to dismiss the application for a certificate.
(2) The order must set out the reasons for making the order.
(3) The order must be made within three months after the Board's report under section 52 is submitted to the Minister. The Governor in Council may, on the recommendation of the Minister, by order, extend that time limit by any additional period or periods of time. If the Governor in Council makes an order under subsection 53(1) or (9), the period that is taken by the Board to complete its reconsideration and to report to the Minister is not to be included in the calculation of the time limit.
(4) Every order made under subsection (1) or (3) is final and conclusive and is binding on the Board.
(5) The Board shall comply with the order made under subsection (1) within seven days after the day on which it is made.
(6) A copy of the order made under subsection (1) must be published in the Canada Gazette within 15 days after it is made.
Canadian Environmental Assessment Act, 2012, S.C. 2012, c. 19, s.52
2(1) designated project means one or more physical activities that
(a) are carried out in Canada or on federal lands;
(b) are designated by regulations made under paragraph 84(a) or designated in an order made by the Minister under subsection 14(2); and
(c) are linked to the same federal authority as specified in those regulations or that order.
It includes any physical activity that is incidental to those physical activities.
. . .
5 (1) For the purposes of this Act, the environmental effects that are to be taken into account in relation to an act or thing, a physical activity, a designated project or a project are
(a) a change that may be caused to the following components of the environment that are within the legislative authority of Parliament:
(i) fish and fish habitat as defined in subsection 2(1) of the Fisheries Act,
(ii) aquatic species as defined in subsection 2(1) of the Species at Risk Act,
(iii) migratory birds as defined in subsection 2(1) of the Migratory Birds Convention Act, 1994, and
(iv) any other component of the environment that is set out in Schedule 2;
(b) a change that may be caused to the environment that would occur
(i) on federal lands,
123 (ii) in a province other than the one in which the act or thing is done or where the physical activity, the designated project or the project is being carried out, or
(iii) outside Canada; and
(c) with respect to aboriginal peoples, an effect occurring in Canada of any change that may be caused to the environment on
(i) health and socio-economic conditions,
(ii) physical and cultural heritage,
(iii) the current use of lands and resources for traditional purposes, or
(iv) any structure, site or thing that is of historical, archaeological, paleontological or architectural significance.
. . .
19 (1) The environmental assessment of a designated project must take into account the following factors:
(a) the environmental effects of the designated project, including the environmental effects of malfunctions or accidents that may occur in connection with the designated project and any cumulative environmental effects that are likely to result from the designated project in combination with other physical activities that have been or will be carried out;
(b) the significance of the effects referred to in paragraph (a);
(c) comments from the public — or, with respect to a designated project that requires that a certificate be issued in accordance with an order made under section 54 of the National Energy Board Act, any interested party — that are received in accordance with this Act;
(d) mitigation measures that are technically and economically feasible and that would mitigate any significant adverse environmental effects of the designated project;
(e) the requirements of the follow-up program in respect of the designated project;
(f) the purpose of the designated project;
(g) alternative means of carrying out the designated project that are technically and economically feasible and the environmental effects of any such alternative means;
(h) any change to the designated project that may be caused by the environment;
(i) the results of any relevant study conducted by a committee established under section 73 or 74; and
(j) any other matter relevant to the environmental assessment that the responsible authority, or — if the environmental assessment is referred to a review panel — the Minister, requires to be taken into account.
. . .
29 (1) If the carrying out of a designated project requires that a certificate be issued in accordance with an order made under section 54 of the National Energy Board Act, the responsible authority with respect to the
124 designated project must ensure that the report concerning the environmental assessment of the designated project sets out
(a) its recommendation with respect to the decision that may be made under paragraph 31(1)(a) in relation to the designated project, taking into account the implementation of any mitigation measures that it set out in the report; and
(b) its recommendation with respect to the follow-up program that is to be implemented in respect of the designated project.
. . .
31 (1) After the responsible authority with respect to a designated project has submitted its report with respect to the environmental assessment or its reconsideration report under section 29 or 30, the Governor in Council may, by order made under subsection 54(1) of the National Energy Board Act
(a) decide, taking into account the implementation of any mitigation measures specified in the report with respect to the environmental assessment or in the reconsideration report, if there is one, that the designated project
(i) is not likely to cause significant adverse environmental effects,
(ii) is likely to cause significant adverse environmental effects that can be justified in the circumstances, or
(iii) is likely to cause significant adverse environmental effects that cannot be justified in the circumstances; and
(b) direct the responsible authority to issue a decision statement to the proponent of the designated project that
(i) informs the proponent of the decision made under paragraph (a) with respect to the designated project and,
(ii) if the decision is referred to in subparagraph (a)(i) or (ii), sets out conditions — which are the implementation of the mitigation measures and the follow-up program set out in the report with respect to the environmental assessment or the reconsideration report, if there is one — that must be complied with by the proponent in relation to the designated project.
Species at Risk Act, S.C. 2002, c. 29
77 (1) Despite any other Act of Parliament, any person or body, other than a competent minister, authorized under any Act of Parliament, other than this Act, to issue or approve a licence, a permit or any other authorization that authorizes an activity that may result in the destruction of any part of the critical habitat of a listed wildlife species may enter into, issue, approve or make the authorization only if the person or body has consulted with the competent minister, has considered the impact on the species' critical habitat and is of the opinion that
(a) all reasonable alternatives to the activity that would reduce the impact on the species' critical habitat have been considered and the best solution has been adopted; and
(b) all feasible measures will be taken to minimize the impact of the activity on the species' critical habitat.
125 (1.1) Subsection (1) does not apply to the National Energy Board when it issues a certificate under an order made under subsection 54(1) of the National Energy Board Act.
(2) For greater certainty, section 58 applies even though a licence, a permit or any other authorization has been issued in accordance with subsection (1).
. . .
79 (1) Every person who is required by or under an Act of Parliament to ensure that an assessment of the environmental effects of a project is conducted, and every authority who makes a determination under paragraph 67(a) or (b) of the Canadian Environmental Assessment Act, 2012 in relation to a project, must, without delay, notify the competent minister or ministers in writing of the project if it is likely to affect a listed wildlife species or its critical habitat.
(2) The person must identify the adverse effects of the project on the listed wildlife species and its critical habitat and, if the project is carried out, must ensure that measures are taken to avoid or lessen those effects and to monitor them. The measures must be taken in a way that is consistent with any applicable recovery strategy and action plans.
(3) The following definitions apply in this section. person includes an association, an organization, a federal authority as defined in subsection 2(1) of the Canadian Environmental Assessment Act, 2012, and any body that is set out in Schedule 3 to that Act. project means
(a) a designated project as defined in subsection 2(1) of the Canadian Environmental Assessment Act, 2012 or a project as defined in section 66 of that Act;
(b) a project as defined in subsection 2(1) of the Yukon Environmental and Socio-economic Assessment Act; or
(c) a development as defined in subsection 111(1) of the Mackenzie Valley Resource Management Act.
126 2005 SCC 62 Supreme Court of Canada
Montreal (Ville) v. 2952-1366 Québec inc.
2005 CarswellQue 9633, 2005 CarswellQue 9634, 2005 SCC 62, [2005] 3 S.C.R. 141, [2005] S.C.J. No. 63, 134 C.R.R. (2d) 196, 143 A.C.W.S. (3d) 465, 15 M.P.L.R. (4th) 1, 18 C.E.L.R. (3d) 1, 201 C.C.C. (3d) 161, 258 D.L.R. (4th) 595, 32 Admin. L.R. (4th) 159, 33 C.R. (6th) 78, 340 N.R. 305, 67 W.C.B. (2d) 397, J.E. 2005-2012, EYB 2005-97111
City of Montreal (Appellant) v. 2952-1366 Québec Inc. (Respondent) and Attorney General of Ontario (Intervener)
McLachlin C.J.C., Bastarache, Binnie, LeBel, Deschamps, Abella, Charron JJ.
Heard: October 14, 2004 Judgment: November 3, 2005 Docket: 29413
Proceedings: reversing Montréal (Ville) c. 2952-1366 Québec inc. (2002), 2002 CarswellQue 1682, 167 C.C.C. (3d) 356, (sub nom. Montreal (Ville) v. 2952-1366 Québec Inc.) 217 D.L.R. (4th) 674, [2002] R.J.Q. 2986 (C.A. Que.)
Counsel: Serge Barrière for Appellant No one for Respondent Daniel Paquin — Amicus Curiae Shaun Nakatsuru for Intervener
Annotation
The Supreme Court's clarification of the test for when essentially private but nominally public (because government-owned) space is a welcome addition. Although the majority of judges in Comité pour la République du Canada - Committee for the Commonwealth of Canada v. Canada, [1991] 1 S.C.R. 139 had agreed that some such limitation was necessary, given the three different tests articulated in that decision it was difficult to find very clear guidance from that case for future situations. The existence of a single test is therefore a boon.
The test itself also has the advantage of relative simplicity, and consistency with other aspects of the s. 2(b) test which has been developed over the years. It is true that the simplicity of the test could also limit the extent to which it offers sufficiently clear guidance, and might permit a broad range of results in the future. However, centring the discussion on democratic discourse, truth-seeking and individual self-fulfilment has been the focus of arguments over whether laws not intended to limit freedom of expression actually do so in effect, for example, so that there is an established body of case law which should be relatively readily imported into this new context.
In that context, those criteria have not proven to be a high hurdle for claimants to jump over in order to obtain Charter protection. One hopes that the same attitude will be brought to bear at this stage of decision-making as well. It is certainly correct that some government locations (the Prime Minister's own office) should initially be regarded as quite different from and more private than others (Parliament Hill). However, the essentially private nature of the location, though clearly important and weighing heavily in the balance, ought not automatically to settle the dispute as to whether s. 2(b) protection still exists. The
1 Court has recognized, for example, that "expression" must be understood broadly, and that even the act of parking a car might be a method of expression, if it is done as a way of protesting particular parking rules. In the same fashion, the location of expression, and the fact that it is occurring in what might otherwise be considered a private location, might be central to the purpose of the expression: that would seem to be the reason protesters sometimes conduct "sit-ins" in particular locations, for example.
That does not mean that a protester's sit-in ought to trump every person's right to use his or her office. Still, one would not want a location-based test that too readily concluded that there was no s. 2(b) right at all. The balance of interests is far more likely to be fully considered by finding the s. 2(b) right and considering whether the limits on it are reasonable under s. 1.
The statutory interpretation point in the case is also difficult. It is understandable that courts should try to interpret laws in a fashion consistent with the Charter. Still, there is a proper balance to be maintained between the role of courts and the role of legislatures, and it is difficult not to be sympathetic to Justice Binnie's dissenting claim that the majority has overstepped the proper role here. In R. v. Heywood, [1994] 3 S.C.R. 761, 34 C.R. (4th) 133 (S.C.C.), for example, the majority were unpersuaded by the minority position that a ban on "loitering" would not be overbroad if it were understood to mean "loitering with a malevolent purpose". Though the law might then be acceptable, the majority held, that was not what the law said; therefore, it must be judged (and struck down) on the basis of its actual wording. This decision fits much more in the mould of Canadian Foundation for Children, Youth & the Law v. Canada (Attorney General), [2004] 1 S.C.R. 76, 16 C.R. (6th) 203 (S.C.C.). There (over the protests of Arbour J., playing the role Justice Binnie plays here) the majority decided that if the protection for corporal punishment found in s. 43 of the Criminal Code was understood to contain upper and lower limits on the age of children affected, limits on the ways in which force could be applied and the portions of the body to which it could be applied, then it was not overbroad. Here, as there, one might think the preferable approach was that in Heywood: assess the law for what it actually states. If that result leads to a Charter violation, then either send the matter back to the legislature, or read in the limits as a remedy for the breach.
Steve Coughlan *
L'éclaircissement que donne la Cour suprême à propos du critère applicable aux espaces essentiellement privés mais publics en théorie (parce qu'ils appartiennent au gouvernement) est le bienvenu. Même si la majorité des juges dans l'arrêt Comité pour la République du Canada - Committee for the Commonwealth of Canada v. Canada, [1991] 1 R.C.S. 139, s'entendait sur la nécessité d'avoir une limite, l'arrêt fournissait peu de conseils quant à la façon de procéder dans l'avenir, et ce, à cause des trois différents tests qui y étaient énoncés. Avoir un seul critère est donc une bénédiction.
Le critère a l'avantage d'être relativement simple et d'être cohérent avec les autres éléments du critère de l'art. 2b) développé au fil des ans. Il est vrai, par ailleurs, que sa simplicité pourrait restreindre la portée des conseils qu'il fournit et pourrait aussi donner lieu à une large gamme de résultats dans l'avenir. Cependant, les discussions quant à savoir si des lois n'ayant pas pour but de limiter la liberté d'expression peuvent néanmoins avoir cet effet ont focalisé leur attention sur le débat démocratique, la recherche de la vérité et l'épanouissement personnel, et c'est ce qui explique pourquoi un ensemble de jurisprudence établi pourrait être importé relativement aisément dans ce nouveau contexte.
Dans ce contexte, ces critères ne se sont pas révélés être un gros obstacle à franchir pour les demandeurs qui cherchent à obtenir la protection de la Charte. On peut espérer qu'une telle attitude sera également adoptée à cette étape du processus de décision. Il est certainement approprié que certains lieux appartenant au gouvernement (comme le bureau du Premier ministre) soient initialement perçus comme étant différents et plus privés que d'autres (la Colline du Parlement). Cependant, la nature essentiellement privée du lieu, même si elle est clairement importante et pèse lourdement dans la balance, ne devrait pas automatiquement
2 mettre un terme au débat sur l'existence de la protection de l'art. 2b). La Cour a reconnu que le terme « expression » doit être interprété de façon large et que, par exemple, même l'action de stationner son auto pourrait constituer une méthode d'expression, si on le fait, par exemple, dans le but de protester contre des règles de stationnement particulières. De la même façon, le lieu de l'expression, et le fait que l'expression est faite dans un lieu que l'on pourrait considérer comme étant privé, peut constituer l'essentiel de l'objet de l'expression; cela pourrait expliquer pourquoi, par exemple, des manifestants décident d'occuper divers lieux.
Cela ne veut pas dire que l'occupation par le manifestant devrait l'emporter sur le droit de chaque personne d'utiliser son bureau. Par ailleurs, personne ne voudrait d'un critère fondé sur le lieu qui permettrait d'arriver trop facilement à la conclusion qu'il n'existe dans ce lieu aucun droit en vertu de l'art. 2b). La balance des intérêts est beaucoup plus susceptible d'être prise en compte lorsqu'on conclut à l'existence du droit de l'art. 2b) et qu'on détermine ensuite si les limites sont raisonnables en vertu de l'art. 1.
L'interprétation législative dans cette affaire est également difficile. Il est normal que les tribunaux essayent d'interpréter les lois d'une manière compatible avec la Charte. Il faut par ailleurs qu'un équilibre approprié soit maintenu entre le rôle des tribunaux et celui des législatures, et il est difficile de ne pas compatir avec la position dissidente du juge Binnie selon laquelle les juges majoritaires avaient passé outre à leur rôle dans ce cas-ci. Par exemple, dans l'arrêt R. v. Heywood, [1994] 3 S.C.R. 761, 34 C.R. (4th) 133 (S.C.C.) les juges majoritaires n'avaient pas été convaincus par la position des juges minoritaires que l'interdiction de « flâner » n'aurait pas une trop large portée si elle était interprétée comme signifiant « flâner avec une intention malveillante ». Même si la loi aurait pu être considérée comme acceptable, les juges majoritaires ont statué que ce n'était pas ce que la loi disait et que celle-ci devait être jugée (et donc annulée) en fonction de son véritable libellé. Cette décision se conforme beaucoup plus facilement au modèle établi dans l'arrêt Canadian Foundation for Children, Youth & the Law v. Canada (Attorney General), [2004] 1 S.C.R. 76, 16 C.R. (6th) 203 (S.C.C.). Dans ce cas-là, la majorité (malgré les protestations de la juge Arbour, qui jouait alors le rôle repris ici par le juge Binnie) a estimé que la protection contre le châtiment corporel qui se trouve dans l'art. 43 du Code criminel ne serait pas trop large si elle était interprétée comme comportant des limites minimales et maximales quant à l'âge des enfants touchés ainsi que des limites quant à la force pouvant être utilisée et quant aux parties du corps pouvant être visées. Dans ce cas-ci comme dans celui-là, on pouvait penser que la méthode préférable était celle de l'arrêt Heywood, c'est-à-dire apprécier la loi en fonction de ce qu'elle dit véritablement. Si ce résultat donne lieu à une violation de la Charte, il faut alors soit renvoyer l'affaire au législateur, soit interpréter la disposition de façon large afin de pouvoir remédier à la violation.
Steve Coughlan *
McLachlin C.J.C., Deschamps J.:
1. Introduction
1 This appeal concerns the power of the city of Montréal (the "City") to prohibit noise produced in the street by a loudspeaker located in the entrance of an establishment. Two arguments are raised, one based on the limits on the power to regulate and the other on the Canadian Charter of Rights and Freedoms (the "Canadian Charter"). For the reasons that follow, these arguments must be rejected.
2 In light of its scope, art. 9(1) of the By-law concerning noise, R.B.C.M. 1994, c. B-3 (the "By-law"), was validly adopted by the City pursuant to its regulatory powers. Although this provision limits the freedom of expression guaranteed by s. 2(b) of the Canadian Charter, the limit is reasonable and can be justified within the meaning of s. 1 of the Charter.
2. Origins of the Case
3 3 The respondent operates a club featuring female dancers in a commercial zone of downtown Montréal, in a building fronting Ste-Catherine Street. To attract customers and compete with a similar establishment located nearby, the respondent set up, in the main entrance to its club, a loudspeaker that amplified the music and commentary accompanying the show under way inside so that passers-by would hear them. Around midnight on May 14, 1996, a police officer on patrol on Ste-Catherine Street heard the music from a nearby intersection. The respondent was charged with producing noise that could be heard outside using sound equipment, in violation of arts. 9(1) and 11 of the By-law. These provisions read as follows:
9. In addition to the noise referred to in article 8, the following noises, where they can be heard from the outside, are specifically prohibited:
(1) noise produced by sound equipment, whether it is inside a building or installed or used outside; . . . . . 11. No noise specifically prohibited under articles 9 or 10 may be produced, whether or not it affects an inhabited place.
4 Summoned before the Municipal Court, the respondent contested the charge on the ground that arts. 9(1) and 11 of the By-law were invalid. According to the respondent, the City, in adopting these provisions, exceeded its delegated power in respect of nuisances because the provisions defined as a nuisance an activity that was not a nuisance. The respondent also alleged that the provisions infringed its freedom of expression and that the infringement could not be justified.
5 Judge Massignani of the Municipal Court ruled that the noise emitted by the respondent's establishment constituted a nuisance, that the city council had the power to define and prohibit nuisances under art. 520(72) of the Charter of the city of Montreal, 1960, S.Q. 1959-60, c. 102 (the "Charter of the City"), and that neither the purpose nor the effect of the By-law was to restrict freedom of expression ( (Que. Mun. Ct.)). In the Superior Court, Boilard J. quashed the conviction on the basis that the impugned provisions infringed the respondent's freedom of expression; in his view, the By-law impaired the underlying value of self-fulfilment, and this infringement could not be justified ( (C.S. Que.)). The majority of the Court of Appeal upheld the decision to quash the conviction ([2002] R.J.Q. 2986 (C.A. Que.)). Writing for the majority, Fish J.A., as he then was, concluded that the City had not shown the prohibited activity to be contrary to peace and order. He was also of the view that the City could not define an activity as a nuisance if it was not a nuisance and that the prohibition constituted an unjustified violation of the right to freedom of expression. Chamberland J.A., dissenting, would have set aside the Superior Court's judgment because the City had the authority to adopt the provisions in issue pursuant to its powers to ensure peace and public order within its territory and to regulate nuisances. In his view, the infringement of the respondent's freedom of expression was justified, since there were no less-restrictive ways for the City to achieve its objective of eliminating noises that are harmful to the urban soundscape.
6 The debate is now before this Court. We will first address the administrative law argument before turning to the constitutional argument.
3. Analysis
3.1 Does the City Have the Power to Adopt Art. 9(1) of the By-law?
7 A two-stage analysis must be carried out to establish whether the City has the power to adopt art. 9(1) of the By-law. First, the scope of the provision must be defined. Second, it must be determined whether the City's power includes the authority to adopt such a provision.
4 8 We find art. 9(1) of the By-law to be valid. Our analysis will be based on our interpretation of the provision. The points on which we disagree with Binnie J., dissenting, explain how he arrives at a different result. We will begin by delimiting the scope of the impugned provision before considering the submissions based on the scope of the regulatory power.
3.1.1 Scope of Art. 9(1) of the By-law
9 As this Court has reiterated on numerous occasions, "Today, there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament" (Rizzo & Rizzo Shoes Ltd., Re, [1998] 1 S.C.R. 27 (S.C.C.), at para. 21, quoting E. A. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87; see also Bell ExpressVu Ltd. Partnership v. Rex, [2002] 2 S.C.R. 559, 2002 SCC 42 (S.C.C.), at para. 26). This means that, as recognized in Rizzo & Rizzo Shoes "statutory interpretation cannot be founded on the wording of the legislation alone" (at para. 21).
10 Words that appear clear and unambiguous may in fact prove to be ambiguous once placed in their context. The possibility of the context revealing a latent ambiguity such as this is a logical result of the modern approach to interpretation. The fact that a municipal by-law is in issue rather than a statute does not alter the approach to be followed in applying the modern principles of interpretation: P.-A. Côté, The Interpretation of Legislation in Canada (3rd ed. 2000), at p. 24.
11 Binnie J. concludes that the provision is unlawful for being overbroad. We do not share his view regarding the scope of the By-law. Even though he discusses the recognized principles of interpretation, Binnie J. bases his analysis on the premise that art. 9(1) of the By-law is clear and unambiguous.
12 In our view, although it appears to be clear, the provision is in fact ambiguous. In interpreting legislation, the guiding principle is the need to determine the lawmakers' intention. To do this, it is not enough to look at the words of the legislation. Its context must also be considered.
13 Although he claims to follow the modern approach to the interpretation of legislative provisions, Binnie J. actually relies on the literal interpretation advocated by counsel for the City when questioned at the hearing. In our view, the Court must not limit itself to the submissions of counsel for the appellant. There are by-laws like this one in force across Canada. Several have already been reviewed by appellate courts from angles that mirror in many respects the arguments raised in the case at bar: Cheema v. Ross (1991), 82 D.L.R. (4th) 213 (B.C. C.A.); R. v. Luciano (1986), 34 M.P.L.R. 233 (Ont. C.A.); Hadden v. R., [1983] 3 W.W.R. 661 (Sask. Q.B.); aff'd (1983), [1984] 1 W.W.R. 384 (Sask. C.A.).
14 What must be done in the case at bar is not to read down art. 9(1), but to determine whether, on a proper interpretation of the provision, it is limited to prohibiting noises that interfere with the peaceful enjoyment of the urban environment. In our view, taking the wording of the provision into account together with its purpose and its context, as is required by the established principles of statutory interpretation, resolves its ambiguity and enables its scope to be determined. Soft and inoffensive sounds are not prohibited, as Binnie J. contends.
3.1.1.1 Wording of Art. 9(1) of the By-law
15 Any act of communication presupposes two distinct but inseparable components: text and context (Côté, at p. 280). Some spheres of government activity are more conducive to precisely worded texts, while others lend themselves more to general language. The use of general language in environmental matters was approved by the Court in R. v. Canadian Pacific Ltd., [1995] 2 S.C.R. 1031 (S.C.C.), and Canada (Procureure générale) c. Hydro-Québec, [1997] 3 S.C.R. 213 (S.C.C.). The subject matter does not lend itself well to
5 precise language. In the interpretation process, the more general the wording adopted by the lawmakers, the more important the context becomes. The contextual approach to interpretation has its limits. Courts perform their interpretative role only when the two components of communication converge toward the same point: the text must lend itself to interpretation, and the lawmakers' intention must be clear from the context.
16 The wording of art. 9(1) is ambiguous. The words used are very general. What exactly is a "noise"? Is it a sound that could disturb the public peace? Or is it any sound that can be imagined? What does "can be heard from the outside" mean? Is a connection with a building necessary? Or would a cellular telephone constitute sound equipment? The general language used by the lawmakers can be interpreted in many ways. This ambiguity can be resolved only by reviewing the context of art. 9(1).
3.1.1.2 Context of Art. 9(1) of the By-law
17 Having identified the ways in which the wording of art. 9(1) is ambiguous, we must now consider its context. The context of legislation involves a number of factors. The overall context in which a provision was adopted can be determined by reviewing its legislative history and inquiring into its purpose. The immediate context of art. 9(1) can be determined by analysing the By-law itself. This review will enable us to determine whether the City has the power to adopt the impugned provision. We will accordingly address each of these contextual indicia: history, purpose and the By-law itself.
18 We will begin our contextual analysis with the history of the By-law. Noise affects city dwellers in their everyday lives and was one of the earliest concerns of municipal governments. It has long been recognized that noise falls within the jurisdiction over nuisances: D. Langlois, "Le bruit et la fureur : les réglementations municipale et provinciale en matière de bruit", in Développements récents en droit municipal (1992), at p. 163. The regulation of noise has even been characterized as a primary focus of the municipal control of nuisances: L. Giroux, "Retour sur les compétences municipales en matière de nuisance", in Développements récents en droit de l'environnement (1999), 299, at p. 303.
19 The City has had the authority to regulate nuisances since before Confederation. At that time, it could adopt by-laws "[f]or the good rule, peace, welfare, ... and for the prevention and suppression of all nuisances ..." (Act to amend and consolidate the provisions of the Ordinance to incorporate the City and Town of Montreal, 1851, 14 & 15 Vict., c. 128, s. LVIII). Noises were specifically regulated by reference to the preservation of public peace and good order ("No person shall wilfully ... use ... any bell, horn, or bugle, or other sounding instrument", By-Law to Preserve Public Peace and Good Order, By-laws of the City of Montreal, 1865, c. 23, s. 3). In 1899, in addition to its general power to maintain peace and order (Act to revise and consolidate the charter of the city of Montreal, S.Q. 1899, c. 58, ss. 299, para. 1, and 299, para. 2(7)) and its power to prohibit nuisances (s. 299, para. 2(12)), the City was given the power to define what constituted a nuisance (s. 300(50)).
20 The first by-law encompassing all the provisions respecting noise was passed in 1937: By-law concerning noise and to repeal, in whole or in part, certain by-laws (By-law 1448, June 7, 1937). Article 5 of By-law 1448 prohibited sounds produced by sound equipment and projected outside buildings toward streets or public places. Given the time when the provision was adopted and the fact that it concerned sounds projected from a building into a public space, it is reasonable to conclude that the equipment to which the provision applied was equipment connected with the building. The purpose of the provision was apparently to prohibit sounds produced by equipment located inside a building at a volume such that a court could conclude that the person in control of the building intended the sounds to be heard by people in public spaces. The purpose of the prohibition was to preserve the peaceful nature of public spaces.
6 21 Article 5 of By-law 1448 was clearly the predecessor of art. 15.1.1 of the By-law concerning noise, 1976, By-law 4996, which prohibited noise produced by an apparatus emitting sound outside a building. This provision, which was drafted more concisely, targeted equipment projecting sounds outside buildings. Article 15.1.1 of By-law 4996 is the predecessor of art. 9 of the By-law at issue in the instant case.
22 As can be seen from this brief overview of the By-law's historical background, the City has been regulating noise for over a hundred years. Although the wording has been modified over the years, all the provisions adopted since 1937 have had as their purpose the elimination of sounds emitted by sound equipment inside or outside a building at a volume such that they are audible and thus interfere with citizens' peaceful enjoyment of public spaces. The underlying objective of all these by-laws has been to preserve the peaceful nature of public spaces.
23 Having considered the historical context of art. 9(1) of the By-law, we will now turn to its purpose. Identifying the purpose of a regulation can be helpful in determining the meaning of a given word or expression. The Court has frequently done so to extend or restrict the apparent or literal scope of a provision: McBratney v. McBratney (1919), 59 S.C.R. 550 (S.C.C.); Canadian Fishing Co. v. Smith, [1962] S.C.R. 294 (S.C.C.); Sidmay Ltd. v. Wehttam Investments Ltd., [1968] S.C.R. 828 (S.C.C.); Berardinelli v. Ontario Housing Corp. (1978), [1979] 1 S.C.R. 275 (S.C.C.); Rizzo & Rizzo Shoes. Moreover, the Quebec Court of Appeal engaged in the same exercise in St-Laurent (Ville) c. Demers, [1997] R.J.Q. 1892 (C.A. Que.), when it concluded that [TRANSLATION] "the 'nuisance' referred to in s. 76 [of the Environment Quality Act, R.S.Q., c. Q-2,] ... is limited to nuisances that are likely to affect the life, health, safety or welfare of the community".
24 This approach is consistent with the approach to be followed in analysing a word or expression containing a latent ambiguity. "Noise" is one such word. The definitions of "noise" in dictionaries are broad, although they tend to mention that the word is often, but not necessarily, used in respect of unpleasant sounds. In French, the word "bruit" has an even broader meaning. It is defined as a [TRANSLATION] "combination of sounds produced by vibrations that can be perceived by hearing" (Nouveau Larousse Encyclopédique, vol. 1 (2001), at p. 233). Hence, noise in itself is not necessarily a nuisance, but there is no contesting that it can be a nuisance.
25 The general expressions used in art. 9(1), namely "noise" and "can be heard from the outside", have an "open texture" (Côté, at p. 279), and their meaning is affected both by the underlying legislative objective and by their legal environment. The legal environment includes "all ideas related to the wording that Parliament can reasonably consider to be sufficiently common knowledge as to obviate mention in the enactment" (Côté, at p. 281).
26 It is in no municipality's interest to place limits on activities engaged in by citizens that do not in any way interfere with their fellow citizens' peaceful enjoyment. The purpose pursued by the municipality can only be to protect against noise pollution. This purpose gives content to the general language of the provision and makes the implicit component of legal communication explicit. In the case at bar, it is clear from the legislative purpose that the scope of art. 9(1) of the By-law does not include sounds resulting solely from human activity that is peaceable and respectful of the municipal community. This interpretation is the same as the one that flows from our historical analysis of the provision.
27 Bearing the legislative purpose in mind, we must now consider the By-law itself. The immediate context of the impugned provision, namely the other provisions of the By-law, is as important as its overall context. On this point, it should be noted that Quebec's Interpretation Act, R.S.Q., c. I-16, entrenches the rule of contextual interpretation and specifies how it is to be applied:
7 41.1 The provisions of an Act are construed by one another, ascribing to each provision the meaning which results from the whole Act and which gives effect to the provision.
Thus, the immediate context thus also serves to clarify the scope or meaning of a word, expression or provision.
28 In art. 9, the provision at issue in the instant case, the two words or expressions requiring interpretation, "noise" and "where they can be heard from the outside", are framed by their context, which enables their meaning to be determined.
29 The noise to which art. 9 applies is already qualified as being (1) produced by sound equipment, (2) inside a building or installed or used outside it and (3) audible from the outside. These three characteristics are cumulative.
30 Does the provision cover all noises produced by sound equipment that are heard from the outside? Obviously not, since this would not cover all three characteristics. The example given by Binnie J. of noise from a cellular phone is therefore outside the scope of art. 9(1), since it disregards the essential connection with a building, and therefore with the very text on which he claims to rely. An interpretation that did not take this connection into account would make the words "whether it is inside a building or installed or used outside" unnecessary, contrary to the principle of interpretation known as the rule of effectivity (Côté, at p. 277; s. 41.1 of the Interpretation Act). If the lawmakers went to the trouble of specifying the location of the sound equipment in relation to the building in art. 9(1) of the By-law, their intention was not to prohibit all noise produced by sound equipment without regard for this connection.
31 Other provisions of the By-law are also helpful in determining the lawmakers' intention. The By-law (reproduced in the Appendix) contains a number of definitions that permit various types of noises to be identified. For example, a "noise with audible pure sounds" is defined as a "disruptive noise whose sound energy is concentrated around certain frequencies". The expression "disruptive noise" is found in most of the definitions of types of noise. This explicit reference to the concept of disruption is consistent with the purpose identified above. The expression "disruptive noise" is itself defined as "a noise that can be detected as separate from the environmental noise and considered as a source for analysis purposes, and includes a noise defined as such in this article". Environmental noise is the norm against which disruptive noise can be measured. Environmental noise is "a combination of usual noises from various sources, including noises that are exterior in origin, more or less regular in character, that can be detected within a given period, excluding any disruptive noise". Thus, the main characteristic of disruptive noise is that it stands out from environmental noise. Disruptive noise is noise that interferes with the peaceful use of urban spaces, and is distinguished from noise in the literal sense.
32 This concept of disruptive noise reappears in the provisions specific to noise in inhabited places, which are found in a section that includes arts. 9 and 11. Although the expression is not explicitly mentioned in art. 9, it is nevertheless integral to the provision. It should be noted that all the noises referred to in art. 9 entail some form of auditory interference. They are disruptive noises within the meaning of the By-law and do not need to be specifically identified as such (para. (2), siren; para. (3), percussion; para. (4), cries; etc.). It would be contrary to the principles of interpretation to disregard this undeniable contextual element by interpreting art. 9(1) in the abstract.
33 It follows that to apply art. 9(1) to all noises produced by sound equipment even if they do not interfere with the urban environment is inconsistent with the provision's immediate context. All the noises covered by the prohibition under art. 9 have a disruptive effect on the urban environment, in accordance with the definition in the By-law. All these noises can be detected as separate from the environmental noise.
8 A noise produced by sound equipment inside or outside a building can be heard from the outside only if it stands out from the environmental noise. The only acceptable interpretation is one that takes the context into account. Although disruption is not expressly mentioned in art. 9, this is because, in view of the types of noises to which the provision applies, it was considered unnecessary to refer explicitly to disruptive noise in each paragraph.
34 The historical and purposive analysis of the provision enabled us to determine that the lawmakers' purpose was to control noises that interfere with peaceful enjoyment of the urban environment. The immediate context of art. 9 indicates that the concept of noise that adversely affects the enjoyment of the environment is implicit in art. 9 and that the activities prohibited under it are activities that produce noises that can be detected as separate from the environmental noise. This delimitation of the By-law's scope does not, as Binnie J. claims, constitute a judicial amendment that is inconsistent with the plain meaning of the provision. Rather, it is the result of a judicious interpretation that resolves the provision's ambiguity in accordance with the modern approach to interpretation.
35 Although art. 11 is mentioned in the pleadings, the parties did not address it specifically. Its scope is essentially linked to that of art. 9 and need not be discussed separately. All that remains to be determined is whether the City had the power to pass the By-law.
3.1.2 Power of the City to Adopt Art. 9(1) of the By-law
36 It is not in dispute that the City has the power to define and prohibit nuisances. In adopting art. 9(1) of the By-law, the City was targeting noises that constitute a nuisance. We accordingly conclude that the City had the power to adopt art. 9(1) of the By-law.
37 In the Court of Appeal, the respondent successfully argued, based on a literal reading of this provision, that the City did not have the power to adopt it. Fish J.A. was of the view that the City could not [TRANSLATION] "argue that all amplified noise heard from outside, regardless of its nature or volume and of the time, the place or the presence of listeners, is in itself a nuisance" (at para. 41). In his opinion, since the City [TRANSLATION] "does not have the power to define and prohibit nuisances that are not in fact nuisances, it has the authority to prohibit noise only if it reasonably delimits the cases in which noise will actually constitute a nuisance" (at para. 49).
38 In our opinion, this approach fails to take into consideration the principles of the interpretation of legislation, according to which a contextual approach is required. It is no more than a literal analysis of the By-law. It also collapses a distinction between the existence of the power to regulate and the exercise of that power, and does not show the City the deference it is owed with respect to the exercise of its powers.
3.1.2.1 Distinction Between Existence and Exercise of the Power
39 Something is missing from the Court of Appeal's statement of principle that the City "does not have the power to define and prohibit nuisances that are not in fact nuisances" (at para. 41). When a court hears an argument based on this statement, the first step of its analysis is to determine whether the municipality has the power to define a nuisance. If the municipality does have this power, the court must determine whether the power was exercised in a manner consistent with the delegated powers.
40 In the instant case, since arts. 517 and 520(72) of the Charter of the City (reproduced in the Appendix) clearly confer the power to regulate and define nuisances on the City, the review to be conducted relates not to the existence of the regulatory power but to its exercise.
3.1.2.2 Review of the Exercise of the Regulatory Power
9 41 The rules governing the exercise of regulatory powers are well known (Kruse v. Johnson, [1898] 2 Q.B. 91 (Eng. Div. Ct.); Hamilton Distillery Co. v. Hamilton (City) (1907), 38 S.C.R. 239 (S.C.C.); Shell Canada Products Ltd. v. Vancouver (City), [1994] 1 S.C.R. 231 (S.C.C.)). The intervention of courts in this sphere has been marked by great deference. Only an exercise of power in bad faith or for improper or unreasonable purposes will justify judicial review (Kruse; Beauvais v. Montreal (City) (1909), 42 S.C.R. 211 (S.C.C.); Associated Provincial Picture Houses Ltd. v. Wednesbury Corp., [1947] 2 All E.R. 680 (Eng. C.A.); Juneau c. Québec (Ville), [1991] R.J.Q. 2781 (C.A. Que.); Shell Canada Products Ltd. v. Vancouver (City); Fountainhead Fun Centres Ltd. c. Montréal (Ville), [1985] 1 S.C.R. 368 (S.C.C.)).
42 Recourse to the power to define is helpful because it simplifies the task of those who must apply a by-law. Thus, when an activity is defined as a nuisance, a citizen, a municipal officer or a judge, as the case may be, knows exactly what obligations are imposed by the municipal by-law. The standard is clear. However, this does not mean that the power to define is unlimited. For example, a municipality may not use its power to define a nuisance in place of its zoning power, thereby indirectly prohibiting an activity that would otherwise be authorized (2419-6388 Québec inc. c. St-Michel-Archange (Municipalité), [1992] R.J.Q. 875 (C.A. Que.), at p. 881). Nor may it, in exercising its power to regulate nuisances, set standards that are unreasonable (Laval (Ville) c. Prince, [1996] A.Q. No. 58 (C.A. Que.)).
43 The City's intention to exercise the power conferred on it by art. 520(72) of its charter to define and abate nuisances is clear from the wording of art. 2 of the By-law. The use of the expression "constitutes a nuisance" expressly bases the By-law on the provision authorizing the definition of nuisances:
2. Noise whose sound pressure level is greater than the maximum set by ordinance, or noise specifically prohibited under this by-law, constitutes a nuisance and is prohibited as being contrary to peace and order.
44 The purpose of art. 2 of the By-law is to define certain types of noise as nuisances and to prohibit them. Article 2 refers to noises that are specifically prohibited, and the type of noise referred to in the impugned provision is among them. The wording of the By-law lends itself to a contextual analysis in order to determine what types of noise might be prohibited by art. 9(1).
45 To control noise, the City chose to target certain types of sounds that are more likely to stand out over other environmental noise. Targeting noises is of course consistent with the City's delegated power to regulate and define nuisances. A number of characteristics are accordingly used to identify certain noises: sound pressure level greater than the standard determined by ordinance (art. 8 of the By-law), needless use of a siren in a motor vehicle (art. 6(3) of the By-law), and so on. It is in this context that the City prohibited noise that can be heard from outside a building and is produced by sound equipment.
46 The prohibition is not absolute. Although art. 9(1) appears to be broad in scope, as we saw in the contextual analysis of the provision, it must not be interpreted literally. The provision applies only to sounds that stand out over the environmental noise. Also, art. 20 of the By-law enables the executive committee to issue ordinances authorizing the emission of the types of noise in question in certain circumstances or on special occasions. Numerous authorizations have been granted for this purpose.
47 As Giroux points out, at p. 316, the line between protecting the peace and the desire to ensure conformity is sometimes a fine one. In light of this tension, the courts must bear in mind that the responsibility for controlling noise rests with the municipality, and they must not supplant the municipal council to impose their views (Sablières Laurentiennes Ltée c. Ste-Adèle (Ville), [1989] R.L. 486 (C.A. Que.)). A court must show great deference in reviewing a municipal by-law adopted pursuant to the City's powers. Municipal councils are made up of elected representatives who are accountable to their constituents,
10 and the courts have recognized that municipalities have broad discretion in exercising their regulatory powers.
48 Tolerance of noise varies from one individual to another. The adoption of an objective standard, be it the sound pressure level or the source of the noise, makes it easier to apply the by-law. Unless the standard or the medium in question shows that the power has been exercised unreasonably, the court must show deference. Limiting the intensity of certain specific noises and eliminating those noises are two means to the same end, that is, maintaining a level that is acceptable to municipal officials. It is up to the City to choose the means. The City's decision to prohibit, except with special permission, all noise produced by sound equipment, whether located inside a building or installed or used outside, that can be heard from the outside does not exceed the City's regulatory power and in no way constitutes an unreasonable or improper exercise of that power.
49 The City also submitted that the By-law could be based on its power to ensure peace and public order. In light of our conclusion, it is unnecessary to turn to that provision to find that the By-law is valid. A few comments are in order, though.
50 It is well established that a municipal by-law may have more than one aspect and more than one purpose. Consequently, a by-law may have more than one enabling provision (Fountainhead Fun Centres Ltd., at p. 382). It is also possible for a single enabling provision, in particular a general provision such as art. 516 of the Charter of the City, to authorize provisions with multiple purposes.
51 This being said, to restate the Court's words in R. v. Greenbaum, [1993] 1 S.C.R. 674 (S.C.C.), at p. 693, there are many limits on a municipality's general power to adopt by-laws to ensure peace, order and the welfare of its citizens. In particular, when specific powers have been provided for, the general power should not be used to extend the clear scope of the specific provisions. In Greenbaum (at p. 693), the Court agreed with Middleton J.A. of the Ontario Court of Appeal in Morrison v. Kingston (City) (1937), 69 C.C.C. 251 (Ont. C.A.). At p. 255 of that decision, Middleton J.A. had given a general description of the limits on a municipality's regulatory powers:
The first and most obvious limitation is found in the limitations imposed upon the power of the Province itself by the B.N.A. Act. The Province has not itself universal power of legislation, and its creature the municipality can have no higher power. A second and for many purposes a limitation of equally practical importance is that where the Provincial Legislature has itself undertaken to deal with a certain subject-matter in the interest of the inhabitants of the Province all legislation by the municipality must be subject to the provincial enactment. A third limitation is I think to be found in the express enactments of the Municipal Act. Very few subjects falling within the ambit of local government are left to the general provisions of s. 259 [now s. 130]. Almost every conceivable subject proper to be dealt with by a municipal council is specifically enumerated in the detailed provisions in the Act, and in some instances there are distinct limitations imposed on the powers of the municipal council. These express powers are, I think, taken out of any power included in the general grant of power by s. 259. [Emphasis added.]
52 The Court's remarks in 114957 Canada Ltée (Spray-Tech, Société d'arrosage) v. Hudson (Ville), [2001] 2 S.C.R. 241, 2001 SCC 40 (S.C.C.), at para. 22, also support this principle. In that case, the Court upheld the validity of a provision regulating the use of pesticides on the basis of a general power. However, the majority, per L'Heureux-Dubé J., stated that while such general powers may apply where no specific power has been granted (at para. 21), they "do not confer an unlimited power" (at para 20). The Court thus recognized that the purpose of such provisions is to "allow municipalities to respond expeditiously to new challenges facing local communities, without requiring amendment of the provincial enabling legislation" (at para. 19). It seems clear that there is no need to resort to a general power if a specific power exists.
11 53 In the case at bar, the Charter of the City has two specific provisions — one relating to nuisances and the other to public order, peace and safety — in addition to the general residual power.
54 Thus, the City may base the By-law on its power to define and regulate nuisances pursuant to arts. 517(l) and 520(72) of the Charter of the City. The general power under art. 516 to ensure peace, order and good government and the welfare of citizens cannot be used to justify the exercise of its regulatory power, because there is a specific provision that applies.
55 Having concluded that arts. 9(1) and 11 of the By-law are within the delegated power of the City, we must consider the second issue: whether these provisions violate the Canadian Charter. We must first decide whether the provisions of the By-law violate s. 2(b) of the Canadian Charter. If they do, we must then consider whether this violation is justified under s. 1 of the Canadian Charter.
3.2 Does Article 9(1) of the By-law Infringe Section 2(b) of the Canadian Charter?
56 Does the City's prohibition on amplified noise that can be heard from the outside infringe s. 2(b) of the Canadian Charter? Following the analytic approach of previous cases, the answer to this question depends on the answers to three other questions. First, did the noise have expressive content, thereby bringing it within s. 2(b) protection? Second, if so, does the method or location of this expression remove that protection? Third, if the expression is protected by s. 2(b), does the By-law infringe that protection, either in purpose or effect? See Irwin Toy Ltd. c. Québec (Procureur général), [1989] 1 S.C.R. 927 (S.C.C.).
57 The first two questions relate to whether the expression at issue in this case falls within the protected sphere of s. 2(b). They are premised on the distinction made in Irwin Toy between content (which is always protected) and "form" (which may not be protected). While this distinction may sometimes be blurred (see, e.g. Irwin Toy, p. 968; Ford c. Québec (Procureur général), [1988] 2 S.C.R. 712 (S.C.C.), at p. 748), it is useful in cases such as this, where method and location are central to determining whether the prohibited expression is protected by the guarantee of free expression.
3.2.1 Expressive Content
58 The first question is whether the noise emitted by a loudspeaker from inside the club had expressive content. The answer must be yes. The loudspeaker sent a message into the street about the show going on inside the club. The fact that the message may not, in the view of some, have been particularly valuable, or may even have been offensive, does not deprive it of s. 2(b) protection. Expressive activity is not excluded from the scope of the guarantee because of its particular message. Subject to objections on the ground of method or location, as discussed below, all expressive activity is presumptively protected by s. 2(b): see Irwin Toy, at p. 969; R. v. Keegstra, [1990] 3 S.C.R. 697 (S.C.C.), at p. 729.
59 It is clear that noise emitted by loudspeakers from buildings onto the street can have expressive content, and in this case it did. Therefore, the first part of the test in Irwin Toy is met and a prima facie case for s. 2(b) protection is established.
3.2.2 Excluded Expression
60 Expressive activity may fall outside the scope of s. 2(b) protection because of how or where it is delivered. While all expressive content is worthy of protection (see Irwin Toy, at p. 969), the method or location of the expression may not be. For instance, this Court has found that violent expression is not protected by the Canadian Charter: Irwin Toy, at pp. 969-70. Violence is not excluded because of the message it conveys (no matter how hateful) but rather because the method by which the message is conveyed is not consonant with Charter protection.
12 61 This case raises the question of whether the location of the expression at issue causes the expression to be excluded from the scope of s. 2(b): see Comité pour la République du Canada - Committee for the Commonwealth of Canada v. Canada, [1991] 1 S.C.R. 139 (S.C.C.) [hereinafter "Committee for the Commonwealth of Canada"], per Lamer C.J. Property may be private or public. Public property is government-owned. In this case, although the loudspeaker was located on the respondent's private property, the sound issued onto the street, a public space owned by the government. One aspect of free expression is the right to express oneself in certain public spaces. Thus, the public square and the speakers' corner have by tradition become places of protected expression. The question here is whether s. 2(b) of the Canadian Charter protects not only what the Appellants were doing, but their right to do it in the place where they were doing it, namely a public street.
62 Section 2(b) protection does not extend to all places. Private property, for example, will fall outside the protected sphere of s. 2(b) absent state-imposed limits on expression, since state action is necessary to implicate the Canadian Charter. Public property, however, may be more problematic since, by definition, it implicates the state. Two countervailing arguments, both powerful, are pitted against each other where the issue is expression on public property.
63 The argument for s. 2(b) protection on all public property focuses on ownership. It says the critical distinction is between government-owned places and other places. The government as the owner of property controls it. It follows that restrictions on the use of public property for expressive purposes are "government acts". Therefore, it is argued, the government is limiting the right to free expression guaranteed by s. 2(b) of the Canadian Charter and must justify this under s. 1.
64 The argument against s. 2(b) protection on at least some government-owned property, by contrast, focuses on the distinction between public use of property and private use of property. Regardless of the fact that the government owns and hence controls its property, it is asserted, many government places are essentially private in use. Some areas of government-owned property have become recognized as public spaces in which the public has a right to express itself. But other areas, like private offices and diverse places of public business, have never been viewed as available spaces for public expression. It cannot have been the intention of the drafters of the Canadian Charter, the argument continues, to confer a prima facie right of free expression in these essentially private spaces and to cast the onus on the government to justify the exclusion of public expression from places that have always and unquestionably been off-limits to public expression and could not effectively function if they were open to the public.
65 In Committee for the Commonwealth of Canada, six of seven judges endorsed the second general approach, although they adopted different tests for determining whether the government-owned property at issue was public or private in nature. Lamer C.J., supported by Sopinka and Cory JJ., advocated a test based on whether the primary function of the space was compatible with free expression. McLachlin J., supported by La Forest and Gonthier JJ., proposed a test based on whether expression in the place at issue served the values underlying the s. 2(b) free speech guarantee. L'Heureux-Dubé J. opted for the first approach and went directly to s. 1.
66 In this case, as in Ramsden v. Peterborough (City), [1993] 2 S.C.R. 1084 (S.C.C.), we are satisfied that on any of the tests proposed in Committee for the Commonwealth of Canada, the emission of noise onto a public street is protected by s. 2(b). The activity is expressive. The evidence does not establish that the method and location at issue here — a building-mounted amplifier emitting noise onto a public street — impede the function of city streets or fail to promote the values that underlie the free expression guarantee.
67 This method of expression is not repugnant to the primary function of a public street, on the test of Lamer C.J. Streets provide means of passing and accessing adjoining buildings. They also serve as venues of
13 public communication. However one defines their function, emitting noise produced by sound equipment onto public streets seems not in itself to interfere with it. If sound equipment were being used in a way that prevented people from using the street for passage or communication, the answer might be different: see, e.g. MacMillan Bloedel Ltd. v. Simpson (1994), 89 C.C.C. (3d) 217 (B.C. C.A.). However, the evidence here does not establish this.
68 The method and location of the expression also arguably serve the values that underlie the guarantee of free expression, on the approach advocated by McLachlin J. Amplified emissions of noise from buildings onto a public street could further democratic discourse, truth finding and self-fulfillment. Again, if the evidence showed that the amplification inhibited passage and communication on the street, the situation might be different. The argument that the emissions of noise onto a public street in this case did not serve the values underlying the freedom of expression rests on its content, and cannot be considered in addressing the issue of whether the method or location of the expression itself is inimical to s. 2(b).
69 Finally, on the analysis of L'Heureux-Dubé J. in Committee for the Commonwealth of Canada, the expressive content of the noise mandates the conclusion that it is protected by s. 2(b) and propels the analysis directly into s. 1, where justification is the issue.
70 It follows that here, as in Ramsden, it is unnecessary to revisit the question of which of the divergent approaches to the issue of expression on public property should be adopted. However, since we are requested to clarify the test, we offer the following views.
71 We agree with the view of the majority in Committee for the Commonwealth of Canada that the application of s. 2(b) is not attracted by the mere fact of government ownership of the place in question. There must be a further enquiry to determine if this is the type of public property which attracts s. 2(b) protection.
72 Expressive activity should be excluded from the protective scope of s. 2(b) only if its method or location clearly undermines the values that underlie the guarantee. Violent expression, which falls outside the scope of s. 2(b) by reason of its method, provides a useful analogy. Violent expression may be a means of political expression and may serve to enhance the self-fulfillment of the perpetrator. However, it is not protected by s. 2(b) because violent means and methods undermine the values that s. 2(b) seeks to protect. Violence prevents dialogue rather than fostering it. Violence prevents the self-fulfillment of the victim rather than enhancing it. And violence stands in the way of finding the truth rather than furthering it. Similarly, in determining what public spaces fall outside s. 2(b) protection, we must ask whether free expression in a given place undermines the values underlying s. 2(b).
73 We therefore propose the following test for the application of s. 2(b) to public property; it adopts a principled basis for method or location-based exclusion from s. 2(b) and combines elements of the tests of Lamer C.J. and McLachlin J. in Committee for the Commonwealth of Canada. The onus of satisfying this test rests on the claimant.
74 The basic question with respect to expression on government-owned property is whether the place is a public place where one would expect constitutional protection for free expression on the basis that expression in that place does not conflict with the purposes which s. 2(b) is intended to serve, namely (1) democratic discourse, (2) truth finding and (3) self-fulfillment. To answer this question, the following factors should be considered:
(a) the historical or actual function of the place; and
(b) whether other aspects of the place suggest that expression within it would undermine the values underlying free expression
14 75 The historical function of a place for public discourse is an indicator that expression in that place is consistent with the purposes of s. 2(b). In places where free expression has traditionally occurred, it is unlikely that protecting expression undermines the values underlying the freedom. As a result, where historical use for free expression is made out, the location of the expression as it relates to public property will be protected.
76 Actual function is also important. Is the space in fact essentially private, despite being government- owned, or is it public? Is the function of the space — the activity going on there — compatible with open public expression? Or is the activity one that requires privacy and limited access? Would an open right to intrude and present one's message by word or action be consistent with what is done in the space? Or would it hamper the activity? Many government functions, from cabinet meetings to minor clerical functions, require privacy. To extend a right of free expression to such venues might well undermine democracy and efficient governance.
77 Historical and actual functions serve as markers for places where free expression would have the effect of undermining the values underlying the freedom of expression. The ultimate question, however, will always be whether free expression in the place at issue would undermine the values the guarantee is designed to promote. Most cases will be resolved on the basis of historical or actual function. However, we cannot discount the possibility that other factors may be relevant. Changes in society and technology may affect the spaces where expression should be protected having regard to the values that underlie the guarantee. The proposed test reflects this, by permitting factors other than historical or actual function to be considered where relevant.
78 The markers of historical and actual functions will provide ready answers in most cases. However, we must accept that, on the difficult issue of whether free expression is protected in a given location, some imprecision is inevitable. As some scholars point out, the public-private divide cannot be precisely defined in a way that will provide an advance answer for all possible situations: see, e.g. R. Moon, The Constitutional Protection of Freedom of Expression (2000), at pp. 148 et seq. This said, the historical and actual functions of a place is something that can be established by evidence. As courts rule on what types of spaces are inherently public, a central core of certainty may be expected to evolve with respect to when expression in a public place will undermine the values underlying the freedom of expression.
79 Another concern is whether the proposed test screens out expression which merits protection, on the one hand, or admits too much clearly unprotected expression on the other. Our jurisprudence requires broad protection at the s. 2(b) stage, on the understanding that governments can limit that protection if they can justify the limits under s. 1 of the Canadian Charter. The proposed test reflects this. However, it also reflects the reality that some places must remain outside the protected sphere of s. 2(b). People must know where they can and cannot express themselves and governments should not be required to justify every exclusion or regulation of expression under s. 1. As six of seven judges of this Court agreed in Committee for the Commonwealth of Canada, the test must provide a preliminary screening process. Otherwise, uncertainty will prevail and governments will be continually forced to justify restrictions which, viewed from the perspective of history and common sense, are entirely appropriate. Restricted access to many government-owned venues is part of our history and our constitutional tradition. The Canadian Charter was not intended to turn this state of affairs on its head.
80 A final concern is whether the proposed test is flexible enough to accommodate future developments. Changes in society will inevitably alter the specifics of the debate about the venues in which the guarantee of free expression will apply. Some say, for example, that the increasing privatization of government space will shift the debate to the private sector. Others say that the new spaces for communication created by electronic communication through the Internet will raise new questions on the issue of where the right to
15 free speech applies. We do not suggest how the problems of the future will be answered. But it seems to us that a test that focuses on historical and actual functions as markers for public and private domains, adapted as necessary to accord with new situations and the values underlying the s. 2(b) guarantees, will be sufficiently flexible to meet the problems of the future.
81 Applying the approach we propose to the case at bar confirms the conclusion reached earlier under the three Committee for the Commonwealth of Canada tests that the expression at issue in this case falls within the protected sphere of s. 2(b) of the Canadian Charter. The content, as already noted, is expressive. Viewed from the perspective of locus, the expression falls within the public domain. Streets are clearly areas of public, as opposed to private, concourse, where expression of many varieties has long been accepted. There is nothing to suggest that to permit this medium of expression would subvert the values of s. 2(b).
3.2.3 The Infringement
82 This brings us to the third step of the Irwin Toy test. Having concluded that the expression falls within the protected scope of s. 2(b), we must ask whether the By-law impinges on protected expression, in purpose or effect.
83 Here, the purpose of the By-law is benign. However, its effect is to restrict expression. Where the effect of a provision is to limit expression, a breach of s. 2(b) will be made out, provided the claimant shows that the expression at issue promotes one of the values underlying the freedom of expression: Irwin Toy, at p. 976.
84 The electronically amplified noise at issue here encouraged passers-by to engage in the leisure activity of attending one of the performances held at the club. Generally speaking, engaging in lawful leisure activities promotes such values as individual self-fulfillment and human flourishing. The disputed value of particular expressions of self-fulfillment, like exotic dancing, does not negate this general proposition: R. v. Butler, [1992] 1 S.C.R. 452 (S.C.C.), at p. 489. It follows that the By-law has the effect of restricting expression which promotes one of the values underlying s. 2(b) of the Canadian Charter.
85 We conclude that the City's ban on emitting amplified noise constitutes a limit on free expression under s. 2(b) of the Canadian Charter.
3.3 Is the Limit Justified under Section 1 of the Canadian Charter?
86 We have concluded that the By-law amounts to a limitation on expression protected by s. 2(b). The remaining question is whether that limit is justified under s. 1 of the Canadian Charter.
87 Section 1 of the Canadian Charter provides:
The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
88 Under s. 1, the onus is on the City to show that the limit is directed at a pressing and substantial objective, and that the limit is proportionate in the sense of being rationally connected to the objective, impairing the right to freedom of expression in a reasonably minimal way, and having an effect in terms of curtailment of the right that is proportionate to the benefit sought: R. v. Oakes, [1986] 1 S.C.R. 103 (S.C.C.).
89 We conclude that the objective of the limitation is pressing and substantial. The Superior Court judge, Boilard J., defined that objective as combatting noise pollution (paras. 15 and 17). Noise pollution is a serious problem in urban centers, and cities like Montréal are entitled to act reasonably and responsibly in seeking to curb it.
16 90 This brings us to proportionality. Proportionality is concerned with the means chosen to meet the objective. Here the City chose a two-pronged attack on noise pollution. First, it prohibited noises exceeding a stipulated degree of loudness: art. 8. Second, it prohibited particular noises — namely noise that can be heard from the outside and is produced by sound equipment, whether it is inside a building or installed or used outside: art. 9. Noise targeted by art. 9 is prohibited regardless of whether it affects an inhabited place: art. 11. It is important, however, to note that art. 9 does not represent an absolute ban. Unlike Ramsden, where no relief from the restrictive by-law was possible, the scheme of the By-law in this case anticipates routine granting of licences as exceptions to the prohibition. Acticle 20 of the By-law provides that the City may authorize the use of sound equipment prohibited by arts. 9 and 11 in particular circumstances, as for special events, celebrations and demonstrations. The City has exercised this authority and granted permits to use sound equipment on hundreds of occasions: at para. 115, per Chamberland J.A. There is no evidence that it has exercised this authority arbitrarily or to curb democratic discourse. Moreover, as discussed above, in para. 34, a contextual reading of the impugned provision leads to the conclusion that art. 9(1) only captures noise that interferes with the peaceful use and enjoyment of the urban environment. This is the essence of the regulatory scheme the City put in place to deal with noise pollution on its streets.
91 The first question is whether the limit on noise produced by sound equipment is rationally connected to the City's objective of limiting noise in the streets. Clearly it is. Amplified noise emitted into the street may interfere with the activities of people using the street and the buildings around it. People in urban neighbourhoods cannot expect to be free from the sounds of the many activities that go on around them. However, they can and do expect the level of this intrusion to be limited, so that they can enjoy a measure of peace and quiet. This was the City's objective. Presumptively prohibiting the emission of amplified noise was one of the means by which it sought to accomplish that objective.
92 The second question, and the most difficult, is whether the measure impairs the right in a reasonably minimal way. Boilard J. held that the prohibition on noise that is produced by sound equipment and can be heard from the outside, the second prong of the City's regulatory scheme, was not minimally intrusive because it [TRANSLATION] "completely precluded [the club owner] from communicating its commercial message at a time when and place where the harmful effects of doing so were minimal if not non-existent" (para. 33). This conclusion rests on a literal reading of art. 9(1) which, in our view, must be rejected. He went on to say that arts. 8, 10 and 11 sufficed to permit the City to prevent an escalation of the publicity war between the competing club owners on the street. In his view, the City could maintain reasonable and tolerable limits on noise in the streets by regulating the volume of noise measurable by sound level meters, as it had done for Christmas music played over loudspeakers. Boilard J. therefore concluded that the City could have achieved its objective by less intrusive means than a blanket ban on noise produced by sound equipment.
93 On appeal, only Chamberland J.A. found it necessary to consider minimal impairment. We generally endorse his comments and conclusions on this issue.
94 First, in dealing with social issues like this one, where interests and rights conflict, elected officials must be accorded a measure of latitude. The Court will not interfere simply because it can think of a better, less intrusive way to manage the problem. What is required is that the City establish that it has tailored the limit to the exigencies of the problem in a reasonable way. This is particularly so on environmental issues, where views and interests conflict and precision is elusive: Canadian Pacific Ltd.
95 Second, it is far from clear that regulation by degree of loudness would effectively deal with the problem of noise pollution and the conflict between commercial concerns seeking to maximize commercial expression and citizens seeking a relatively peaceful and calm environment. Boilard J. erred in suggesting that the City could adequately deal with the problem of noise pollution by regulating the volume of noise
17 measurable by sound level meter. Noise can be emitted randomly in unexpected places. Detecting and prosecuting violations could be difficult. Moreover, the regulation of sound levels alone would not prevent the possibility that multiple, simultaneous noises, each within the legal limit, could cumulatively exceed an acceptable sound level.
96 Regulation by degree of loudness would not achieve the City's goal of eliminating, subject to exceptions, a certain type of sound — that produced by sound equipment. Moreover, regulation by sound level meters has definite limits. While some noises may be capable of being monitored in this way, some, like intermittent noises or random noises, cannot. Moreover, the suggestion was unrealistic. As Chamberland J.A. put it: [TRANSLATION] "It would take a forest of sound level meters and an army of qualified technicians lying in waiting to monitor the noise produced by sound equipment at different times of day and night, everywhere in greater Montréal" (para. 119).
97 Rights should never be sacrificed to mere administrative convenience. Here, however, the City contends that for a variety of reasons there was really no other practical way to deal with the complex problem it was facing. Accordingly, the City's measures do not go beyond what was reasonably necessary in the circumstances and, as a result, its regulatory plan is entitled to deference.
98 It remains to consider whether the prejudicial effects on free expression flowing from the regulation of sound at issue are proportionate to the beneficial effects of the regulation. In our view, the test supports the conclusion that the By-law is valid.
99 The expression limited by the By-law consists of noise produced by sound equipment that interferes with the peaceful use and enjoyment of the urban environment. This limitation therefore goes to the permitted forms of expression on city streets, regardless of content. Against this stand the benefits of reducing noise pollution on the street and in the neighbourhood. We acknowledge that in balancing the deleterious and positive effects of the By-law, account must be taken of the fact that the activity was taking place on a street with an active commercial nightlife in a large and sophisticated city. This does not, however, mean that its residents must necessarily be subjected to abuses of the enjoyment of their environment. As Chamberland J.A. put it, [TRANSLATION] "the citizens of a city, even a city the size of Montréal, are entitled to a healthy environment. Noise control is unquestionably part of what must be done to improve the quality of this environment" (para. 129). We conclude that the beneficial effects of the By-law outweigh its prejudicial effects.
3.4 Conclusion on the Constitutional Issue
100 We conclude that the expression at issue falls within the protected sphere of s. 2(b) of the Canadian Charter and that the prohibition on noise produced by sound equipment in arts. 9 and 11 of the By-law limits that right. However, that limitation is justified under s. 1 of the Canadian Charter as a reasonable limit in a free and democratic society. We therefore conclude that the By-law is constitutional.
4. Disposition
101 In the result, we would allow the appeal, with costs in all appellate courts.
Binnie J. (dissenting):
102 I have read with interest the reasons of my colleagues the Chief Justice and Deschamps J. upholding the validity of art. 9(1) of the Montréal By-law concerning noise, R.B.C.M. 1994, c. B-3, as both within the powers of the City to deal with "nuisances" and as a justified limit on Montrealers' freedom of expression. With respect, I reach a different conclusion on both counts. Although the circumstances of the present dispute do not call for much moral indignation (a noise war between competing strip joints), it remains
18 true that operators of the strip joints cannot lawfully be convicted under an invalid law any more than anyone else. Article 9(1) of the by-law imposes a general ban on "noise produced by sound equipment" which includes, on the face of it, everything from loudspeakers blasting outside a strip club to the quiet outdoor use of a radio in an Outremont garden, to the ringing of a cell phone in front of the Palais de Justice to the squawk of a baby alarm. I say "on the face of it" because the significant legal issue in this appeal is the extent to which the Court can write limitations into a by-law to implement the Court's view of what would be a reasonable measure against noise pollution.
103 Generally speaking, it is the job of the legislative body to craft its own limits. Anti-noise by-law measures are of three types. The first prohibits noise that exceeds objective measurable limits (e.g. a set level of decibels). The second prohibits noise by subjective criteria (e.g. noise that interferes with the quality of life). The third prohibits noise by source (e.g. sounding car horns in a hospital zone). My colleagues' interpretation converts a type 3 provision into a type 2 provision. This shift was not sought by the appellant City of Montréal or suggested by the courts below. Indeed it contradicts the City's intent both as expressed in the by-law and as submitted to this Court in written and oral argument. I believe the City is entitled to the Court's pronouncement on the validity of art. 9(1) as written and as the City intended it to be interpreted. Taken on that basis, I would say that art. 9(1) is ultra vires the City's legislative authority.
104 Further, while I agree with my colleagues that art. 9(1) of the by-law interferes with the free expression of Montrealers, I disagree that such interference can be justified under either the Quebec Charter of Human Rights and Freedoms, R.S.Q., c. C-12, or the Canadian Charter of Rights and Freedoms. In my view, art. 9(1) is a clear case of legislative overkill. This was the view taken by Fish J.A. (as he then was) and Letarte J.A. in the Quebec Court of Appeal and I agree with them. It follows that the respondent was convicted under an invalid law. I would therefore dismiss the appeal.
A. The City's Position on the Scope of Article 9(1)
105 The City's lawyer, Maître Serge Barrière, was in the course of explaining that [TRANSLATION] "the City of Montréal has the power not only to prohibit nuisances, but also to define them" (transcript, at p. 5), when he was interrogated by my colleague LeBel J.:
[TRANSLATION] MR. JUSTICE LeBEL: But, let's say you had ... if, for example, we take the case of the loudspeakers we are concerned with today, if the only noise the loudspeaker emitted into the street was a relatively quiet sort of whispering, could you define that as a nuisance?
MR. BARRIÈRE: Well, I would argue that you could. If I didn't think so, I wouldn't be here. [Transcript, at pp. 5-6.]
106 This interpretation of the absolute nature of the ban was also considered correct by counsel appointed by the Court as amicus curiae:
[TRANSLATION] MR. JUSTICE BINNIE: May I ask a question about the scope of art. 9? In the case of a person with throat cancer ... [who] can only speak using a microphone or an amplifier to make himself heard, is that prohibited by...?
MR. [PAQUIN]: If he was heard outside, absolutely.
MR. JUSTICE BINNIE: Yes, if he's walking outside, he's in violation.
MR. [PAQUIN]: He's in violation of art. 9, or if he was talking with ... or if he was talking to his wife on his balcony, and their conversation was heard from the sidewalk by passers-by .... (Transcript, at pp. 44-45.)
19 107 Counsel for the City was moved to comment on this exchange in his reply argument:
[TRANSLATION] [T]he question asked by Justice Binnie gave me pause. It seems to me ... I can suggest a partial answer, perhaps ... it seems to me that it's unlikely a police officer would issue a statement of offence for a sound device of this kind, and if one did, I would think that any judge hearing the complaint could, by applying the methods of interpretation approved by the Court, conclude that this was not sound equipment.... [Transcript, at p. 59.]
108 In its factum the City argues that [TRANSLATION] "pollution results not only from the intensity of the sounds, but also from the addition of all the different types of sounds from different sources that make up the environmental noise" (para. 71), and that "environmental noise cannot be combatted effectively unless unnecessary noises are eliminated" (para. 75). Taken together, City Hall's submissions amount to the contention that all "noise produced by sound equipment" is legitimately banned by art. 9(1), but that prosecutorial discretion will pick and choose amongst noises which may not rise to the level of nuisances in themselves to suppress what, in the City's view, are "unnecessary" contributors to the general ambiant noise level. The exercise of this prosecutorial discretion is not governed by any criteria expressed in art. 9(1). The City apparently rests its noise strategy on the idea that the sweeping discretion given to by-law enforcement officials will, everybody hopes, be exercised against bringing absurd prosecutions.
109 My conclusion on the merits is that, while the City is entirely within its authority to combat noise pollution, it goes too far when the fight includes treating as a "nuisance" any audible signal from "sound equipment" without regard to the potential, if any, for disturbance or annoyance. The Charter of the City of Montreal, 1960, S.Q. 1959-60, c. 102, authorizes City Hall to define and prohibit "nuisances", but as my colleagues agree, "this does not mean that the power to define is unlimited" (para. 42). In my view, art. 9(1) is oppressive and should, as the Quebec Court of Appeal determined, be sent back to City Hall for further consideration and modification.
B. General Principles of Interpretation
110 I accept, of course, the principles of "contextual" interpretation of statutes and by-laws laid down in our cases and in part referred to by my colleagues. Our disagreement is about the application of those interpretive principles. In my view, with respect, my colleagues resort to a combination of reading expressions "up", reading expressions "down", reading words "out" and reading words "in" that goes beyond what a court is authorized to do by way of interpretation and amounts to impermissible judicial amendment. Such radical surgery is sometimes done as a matter of constitutional remedy in a proper case, but here it is not being done as a remedy after finding a Charter breach. It is being imposed at the prior stage of interpretation, when the Court's mandate is simply to ascertain the intention of the legislators, not to remedy wrongs.
111 The Court was quite right in recent years to have adopted a contextual approach (as opposed to a purely literal approach) to statutory interpretation, but that does not mean that after proper application of a contextual approach the Court cannot conclude that in fact the legislators meant what they said. As noted in Québec (Procureur General) v. Carrières Ste-Thérèse Ltée, [1985] 1 S.C.R. 831 (S.C.C.), it is sometimes stated, when a court considers the grammatical and ordinary sense of a provision, that "[t]he legislator does not speak in vain" (p. 838). See also Bell ExpressVu Ltd. Partnership v. Rex, [2002] 2 S.C.R. 559, 2002 SCC 42 (S.C.C.), at para. 37.
112 The provision in question is found in art. 9(1) of the by-law and reads as follows:
9. In addition to the noise referred to in article 8, the following noises, where they can be heard from the outside, are specifically prohibited:
20 (1) noise produced by sound equipment, whether it is inside a building or installed or used outside.
113 As my colleagues interpret article 9(1) in paras. 29-33 of their judgment it should read:
9. The following noises, where they can be heard from the outside, are specifically prohibited
(1) disruptive noise emitted by sound equipment located inside a building or installed or used outside the building that stands out over other environmental noise and that interferes with citizens' peaceful enjoyment of public spaces.
The position of the City of Montreal in its written argument and in oral argument (as already referred to) is that art. 9(1) means what it says.
114 We all take as our starting point Driedger 's statement of the proper contextual approach to interpretation:
Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. [Emphasis added.]
(Driedger, Construction of Statutes (2nd ed.1983), at p. 87)
115 This "modern approach" was affirmed in Rizzo & Rizzo Shoes Ltd., Re, [1998] 1 S.C.R. 27 (S.C.C.), and subsequently elaborated upon in Bell ExpressVu. I propose to proceed as the Court did in Bell ExpressVu, namely to look first at the "grammatical and ordinary sense" of the words used by the legislators in art. 9(1), then to "the broader context", and finally to some considerations specific to the scheme of the Montréal charter and the Montréal noise by-law, their object, and the intention of the respective legislators. My conclusion, as will be seen, is that there is no ambiguity in art. 9(1), latent or otherwise. As in Bell ExpressVu itself, a full contextual analysis demonstrates that the legislators intended what they said.
1. Grammatical and Ordinary Sense
116 As my colleagues note, Larousse defines the word "bruit" as a [TRANSLATION] "combination of sounds produced by vibrations that can be perceived by hearing" (Nouveau Larousse Encyclopédique (2001), vol. 1, at p. 233). It therefore follows, as they acknowledge at para. 24, that this word "has an even broader meaning [than 'noise'.] Hence, noise in itself is not necessarily a nuisance, but there is no contesting that it can be a nuisance" (emphasis added).
117 We agree therefore that on a grammatical reading, art. 9(1) includes noise produced by sound equipment which is not a nuisance. To acknowledge that "noise" comes in different types and volumes is not to say that the word itself is ambiguous. Supporters of art. 9(1) conjure up visions of competing strip clubs, ghetto blasters ruining Sunday afternoons in Murray Park, or thousands of angry protestors marching along boulevard René Lévesque hyperventilating through megaphones. However, as stated, the City's lawyer in this Court did not shrink from acknowledging that the actual force and scope of art. 9(1) is a good deal more sweeping than those examples would suggest, and that this sweeping result was intended by his clients at City Hall, who believe that all will be cured by the sensible exercise of prosecutorial discretion.
118 Read in its grammatical and ordinary sense, art. 9(1) would preclude a Montrealer sitting in his garden listening to Mozart playing softly through an open window from a kitchen radio. It would catch people who can only make themselves heard using "sound equipment", such as Dr. Stephen Hawking, one of the world's foremost theoretical physicists, who suffers from amyotrophic lateral sclerosis (ALS or
21 Lou Gehrig's disease) and can only communicate through a voice box. Were we to be fortunate enough to sit on a roof garden in Montréal with one of these individuals, talking at normal conversational levels, their communications ("noise from sound equipment") would potentially be considered a nuisance but ours would not. The City prosecutors would be unlikely to lay a charge, of course, but in the City's view enforcement would be a matter of discretion, depending apparently on whether City Hall regards their noise as "unnecessary".
119 Strolling north from St. Catherine Street, we would reach the student ghetto east of the main McGill University Campus. An undergraduate studying to the music of an Ella Fitzgerald CD would stay within the law if she kept her windows closed, but opening the sash to let in some air and a spring breeze would allow the music to escape and precipitate an exercise of the "prosecutor's discretion" under art. 9(1) of the by-law. She, like Professor Hawking or the young mother sitting on her front porch listening to the mewling of her baby over a baby alarm (whether or not attached to the building) would be contributing noise to the Montréal environment by means of a prohibited source, and would thereby run afoul of art. 9(1) of the by-law.
120 The above-mentioned encounters with "sound equipment" are all "imaginable circumstances which could commonly arise in day-to-day life" (R. v. Goltz, [1991] 3 S.C.R. 485 (S.C.C.), at p. 516), and may therefore be used legitimately to test the validity of the City's enactment.
121 To this point I have been dealing with what art. 9(1) says. However, my colleagues hold that what it says is not what it means. They say context shows that there is an "latent ambiguity" (para. 24). Accordingly, I turn to consider the context.
2. The Broader Context
122 It is true, as my colleagues state, that "[w]ords that appear clear and unambiguous may in fact prove to be ambiguous once placed in their context (para. 10). Ambiguity is a conclusion that may be arrived at after looking at the broader context (Bell Express Vu, at para. 29; Bristol-Myers Squibb Co. v. Canada (Attorney General), 2005 SCC 26 (S.C.C.), at para. 43). However, in this case, the context reinforces rather than detracts from the ordinary grammatical meaning of the words used by the legislators. There is no ambiguity, in my opinion, and thus no gateway at this interpretative stage through which the Court can usher in "creative" remedies. a. The Environmental Law Context
123 I agree with my colleagues that the by-law is directed to "protect against noise pollution" (para. 26). The City is therefore dealing with a subject matter a good deal more specific than was the case in R. v. Canadian Pacific Ltd., [1995] 2 S.C.R. 1031 (S.C.C.), in which our Court rejected a claim that environmental protection legislation was unconstitutionally "vague". Gonthier J., for the majority, wrote that:
In the context of environmental protection legislation, a strict requirement of drafting precision might well undermine the ability of the legislature to provide for a comprehensive and flexible regime. [para. 52]
[...]
...Legislators must have considerable room to manoeuvre in the field of environmental regulation, and s. 7 [of the Charter] must not be employed to hinder flexible and ambitious legislative approaches to environmental protection. [para. 59]
22 124 In my view, with respect, Canadian Pacific Ltd. has no application to the present appeal. In the first place, the enactment in that case not only required the prosecution to establish the release of a "contaminant" into the natural environment, but added the requirement that such release must cause harm (i.e. in contrast to art. 9(1) where there is no requirement to show a harmful effect). Secondly, here we are not dealing with a general environmental law that applies to all manner of pollution and is therefore necessarily couched in general terms. The Montréal by-law is directed solely and exclusively at noise pollution. The regulatory parameters of "noise" are well established, and may include level, place, type and source limitations, as my colleagues point out, as well as qualitative standards. While I agree that the courts cannot insist on a greater level of drafting precision than the subject matter permits, such indulgence is not applicable to this by-law, which shows in its own provisions other than art. 9(1) that a sensible level of precision can be achieved. The City's problem is that after setting out specific provisions dealing with noise classified by quality and impact, it added a general ban on noise classified only by source and, as we all agree, source as such has no necessary connection with either noise quality or harmful impact and, therefore, source as such has no necessary connection with "nuisance". Of course, the City could have employed qualitative limitations in art. 9(1), for example to prohibit a level of noise [TRANSLATION] "that disturbs the peace and tranquillity of persons [...] in the vicinity", as in the noise by-law upheld by the Quebec Court of Appeal in Québec (Ville) c. L'Heureux, [1996] A.Q. No. 2135 (C.A. Que.). My colleagues (impermissibly in my view) seek to read art. 9(1) in the same way as if its language tracked the Quebec City by-law, but this approach fails to respect the very different language used by the Montréal legislators. There are different approaches to noise standards. The problem with art. 9(1) is that it employs none of them to qualify the general ban on "noise produced by sound equipment". b. The Civil Liberties Context
125 The more important general contextual factor is freedom of expression. As my colleagues acknowledge at para. 85, art. 9(1) even as they interpret it limits the guarantee of freedom of expression under the Canadian Charter. Verbal communications are apparently to be restricted to the hearing range of an unaided human voice, which puts open-air politics in Montréal back to the era before Georges-Étienne Cartier addressed the crowd from the balcony at City Hall.
126 Of course municipal enactments are to be read purposefully. Nevertheless, where enactments infringe rights under the Quebec Charter or the Canadian Charter, the Court has long taken the view that it should not remedy the deficiencies by rewriting the legislative text. In Canada (Director of Investigation & Research, Combines Investigation Branch) v. Southam Inc., [1984] 2 S.C.R. 145 (S.C.C.), the government argued that if the law fell below the constitutional standard for search and seizure, the Court should read an "appropriate standard" into the provisions. The Court declined to do so, explaining
...it is the legislature's responsibility to enact legislation that embodies appropriate safeguards to comply with the Constitution's requirements. It should not fall to the courts to fill in the details that will render legislative lacunae constitutional. [p. 169]
127 As stated, the City did not request the Court to read the limitations proposed by my colleagues into its noise by-law. To do so, particularly in a case dealing with freedom of expression, is to co-opt the Court to transform the minimum standard required by the Charter of Quebec or Canada into the maximum freedom allowed under the by-law. That, with respect, is not the proper role of the Court. c. The Legislative Context
128 My colleagues write that "[t]he overall context in which a provision was adopted can be determined by reviewing its legislative history and inquiring into its purpose" (para. 17). I agree that noise pollution is a
23 form of public nuisance and that a purpose of the Montréal charter is to allow the City legislators to identify and prohibit those parts of the universe of noise that can be expected to [TRANSLATION] "cause serious inconvenience or adversely affect either public health or the welfare of the community, or of a significant part of the community", per Gendreau J. in Anctil c. Pocatière (Ville) (1972), [1973] C.S. 238 (C.S. Que.), at p. 244.
129 I agree with my colleagues that this was the City's mandate. However, recognition of the limited nature of the mandate does not provide an answer to the excessive scope of art. 9(1) of the Montréal noise by-law. It just demonstrates the scope of the problem.
130 My colleagues also contend that the relevant history shows that art. 9(1) requires an "essential connection with a building" (para. 30). In fact, however, while earlier versions of the noise by-law did link the equivalent of art. 9(1) to a building (e.g. in 1976 the by-law prohibited "noise produced by an apparatus emitting sound outside a building), City Hall subsequently dropped the limitation my colleagues now seek to restore by "interpretation".
131 Moreover, the addition of an "essential connection with a building" again contradicts the intention of City Hall. Counsel for the City cites in his factum a number of instances where relief has been granted by City permit from the prohibition in art. 9(1) with respect to parks and other public places where no building is involved (see appellant factum, at paras. 84-87). d. The Context of the Legal Environment
132 I further agree with my colleagues that "the legal environment" may provide proper context (para. 25). My colleagues trace the legislative authority conferred on municipalities to deal with nuisances back to 1851 (para. 19). The City of Montréal has thus had more than 150 years of experience in these matters, and must be taken to have been aware that the Quebec courts have consistently required a clear definition of what is prohibited and what is permitted in order that the inhabitants can govern their everyday conduct accordingly. In Laval (Ville) c. Prince, [1996] A.Q. No. 58 (C.A. Que.), for example, the Quebec Court of Appeal struck down a provision in a City of Laval noise by-law which prohibited
[TRANSLATION] a noise heard outdoors between 7:00 a.m. and 10:00 p.m. the intensity of which exceeds an equivalent noise level of 55 dB(A), measured over a period of 15 minutes, at the boundary of any property used in whole or in part as a place of residence.
133 Even though the Laval noise by-law (unlike the Montréal by-law here) specified measurable limits to permitted noise, the court considered those limits to be unreasonably restrictive:
[TRANSLATION] The municipality may not rely on the first subsection of s. 463 of the Cities and Towns Act to declare that something (in this case, a noise) constitutes a nuisance if it has no harmful qualities, causes no injury and hurts no one. Thus, the municipality exceeds the authority granted to it by this provision in declaring that noise of a certain intensity is prohibited because it constitutes a nuisance when it is not in fact harmful in any way, given that it is less intense than the environmental noise. To sum up, the municipality's power to define a nuisance and abate it does not include the power to create a nuisance. [Emphasis added; para. 35.]
134 The prohibition in the Montréal by-law may also be compared with the Métabetchouan noise by- law upheld as valid by the Quebec Superior Court in Métabetchouan-Lac-à-la-Croix (Ville) c. Restaurant- Bar Chez Miville inc. (May 8, 2000), Doc. 160-36-000006-995 (C.S. Que.):
[TRANSLATION] Art. 4 No one may, between the hours of 10 p.m. and 7 a.m., adversely affect the well-being of people in the vicinity by using a radio, television, phonograph, loudspeaker, or other
24 sound-producing instrument or device, or use a musical instrument in such a way as to cause excessive or undue noise. [p. 9]
135 The unsatisfactory approach of art. 9(1) is further illustrated by reference to the provisions of other by-laws which have come before the Quebec courts for consideration. In Baie-Comeau (Ville) c. Bar Le Broadway, 1999 CarswellQue 1472 (C.S. Que.), for example, the by-law set out what the legislators meant by a "nuisance":
[TRANSLATION] Nuisance: any situation or act that is likely to produce serious inconvenience or adversely affect the life, safety, health, property or comfort of persons, or that deprives them of the exercise of a common right.
A nuisance may originate from a situation, an illegal act, or the abuse of a thing or a right; it is continuous in nature and is intimately linked to the situation or act. [para. 4]
136 Yet again, in Beloeil (Ville) c. Pergola 2000, [2003] J.Q. No. 12782 (Que. Mun. Ct.), the Municipal Court upheld art. 1 of an anti-noise by-law which clearly stated:
[TRANSLATION] The emission of any noise that disturbs the peace and tranquillity of people in the vicinity constitutes a nuisance and is prohibited.
137 Examples of similar norms adopted by Quebec municipalities are gathered together by Professor L. Giroux in "Retour sur les compétences municipales en matière de nuisance", in Développements récents en droit de l'environnement (1999), 299, at pp. 328-30. These include Nutrichef Ltée c. Brossard (Ville) [1988 CarswellQue 1485 (C.S. Que.)], C.S. Longueuil, No. 505-36-000006-876, April 12, 1988:
[TRANSLATION] Any noise that is caused by any person by any means whatsoever and that is likely to impede the peaceable use of property in the vicinity constitutes a nuisance. [para. 4]
Laval (Ville) c. Prince:
[TRANSLATION] The emission of any noise that disturbs the peace and tranquillity of the people in the vicinity constitutes a nuisance and is prohibited. [para. 34]
Sévigny c. Alimentation G.F. Robin inc., [1999] R.R.A. 702 (C.S. Que.):
[TRANSLATION] ... to use any noise-producing thing in a manner that disturbs the rest, comfort or well-being of some of or all the people in the vicinity; ...... to produce or allow to be produced, while engaging in the operation or conduct of an industry or business or the exercise of a trade or occupation of any kind, an excessive or unusual noise that disturbs the rest, comfort or well-being of some of or all the people in the vicinity. [Emphasis in original; para. 50.]
138 In the same vein, the Quebec Court of Appeal in L'Heureux, previously mentioned, upheld as valid the following prohibition:
[TRANSLATION] Disruptive noise produced by a musical instrument or equipment the purpose of which is to reproduce or amplify sound constitutes a nuisance if:
it disturbs the peace or tranquillity of persons who reside, work or are present in the vicinity,
or
25 its level exceeds, in an inhabited place, the maximum level prescribed by Chapter III.... [para. 8]
139 What is evident from this overview of the legal environment is that there is a massive amount of municipal experience in Quebec crafting anti-noise by-laws which the City of Montréal must be taken to have known about. The City obviously intended, as its counsel more or less stated at the hearing of the appeal, to strike out in a new direction. In my view, the City is entitled to have the validity of that new direction considered by the Court, rather than have its enactment essentially modified to reflect the legislative model the City evidently wished to depart from.
140 The approach advocated by my colleagues is at odds with the legal environment because it suggests that a municipality is now better off to specify no qualitative noise limits (as in art. 9(1)) because to do so will risk judicial disapproval (as in Prince). It would be better, from the municipality's point of view, to leave it up to a court to read in the limit the court would have enacted had it been the legislators because the court is likely to uphold the validity of its own handiwork. As my colleagues admit at para. 32, the limit they wish to read into art. 9(1) "is not explicitly mentioned". Such a wait-till-we-see-what-the-judge-says approach does not benefit the inhabitants however, because they will have no idea until the court makes its pronouncement which activity is permitted and which activity is prohibited. e. The Immediate Context of the Noise By-law
141 I agree with my colleagues that the "immediate context of the impugned provision, namely the other provisions of the By-law, is as important as its overall context" (para. 27). We must thus put art. 9(1) in the context of the entire noise by-law, whose relevant articles read as follows:
By-law concerning noise, R.B.C.M. 1994, c. B-3
1. In this by-law, the following words mean:
"disruptive noise": a noise that can be detected as separate from the environmental noise and considered as a source for analysis purposes, and includes a noise defined as such in this article;
"environmental noise": a combination of usual noises from various sources, including noises that are exterior in origin, more or less regular in character, that can be detected within a given period, excluding any disruptive noise;
"Noise with audible pure sounds": a disruptive noise whose sound energy is concentrated around certain frequencies;
2. Noise whose sound pressure level is greater than the maximum set by ordinance, or noise specifically prohibited under this by-law, constitutes a nuisance and is prohibited as being contrary to peace and order.
8. No disruptive noise [« bruit perturbateur »] whose sound pressure level is greater than the maximum standardized noise level determined by ordinance, with respect to the inhabited place subjected to that emission, may be emitted.
9. In addition to the noise referred to in article 8, the following noises, where they can be heard from the outside, are specifically prohibited:
(1) noise produced by sound equipment, whether it is inside a building or installed or used outside;
26 . . . . .
11. No noise specifically prohibited under articles 9 or 10 may be produced, whether or not it affects an inhabited place.
13. The analysis referred to in article 12 must be made with the devices and in accordance with the measuring methods prescribed by ordinance, and those procedures must be noted in the analysis report.
Subject to the first paragraph, the analysis may, in the cases provided for by ordinance, consist in simply identifying the type, origin and level of noise, without using the devices and methods specified in the first paragraph, and in such cases, it must be so noted in the analysis report.
Despite the first paragraph, an analysis by simple identification is sufficient in the case of noises specifically prohibited under article 9.
20. ...
For the purpose of section III, the executive committee may, by ordinance:
. . . . .
(3) determine the terms of exception to articles 9, 10 or 11 under circumstances or on the occasion of events, celebrations or demonstrations it specifies or authorizes.
142 It is necessary to consider the legislative context in some detail. A specific prohibition is found in art. 8 with respect to inhabited places, which prohibits "disruptive noise whose sound pressure level is greater than the maximum standardized noise level determined by ordinance". The legislators were careful in art. 8 to specify both a noise level (to be fixed by ordinance) and the location (inhabited areas) limitations. But art. 11 expressly states that "[n]o noise specifically prohibited under articles 9 or 10 may be produced, whether or not it affects an inhabited place".
143 Not only are noise level and location limitations absent from art. 9(1), but the legislators clearly state that the prohibitions in art. 9(1) are "[i]n addition to the noise referred to in art. 8". This can only mean that in art. 9(1) the "noise produced by sound equipment" (i) need not be disruptive, (ii) need not rise to the level fixed by ordinance, and (iii) need not occur in an inhabited place. The simple and complete ban of noise by reference to source and to no other criteria is confirmed by art. 13 which provides that "an analysis by simple identification is sufficient in the case of noises specifically prohibited under article 9".
144 The by-law defines the expression "disruptive noise" and the City could therefore be expected to use the expression where that is what was intended. The City not only knew how to do so, but it did do so in art. 8. There is no such "disruptive noise" limitation in art. 9(1). Equally, where the City wished to control the intensity or level of noise (as in art. 2) or to differentiate among areas of the city where the noise may be considered a nuisance (art. 8) and therefore likely to interfere with what my colleagues call "peaceful enjoyment of the urban environment" (para. 34) it clearly said so. The legislators placed no such limitations in art. 9(1) which simply imposes a ban by source and makes no mention of the quality or the impact of "noise" which emanates from the source. The City imposed the ban "whether or not [the noise] affects an inhabited place" (art. 11). Thus, art. 9(1) means what it says, as counsel for the City submitted in oral argument, and further [TRANSLATION] "[i]f I didn't think so, I wouldn't be here"(transcript, at p. 6).
C. In My View, With Respect, the Interpretation of Article 9(1) Adopted by the Majority Amounts to Judicial Amendment
27 145 As my colleagues state "[o]ur analysis will be based on our interpretation of the provision" (para 8). Their interpretation, to recapitulate, requires a number of steps which, in the context of a law limiting freedom of expression, would more traditionally be considered under the heading of remedy rather than interpretation.
146 First, as noted, my colleagues' interpretation requires the Court to read into art. 9(1) the expression "disruptive noise" (para. 31) from art. 8 even though, as they acknowledge at para. 32, "the expression is not explicitly mentioned in art. 9". The full sentence in their decision reads:
Although disruption is not expressly mentioned in art. 9, this is because, in view of the types of noises which the provision applies, it was considered unnecessary to refer explicitly to disruptive noise in each paragraph. [para. 33]
147 The problem with this view, again, is that it is clear that the legislators did not intend art. 9(1) to repeat the same limitation ("perturbation") as art. 8 because art. 9(1) is introduced and governed by the words "[i]n addition to the noise referred to in article 8". This is because the legislators dealt with the quality of the noise in art. 8 and in art. 9(1) turned to prohibit a particular source of noise, i.e. sound equipment. My colleagues must therefore read out of art. 9(1) the words "[i]n addition to the noise referred to in article 8". My colleagues then read up the words in art. 9(1) "whether it [the sound equipment] is inside a building or installed or used outside" to require an "essential connection with a building" (para. 30). There is, of course, no such requirement of a "connection" expressed anywhere in art. 9(1), and the legislative history is against such an interpretation, as already mentioned. My colleagues must then read down the effect of art. 9(1) so that "[a]lthough art. 9(1) appears to be broad in scope, [it] applies only to sounds that stand out over the environmental noise" (para. 46). We are no longer in the realm of interpretation. We are in the presence of judicial amendments.
148 Finally, my colleagues argue that the word "noise" in art. 9(1) suffers from "a latent ambiguity" (para. 24). However, as I have endeavoured to demonstrate, there is no ambiguity in the word "noise" either on a preliminary reading of art. 9(1) itself or, more importantly, having looked at all of the relevant contexts in which art. 9(1) operates or falls for consideration. The fact is, as counsel for the City contends, that art. 9(1) is directed to the elimination of a broad and general source of noise. Such a legislative overreach should be quashed because it not only ignores the characteristics of a "nuisance" but constitutes (as my colleagues concede) an infringement of Montrealers' freedom of expression, as will shortly be discussed.
D. Article 9(1) of the Noise By-law Is an Invalid Exercise of the City's Power to Define and Prohibit "Nuisances"
149 It is well established that the Court adopts a "broad and purposive" approach to the construction of the powers of a municipality: Shell Canada Products Ltd. v. Vancouver (City), [1994] 1 S.C.R. 231 (S.C.C.), at pp. 244-45; Nanaimo (City) v. Rascal Trucking Ltd., [2000] 1 S.C.R. 342, 2000 SCC 13 (S.C.C.), at para. 18; Pacific National Investments Ltd. v. Victoria (City), [2000] 2 S.C.R. 919, 2000 SCC 64 (S.C.C.), at para. 44; and United Taxi Drivers' Fellowship of Southern Alberta v. Calgary (City), [2004] 1 S.C.R. 485, 2004 SCC 19 (S.C.C.), at paras. 6 and 8. Nevertheless, there are limits.
1. Article 9(1) Is Ultra Vires
150 The Quebec Court of Appeal has long taken the position (as it did in this case) that the legislative power conferred on Quebec municipalities to define and prohibit "nuisances" does not extend to defining some activity or thing as a nuisance [TRANSLATION] "if it has no harmful qualities, causes no injury and hurts no one. . . . [T]he municipality's power to define a nuisance and abate it does not include the power to create a nuisance" (Prince, at para. 35, per Chamberland J.A.).
28 151 This essential nature of a "nuisance" is confirmed by Quebec text writers on the subject; see Professor J. L'Heureux, Droit municipal québécois (1984), t. II, at p. 723:
[TRANSLATION] It is important to note that a nuisance must necessarily be harmful in nature, that is, it must cause serious inconvenience or adversely affect either public health or the welfare of the community. [Emphasis added.]
152 I agree with this view. It is built on 30 years of consistent Quebec jurisprudence, of which both the National Assembly and Montréal City Hall must be taken to be aware: Prince, Kirkland (Ville) c. Phares (1993), 19 M.P.L.R. (2d) 314 (C.S. Que.); 2419-6388 Québec inc. c. St-Michel-Archange (Municipalité), [1992] R.J.Q. 875 (C.A. Que.); Sablières Laurentiennes Ltée c. Ste-Adèle (Ville), [1989] R.L. 486 (C.A. Que.); Sambault c. Mercier (Ville), [1983] C.S. 147 (C.S. Que.); Beach c. Gatineau (Ville), [1975] C.S. 85 (C.S. Que.); Anctil.
153 The recognition that not all noise made by a sound equipment should be considered a nuisance is consistent with art. 976 of the Civil Code of Québec, S.Q. 1991, c. 64, which provides:
976. Neighbours shall suffer the normal 976. Les voisins doivent accepter les neighbourhood annoyances that are not inconvénients normaux du voisinage qui beyond the limit of tolerance they owe each n'excèdent pas les limites de la tolérance qu'ils other, according to the nature or location of se doivent, suivant la nature ou la situation de their land or local custom. leurs fonds, ou suivant les usages locaux.
154 While the power of the municipality to "define" nuisances may not be limited to activities that would in any event exceed "the limit of tolerance" that neighbours owe each other under art. 976 of the Civil Code of Quebec, I agree with my colleagues that the power to define nuisances "is [not] unlimited. For example, a municipality may not [...] in exercising its power to regulate nuisances, set standards that are unreasonable" (para. 42). Nor, I would add, can it lawfully define as a nuisance an activity like making "noise" without specifying any proper or relevant "norms" at all.
155 The Quebec Court of Appeal stated in 2419-6388 Québec inc., at p. 880:
[TRANSLATION] A nuisance may be the very existence of something, such as a substandard landfill site, or garbage on a piece of land. A nuisance may also arise out of the improper use of something. It must then be determined to what extent the use of this thing adversely affects third persons, or whether the nuisance created by the by-law is truly a nuisance. [Emphasis and citations omitted.]
156 Professor Giroux summarizes the relevant Quebec jurisprudence, at pp. 304-5:
[TRANSLATION] It is now well established in the case law that there are two classes of nuisances. The first class of nuisances are those that can be characterized as such by virtue of their very existence (in se). They are things that are nuisances by nature, such as evil-smelling waste, an open-air dump or garbage on a lot. The other type of nuisance is a nuisance not by the very nature of a thing, but rather because of the improper or incorrect use of the thing (per se). Noise is perhaps the most obvious example of this....
157 Noise accordingly is not "by nature" a nuisance. There must therefore be a specification of abuse. There is none in art. 9(1).
158 Invalidation of the by-law as ultra vires would therefore accord with the dictum of Beetz J. in Fountainhead Fun Centres Ltd. c. Montréal (Ville), [1985] 1 S.C.R. 368 (S.C.C.). In that case, in declaring invalid a part of the Montreal by-law governing amusements, the Court adopted in part, at pp. 404-5, the
29 classic statement of Lord Russell in Kruse v. Johnson, [1898] 2 Q.B. 91 (Eng. Div. Ct.), at p. 100, that if a municipal by-law involves "such oppressive or gratuitous interference with the rights of those subject to them as could find no justification in the minds of reasonable men, the Court might well say, 'Parliament never intended to give authority to make such rules; they are unreasonable and ultra vires'" (emphasis added).
159 In R. v. Greenbaum, [1993] 1 S.C.R. 674 (S.C.C.), the Court ruled that a City of Toronto by-law that banned unlicenced street vendors could not be upheld under a power "for prohibiting and abating public nuisances" because "the effect of the by-law is to prohibit conduct which may not amount to a public nuisance" (p. 692). It is true that the Toronto law-making authority at issue in that case did not include a power to define nuisances, but if the Court in Greenbaum had adopted the approach of my colleagues in this case it could simply have read into the Toronto by-law a requirement that the prohibition extend only to those vendors of t-shirts whose activities were disruptive or amounted to a nuisance. The Court refused to do so on that occasion (pp. 691-92), and, on that basis, reversed the Ontario Court of Appeal.
2. The Role of Deference
160 I agree with my colleagues that in combatting the nuisance of noise pollution "[i]t is up to the City to choose the means" (para. 48). The problem is that art. 9(1) of the by-law is much broader than noise pollution because, as my colleagues point out "noise in itself is not necessarily a nuisance" (para. 24). I agree that the courts should leave City Hall with a broad latitude in such matters, but the fact remains, as my colleagues state, that the City's power is not "unlimited" (para. 42). In my view, it is more respectful of City Hall to declare what it has done to be ultra vires, as I do, rather than saying as my colleagues do, that the legislators cannot mean what they said in art. 9(1). It would be more respectful of our place in the constitutional scheme to send the defective provision back to the legislators for consideration and possible re-enactment. There are, as earlier noted, other approaches to the problem of limits identified in art. 9(1) than the solution adopted by my colleagues. The legislators, not the courts, should make their choice amongst these different options.
161 Article 9(1) is ultra vires and the analysis need proceed no further.
3. Article 9(1) Is a Patently Unreasonable Exercise of the Delegated Legislative Power to Define and Prohibit Nuisances
162 The argument is made that where, as here, the City is given an explicit power to define nuisances, the enactment of a definition cannot as such be ultra vires. The by-law can only be quashed if the power of definition is exercised unreasonably (or patently unreasonably).
163 The Court has not recently pronounced upon the standard of review of the intra vires exercise of legislative power by a municipality. In Rascal Trucking, which dealt with a municipality's adjudicative function in relation to an alleged nuisance, Major J. summarized the recent jurisprudence, and stated at para. 37:
The conclusion is apparent. The standard upon which courts may entertain a review of intra vires municipal actions should be one of patent unreasonableness.
Thus, as Professor D. J. Mullan noted in his text Administrative Law (2001), "municipalities have been brought within the mainstream of judicial review theory" (p. 113).
164 Generally speaking, more deference is shown to a municipality's exercise of a legislative function than an adjudicative function. The standard of review in assessing a by-law, assuming the exercise of the legislative power is otherwise intra vires, would be patent unreasonableness.
30 165 In my view, even if this case should be analysed in terms of the exercise of the City's legislative power to define and prohibit "nuisances", as opposed to an ultra vires analysis, art. 9(1) is nevertheless a patently unreasonable exercise of it. I will not repeat the analysis. That finding, too, is sufficient to dispose of this case. But there is more.
E. Article 9(1) Infringes Freedom of Expression Under Section 2(b) of the Canadian Charter
166 I agree with the conclusion of my colleagues at paras. 82-85 of their opinion that the prohibition in art. 9(1) infringes freedom of expression.
F. Article 9(1) Is Not Saved as a Reasonable Limit Prescribed By Law Under Section 1 of the Canadian Charter
167 I am unable to agree with my colleagues that the infringement of free expression is justified. Firstly, in my view there are no limits properly "prescribed by law". Secondly, art. 9(1) is a disproportionate response to the legitimate problem of noise pollution because it goes beyond what could be considered minimal impairment of the expressive rights of Montrealers.
1. Prescribed by Law
168 The limitations relied on by my colleagues to justify art. 9(1) would be useful if endorsed by the legislators. However, it would appear that without those "read in", "read out", "read up" and "read down" limitations my colleagues themselves would agree that art. 9(1) would fail the s. 1 test. (My colleagues write: "Our analysis will be based on our interpretation of the disposition" (para. 8).) I have already explained why I believe their interpretation is precluded by both the text and concentric circles of context around art. 9(1), as well as by the Court's traditional reluctance to engage in judicial surgery on otherwise invalid laws which involve infringement of Charter rights: see Schachter v. Canada, [1992] 2 S.C.R. 679 (S.C.C.), at p. 728, per La Forest J.:
... when one is dealing with laws that impinge on the liberty of the subject, the judicial stance should be one that does not encourage the legislature to overreach, and the courts should be slow indeed to provide a corrective. [Emphasis added.]
169 The City's solution to this problem of overbreadth and overinclusiveness is its reliance on prosecutorial discretion. But, with respect, that is not a solution. Prosecutorial discretion under art. 9(1) is not governed by criteria prescribed by law. As the Court pointed out in R. v. Smith, [1987] 1 S.C.R. 1045 (S.C.C.), at p. 1078.
In its factum, the Crown alleged that such eventual violations could be, and are in fact, avoided through the proper use of prosecutorial discretion to charge for a lesser offence.
In my view the section cannot be salvaged by relying on the discretion of the prosecution not to apply the law in those cases where, in the opinion of the prosecution, its application would be a violation of the Charter. To do so would be to disregard totally s. 52 of the Constitution Act, 1982 which provides that any law which is inconsistent with the Constitution is of no force or effect to the extent of the inconsistency and the courts are duty bound to make that pronouncement, not to delegate the avoidance of a violation to the prosecution or to anyone else for that matter... [Emphasis added.]
2. Minimal Impairment
170 In addition to prosecutorial discretion, it is suggested that some potential offenders might hope to benefit from a de minimis exemption, but the status of this defence in Canada is not clear (see R. v. Cuerrier, [1998] 2 S.C.R. 371 (S.C.C.), at para. 21, and R. v. Hinchey, [1996] 3 S.C.R. 1128 (S.C.C.), at para. 69) and
31 in any event "[t]he defence of de minimis does not mean that the act is justified; it remains unlawful, but on account of its triviality it goes unpunished" (Canadian Foundation for Children, Youth & the Law v. Canada (Attorney General), [2004] 1 S.C.R. 76, 2004 SCC 4 (S.C.C.), at para. 203, per Arbour J.)
171 The permit procedure under art. 20 does little to relieve against the prohibition. Permits are issued as a matter of municipal discretion and are available only for particular occasions ("events, celebrations or demonstrations"). Permits are not otherwise available. The use of sound equipment to communicate an otherwise unobjectionable message should not be subject to the discretion of the City's Executive Committee, especially where, as here, the criteria for the exercise of its discretion are not specified by the legislators.
172 Nor can I agree with my colleagues that art. 9(1) passes constitutional muster in this case because the strip club had other ways of communicating its message to the public. I do not believe that a justification that limits itself to the particular circumstances of a particular accused is an adequate answer to a general challenge to the validity of a by-law. The Oakes test (R. v. Oakes, [1986] 1 S.C.R. 103 (S.C.C.)) requires the Court to determine whether the means chosen are proportionate to the legislative objective, not what the effects of the infringing law are in the case of a particular accused. If it were otherwise, a law could be valid in some situations and not others, creating an unpredictable patchwork. In Smith, for example, the minimum sentence of seven years for importation of drugs was quashed even though on the facts a seven-year sentence might have been considered perfectly fit for that particular offender. In Comité pour la République du Canada - Committee for the Commonwealth of Canada v. Canada, [1991] 1 S.C.R. 139 (S.C.C.), a case dealing with a federal by-law prohibiting the distribution of pamphlets at an airport without the Minister's authorization, L'Heureux Dubé J. observed, at p. 217:
...the problem is not only that the Regulation applies to the activity at issue, but that it applies to virtually all conceivable activity involving freedom of expression at airports.
See also R. v. Zundel, [1992] 2 S.C.R. 731 (S.C.C.), at pp. 771-72, per McLachlin J.
173 In my view, art. 9(1) is not justified just because these particular respondents may have access to other forms of business communication, any more than in R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295 (S.C.C.), a law that infringed freedom of religion could be saved because the challenger was a corporation and did not itself suffer violation of a religious belief, of which it had none. In that case, it was held that even a drugstore lacking an immortal soul or any religious belief whatsoever could attack a law that was flawed by religious discrimination.
174 In summary, the reduction of noise pollution is a legitimate objective but art. 9(1) is open-ended and overbroad. It does not minimally impair Montrealers' freedom of expression. There are other ways in which the respondent could have advertised its wares but the respondent is entitled to challenge a law that prohibits its preferred mode of communication. Montrealers want to be entertained by the radio and receive cell phone calls and use baby alarms and the fact they may be able to be entertained or receive communications in other ways does not diminish the fact their freedom of expression has been infringed in a way that is wholly disproportionate to the City's legitimate interest. Article 9(1), if it is not struck down, will inhibit free expression in many circumstances where alternative modes of expression are not available, and where the use of such sound equipment in no way bothers the neighbours or adversely affects the quality of urban life.
175 Art. 9(1) should be declared to be null and void as inconsistent with expressive rights guaranteed under the Canadian Charter.
G. Article 9(1) Infringes Freedom of Expression Under Article 3 of the Quebec Charter
32 176 Enough has been said already to indicate that art. 9(1) of the by-law is equally in violation of article 3 of the Quebec Charter and is not justified under art. 9.1 of the Quebec Charter.
H. Conclusion
177 As, in my opinion, the provision in the by-law under which the respondent was convicted is invalid, the conviction was properly quashed by the Quebec Court of Appeal. I would therefore dismiss the appeal. Appeal allowed.
Pourvoi accueilli.
Appendix By-law concerning noise, R.B.C.M. 1994, c. B-3
Section I
General Provisions
In this by-law, the following words mean:
"background noise": a noise of a level equivalent to that reached or exceeded by the environmental noise during 95% of the observation period;
"disruptive noise": a noise that can be detected as separate from the environmental noise and considered as a source for analysis purposes, and includes a noise defined as such in this article;
"disturbed place": an inhabited place whose environment is subjected to a disruptive noise;
"environmental noise": a combination of usual noises from various sources, including noises that are exterior in origin, more or less regular in character, that can be detected within a given period, excluding any disruptive noise;
"holder": the driver, lessee, possessor or last registered owner of a registered motor vehicle;
"information-bearing noise": a disruptive noise involving verbal or musical elements separate from its other sound elements;
"inhabited place": a building or an unbuilt area in which or on which people reside, work or stay, and includes a dwelling, office building, hospital, camping ground or other similar place or part of such place constituting separate premises under the terms of an ordinance;
"intermittent noise": a recurring and disruptive noise;
"motor vehicle" or "vehicle": any vehicle driven other than by muscular force and adapted for transportation on public roads, but not on rails;
"noise with audible pure sounds": a disruptive noise whose sound energy is concentrated around certain frequencies;
"occupant": a person who stays, works or resides in a disturbed place;
"pulsating noise": a disruptive noise involving discrete impulses such as hammering or riveting;
33 "standardized noise": a disruptive noise to which has been applied, as a result of a measuring test in accordance with an ordinance, the prescribed correction index for the characteristics of such noise, the duration of its emission and background noise; the number of decibels thus reached is the noise intensity level to be retained for comparison with maximum tolerance scales determined by that ordinance;
"steady noise": a disruptive noise whose level indicates no major variations within certain limit values that are dependent on the location and on the time of day, as determined by ordinance;
"undulating noise": a disruptive noise whose level indicates variations greater than those determined for the evaluation of a steady noise;
"user": a person who uses an object, a device or an instrument through which a disruptive noise is emitted, and includes the owner, lessee or possessor of that object, device or instrument, or any person responsible thereof.
Noise whose sound pressure level is greater than the maximum set by ordinance, or noise specifically prohibited under this by-law, constitutes a nuisance and is prohibited as being contrary to peace and order.
Section II
Noise Produced By a Motor Vehicle
The provisions of this section apply at all times to any motor vehicle in the city, regardless of traffic conditions.
Any holder of a motor vehicle that produces a noise whose sound pressure level is greater than the maximum set by ordinance contravenes this by-law.
Despite article 4, where the noise produced by a motor vehicle results from a sudden maneuver intended to avoid an accident while the vehicle is running in accordance with traffic regulations, no offence is considered to have been committed.
Apart from the noise referred to in article 4, the following noises are specifically prohibited:
(1) noise produced by the banging of an object transported on a vehicle, or the banging of part of a vehicle;
(2) noise produced by the use of the motor of a vehicle at high revolutions, particularly on starting or stopping, or resulting from repeated accelerations;
(3) noise resulting from the needless or excessive use of a whistle, siren or similar device in a motor vehicle;
(4) excessive or unusual noise produced by a radio or any device designed to reproduce sounds in a motor vehicle.
Any holder of a motor vehicle in which or by the use if which is produced a noise specifically prohibited under article 6 contravenes this by-law.
Section III
34 Noise in Inhabited Places
No disruptive noise whose sound pressure level is greater than the maximum standardized noise level determined by ordinance, with respect to the inhabited place subjected to that emission, may be emitted.
In addition to the noise referred to in article 8, the following noises, where they can be heard from the outside, are specifically prohibited:
(1) noise produced by sound equipment, whether it is inside a building or installed or used outside;
(2) noise produced by a siren or other alarm device, except in accordance with a permit issued for that purpose or except in case of need;
(3) noise produced by a strolling musician with musical instruments or objects used as such, at all times where percussion or electrically powered instruments are used, and at night in other cases;
(4) noise resulting from cries, clamors, singing, altercations or cursing and any other form of uproar.
Noise having a sound pressure level higher than the one determined by ordinance is specifically prohibited in offices or commercial premises fitted with a sound system and in premises ordinarily used for dancing and music.
No noise specifically prohibited under articles 9 or 10 may be produced, whether or not it affects an inhabited place.
The director of the department responsible for the enforcement of this section may, at the request of the occupant of an inhabited place, make an analysis to determine the type, level and origin of any disruptive noise in the environment of that place.
The analysis referred to in article 12 must be made with the devices and in accordance with the measuring methods prescribed by ordinance, and those procedures must be noted in the analysis report.
Subject to the first paragraph, the analysis may, in the cases provided for by ordinance, consist in simply identifying the type, origin and level of noise, without using the devices and methods specified in the first paragraph, and in such cases, it must be so noted in the analysis report.
Despite the first paragraph, an analysis by simple identification is sufficient in the case of noises specifically prohibited under article 9.
Where the analysis report drawn up in accordance with article 13 established that a disruptive noise exceeds the maximum level set by ordinance or is a noise specifically prohibited under this by-law, a complaint may be filed against the user of the object, device or instrument through which that noise is produced, as well as against any person who may be responsible for its production.
A peace officer who believes on reasonable grounds that a person in a residential building is disturbed by a noise that he finds excessive in view of the time, location and other circumstances, may order any person causing that disturbance to stop immediately.
Any person who does not immediately comply with an order given by a peace officer in accordance with the first paragraph contravenes this by-law.
35 No permit may be issued for an establishment or an occupancy where the activities carried on in that establishment or for the purposes of that occupancy are inconsistent with the requirements of this by- law.
All activities producing, in the premises covered by a permit application, a noise that exceeds, in adjoining premises, the prescribed sound pressure level, are inconsistent under the terms of the first paragraph.
For the purposes of the first paragraph, the director of the department responsible for the enforcement of this by-law may have a technical assessment made of the noise produced by similar activities.
A permit issued after the verifications provided for in article 16 does not exempt any person from the application of this by-law.
No permit may be issued for an establishment or an occupancy listed below, whose premises are next to a building or part of a building occupied for residential purpose and located in a zone where housing is authorized:
(1) dance hall, dance floor;
(2) demolition material site;
(3) discothèque;
(4) dump;
(5) entertainment hall;
(6) establishment comprising commercial premises fitted with a sound system;
(7) music studio, music rehearsal studio;
(8) open-air site for junk or second-hand goods;
(9) reception hall;
(10) scrap site.
For the purposes of the first paragraph, the word "premises" includes the open-air site of a site or dump referred to in paragraphs 2, 4, 8 and 10.
Articles 16 to 18 prevail over the provisions of any other by-law.
Section IV
Ordinances
For the purposes of this by-law, the executive committee may, by ordinance:
(1) designate the department director responsible for the enforcement of this by-law or one of its sections;
(2) determine the sound pressure level of noise which, in the circumstances described and in the cases referred to in this by-law, may not be exceeded;
36 (3) determine a proper method of measuring noise intensity;
(4) designate or describe any device or instrument to be used for measurement, analysis or other operations;
(5) determine certain areas where noise standards may need to be specified;
(6) single out certain periods of the day;
(7) set the terms and form of any notice.
For the purposes of section II, the executive committee may, by ordinance, determine different categories of vehicles.
For the purpose of section III, the executive committee may, by ordinance:
(1) prescribe methods for normalizing the noises measured;
(2) classify inhabited places into separate premises on the basis of the type of occupancy;
(3) determine the terms of exception to articles 9, 10 or 11 under circumstances or on the occasion of events, celebrations or demonstrations it specifies or authorizes.
Section V
Penal Provisions
Any person who contravenes this by-law is guilty of an offence and is liable:
(1) for a first offence, to a fine of $100 to $300;
(2) for a second offence, to a fine of $300 to $500;
(3) for a subsequent offence, to a fine of $500 to $1000.
Charter of the city of Montreal, 1960, S.Q. 1959-60, c102
For greater certainty as to the powers conferred on the council by article 516, but without restricting the scope thereof and subject to the reservations which it contains, and without restricting the scope of the powers otherwise conferred on the council by this charter, the authority and jurisdiction of the council extend to all the following matters:
a. the raising of money by taxation;
b. the borrowing of money on the city's credit;
c. streets, lanes and highways, and the right of passage above, across, along or beneath the same;
d. sewers, drains and aqueducts;
e. parks, squares and ferries;
f. licenses for trading and peddling;
37 g. the public order, peace and safety;
h. health and sanitation;
i. vaccination and inoculation;
j. public works and improvements;
k. explosive substances;
l. nuisances;
m. markets and abattoirs;
n. decency and good morals;
o. masters and servants;
p. water, light, heat, electricity and railways;
q. the granting of franchises and privileges;
r. the inspection of food;
s. generally all matters concerning the proper administration of the affairs of the city, public interest and the welfare of its population.
Without prejudice to articles 516, 517, 518 and 519 and subject to the provisions of articles 529 to 538, the council may, by by-law:
. . . . .
Define what shall constitute a nuisance and abate the same, and impose fines upon persons who create nuisances or permit them to exist;
. . . . .
Footnotes * Faculty of Law, Dalhousie University.
* Faculty of Law, Dalhousie University.
38 2002 SCC 42, 2002 CSC 42 Supreme Court of Canada
Bell ExpressVu Ltd. Partnership v. Rex
2002 CarswellBC 851, 2002 CarswellBC 852, 2002 SCC 42, 2002 CSC 42, [2002] 2 S.C.R. 559, [2002] 5 W.W.R. 1, [2002] B.C.W.L.D. 366, [2002] S.C.J. No. 43, 100 B.C.L.R. (3d) 1, 113 A.C.W.S. (3d) 52, 166 B.C.A.C. 1, 18 C.P.R. (4th) 289, 212 D.L.R. (4th) 1, 271 W.A.C. 1, 287 N.R. 248, 93 C.R.R. (2d) 189, J.E. 2002-775, REJB 2002-30904
Bell ExpressVu Limited Partnership, Appellant v. Richard Rex, Richard Rex, c.o.b. as 'Can-Am Satellites', Richard Rex, c.o.b. as 'Can Am Satellites' and c.o.b. as 'CanAm Satellites' and c.o.b. as 'Can Am Satellite' and c.o.b. as 'Can Am Sat' and c.o.b. as 'Can-Am Satellites Digital Media Group' and c.o.b. as 'Can-Am Digital Media Group' and c.o.b. as 'Digital Media Group', Anne Marie Halley a.k.a. Anne Marie Rex, Michael Rex a.k.a. Mike Rex, Rodney Kibler a.k.a. Rod Kibler, Lee-Anne Patterson, Michelle Lee, Jay Raymond, Jason Anthony, John Doe 1 to 20, Jane Doe 1 to 20 and any other person or persons found on the premises or identified as working at the premises at 22409 McIntosh Avenue, Maple Ridge, British Columbia, who operate or work for businesses carrying on business under the name and style of 'Can-Am Satellites', 'Can Am Satellites', 'CanAm Satellites', 'Can Am Satellite', 'Can Am Sat', 'Can-Am Satellites Digital Media Group', 'Can-Am Digital Media Group', 'Digital Media Group', or one or more of them, Respondents and The Attorney General of Canada, the Canadian Motion Picture Distributors Association, DIRECTV, Inc., the Canadian Alliance for Freedom of Information and Ideas, and the Congres Iberoamericain du Canada, Interveners
L'Heureux-Dubé, Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel JJ.
Heard: December 4, 2001 Judgment: April 26, 2002 * Docket: 28227
Proceedings: reversing (2000), [2000] 9 W.W.R. 205, 2000 BCCA 493, 2000 CarswellBC 1793, 79 B.C.L.R. (3d) 250, 191 D.L.R. (4th) 662, 142 B.C.A.C. 230, 233 W.A.C. 230 (B.C. C.A.); affirming 1999 CarswellBC 3031 (B.C. S.C. [In Chambers])
Counsel: K. William McKenzie, Eugene Meehan, Q.C., Jessica Duncan, for Appellant Alan D. Gold, Maureen McGuire, for all Respondents except Michelle Lee Graham R. Garton, Q.C., Christopher Rupar, for Intervener, Attorney General of Canada Robert T. Hughes, Q.C., for Intervener, Canadian Motion Picture Distributors Association Christopher D. Bredt, Jeffrey D. Vallis, Davit D. Akman, for Intervener, DIRECTV Inc. Ian W.M. Angus, for Intervener, Canadian Alliance for Freedom of Information and Ideas Alan Riddell, for Intervener, Congres Iberoamerican du Canada
Iacobucci J.:
1 I. Introduction
1 This appeal involves an issue that has divided courts in our country. It concerns the proper interpretation of s. 9(1)(c) of the Radiocommunication Act, R.S.C. 1985, c. R-2, as am. by S.C. 1991, c. 11, s. 83. In practical terms, the issue is whether s. 9(1)(c) prohibits the decoding of all encrypted satellite signals, with a limited exception, or whether it bars only the unauthorised decoding of signals that emanate from licensed Canadian distributors.
2 The respondents facilitate what is generally referred to as "grey marketing" of foreign broadcast signals. Although there is much debate — indeed rhetoric — about the term, it is not necessary to enter that discussion in these reasons. Rather, the central issue is the much narrower one surrounding the above statutory provision: does s. 9(1)(c) operate on these facts to prohibit the decryption of encrypted signals emanating from U.S. broadcasters? For the reasons that follow, my conclusion is that it does have this effect. Consequently, I would allow the appeal.
II. Background
3 The appellant is a limited partnership engaged in the distribution of direct-to-home ("DTH") television programming. It is one of two current providers licensed by the Canadian Radio-television and Telecommunications Commission ("CRTC") as a DTH distribution undertaking under the Broadcasting Act, S.C. 1991, c. 11. There are two similar DTH satellite television distributors in the United States, neither of which possesses a CRTC licence. The door has effectively been shut on foreign entry into the regulated Canadian broadcast market since April 1996, when the Governor in Council directed the CRTC not to issue, amend or renew broadcasting licences for non-Canadian applicants (SOR/ 96-192). The U.S. companies are, however, licensed by their country's Federal Communications Commission to broadcast their signals within that country. The intervener DIRECTV is the larger of these two U.S. companies.
4 DTH broadcasting makes use of satellite technology to transmit television programming signals to viewers. All DTH broadcasters own or have access to one or more satellites located in geosynchronous orbit, in a fixed position relative to the globe. The satellites are usually separated by a few degrees of Earth longitude, occupying "slots" assigned by international convention to their various countries of affiliation. The DTH broadcasters send their signals from land-based uplink stations to the satellites, which then diffuse the signals over a broad aspect of the Earth's surface, covering an area referred to as a "footprint". The broadcasting range of the satellites is oblivious to international boundaries and often extends over the territory of multiple countries. Any person who is somewhere within the footprint and equipped with the proper reception devices (typically, a small satellite reception dish antenna, amplifier, and receiver) can receive the signal.
5 The appellant makes use of satellites owned and operated by Telesat Canada, a Canadian company. Moreover, like every other DTH broadcaster in Canada and the U.S., the appellant encrypts its signals to control reception. To decode or unscramble the appellant's signals so as to permit intelligible viewing, customers must possess an additional decoding system that is specific to the appellant: the decoding systems used by other DTH broadcasters are not cross-compatible and cannot be used to decode the appellant's signals. The operational component of the decoding system is a computerized "smart card" that bears a unique code and is remotely accessible by the appellant. Through this device, once a customer has chosen and subscribed to a programming package, and rendered the appropriate fee, the appellant can communicate to the decoder that the customer is authorized to decode its signals. The decoder is then activated and the customer receives unscrambled programming.
2 6 The respondent, Richard Rex, carries on business as Can-Am Satellites. The other respondents are employees of, or independent contractors working for, Can-Am Satellites. The respondents are engaged in the business of selling U.S. DTH decoding systems to Canadian customers who wish to subscribe to the services offered by the U.S. DTH broadcasters, which make use of satellites owned and operated by U.S. companies and parked in orbital slots assigned to the U.S. The footprints pertaining to the U.S. DTH broadcasters are large enough for their signals to be receivable in much of Canada, but because these broadcasters will not knowingly authorize their signals to be decoded by persons outside of the U.S., the respondents also provide U.S. mailing addresses for their customers who do not already have one. The respondents then contact the U.S. DTH broadcasters on behalf of their customers, providing the customer's name, U.S. mailing address, and credit card number. Apparently, this suffices to satisfy the U.S. DTH broadcasters that the subscriber is resident in the U.S., and they then activate the customer's smart card.
7 In the past, the respondents were providing similar services for U.S. residents, so that they could obtain authorization to decode the Canadian appellant's programming signals. The respondents were authorized sales agents for the appellant at the time, but because this constituted a breach of the terms of the agency agreement, the appellant unilaterally terminated the relationship.
8 The present appeal arises from an action brought by the appellant in the Supreme Court of British Columbia. The appellant, as a licensed distribution undertaking, commenced the action pursuant to ss. 9(1) (c) and 18(1) of the Radiocommunication Act. As part of the relief it sought, the appellant requested an injunction prohibiting the respondents from assisting resident Canadians in subscribing to and decoding U.S. DTH programming. The chambers judge hearing the matter declined to grant the injunctive relief, and directed that the trial of the matter proceed on an expedited basis. On appeal of the chambers judge's ruling, Huddart J.A. dissenting, the Court of Appeal for British Columbia dismissed the appellant's appeal.
9 The appellant applied for leave to appeal to this Court, which was granted on April 19, 2001, with costs to the applicant in any event of the cause ([2001] 1 S.C.R. vi). The Chief Justice granted the respondents' subsequent motion to state constitutional questions on September 4, 2001.
III. Relevant Statutory Provisions
10 The Radiocommunication Act is one of the legislative pillars of Canada's broadcasting framework. It and another of the pillars, the Broadcasting Act, provide context that is of central importance to this appeal. I set out the most pertinent provisions below. I will cite other provisions throughout the course of my reasons as they become relevant.
11 Radiocommunication Act, R.S.C. 1985, c. R-2
2. In this Act,
"broadcasting" means any radiocommunication in which the transmissions are intended for direct reception by the general public;
"encrypted" means treated electronically or otherwise for the purpose of preventing intelligible reception;
"lawful distributor" in relation to an encrypted subscription programming signal or encrypted network feed, means a person who has the lawful right in Canada to transmit it and authorize its decoding;
"radiocommunication" or "radio" means any transmission, emission or reception of signs, signals, writing, images, sounds or intelligence of any nature by means of electromagnetic waves of frequencies lower than 3 000 GHz propagated in space without artificial guide;
3 "subscription programming signal" means radiocommunication that is intended for reception either directly or indirectly by the public in Canada or elsewhere on payment of a subscription fee or other charge;
9. (1) No person shall
(c) decode an encrypted subscription programming signal or encrypted network feed otherwise than under and in accordance with an authorization from the lawful distributor of the signal or feed;
10. (1) Every person who
(b) without lawful excuse, manufactures, imports, distributes, leases, offers for sale, sells, installs, modifies, operates or possesses any equipment or device, or any component thereof, under circumstances that give rise to a reasonable inference that the equipment, device or component has been used, or is or was intended to be used, for the purpose of contravening section 9,
is guilty of an offence punishable on summary conviction and is liable, in the case of an individual, to a fine not exceeding five thousand dollars or to imprisonment for a term not exceeding one year, or to both, or, in the case of a corporation, to a fine not exceeding twenty-five thousand dollars.
(2.1) Every person who contravenes paragraph 9(1)(c) or (d) is guilty of an offence punishable on summary conviction and is liable, in the case of an individual, to a fine not exceeding ten thousand dollars or to imprisonment for a term not exceeding six months, or to both, or, in the case of a corporation, to a fine not exceeding twenty-five thousand dollars.
(2.5) No person shall be convicted of an offence under paragraph 9(1)(c), (d) or (e) if the person exercised all due diligence to prevent the commission of the offence.
18. (1) Any person who
(a) holds an interest in the content of a subscription programming signal or network feed, by virtue of copyright ownership or a licence granted by a copyright owner,
(c) holds a licence to carry on a broadcasting undertaking issued by the Canadian Radio-television and Telecommunications Commission under the Broadcasting Act,
may, where the person has suffered loss or damage as a result of conduct that is contrary to paragraph 9(1)(c), (d) or (e) or 10(1)(b), in any court of competent jurisdiction, sue for and recover damages from the person who engaged in the conduct, or obtain such other remedy, by way of injunction, accounting or otherwise, as the court considers appropriate.
(6) Nothing in this section affects any right or remedy that an aggrieved person may have under the Copyright Act.
Broadcasting Act, S.C. 1991, c. 11
2. (1) In this Act,
"broadcasting" means any transmission of programs, whether or not encrypted, by radio waves or other means of telecommunication for reception by the public by means of broadcasting receiving apparatus, but does not include any such transmission of programs that is made solely for performance or display in a public place;
4 "broadcasting undertaking" includes a distribution undertaking, a programming undertaking and a network;
"distribution undertaking" means an undertaking for the reception of broadcasting and the retransmission thereof by radio waves or other means of telecommunication to more than one permanent or temporary residence or dwelling unit or to another such undertaking;
(2) For the purposes of this Act, "other means of telecommunication" means any wire, cable, radio, optical or other electromagnetic system, or any similar technical system.
(3) This Act shall be construed and applied in a manner that is consistent with the freedom of expression and journalistic, creative and programming independence enjoyed by broadcasting undertakings.
3. (1) It is hereby declared as the broadcasting policy for Canada that
(a) the Canadian broadcasting system shall be effectively owned and controlled by Canadians;
(b) the Canadian broadcasting system, operating primarily in the English and French languages and comprising public, private and community elements, makes use of radio frequencies that are public property and provides, through its programming, a public service essential to the maintenance and enhancement of national identity and cultural sovereignty;
(d) the Canadian broadcasting system should
(i) serve to safeguard, enrich and strengthen the cultural, political, social and economic fabric of Canada,
(ii) encourage the development of Canadian expression by providing a wide range of programming that reflects Canadian attitudes, opinions, ideas, values and artistic creativity, by displaying Canadian talent in entertainment programming and by offering information and analysis concerning Canada and other countries from a Canadian point of view,
(iii) through its programming and the employment opportunities arising out of its operations, serve the needs and interests, and reflect the circumstances and aspirations, of Canadian men, women and children, including equal rights, the linguistic duality and multicultural and multiracial nature of Canadian society and the special place of aboriginal peoples within that society, and
(iv) be readily adaptable to scientific and technological change;
(t) distribution undertakings
(i) should give priority to the carriage of Canadian programming services and, in particular, to the carriage of local Canadian stations,
(ii) should provide efficient delivery of programming at affordable rates, using the most effective technologies available at reasonable cost,
(iii) should, where programming services are supplied to them by broadcasting undertakings pursuant to contractual arrangements, provide reasonable terms for the carriage, packaging and retailing of those programming services, and
5 (iv) may, where the Commission considers it appropriate, originate programming, including local programming, on such terms as are conducive to the achievement of the objectives of the broadcasting policy set out in this subsection, and in particular provide access for underserved linguistic and cultural minority communities.
(2) It is further declared that the Canadian broadcasting system constitutes a single system and that the objectives of the broadcasting policy set out in subsection (1) can best be achieved by providing for the regulation and supervision of the Canadian broadcasting system by a single independent public authority.
Copyright Act, R.S.C. 1985, c. C-42
21. (1) Subject to subsection (2), a broadcaster has a copyright in the communication signal that it broadcasts, consisting of the sole right to do the following in relation to the communication signal or any substantial part thereof:
(a) to fix it,
(b) to reproduce any fixation of it that was made without the broadcaster's consent,
(c) to authorize another broadcaster to retransmit it to the public simultaneously with its broadcast, and
(d) in the case of a television communication signal, to perform it in a place open to the public on payment of an entrance fee,
and to authorize any act described in paragraph (a), (b) or (d).
31. ...
(2) It is not an infringement of copyright to communicate to the public by telecommunication any literary, dramatic, musical or artistic work if
(a) the communication is a retransmission of a local or distant signal;
(b) the retransmission is lawful under the Broadcasting Act;
(c) the signal is retransmitted simultaneously and in its entirety, except as otherwise required or permitted by or under the laws of Canada; and
(d) in the case of the retransmission of a distant signal, the retransmitter has paid any royalties, and complied with any terms and conditions, fixed under this Act.
IV. Judgments Below
Supreme Court of British Columbia, [1999] B.C.J. No. 3092 (B.C. S.C. [In Chambers])
12 In a judgment delivered orally in chambers, Brenner J. (now C.J.B.C.S.C.) noted that there is conflicting jurisprudence on the interpretation of s. 9(1)(c). It was the chambers judge's opinion, however, that the provision is unambiguous, and that it poses no contradiction to the remainder of the Radiocommunication Act. He interpreted s. 9(1)(c) as applying only to the theft of signals from "lawful distributors" in Canada, and not applying to the "paid subscription by Canadians to signals from distributors outside Canada" (para. 20). He reasoned (at paras. 18-19):
6 The offence in that section that was created by the language Parliament chose to use was the offence of stealing encrypted signals from distributors in Canada. In my view, if Parliament had intended in that section to make it an offence in Canada to decode foreign encrypted transmissions originating outside Canada as contended by the [appellant], it would have said so. In s. 9(1)(c) Parliament could have used language prohibiting the unauthorized decoding of all or any subscription programming in Canada. This, it chose not to do.
The interpretation of s. 9(1)(c) asserted by the [appellant] makes no distinction between those who subscribe and pay for services from non-resident distributors and those who steal the signals of lawful distributors in Canada. That interpretation would create a theft offence applicable to persons in Canada who are nonetheless paying for the services they receive. If Parliament had intended s. 9(1) (c) to apply to such conduct, it would have said so in clear language. In my view the quasi criminal provisions in the Radiocommunication Act should not be interpreted in this manner in the absence of such clear parliamentary language.
13 Brenner J. therefore refused to grant the injunctive relief sought by the appellant. He directed that the trial of the matter proceed on an expedited basis.
Court of Appeal for British Columbia (2000), 79 B.C.L.R. (3d) 250, 2000 BCCA 493 (B.C. C.A.)
14 The majority of the Court of Appeal, in a judgment written by Finch J.A. (now C.J.B.C.), identified two divergent strands of case law regarding the proper interpretation of s. 9(1)(c). The majority also noted that judgments representing each side had found the provision to be unambiguous; in its assessment, though, "[l]egislation which can reasonably be said to bear two unambiguous but contradictory, interpretations must, at the very least, be said to be ambiguous" (para. 35). For this reason, and the fact that s. 9(1)(c) bears penal consequences, the majority held that the "narrower interpretation adopted by the chambers judge ... must ... prevail" (para. 35). Conflicting authorities aside, however, the majority was prepared to reach the same result through application of the principles of statutory construction.
15 Section 9(1)(c) enjoins the decoding of encrypted signals without the authorization of the "lawful distributor of the signal or feed" (emphasis added). The majority interpreted the legislator's choice of the definite article "the", underlined in the above phrase, to mean that the prohibition applies only "to signals broadcast by lawful distributors who are licensed to authorize decoding of that signal" (para. 36). In other words, "[i]f there is no lawful distributor for an encrypted subscription program signal in Canada, there can be no one licensed to authorize its decoding". Consequently, according to the majority, there is no contravention of s. 9(1)(c) where a person decodes unregulated signals such as those broadcast by the U.S. DTH companies.
16 The majority characterized s. 9(1)(c) as being clearly directed at regulation of the recipient rather than the distributor, but stated that Parliament had not chosen language that would prohibit the decoding of encrypted signals regardless of origin. Rather, in the majority's view, Parliament elected to regulate merely in respect of signals transmitted by parties who are authorized by Canadian law to do so. Dismissing the appellant's argument regarding the words "or elsewhere" in the definition of "subscription program signal", the majority held that "the fact that a subscription programming signal originating outside Canada was intended for reception outside Canada, does not avoid the requirement in s. 9(1)(c) that the decoding of such signals is only unlawful if it is done without the authorization of a lawful distributor" (para. 40).
17 Basing its reasons on these considerations, the majority held that it was unnecessary to address "the wider policy issues" or the issues arising from the Charter (para. 44). Finding no error in the chambers judge's interpretation, the majority dismissed the appeal.
7 18 Dissenting, Huddart J.A. considered the text of s. 9(1)(c) in light of the definitions set out in s. 2, and concluded that Parliamentary intent was evident: the provision "simply render[s] unlawful the decoding in Canada of all encrypted programming signals ... regardless of their source or intended destination", except where authorization is given by a person having the lawful right in Canada to transmit and authorize the decoding of the signals (para. 48). She stressed that the line of cases relied upon by the chambers judge "[a]t most ... provides support for a less inclusive interpretation of s. 9(1)(c) than its wording suggests on its face because it has penal consequences" (para. 54), and proceeded to set out a number of reasons for which these cases should not be followed.
19 For one, "the task of interpreting a statutory provision does not begin with its being typed as penal. The task of interpretation is a search for the intention of Parliament" (para. 55). As well, the more restrictive reading of s. 9(1)(c) "ignores the broader policy objective" of the governing regulatory scheme, this being "the maintenance of a distinctive Canadian broadcasting industry in a large country with a small population within the transmission footprint of arguably the most culturally assertive country in the world with a population ten times larger" (para. 49). Huddart J.A. also referred to the existence of copyright interests, and stated that "[i]t can reasonably be inferred that U.S. distributors have commercial or legal reasons apart from Canadian laws for not seeking a Canadian market. ... Yet only Canada can control the reception of foreign signals in Canada" (para. 50).
20 Huddart J.A. declined the respondents' invitation to read s. 9(1)(c) in a manner that "respect[s] section 2(b) of the Charter" (para. 57), relying on Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554 (S.C.C.), in this regard. She then concluded (at para. 58):
In summary, I am not persuaded the line of cases on which the chambers judge relied establish the provision is ambiguous or capable of contradictory meanings. I do not consider courts have found two entirely different unambiguous meanings for the provision. The words of section 9(1)(c), taken alone, provide a clear basis for the determination of Parliament's intention. That meaning is consistent with the purpose of the entire regulatory scheme in the context of the international copyright agreements, with the purpose of the Act within that scheme, and with the scheme of the Act itself. Those cases interpreting the provision differently have done so with the purpose of narrowing its application to avoid penal consequences of what Parliament clearly intended to have penal consequences, as at least one of the judges taking that view explicitly acknowledged in his reasons. In my view it takes a convoluted reading of the provision to produce the result reached by the court in R. v. Love [(1997), 117 Man. R. (2d) 123 (Q.B.)], and the decisions that have followed it.
Huddart J.A. would have allowed the appeal and granted the declaration requested by the appellant.
V. Issues
21 This appeal raises three issues:
1. Does s. 9(1)(c) of the Radiocommunication Act create an absolute prohibition against decoding, followed by a limited exception, or does it allow all decoding, except for those signals for which there is a lawful distributor who has not granted its authorization?
2. Is s. 9(1)(c) of the Radiocommunication Act inconsistent with s. 2(b) of the Canadian Charter of Rights and Freedoms?
3. If the answer to the above question is "yes", can the statutory provision be justified pursuant to s. 1 of the Charter?
8 VI. Analysis
A. Introduction
22 It is no exaggeration to state that s. 9(1)(c) of the federal Radiocommunication Act has received inconsistent application in the courts of this country. On one hand, there is a series of cases interpreting the provision (or suggesting that it might be interpreted) so as to create an absolute prohibition, with a limited exception where authorization from a lawful Canadian distributor is received: R. v. Open Sky Inc., [1994] M.J. No. 734 (Man. Prov. Ct.), at para. 36, aff'd (sub nom. R. v. O'Connor) (1995), 106 Man. R. (2d) 37 (Man. Q.B.), at para. 10, leave to appeal refused on other grounds(1996), 110 Man. R. (2d) 153 (Man. C.A.); King v. Canada (Attorney General), [1996] N.B.J. No. 449 (N.B. Q.B.), at paras. 19-20, rev'd on other grounds(1997), 187 N.B.R. (2d) 185 (N.B. C.A.); R. v. Knibb (1997), 198 A.R. 161 (Alta. Prov. Ct.), aff'd (R. v. Quality Electronics (Taber) Ltd., [1998] A.J. No. 628 (Alta. Q.B.); ExpressVu Inc. v. NII Norsat International Inc. (1997), [1998] 1 F.C. 245 (Fed. T.D.), aff'd(1997), 222 N.R. 213 (Fed. C.A.); WIC Premium Corp. v. General Instrument Corp. (2000), 272 A.R. 201, 2000 ABQB 628 (Alta. Q.B.), at para. 72; Canada (Procureure générale) c. Pearlman, [2001] R.J.Q. 2026 (C.Q.), at para. 81.
23 On the other hand, there are a number of conflicting cases that have adopted the more restrictive interpretation favoured by the majority of the Court of Appeal for British Columbia in the case at bar: R. v. Love (1997), 117 Man. R. (2d) 123 (Man. Q.B.); R. v. Ereiser (1997), 156 Sask. R. 71 (Sask. Q.B.); R. v. LeBlanc, [1997] N.S.J. No. 476 (N.S. S.C.); Ryan v. 361779 Alberta Ltd. (1997), 208 A.R. 396 (Alta. Prov. Ct.), at para. 12; R. c. Thériault, [2000] R.J.Q. 2736 (C.Q.); aff'd R. v. D'Argy (June 13, 2001), Doc. 405-36-000044-003 (C.S. Que.); R. c. Gregory Électronique inc., [2000] J.Q. No. 4923 (C.Q.), aff'd R. c. Gregory Électronique inc., [2001] J.Q. No. 4925 (C.S. Que.); R. v. S.D.S. Satellite Inc. (31 octobre 2000), no C.Q. Laval 540-73-000055-980; R. c. Scullion, [2001] R.J.Q. 2018 (C.Q.); R. v. Branton (2001), 53 O.R. (3d) 737 (Ont. C.A.).
24 As can be seen, the schism is not explained simply by the adoption of different approaches in different jurisdictions. Although the highest courts in British Columbia and Ontario have now produced decisions that bind the lower courts in those provinces to the restrictive interpretation, and although the Federal Court of Appeal has similarly bound the Trial Division courts under it to the contrary interpretation, the trial courts in Alberta, Manitoba, and Quebec have produced irreconcilable decisions. Those provinces remain without an authoritative determination on the matter. This appeal, therefore, places this Court in a position to harmonize the interpretive dissonance that is echoing throughout Canada.
25 In attempting to steer its way through this maze of cases, the Court of Appeal for British Columbia, in my respectful view, erred in its interpretation of s. 9(1)(c). In my view, there are five aspects of the majority's decision that warrant discussion. First, it commenced analysis from the belief that an ambiguity existed. Second, it placed undue emphasis on the sheer number of judges who had disagreed as to the proper interpretation of s. 9(1)(c). Third, it did not direct sufficient attention to the context of the Radiocommunication Act within the regulatory régime for broadcasting in Canada, and did not consider the objectives of that régime, feeling that it was unnecessary to address these "wider policy issues". Fourth, the majority did not read s. 9(1)(c) grammatically in accordance with its structure, namely, a prohibition with a limited exception. Finally, the majority of the court effectively inverted the words of the provision, such that the signals for which a lawful distributor could provide authorization to decode (i.e., the exception) defined the very scope of the prohibition.
B. Does s. 9(1)(c) of the Radiocommunication Act create an absolute prohibition against decoding, followed by a limited exception, or does it allow all decoding, except for those signals for which there is a lawful distributor who has not granted its authorization?
9 (1) Principles of Statutory Interpretation
26 In Elmer Driedger's definitive formulation, found at p. 87 of his Construction of Statutes (2nd ed. 1983):
Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.
Driedger's modern approach has been repeatedly cited by this Court as the preferred approach to statutory interpretation across a wide range of interpretive settings: see, for example, Stubart Investments Ltd. v. R., [1984] 1 S.C.R. 536 (S.C.C.), at p. 578, per Estey J.; Québec (Communauté urbaine) c. Notre-Dame de Bonsecours (Corp.), [1994] 3 S.C.R. 3 (S.C.C.), at p. 17; Rizzo & Rizzo Shoes Ltd., Re, [1998] 1 S.C.R. 27 (S.C.C.), at para. 21; R. v. Gladue, [1999] 1 S.C.R. 688 (S.C.C.), at para. 25; R. v. Araujo, [2000] 2 S.C.R. 992, 2000 SCC 65 (S.C.C.), at para. 26; R. v. Sharpe, [2001] 1 S.C.R. 45, 2001 SCC 2 (S.C.C.), at para. 33, per McLachlin C.J.; Chieu v. Canada (Minister of Citizenship & Immigration), 2002 SCC 3 (S.C.C.), at para. 27. I note as well that, in the federal legislative context, this Court's preferred approach is buttressed by s. 12 of the Interpretation Act, R.S.C. 1985, c. I-21, which provides that every enactment "is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects".
27 The preferred approach recognizes the important role that context must inevitably play when a court construes the written words of a statute: as Professor John Willis incisively noted in his seminal article "Statute Interpretation in a Nutshell" (1938), 16 Can. Bar Rev. 1, at p. 6, "words, like people, take their colour from their surroundings". This being the case, where the provision under consideration is found in an Act that is itself a component of a larger statutory scheme, the surroundings that colour the words and the scheme of the Act are more expansive. In such an instance, the application of Driedger's principle gives rise to what was described in R. v. Ulybel Enterprises Ltd., [2001] 2 S.C.R. 867, 2001 SCC 56 (S.C.C.), at para. 52, as "the principle of interpretation that presumes a harmony, coherence, and consistency between statutes dealing with the same subject matter". (See also Murphy v. Welsh, [1993] 2 S.C.R. 1069 (S.C.C.) [a.k.a. Stoddard v. Watson], at p. 1079; Pointe-Claire (Ville) c. S.E.P.B., Local 57, [1997] 1 S.C.R. 1015 (S.C.C.), at para. 61, per Lamer C.J.)
28 Other principles of interpretation - such as the strict construction of penal statutes and the "Charter values" presumption - only receive application where there is ambiguity as to the meaning of a provision. (On strict construction, see: Marcotte v. Canada (Deputy Attorney General) (1974), [1976] 1 S.C.R. 108 (S.C.C.), at p. 115, per Dickson J. (as he then was); R. v. Goulis (1981), 33 O.R. (2d) 55 (Ont. C.A.), at pp. 59-60; R. v. Hasselwander, [1993] 2 S.C.R. 398 (S.C.C.), at p. 413; R. v. Russell, [2001] 2 S.C.R. 804, 2001 SCC 53 (S.C.C.), at para. 46. I shall discuss the "Charter values" principle later in these reasons.)
29 What, then, in law is an ambiguity? To answer, an ambiguity must be "real" (Marcotte, supra, at p. 115). The words of the provision must be "reasonably capable of more than one meaning" (Westminster Bank Ltd. v. Zang (1965), [1966] A.C. 182 (U.K. H.L.), at p. 222, per Lord Reid). By necessity, however, one must consider the "entire context" of a provision before one can determine if it is reasonably capable of multiple interpretations. In this regard, Major J.'s statement in Canadian Oxy Chemicals Ltd. v. Canada (Attorney General), [1999] 1 S.C.R. 743 (S.C.C.), at para. 14, is apposite: "It is only when genuine ambiguity arises between two or more plausible readings, each equally in accordance with the intentions of the statute, that the courts need to resort to external interpretive aids" (emphasis added), to which I would add, "including other principles of interpretation".
10 30 For this reason, ambiguity cannot reside in the mere fact that several courts — or, for that matter, several doctrinal writers — have come to differing conclusions on the interpretation of a given provision. Just as it would be improper for one to engage in a preliminary tallying of the number of decisions supporting competing interpretations and then apply that which receives the "higher score", it is not appropriate to take as one's starting point the premise that differing interpretations reveal an ambiguity. It is necessary, in every case, for the court charged with interpreting a provision to undertake the contextual and purposive approach set out by Driedger, and thereafter to determine if "the words are ambiguous enough to induce two people to spend good money in backing two opposing views as to their meaning" (Willis, supra, at pp. 4-5).
(2) Application to this Case
31 The interpretive factors laid out by Driedger need not be canvassed separately in every case, and in any event are closely related and interdependent (Chieu, supra, at para. 28). In the context of the present appeal, I will group my discussion under two broad headings. Before commencing my analysis, however, I wish to highlight a number of issues on these facts. First, there is no dispute surrounding the fact that the signals of the U.S. DTH broadcasters are "encrypted" under the meaning of the Act, nor is there any dispute regarding the fact that the U.S. broadcasters are not "lawful distributors" under the Act. Secondly, all of the DTH broadcasters in Canada and the U.S. require a person to pay "a subscription fee or other charge" for unscrambled reception. Finally, I note that the "encrypted network feed" portion of s. 9(1)(c) is not relevant on these facts and can be ignored for the purposes of analysis.
(a) Grammatical and Ordinary Sense
32 In its basic form, s. 9(1)(c) is structured as a prohibition with a limited exception. Again, with the relevant portions emphasized, it states that:
No person shall
(c) decode an encrypted subscription programming signal or encrypted network feed otherwise than under and in accordance with authorization from the lawful distributor of the signal or feed. [Emphasis added.]
Il est interdit:
c) de décoder, sans l'autorisation de leur distributeur légitime ou en contravention avec celle-ci, un signal d'abonnement ou une alimentation réseau[.] [Emphasis added.]
The provision opens with the announcement of a broad prohibition ("No person shall"), follows by announcing the nature ("decode") and object ("an encrypted programming signal") of the prohibition, and then announces an exception to it ("otherwise than under and in accordance with authorization from the lawful distributor"). The French version shares the same four features, albeit in a modified order (see Provost C.Q.J. in Pearlman, supra, at p. 2031).
33 The forbidden activity is decoding. Therefore, as noted by the Court of Appeal, the prohibition in s. 9(1)(c) is directed towards the reception side of the broadcasting equation. Quite apart from the provenance of the signals at issue, where the impugned decoding occurs within Canada, there can be no issue of the statute's having an extra-territorial reach. In the present case, the reception that the appellant seeks to enjoin occurs entirely within Canada.
34 The object of the prohibition is of central importance to this appeal. What is interdicted by s. 9(1)(c) is the decoding of "an encrypted subscription programming signal" (in French, « un signal d'abonnement ») (emphasis added). The usage of the indefinite article here is telling: it signifies "one, some
11 [or] any" (Canadian Oxford Dictionary (1998)). Thus, what is prohibited is the decoding of any encrypted subscription programming signal, subject to the ensuing exception.
35 The definition of "subscription programming signal" suggests that the prohibition extends to signals emanating from other countries. Section 2 of the Act defines that term as, "radiocommunication that is intended for reception either directly or indirectly by the public in Canada or elsewhere on payment of a subscription fee or other charge" (emphasis added). I respectfully disagree with the respondents and Weiler J.A. in Branton, supra, at para. 26, "that the wording 'or elsewhere' is limited to the type of situation contemplated in s. 3(3)" of the Act. Subsection 3(3) reads:
3. ...
(3) This Act applies within Canada and on board
(a) any ship, vessel or aircraft that is
(i) registered or licensed under an Act of Parliament, or
(ii) owned by, or under the direction or control of, Her Majesty in right of Canada or a province;
(b) any spacecraft that is under the direction or control of
(i) Her Majesty in right of Canada or a province,
(ii) a citizen or resident of Canada, or
(iii) a corporation incorporated or resident in Canada; and
(c) any platform, rig, structure or formation that is affixed or attached to land situated in the continental shelf of Canada.
36 This provision is directed at an entirely different issue from that which is at play in the definition of "subscription programming signal". Section 3(3) specifies the geographic scope of the Radiocommunication Act and all its constituent provisions, as is confirmed by the marginal note accompanying the subsection, which states "Geographical application". To phrase this in the context of the present appeal, any person within Canada or on board any of the things enumerated in ss. 3(3)(a) through (c) could potentially be subject to liability for unlawful decoding under s. 9(1)(c); in this way, s. 3(3) addresses the "where" question. On the other hand, the definition of "subscription programming signal" provides meaning to the s. 9(1) (c) liability by setting out the class of signals whose unauthorized decoding will trigger the provision; this addresses the object of the prohibition, or the "what" question. These are two altogether separate issues.
37 Furthermore, it was not necessary for Parliament to include the phrase "or elsewhere" in the s. 2 definition if it merely intended "subscription programming signal" to be interpreted as radiocommunication intended for direct or indirect reception by the public on board any of the s. 3(3) vessels, spacecrafts or rigs. In my view, the words "or elsewhere" were not meant to be tautological. It is sometimes stated, when a court considers the grammatical and ordinary sense of a provision, that "[t]he legislator does not speak in vain". (Québec (Procureur General) v. Carrières Ste-Thérèse Ltée, [1985] 1 S.C.R. 831 (S.C.C.), at p. 838.) Parliament has provided express direction to this effect through its enactment of s. 10 of the Interpretation Act, which states in part that "[t]he law shall be considered as always speaking". In any event, "or elsewhere" (« ou ailleurs », in French) suggests a much broader ambit than the particular and limited examples in s. 3(3), and I would be reticent to equate the two.
12 38 In my opinion, therefore, the definition of "subscription programming signal" encompasses signals originating from foreign distributors and intended for reception by a foreign public. Again, because the Radiocommunication Act does not prohibit the broadcasting of subscription programming signals (apart from s. 9(1)(e), which forbids their unauthorized retransmission within Canada) and only concerns decrypting that occurs in the s. 3(3) locations, this does not give rise to any extra-territorial exercise of authority. At this stage, what this means is that, contrary to the holdings of the chambers judge and the majority of the Court of Appeal in the instant case, Parliament did in fact choose language in s. 9(1)(c) that prohibits the decoding of all encrypted subscription signals, regardless of their origin, "otherwise than under and in accordance with an authorization from the lawful distributor of the signal or feed". I shall now consider this exception.
39 The Court of Appeal relied upon the definite article found in this portion of s. 9(1)(c) ("the signal"), in order to support its narrower reading of the provision. Before this Court, counsel for the respondents submitted as well that the definite article preceding the words "lawful distributor" confirms that the provision "is only intended to operate where there is a lawful distributor". Finally, the respondents draw to our attention the French language version of the provision, and particularly the word « leur » that modifies « distributeur légitime »: a number of cases considering the French version of s. 9(1)(c) have relied upon that word to arrive at the narrower interpretation (see the Court of Quebec judgments in Thériault, supra, at p. 2739; Gregory Électronique inc., supra, at paras. 24-26; and S.D.S. Satellite, supra, at p. 7. See also Branton, supra, at para. 25).
40 I do not agree with these opinions. The definite article "the" and the possessive adjective « leur » merely identify the party who can authorize the decoding in accordance with the exception (see Pearlman, supra, at p. 2032). Thus, while I agree with the majority of the Court of Appeal that "[i]f there is no lawful distributor for an encrypted subscription program signal in Canada, there can be no one licensed to authorize its decoding" (para. 36), I cannot see how it necessarily follows that decoding unregulated signals "cannot therefore be in breach of the Radiocommunication Act". Such an approach would require one to read words from the exception into the prohibition, which is circular and incorrect. Again, as Provost C.Q.J. stated in Pearlman, supra, at p. 2031: [translation] "To seek the meaning of the exception at the outset, and thereafter to define the rule by reference to the exception, is likely to distort the meaning of the text and misrepresent the intention of its author."
41 In my view, the definite articles are used in the exception portion of s. 9(1)(c) in order to identify from amongst the genus of signals captured by the prohibition (any encrypted subscription programming signal) that species of signals for which the rule is "otherwise". Grammatically, then, the choice of definite and indefinite articles essentially plays out into the following rendition: No person shall decode any (indefinite) encrypted subscription programming signal unless, for the (definite) particular signal that is decoded, the person has received authorization from the (definite) lawful distributor. Thus, as might happen, if no lawful distributor exists to grant such authorization, the general prohibition must remain in effect.
42 Although I have already stated that the U.S. DTH distributors in the present case are not "lawful distributors" under the Act, I should discuss this term, because it is important to the interpretive process. Section 2 provides that a "lawful distributor" of an encrypted subscription programming signal is "a person who has the lawful right in Canada to transmit it and authorize its decoding". In this connection, the fact that a person is authorized to transmit programming in another country does not, by that fact alone, qualify as granting the lawful right to do so in Canada. Moreover, the phrase "lawful right" (« légitimement autorisée ») comprehends factors in addition to licences granted by the CRTC. In defining "lawful distributor", Parliament could have made specific reference to a person holding a CRTC licence (as it did in s. 18(1)(c)) or a Minister's licence (s. 5(1)(a)). Instead, it deliberately chose broader language. I therefore agree with the opinion of Létourneau J.A. in the Federal Court of Appeal decision in Norsat, supra, at para. 4, that:
13 [t]he concept of "lawful right" refers to the person who possesses the regulatory rights through proper licensing under the Act, the authorization of the Canadian Radio-television and Telecommunications Commission as well as the contractual and copyrights necessarily pertaining to the content involved in the transmission of the encrypted subscription programming signal or encrypted network feed.
As pointed out by the Attorney General of Canada, this interpretation means that even where the transmission of subscription programming signals falls outside of the definition of "broadcasting" under the Broadcasting Act (i.e., where the transmitted programming is "made solely for performance or display in a public place") and no broadcasting licence is therefore required, additional factors must still be considered before it can be determined whether the transmitter of the signals is a "lawful distributor" for the purposes of the Radiocommunication Act.
43 In the end, I conclude that when the words of s. 9(1)(c) are read in their grammatical and ordinary sense, taking into account the definitions provided in s. 2, the provision prohibits the decoding in Canada of any encrypted subscription programming signal, regardless of the signal's origin, unless authorization is received from the person holding the necessary lawful rights under Canadian law.
(b) Broader Context
44 Although the Radiocommunication Act is not, unfortunately, equipped with its own statement of purpose, it does not exist in a vacuum. The Act's focus is upon the allocation of specified radio frequencies, the authorisation to possess and operate radio apparatuses, and the technical regulation of the radio spectrum. The Act also places restrictions on the reception of and interference with radiocommunication, which includes encrypted broadcast programming signals of the sort at issue. S. Handa et al., Communications Law in Canada (loose-leaf ed.), at p. 3.8, describe the Radiocommunication Act as one "of the three statutory pillars governing carriage in Canada". These same authors note at p. 3.17 that:
The Radiocommunication Act embraces all private and public use of the radio spectrum. The close relationship between this and the telecommunications and broadcasting Acts is determined by the fact that telecommunications and broadcasting are the two principal users of the radioelectric spectrum.
45 The Broadcasting Act came into force in 1991, in an omnibus statute that also brought substantial amendments to the Radiocommunication Act, including the addition thereto of s. 9(1)(c). Its purpose, generally, is to regulate and supervise the transmission of programming to the Canadian public. Of note for the present appeal is that the definition of "broadcasting" in the Broadcasting Act captures the encrypted DTH programme transmissions at issue and that DTH broadcasters such as the appellant receive their licences under, and are subject to, that Act. The Broadcasting Act also enumerates 20 broad objectives of the broadcasting policy for Canada (in s. 3(1)(a) through (t)). The emphasis of the Act, however, is placed on broadcasting and not reception.
46 Ultimately, the Acts operate in tandem. On this point, I agree with the following passage from the judgment of LeGrandeur Prov. Ct. J. in Knibb, supra, at paras. 38-39, which was adopted by Gibson J. in the Federal Court Trial Division decision in Norsat, supra, at para. 35:
The Broadcasting Act and the Radiocommunication Act must be seen as operating together as part of a single regulatory scheme. The provisions of each statute must accordingly be read in the context of the other and consideration must be given to each statute's roll [sic] in the overall scheme. [Cite to R. Sullivan, Driedger on the Construction of Statutes (3rd ed. 1994), at p. 286.]
The addition of s. 9(1)(c), (d) and (e) and other sections to the Radiocommunication Act through the provisions of the Broadcasting Act, 1991 are supportive of that approach in my view. Subsections 9(1)
14 (c), (d) and (e) of the Radiocommunication Act must be seen as part of the mechanism by which the stated policy of regulation of broadcasting in Canada is to be fulfilled.
47 Canada's broadcasting policy has a number of distinguishing features, and evinces a decidedly cultural orientation. It declares that the radio frequencies in Canada are public property, that Canadian ownership and control of the broadcasting system should be a base premise, and that the programming offered through the broadcasting system is "a public service essential to the maintenance and enhancement of national identity and cultural sovereignty". Sections 3(1)(d) and 3(1)(t) enumerate a number of specific developmental goals for, respectively, the broadcasting system as a whole and for distribution undertakings (including DTH distribution undertakings) in particular. Finally, s. 3(2) declares that "the Canadian broadcasting system constitutes a single system" best regulated and supervised "by a single independent public authority".
48 In this context, one finds little support for the restrictive interpretation of s. 9(1)(c). Indeed, as counsel for the Attorney General of Canada argued before us, after consideration of the Canadian broadcasting policy Parliament has chosen to adopt, one may legitimately wonder
why would Parliament enact a provision like the restrictive interpretation? Why would Parliament provide for Canadian ownership, Canadian production, Canadian content in its broadcasting and then simply leave the door open for unregulated, foreign broadcasting to come in and sweep all of that aside? What purpose would have been served?
49 On the other hand, the interpretation of s. 9(1)(c) that I have determined to result from the grammatical and ordinary sense of the provision accords well with the objectives set out in the Broadcasting Act. The fact that DTH broadcasters encrypt their signals, making it possible to concentrate regulatory efforts on the reception/decryption side of the equation, actually assists with attempts to pursue the statutory broadcasting policy objectives and to regulate and supervise the Canadian broadcasting system as a single system. It makes sense in these circumstances that Parliament would seek to encourage broadcasters to go through the regulatory process by providing that they could only grant authorization to have their signal decoded, and thereby collect their subscription fees, after regulatory approval has been granted.
50 There is another contextual factor that, while not in any way determinative, is confirmatory of the interpretation of s. 9(1)(c) as an absolute prohibition with a limited exception. As I have noted above, the concept of "lawful right" in the definition of "lawful distributor" incorporates contractual and copyright issues. According to the evidence in the present record, the commercial agreements between the appellant and its various programme suppliers require the appellant to respect the rights that these suppliers are granted by the persons holding the copyright in the programming content. The rights so acquired by the programme suppliers permit the programmes to be broadcast in specific locations, being all or part of Canada. As such, the appellant would have no lawful right to authorise decoding of its programming signals in an area not included in its geographically limited contractual right to exhibit the programming.
51 In this way, the person holding the copyright in the programming can conclude separate licensing deals in different regions, or in different countries (e.g., Canada and the U.S.). Indeed, these arrangements appear typical of the industry: in the present appeal, the U.S. DTH broadcaster DIRECTV has advocated the same interpretation of s. 9(1)(c) as the appellant, in part because of the potential liability it faces towards both U.S. copyright holders and Canadian licencees due to the fact that its programming signals spill across the border and are being decoded in Canada.
52 I also believe that the reading of s. 9(1)(c) as an absolute prohibition with a limited exception complements the scheme of the Copyright Act. Sections 21(1)(c) and 21(1)(d) of the Copyright Act provide broadcasters with a copyright in the communication signals they transmit, granting them the sole right of retransmission (subject to the exceptions in s. 31(2)) and, in the case of a television communication signal, of
15 performing it on payment of a fee. By reading s. 9(1)(c) as an absolute prohibition against decoding except where authorization is granted by the person with the lawful right to transmit and authorize decoding of the signal, the provision extends protection to the holders of the copyright in the programming itself, since it would proscribe the unauthorized reception of signals that violate copyright, even where no retransmission or reproduction occurs: see F. P. Eliadis and S. C. McCormack, "Vanquishing Wizards, Pirates and Musketeers: The Regulation of Encrypted Satellite TV Signals" (1993), 3 M.C.L.R. 211, at pp. 213-18. Finally, I note that the civil remedies provided for in ss. 18(1)(a) and 18(6) of the Radiocommunication Act both illustrate that copyright concerns are of relevance to the scheme of the Act, thus supporting the finding that there is a connection between these two statutes.
(c) Section 9(1)(c) as a "Quasi-Criminal" Provision
53 I wish to comment regarding the respondents' argument regarding the penal effects that the "absolute prohibition" interpretation would bring to bear. Although the present case only arises in the context of a civil remedy the appellant is seeking under s. 18(1) of the Act (as a person who "has suffered loss or damage as a result of conduct that is contrary to paragraph 9(1)(c)") and does not therefore directly engage the penal aspects of the Radiocommunication Act, the respondents direct our attention to ss. 10(1)(b) and 10(2.1). These provisions, respectively, create summary conviction offences for every person providing equipment for the purposes of contravening s. 9 and for every person who in fact contravenes s. 9(1)(c). Respondents' counsel argued before us that, if s. 9(1)(c) is interpreted in the manner suggested by the appellant, "hundreds of thousands of Canadians can expect a knock on their door, because they will be in breach of the statute" and that "the effect of [the appellant's] submissions is to criminalise subscribers even if they pay every cent to which DIRECTV is entitled". The thrust of the respondents' submission is that the presence of ss. 10(1) (b) and 10(2.1) in the Radiocommunication Act provides context that is important to the interpretation of s. 9(1)(c), and that this context militates in favour of the respondents' position.
54 Section 9(1)(c) does have a "dual aspect", in so far as it gives rise to both civil and criminal penalties. I am not, however, persuaded that this plays an important role in the interpretive process here. In any event, I do not think it correct to insinuate that the decision in this appeal will have the effect of automatically branding every Canadian resident who subscribes to and pays for U.S. DTH broadcasting services as a criminal. The penal offence in s. 10(1)(b) requires that circumstances "give rise to a reasonable inference that the equipment, device or component has been used, or is or was intended to be used, for the purpose of contravening section 9" (emphasis added), and allows for a "lawful excuse" defence. Section 10(2.5) further provides that "[n]o person shall be convicted of an offence under paragraph 9(1)(c) ... if the person exercised all due diligence to prevent the commission of the offence". Since it is neither necessary nor appropriate to pursue the meaning of these provisions absent the proper factual context, I refrain from doing so.
(d) Conclusion
55 After considering the entire context of s. 9(1)(c), and after reading its words in their grammatical and ordinary sense in harmony with the legislative framework in which the provision is found, I find no ambiguity. Rather, I can conclude only that Parliament intended to create an absolute bar on Canadian residents decoding encrypted programming signals. The only exception to this prohibition occurs where authorization is acquired from a distributor holding the necessary legal rights in Canada to transmit the signal and provide the required authorization. There is no need in this circumstance to resort to any of the subsidiary principles of statutory interpretation.
C. The Constitutional Questions
56 As I will discuss, I do not propose to answer the constitutional questions that have been stated in this appeal.
16 57 Rule 32 of the Rules of the Supreme Court of Canada, SOR/83-74 mandates that constitutional questions be stated in every appeal in which the constitutional validity or applicability of legislation is challenged, and sets out the procedural requirements to that end. As recognized by this Court, the purpose of Rule 32 is to ensure that the Attorney General of Canada, the attorneys general of the provinces, and the ministers of justice of the territories are alerted to constitutional challenges, in order that they may decide whether or not to intervene: Corbiere v. Canada (Minister of Indian & Northern Affairs), [1999] 2 S.C.R. 203 (S.C.C.), at para. 49, per L'Heureux-Dubé J.; see also B.A. Crane and H.S. Brown, Supreme Court of Canada Practice 2000 (1999), at p. 253. Rule 32 also serves to advise the parties and other potential interveners of the constitutional issues before the Court.
58 On the whole, the parties to an appeal are granted "wide latitude" by the Chief Justice or other judge of this Court in formulating the questions to be stated: Bisaillon c. Keable, [1983] 2 S.C.R. 60 (S.C.C.), at p. 71; Corbiere, supra, at para. 48. This wide latitude is especially appropriate in a case like the present, where the motion to state constitutional questions was brought by the respondents: generally, a respondent may advance any argument on appeal that would support the judgment below (Perka v. R., [1984] 2 S.C.R. 232 (S.C.C.), at p. 240; Idziak v. Canada (Minister of Justice), [1992] 3 S.C.R. 631 (S.C.C.), at pp. 643-44, per Cory J.). Like many general rules, however, this one is subject to an exception. A respondent, like any other party, cannot rely upon an entirely new argument that would have required additional evidence to be adduced at trial: Perka, supra; Idziak, supra; R. v. Gayle (2001), 54 O.R. (3d) 36 (Ont. C.A.), at para. 69, leave to appeal refused January 24, 2002 [R. v. Gayle, 2002 CarswellOnt 159 (S.C.C.)].
59 In like manner, even where constitutional questions are stated under Rule 32, it may ultimately turn out that the factual record on appeal provides an insufficient basis for their resolution. The Court is not obliged in such cases to provide answers: Bisaillon, supra; Crane and Brown, supra, at p. 254. In fact, there are compelling reasons not to: while we will not deal with abstract questions in the ordinary course, "[t]his policy ... is of particular importance in constitutional matters" (Moysa v. Alberta (Labour Relations Board), [1989] 1 S.C.R. 1572 (S.C.C.), at p. 1580; see also Danson v. Ontario (Attorney General), [1990] 2 S.C.R. 1086 (S.C.C.), at p. 1099; Baron v. R., [1993] 1 S.C.R. 416 (S.C.C.), at p. 452; R. v. Mills, [1999] 3 S.C.R. 668 (S.C.C.), at para. 38, per McLachlin and Iacobucci JJ.). Thus, as Sopinka J. stated for the Court in Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342 (S.C.C.), at p. 357: "The procedural requirements of Rule 32 of the Supreme Court Rules are not designed to introduce new issues but to define with precision the constitutional points in issue which emerge from the record". (Emphasis added.)
60 Respondents' counsel properly conceded during oral argument that there is no Charter record permitting this Court to address the stated questions. Rather, he argued that "Charter values" must inform the interpretation given to the Radiocommunication Act. This submission, inasmuch as it is presented as a stand alone proposition, must be rejected. Although I have already set out the preferred approach to statutory interpretation above, the manner in which the respondents would have this Court consider and apply the Charter warrants additional attention at this stage.
61 It has long been accepted that, where it will not upset the appropriate balance between judicial and legislative action, courts should apply and develop the rules of the common law in accordance with the values and principles enshrined in the Charter: Dolphin Delivery Ltd. v. R.W.D.S.U., Local 580, [1986] 2 S.C.R. 573 (S.C.C.), at p. 603, per McIntyre J.; Cloutier c. Langlois, [1990] 1 S.C.R. 158 (S.C.C.), at p. 184; R. v. Salituro, [1991] 3 S.C.R. 654 (S.C.C.), at p. 675; R. v. Golden, 2001 SCC 83 (S.C.C.), at para. 86, per Iacobucci and Arbour JJ.; Pepsi-Cola Canada Beverages (West) Ltd. v. R.W.D.S.U., Local 558, 2002 SCC 8 (S.C.C.), at paras. 18-19. One must keep in mind, of course, that the common law is the province of the judiciary: the courts are responsible for its application, and for ensuring that it continues to reflect the basic values of society. The courts do not, however, occupy the same role vis-à-vis statute law.
17 62 Statutory enactments embody legislative will. They supplement, modify or supersede the common law. More pointedly, when a statute comes into play during judicial proceedings, the courts (absent any challenge on constitutional grounds) are charged with interpreting and applying it in accordance with the sovereign intent of the legislator. In this regard, although it is sometimes suggested that "it is appropriate for courts to prefer interpretations that tend to promote those [Charter] principles and values over interpretations that do not" (Sullivan, supra, at p. 325), it must be stressed that, to the extent this Court has recognized a "Charter values" interpretive principle, such principle can only receive application in circumstances of genuine ambiguity, i.e., where a statutory provision is subject to differing, but equally plausible, interpretations.
63 This Court has striven to make this point clear on many occasions: see, e.g., Hills v. Canada (Attorney General), [1988] 1 S.C.R. 513 (S.C.C.), at p. 558, per L'Heureux-Dubé J.; Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038 (S.C.C.), at p. 1078, per Lamer J. (as he then was); R. v. Zundel, [1992] 2 S.C.R. 731 (S.C.C.), at p. 771, per McLachlin J. (as she then was); Canada v. Pharmaceutical Society (Nova Scotia), [1992] 2 S.C.R. 606 (S.C.C.), at p. 660; Mossop, supra, at pp. 581-82, per Lamer C.J.; R. v. Lucas, [1998] 1 S.C.R. 439 (S.C.C.), at para. 66, per Cory J.; Mills, supra, at paras. 22 and 56; R. v. Sharpe, supra, at para. 33.
64 These cases recognize that a blanket presumption of Charter consistency could sometimes frustrate true legislative intent, contrary to what is mandated by the preferred approach to statutory construction. Moreover, another rationale for restricting the "Charter values" rule was expressed in Symes v. R., [1993] 4 S.C.R. 695 (S.C.C.), at p. 752:
[T]o consult the Charter in the absence of such ambiguity is to deprive the Charter of a more powerful purpose, namely, the determination of a statute's constitutional validity. If statutory meanings must be made congruent with the Charter even in the absence of ambiguity, then it would never be possible to apply, rather than simply consult, the values of the Charter. Furthermore, it would never be possible for the government to justify infringements as reasonable limits under s. 1 of the Charter, since the interpretive process would preclude one from finding infringements in the first place. [Emphasis in original.]
(See also Willick v. Willick, [1994] 3 S.C.R. 670 (S.C.C.), at pp. 679-80, per Sopinka J.)
65 This last point touches, fundamentally, upon the proper function of the courts within the Canadian democracy. In Vriend v. Alberta, [1998] 1 S.C.R. 493 (S.C.C.), at paras. 136-42, the Court described the relationship among the legislative, executive, and judicial branches of governance as being one of dialogue and mutual respect. As was stated, judicial review on Charter grounds brings a certain measure of vitality to the democratic process, in that it fosters both dynamic interaction and accountability amongst the various branches. "The work of the legislature is reviewed by the courts and the work of the court in its decisions can be reacted to by the legislature in the passing of new legislation (or even overarching laws under s. 33 of the Charter)" (Vriend, supra, at para. 139).
66 To reiterate what was stated in Symes and Willick, supra, if courts were to interpret all statutes such that they conformed to the Charter, this would wrongly upset the dialogic balance. Every time the principle were applied, it would pre-empt judicial review on Charter grounds, where resort to the internal checks and balances of s. 1 may be had. In this fashion, the legislatures would be largely shorn of their constitutional power to enact reasonable limits on Charter rights and freedoms, which would in turn be inflated to near absolute status. Quite literally, in order to avoid this result a legislature would somehow have to set out its justification for qualifying the Charter right expressly in the statutory text, all without the benefit of judicial discussion regarding the limitations that are permissible in a free and democratic society. Before long, courts would be asked to interpret this sort of enactment in light of Charter principles. The patent
18 unworkability of such a scheme highlights the importance of retaining a forum for dialogue among the branches of governance. As such, where a statute is unambiguous, courts must give effect to the clearly expressed legislative intent and avoid using the Charter to achieve a different result.
67 It may well be that, when this matter returns to trial, the respondents' counsel will make an application to have s. 9(1)(c) of the Radiocommunication Act declared unconstitutional for violating the Charter. At that time, it will be necessary to consider evidence regarding whose expressive rights are engaged, whether these rights are violated by s. 9(1)(c), and, if they are, whether they are justified under s. 1.
VII. Disposition
68 In the result, I would allow the appeal with costs throughout, set aside the judgment of the Court of Appeal for British Columbia, and declare that s. 9(1)(c) of the Radiocommunication Act creates a prohibition against all decoding of encrypted programming signals, followed by an exception where authorization is received from the person holding the lawful right in Canada to transmit and authorize decoding of the signal. No answer is given to the constitutional questions stated by order of the Chief Justice. Appeal allowed.
Pourvoi accueilli.
Footnotes * A corrigendum issued by the court on May 13, 2002 has been incorporated herein.
19 2006 SCC 24 Supreme Court of Canada
NAV Canada c. Wilmington Trust Co.
2006 CarswellQue 4890, 2006 CarswellQue 4891, 2006 SCC 24, [2006] 1 S.C.R. 865, [2006] S.C.J. No. 24, 10 P.P.S.A.C. (3d) 66, 148 A.C.W.S. (3d) 182, 20 C.B.R. (5th) 1, 212 O.A.C. 338, 269 D.L.R. (4th) 79, 349 N.R. 1, 80 O.R. (3d) 558 (note), J.E. 2006-1215
NAV Canada et al. (Appellants/Respondents on cross- appeals) and International Lease Finance Corporation et al. (Respondents/Appellants on cross-appeals)
NAV Canada (Appellant) and Wilmington Trust Company et al. (Respondents)
NAV Canada (Appellant) and G.I.E. Avions de transport régional et al. (Respondents)
NAV Canada (Appellant) and Inter-Canadian (1991) Inc. et al. (Respondents)
Aéroports de Montréal (Appellant) and Wilmington Trust Company et al. (Respondents)
Greater Toronto Airports Authority (Appellant) and Ottawa Macdonald- Cartier International Airport Authority et al. (Respondents)
Ottawa Macdonald-Cartier International Airport Authority (Appellant) and Wilmington Trust Company et al. (Respondents)
NAV Canada (Appellant) and Inter-Canadian (1991) Inc. et al. (Respondents)
Aéroports de Montréal (Appellant) and Renaissance Leasing Corporation et al. (Respondents)
Greater Toronto Airports Authority (Appellant) and Ottawa Macdonald- Cartier International Airport Authority et al. (Respondents)
Ottawa Macdonald-Cartier International Airport Authority (Appellant) and Renaissance Leasing Corporation et al. (Respondents)
Aéroports de Montréal (Appellant) and Wilmington Trust Company et al. (Respondents)
Aéroports de Montréal (Appellant) and Newcourt Credit Group (Alberta) Inc. et al. (Respondents)
Aéroports de Montréal (Appellant) and Newcourt Credit Group (Alberta) Inc. et al. (Respondents)
St. John's International Airport Authority et al. (Appellants) and Newcourt Credit Group (Alberta) Inc. et al. (Respondents)
Greater Toronto Airports Authority (Appellant) and Greater London International Airport Authority et al. (Respondents)
Greater Toronto Airports Authority (Appellant) and Renaissance Leasing Corporation et al. (Respondents)
1 Greater Toronto Airports Authority (Appellant) and Newcourt Credit Group (Alberta) Inc. et al. (Respondents)
Ottawa Macdonald-Cartier International Airport Authority (Appellant) and Wilmington Trust Company et al. (Respondents)
St. John's International Airport Authority (Appellant) and Newcourt Credit Group (Alberta) Inc. et al. (Respondents)
Charlottetown Airport Authority Inc. (Appellant) and CCG Trust Corporation et al. (Respondents)
NAV Canada, Greater Toronto Airports Authority, Winnipeg Airports Authority Inc., Halifax International Airport Authority, Edmonton Regional Airports Authority, Calgary Airport Authority, Aéroports de Montréal, Ottawa Macdonald-Cartier International Airport Authority, Vancouver International Airport Authority and St. John's International Airport Authority (Appellants/Respondents on cross-appeals) v. International Lease Finance Corporation, Hyr Här I Sverige Kommanditbolag, IAI X Inc., Triton Aviation International LLC, Sierra Leasing Limited, ACG Acquisition XXV LLC, ILFC International Lease Finance Canada Ltd., U.S. Airways Inc., G.E. Capital Aviation Services Inc., as Agent and Manager for Polaris Holding Company and AFT Trust-Sub I, Pegasus Aviation Inc., PALS I Inc., Ansett Worldwide Aviation, U.S.A., MSA V, RRPF Engine Leasing Limited, Canadian Imperial Bank of Commerce, Flight Logistics Inc., C.I.T. Leasing Corporation, NBB-Royal Lease Partnership One and GATX/CL Air Leasing Cooperative Association (Respondents) (Respondents/Appellants on cross-appeals)
NAV Canada (Appellant) v. Wilmington Trust Company and Wilmington Trust Corporation (Respondents)
NAV Canada (Appellant) v. G.I.E. Avions de transport régional, ATR Marketing Inc., Heather Leasing Corporation, Renaissance Leasing Corporation, Inter-Canadian (1991) Inc. and Ernst & Young Inc., in its capacity as trustee for the bankruptcy of Inter-Canadian (1991) Inc. (Respondents)
NAV Canada (Appellant) v. Inter-Canadian (1991) Inc., Wilmington Trust Company, Wilmington Trust Corporation, Aéroports de Montréal, Greater Toronto Airports Authority, Ottawa Macdonald-Cartier International Airport Authority and Ernst & Young Inc., in its capacity as trustee for the bankruptcy of Inter-Canadian (1991) Inc. (Respondents)
Aéroports de Montréal (Appellant) v. Wilmington Trust Company, Wilmington Trust Corporation, NAV Canada, Greater Toronto Airports Authority, Ottawa Macdonald-Cartier International Airport Authority and Ernst & Young Inc., in its capacity as trustee for the bankruptcy of Inter-Canadian (1991) Inc. (Respondents)
Greater Toronto Airports Authority (Appellant) v. Ottawa Macdonald-Cartier International Airport Authority, Wilmington Trust Company, Wilmington Trust Corporation, Aéroports de Montréal, NAV Canada, Ernst & Young Inc., in its capacity as trustee for the bankruptcy of Inter-Canadian (1991) Inc. and Inter-Canadian (1991) Inc. (Respondents)
Ottawa Macdonald-Cartier International Airport Authority (Appellant) v. Wilmington Trust Company, Wilmington Trust Corporation and Ernst & Young Inc., in its capacity as trustee for the bankruptcy of Inter-Canadian (1991) Inc. (Respondents)
NAV Canada (Appellant) v. Inter-Canadian (1991) Inc., Renaissance Leasing Corporation, Heather Leasing Corporation, G.I.E. Avions de transport régional, ATR Marketing
2 Inc., Ernst & Young Inc., in its capacity as trustee for the bankruptcy of Inter- Canadian (1991) Inc., Aéroports de Montréal, Greater Toronto Airports Authority and Ottawa Macdonald-Cartier International Airport Authority (Respondents)
Aéroports de Montréal (Appellant) v. Renaissance Leasing Corporation, Heather Leasing Corporation, G.I.E. Avions de transport régional, ATR Marketing Inc., Ernst & Young Inc., in its capacity as trustee for the bankruptcy of Inter-Canadian (1991) Inc., NAV Canada, Greater Toronto Airports Authority and Ottawa Macdonald-Cartier International Airport Authority (Respondents)
Greater Toronto Airports Authority (Appellant) v. Ottawa Macdonald-Cartier International Airport Authority, Renaissance Leasing Corporation, Heather Leasing Corporation, G.I.E. Avions de transport régional, ATR Marketing Inc., Aéroports de Montréal, NAV Canada, Ernst & Young Inc., in its capacity as trustee for the bankruptcy of Inter-Canadian (1991) Inc. and Inter-Canadian (1991) Inc. (Respondents)
Ottawa Macdonald-Cartier International Airport Authority (Appellant) v. Renaissance Leasing Corporation, Heather Leasing Corporation, G.I.E. Avions de transport régional, ATR Marketing Inc. and Ernst & Young Inc., in its capacity as trustee for the bankruptcy of Inter-Canadian (1991) Inc. (Respondents)
Aéroports de Montréal (Appellant) v. Wilmington Trust Company, Wilmington Trust Corporation and Ernst & Young Inc., in its capacity as trustee for the bankruptcy of Inter-Canadian (1991) Inc. (Respondents)
Aéroports de Montréal (Appellant) v. Newcourt Credit Group (Alberta) Inc., Canada Life Assurance Company, Ernst & Young Inc., in its capacity as trustee for the bankruptcy of Inter-Canadian (1991) Inc. and Renaissance Leasing Corporation (Respondents)
Aéroports de Montréal (Appellant) v. Newcourt Credit Group (Alberta) Inc., Canada Life Assurance Company, CCG Trust Corporation, Greater London International Airport Authority, Greater Toronto Airports Authority, Saint John Airport Inc., St. John's International Airport Authority, Charlottetown Airport Authority Inc., Renaissance Leasing Corporation, Heather Leasing Corporation and Ernst & Young Inc., in its capacity as trustee for the bankruptcy of Inter-Canadian (1991) Inc. (Respondents)
St. John's International Airport Authority and Charlottetown Airport Authority Inc. (Appellants) v. Newcourt Credit Group (Alberta) Inc., Canada Life Assurance Company, CCG Trust Corporation, Renaissance Leasing Corporation, Heather Leasing Corporation, Canadian Regional Airlines Ltd., Canadian Regional (1998) Ltd. and Ernst & Young Inc., in its capacity as trustee for the bankruptcy of Inter-Canadian (1991) Inc. (Respondents)
Greater Toronto Airports Authority (Appellant) v. Greater London International Airport Authority, Saint John Airport Inc., St. John's International Airport Authority, Charlottetown Airport Authority Inc., Newcourt Credit Group (Alberta) Inc., Canada Life Assurance Company, CCG Trust Corporation, Aéroports de Montréal, Renaissance Leasing Corporation, Heather Leasing Corporation, Canadian Regional Airlines Ltd., Canadian Regional (1998) Ltd. and Ernst & Young Inc., in its capacity as trustee for the bankruptcy of Inter-Canadian (1991) Inc. (Respondents)
Greater Toronto Airports Authority (Appellant) v. Renaissance Leasing Corporation, Inter-Canadian (1991) Inc. and Ernst & Young Inc., in its capacity as trustee for the bankruptcy of Inter-Canadian (1991) Inc. (Respondents)
3 Greater Toronto Airports Authority (Appellant) v. Newcourt Credit Group (Alberta) Inc., Canada Life Assurance Company, CCG Trust Corporation, Inter-Canadian (1991) Inc., Ernst & Young Inc., in its capacity as trustee for the bankruptcy of Inter-Canadian (1991) Inc. and Renaissance Leasing Corporation (Respondents)
Ottawa Macdonald-Cartier International Airport Authority (Appellant) v. Wilmington Trust Company and Ernst & Young Inc., in its capacity as trustee for the bankruptcy of Inter-Canadian (1991) Inc. (Respondents)
St. John's International Airport Authority (Appellant) v. Newcourt Credit Group (Alberta) Inc., Canada Life Assurance Company, CCG Trust Corporation, Ernst & Young Inc., in its capacity as trustee for the bankruptcy of Inter- Canadian (1991) Inc. and Renaissance Leasing Corporation (Respondents)
Charlottetown Airport Authority Inc. (Appellant) v. CCG Trust Corporation and Ernst & Young Inc., in its capacity as trustee for the bankruptcy of Inter-Canadian (1991) Inc. (Respondents)
McLachlin C.J.C., Bastarache, Binnie, LeBel, Deschamps, Fish, Charron JJ.
Heard: January 16, 17, 2006 Judgment: June 9, 2006 Docket: 30214, 30729, 30730, 30731, 30732, 30738, 30740, 30742, 30743, 30745, 30749, 30750, 30751
Proceedings: reversing in part Canada 3000 Inc., Re (2004), 2004 CarswellOnt 149, 3 C.B.R. (5th) 207, (sub nom. Greater Toronto Airports Authority v. International Lease Finance Corp.) 69 O.R. (3d) 1, 183 O.A.C. 201, 235 D.L.R. (4th) 618 (Ont. C.A.); additional reasons at Canada 3000 Inc., Re (2004), 3 C.B.R. (5th) 288, (sub nom. Canada 3000 Inc. (Bankrupt), Re) 186 O.A.C. 116, 2004 CarswellOnt 1915 (Ont. C.A.); reversing in part Canada 3000 Inc., Re (2002), 2002 CarswellOnt 1598, 33 C.B.R. (4th) 184, 5 P.P.S.A.C. (3d) 272 (Ont. S.C.J.); reversing in part Nav Canada c. Wilmington Trust Co. (2004), 2004 CarswellQue 11942, 2004 CarswellQue 10205, [2004] R.J.Q. 2966, (sub nom. NAV Canada v. Wilmington Trust Co.) 247 D.L.R. (4th) 503 (Eng.), 2004 CarswellQue 4127 (C.A. Que.); reversing Nav Canada c. Wilmington Trust Co. (2000), 2000 CarswellQue 2615 (C.S. Que.)
Counsel: Clifton P. Prophet, Eric Wredenhagen for NAV Canada (30214) Lyndon A.J. Barnes, Jean-Marc Leclerc for Greater Toronto Airports Authority (30214) John T. Porter, Alan B. Merskey for Winnipeg Airports Authority Inc., Halifax International Airport Authority, Edmonton Regional Airports Authority, Calgary Airport Authority, Aéroports de Montréal, Ottawa Macdonald-Cariter International Airport Authority, Vancouver International Airport Authority and St. John's International Airport Authority (30214) Richard A. Conway, David P. Chernos, Linda M. Plumpton, Jana N. Stettner for International Lease Finance Corporation, Hyr Här I Sverige Kommanditbolag, IAIX Inc., Triton Aviation International LLC, Sierra Leasing Limited, ACG Acquisition XXVLLC, ILFC International Lease Finance Canada Ltd. and U.S. Airways Inc. (30214) Christopher W. Besant, Joseph J. Bellissimo for G.E. Capital Aviation Services Inc., as Agent and Manager for Polaris Holding Company and AFT Trust-Sub I, Pegasus Aviation Inc. and PALS I Inc. (30214) Barbara L. Grossman, Christopher D. Woodbury for Ansett Worldwide Aviation, U.S.A. and MSA V (30214) Kenneth D. Kraft for RRPF Engine Leasing Limited and Flight Logistics Inc. (30214) Pamela L.J. Huff, Jill Lawrie for C.I.T. Leasing Corporation and NBB-Royal Lease Partnership One (30214)
4 Craig J. Hill, Roger Jaipargas (written) for GATX/CL Air Leasing Cooperative Association (30214) Michel G. Ménard for NAV Canada (30729, 30730, 30731, 30732) Richard L. Desgagnés, Véronique E. Marquis for Ottawa MacDonald-Cartier International Airport Authority, St. John's International Airport Authority and Charlottetown Airport Authority Inc. (30731, 30732, 30742, 30749, 30750, 30751) Gerald N. Apostolatos for Aéroports de Montréal (30731, 30732, 30738, 30740, 30742) Sandra Abitan, David Tardif-Latourelle, Allon Pollack for Greater Toronto Airports Authority (30731, 30732, 30742, 30743, 30745) Bertrand Giroux, Markus Koehnen, Jeff Gollob, Jason Murphy, Jean-Yves Fortin, Geneviève Bergeron for Wilmington Trust Company, Wilmington Trust Corporation, Renaissance Leasing Corporation, Heather Leasing Corporation, G.I.E. Avions de transport régional and ATR Marketing Inc. (30729, 30730, 30731, 30732, 30738, 30740, 30742, 30743, 30745, 30749, 30750) Pierre Bourque and Eugene Czolij for Newcourt Credit Group (Alberta) Inc., Canada Life Assurance Company and CCG Trust Corporation (30740, 30742, 30745, 30750, 30751) No one appeared for Canadian Imperial Bank of Commerce, Inter-Canadian (1991) Inc., Ernst & Young Inc., in its capacity as trustee for the bankruptcy of Inter-Canadian (1991) Inc., Greater London International Airport Authority, Saint John Airport Inc., Canadian Regional Airlines Ltd., Canadian Regional (1998) Ltd.
Binnie J.:
1 When an airline collapses leaving unpaid bills for airport charges and air navigation services, the question becomes who takes the financial loss (or, as it is sometimes said, "the haircut"), the people who ultimately own the aircraft or the people who were obliged to (and did) provide the airport and navigation services?
2 The question lands before the Court because of the collapse of "Inter-Canadian (1991) Inc. Airline" in 1999 and, in 2001, of Canada 3000 Airlines Ltd. and Royal Aviation Inc. (collectively "Canada 3000"). The answer depends on the statutory interpretation to be given to provisions of the Airport Transfer (Miscellaneous Matters) Act, S.C. 1992, c. 5 ("Airports Act"), and the Civil Air Navigation Services Commercialization Act, S.C. 1996, c. 20 ("CANSCA"). The important context for this interpretation is the unusual nature of the modern airline business.
3 After decades of financial turbulence, an airline in the modern era may consist of little more than a name, with its aircraft leased, its suppliers on week to week contracts and even its reservation and yield management systems outsourced to one of the global service providers such as Sabre or Galileo. Start-ups are relatively easy, balance sheets are often thin, and failure can be quick and (to outsiders) unexpected, as the history of Canada 3000 illustrates. When a financial collapse occurs (and these have been frequent in Canada and elsewhere in the past decade), there is little meat on the corporate bones for unsecured creditors. Doing business with such airline operators carries significant financial risks, yet the appellant Canadian airports operating under government supervision are obliged by statute to allow financially troubled airlines to make use of their services (and sometimes the airport will not know if an airline is in financial trouble or not). Airport costs are largely recovered through landing fees. If these and other fees go unpaid, the airport is out of pocket for the cost of the service it was obliged by law to provide.
4 "Nav Canada", the privatized successor to the former government-run civil air navigation system, is also obliged to offer its services to any aircraft flying through Canadian airspace on a cost-recovery basis. Its business is even riskier than that of the airports because quite often these aircraft do not even land in Canada, as in the case of transatlantic traffic flying the great circle route to and from the eastern seaboard of the United States: Pan American World Airways Inc. v. R., [1981] 2 S.C.R. 565 (S.C.C.).
5 5 When Parliament adopted its policy of privatizing major airports and navigation services in the early 1990s putting such services on a commercial footing, potential investors were expected to insist on some assurance that they would in fact be financially viable serving the chronically unstable aviation business. Thus, Parliament decided to extend to the private operators of airport and navigation services a statutory power to apply to a superior court judge for an order to seize and detain aircraft until outstanding charges are paid, similar to the power Parliament had earlier conferred on the Crown in pre-privatization days under the Aeronautics Act, R.S.C. 1985, c. A-2, s. 4.5.
6 It is worth emphasizing that no power to seize and detain as such is conferred. A superior court judge is interposed between the aircraft sought to be seized and the airports or NAV Canada. As discussed below, the role of the judge is crucial to an understanding of the statutory detention remedy.
7 The respondents are primarily entities with the ultimate ownership of the aircraft in respect of which the charges in issue were incurred ("the legal titleholders"). Their position is that under the terms of their various leases with the defaulting airlines, they did not operate the aircraft, nor did they make use of the services for which charges were levied, nor did they derive benefit therefrom. They say that they are investors, and that when the lessees failed they were entitled to repossess their aircraft free of the charges which the defaulting airlines — not the legal titleholders — incurred. They consider it unjust that they were required in these cases to post security as a condition of removing "their" aircraft from the airports in question. The appellant airport authorities and NAV Canada, on the other hand, argue that the failure of Canada 3000 and Inter- Canadian reflects the sort of air carrier instability that Parliament rightly anticipated and in light of which it created the statutory remedies in question. Parliament must be taken to appreciate, they say, that an airline may be only a corporate shell but an aircraft under detention is a good, solid and enduring hostage for payment.
8 I agree with the courts below that the respondent legal titleholders are not subject to personal or corporate liability to pay the unpaid charges under s. 55 CANSCA. But that is not to say that the aircraft are similarly unburdened.
9 In my view, the appellants are entitled to obtain judicially-authorized seize and detain orders (hereinafter sometimes collectively referred to as the detention remedy) to be exercised against the security posted in substitution for the aircraft. The matters should be remitted to the motions judges to work out the details of the orders. Considered in the context in which the detention remedy was intended by Parliament to operate, the detention remedy cannot be circumvented as suggested by the respondents by the expedient of leasing arrangements made between the airlines and the aircraft lessors. The detention remedy is purely statutory and Parliament's intention to create an effective collection mechanism against the aircraft itself owned or operated by the person liable to pay the amount or charge must be given full effect.
10 On the other hand, the appellants' remedy, if an order is granted, is limited to possession. Simple possession under the statutes does not confer any interest in the beneficial ownership of the aircraft. I do not think the appellants' further claim to the airborne equivalent of a maritime lien is well founded, nor do they have any "implied" power to sell the aircraft once detained. They get what the statute says they get — a right to apply for a judicial order to seize and detain the aircraft until payment — no more, and no less.
11 For the reasons that follow, I would allow the appeals in part, dismiss the respondents' cross- appeals, and return the seizure and detention applications to the respective motions judges to be dealt with in accordance with this judgment.
I. Facts
6 12 In 1992, the Airports Act privatized airports formerly owned and operated by the federal government. In 1996, CANSCA implemented the same objective in relation to Canada's civil air navigation services. Thus NAV Canada was incorporated as a non-profit corporation for the purpose of developing, operating and maintaining the civil air navigation system; see House of Commons Debates, vol. 133, 2nd Sess., 35th Parl., March 25, 1996, at p. 1153. CANSCA implemented the transfer of what was Transport Canada's civil air navigation services to NAV Canada and established the commercial and economic regulatory arrangements for the continued operation of those services; see House of Commons Debates, vol. 134, 2nd Sess., 35th Parl., May 15, 1996, at p. 2821.
A. Canada 3000
13 On November 8, 2001, Canada 3000 applied for protection under the Companies' Creditors Arrangement Act, R.S.C. 1985, c. C-36 ("CCAA"). The effect of an initial court order made on the same day stayed all proceedings by creditors pending the filing of a plan of arrangement. Although the stay contemplated the continuation of operations, some five hours later the airlines' management issued a press release declaring that the airlines had ceased operations. The next day, November 9, a further order was issued grounding the fleet and providing for the return of aircraft operated by the airlines to Canada.
14 On November 9, 2001, NAV Canada applied to the Ontario Superior Court of Justice under s. 56(1) of CANSCA for an authorization to seize and detain certain aircraft operated by Canada 3000. The Greater Toronto Airport Authority ("GTAA") applied for relief against Canada 3000 but did not at that time seek leave of the court to seize and detain any aircraft.
15 On November 10, 2001, the directors and officers of Canada 3000 resigned. The next day the Canada 3000 companies were put into bankruptcy. At that time, the Canada 3000 companies owed approximately $7.4 million to NAV Canada, $13 million on to the GTAA, and $8.35 million to the other Canadian airport authorities. On November 12, the GTAA moved to seize and detain aircraft under s. 9 of the Airports Act and on November 23, the other airport authorities applied for similar relief.
16 The detention remedy sought by the authorities was in relation to 38 aircraft operated by the Canada 3000 companies and collectively worth approximately US $1.1 billion. Despite the existence of the legal titleholders, all of the aircraft were registered in the name of Canada 3000 as owner under the Aeronautics Act. Canada 3000 held leases with the various respondents in respect of 36 aircraft. The lessors retained legal title to the aircraft. At the time of the CCAA application, rental payments under the leases were significantly in arrears.
17 The termination provisions varied somewhat from lease to lease. Under some, the leases came to an end and the lessors became entitled to repossession upon the granting of the CCAA order, under others by the cessation of operations, and under the rest by the assignment in bankruptcy. The CCAA stay operated, in effect, as an interim bar to repossession (see s. 11.31 CCAA). At the time the detention remedy was sought, the aircraft sought to be seized were grounded at the Canadian airports listed in the style of cause of the various proceedings.
18 On December 3, 2001, after the aircraft had been grounded for close to a month, the motions judge approved the terms of their release on the posting of security for 110 percent of the amounts alleged to be owed. The motions judge then heard the seizure and detention motions through December and into January 2002, and dismissed them on May 7, 2002. The airport authorities and NAV Canada appealed and on January 20, 2004, the Ontario Court of Appeal dismissed their appeal.
B. Inter-Canadian
7 19 Inter-Canadian operated its fleet of aircraft under leasing agreements with the legal titleholders but it too was the registered owner under the Aeronautics Act. On November 27, 1999, Inter-Canadian ceased operations and laid off 90 percent of its employees. At that point, it had accumulated unpaid charges totalling approximately $5 million owing to NAV Canada and to the airport authorities.
20 Through early December 1999 the airport authorities and NAV Canada moved to seize and detain a number of the aircraft. This was authorized by four orders made by the Quebec Superior Court between December 8 and 17. Before the seizure motions were launched, however, one of the respondents, Renaissance Leasing, had purported to terminate its lease with Inter-Canadian. The aircraft nevertheless remained on the tarmac at Dorval airport.
21 On January 5, 2000, Inter-Canadian filed a notice of intention to make a proposal to its creditors pursuant to the Bankruptcy and Insolvency Act, R.S.C., 1985, c. B-3. The airline's creditors rejected its proposal in March and the company was deemed retroactively to have made an assignment in bankruptcy as of January 5. Faced with the legal titleholders' claims that they were entitled to repossession of the aircraft, the trustee in bankruptcy applied to the Superior Court for directions.
22 On July 7, 2000 the Superior Court allowed a motion to release the aircraft in exchange for security set at 150 percent of the claims of the airport authorities and NAV Canada. On November 9, 2000, Tremblay J., having heard the application on its merits, confirmed the validity of the detention and also held the legal titleholders liable for the amounts owing. His ruling was overturned by a majority decision of the Quebec Court of Appeal, which held that the lessors' right to repossession took priority and that the legal titleholders were entitled to the return of their aircraft free and clear of the unpaid charges.
II. Judicial History
A. Canada 3000
(1) Ontario Superior Court of Justice (Ground J.)
23 The motions judge concluded that the legal titleholders were not jointly and severally liable for the charges owed to NAV Canada under s. 55 of CANSCA. They were not "owners" within the meaning of the Act because none of the aircraft were registered in their name. Nor were any of the titleholders in possession of the aircraft when the charges were incurred. In his view, "the word 'owner' in [CANSCA] should not be interpreted to include persons who do not have custody or control of the aircraft, do not operate the aircraft, and do not make use of the air navigation services in respect of which the navigation charges are levied": (2002), 33 C.B.R. (4 th ) 184, at para. 52.
24 Further, the motions judge concluded that the seizure and detention remedies found in CANSCA and the Airports Act did not create a lien or security interest that ranked in priority to the ownership or perfected security rights of third parties. He preferred the analogy of a Mareva injunction:
I am not persuaded, however, that the legislation granting such detention rights should be interpreted as creating rights against third parties having ownership or perfected security interests in the aircraft such that they, in effect, become liable for the debts of third parties and must extinguish those debts before they can enforce their contractual rights to repossess the aircraft or enter into possession of the aircraft to realize on their security. [para. 43]
25 Accordingly, he dismissed the claims of NAV Canada and the airport authorities.
(2) Ontario Court of Appeal
8 (a) Cronk J.A., for the Majority
26 Cronk J.A. agreed with the motions judge that the titleholders were not jointly and severally liable under s. 55 of CANSCA. A restrictive definition of "owner" excluding legal titleholders was consistent with the user-pay model established by CANSCA, the broader regulatory system and the relevant legislative history, all of which demonstrated Parliament's intent to limit liability to "persons having legal custody and control [and persons] otherwise in possession of the aircraft": (2004), 69 O.R. (3d) 1 (Ont. C.A.), at para. 118.
27 Cronk J.A. also agreed that the seizure and detention provisions in CANSCA and the Airports Act do not give the authorities priority over the rights of the titleholders to repossess the aircraft:
I conclude that the remedies under the Detention Provisions, if granted, do not create rights in the Aircraft that rank in priority to the interests in the Aircraft of the Lessors, the legal titleholders to the Aircraft, in the face of a claim for repossession and recovery of the Aircraft by the Lessors.... The Detention Provisions are intended to apply to aircraft of persons having legal custody and control or who are otherwise in possession of the aircraft. [para. 190]
28 In the view of the majority, even if the aircraft had been properly detained, the engines attached to the aircraft and leased to Canada 3000 by two of the respondents could be removed by their respective owners. The appeal of the various authorities was dismissed.
(b) Juriansz J. (ad hoc), Dissenting
29 Juriansz J. (ad hoc, now J.A.) would have allowed the appeal in respect of the detention remedies. In his view, these remedies focus on the aircraft and not the persons liable to pay. As long as the aircraft is owned or operated by a person liable to pay then it may be the subject of an application to seize and detain it. The fact that other persons may have property interests in the aircraft is of no consequence:
The remedy is "in addition to any other remedy available for the collection" of the outstanding charges. The remedy is not confined to collecting of outstanding charges from persons liable for the charges. The remedy is not directed to persons at all, but rather to "aircraft", and permits the Authorities, under court supervision, to seize, to detain and to refuse to release the aircraft until somebody has satisfied the outstanding charges. [para. 255]
Juriansz J. also held that the detention provisions apply to the leased engines since they were affixed to the aircraft that were subject to the detention remedy.
B. Inter-Canadian
(1) Superior Court of Quebec (Tremblay J.)
30 The motions judge held the titleholders to be jointly and severally liable for the unpaid charges due to NAV Canada under s. 55 of CANSCA. CANSCA and the Airports Act provide for a right to retain the aircraft operated by a party that has not paid its charges. The motions judge relied on arts. 1592 and 1593 of the Civil Code of Québec, S.Q. 1991, c. 64, and determined that the authorities' right of retention of the aircraft took priority over the lessors' interests: [2002] R.J.Q. 2935.
31 Accordingly, by order dated November 9, 2000, the motions judge confirmed the validity of the seizures, and declared the respondents liable to pay the overdue charges.
(2) Quebec Court of Appeal
9 (a) Pelletier and Morissette JJ.A., for the Majority
32 Pelletier and Morissette JJ.A. reversed the motions judge's decision and absolved the legal titleholders from liability for unpaid service charges to NAV Canada under s. 55 of CANSCA. In their view, limiting the definition of "owner" to the enumerated categories in s. 55(2) was the only interpretation consistent with both the English and French versions of the statute and the statutory context. They noted that NAV Canada's interaction is primarily with the user of the aircraft, not the legal titleholders. They concluded, at (2004), 247 D.L.R. (4th) 503, para. 106, that
[TRANSLATION] ... these aircraft are in no way liable for the debts of Inter-Canadian for the simple reason that they do not belong to this debtor.
33 Moreover, in their view, neither the airport authorities nor NAV Canada had any right to an order to seize and detain the aircraft in priority to the rights of the legal titleholders. They rejected the motions judge's resort to the Civil Code.
(b) Nuss J.A., Dissenting
34 Nuss J.A. concluded that the intention and purpose of the statutory provisions would be defeated if the legal titleholders could obtain release of the aircraft without payment of the charges. However, he limited the liability of a legal titleholder to an obligation to pay the charges incurred in the operation of aircraft of which it is the titleholder:
...the titleholder, to obtain release of its seized aircraft must only pay all the charges, in the use of the airport, incurred (and unpaid) by the operator in the operation of any aircraft owned by the same titleholder. [Emphasis added; para. 145.]
III. Statutory Provisions
35 The statutory provisions are reproduced in the relevant paragraphs of the reasons.
IV. Analysis
36 This case is from first to last an exercise in statutory interpretation, and the issues of interpretation are, as always, closely tied to context. The notion that a statute is to be interpreted in light of the problem it was intended to address is as old at least as the 16th century; see Heydon's Case (1584), 3 Co. Rep. 7a, 76 E.R. 637 (Eng. K.B.). In a more modern and elaborate formulation, it is said that "the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament" (E. A. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87).
37 As this Court noted in 1915, part of the context is "the condition of things existent at the time of the enactment": Grand Trunk Railway v. Hepworth Silica Pressed Brick Co. (1915), 51 S.C.R. 81 (S.C.C.), at p. 88. At the time the measures in question here were enacted, airline insolvencies and bankruptcies had become a fact of life throughout the airline industry. Many of the planes flown in and out of and across Canada were leased to, and flown by, airlines in, or close to, bankruptcy protection. Under the interpretation offered by the respondents and the majority decisions of the Courts of Appeal, the detention remedy would be opposable to everybody but the titleholder, whose aircraft is often the only asset to survive the financial wreckage. Parliament would be taken to have intended a remedy that is least effective when it is most needed. It is more likely that Parliament fully appreciated that in dealing with aircraft flown in and out of jurisdictions under complex leasing arrangements, the only effective collection scheme is to render the aircraft themselves available for seizure, and thereafter to let those interested in them, including legal
10 titleholders, registered owners, sublessors and operators, to resolve their dispute about where the money is to come from to pay the debts due to the service providers. I should add that I agree with Juriansz J. that the legal titleholders are not without benefit from the services provided, although the benefit is indirect. Without the day to day flight operations the legal titleholders would have no business. They lease the aircraft intending them to be used in the very activities for which the services are provided. By and large, the legal titleholders are sophisticated corporations. They are knowledgeable about the ways of the industry in which they have chosen to participate.
38 Part of the important context is the commercial reality of the marketplace where a statute is intended to function. Here the privatized appellants provide services on the basis of a cost-based tariff fixed by regulation. Prior to CANSCA and the Airports Act, civil air navigation and airport services were provided by the federal government. Central to the statutory scheme is the fact that these service providers are self- funded and intended to be financially viable and independent; see CANSCA ss. 7-8; House of Commons Debates (March 25, 1996, at pp. 1152-54). The privatized service providers do not possess the financial resources of the Crown. The statutory remedies are clearly intended to promote financial viability within a risky business environment and to make privatization attractive and practicable to potential investors.
39 Another important commercial fact is that not only are NAV Canada and the airport authorities required to provide services according to a cost-based tariff, but they cannot withhold services from even an obviously failing airline. Pursuant to the lease agreement between Transport Canada and the Airport Authorities, the airports cannot limit the access of aircraft to their facilities except in cases of bad weather or emergency conditions; see Ottawa Macdonald-Cartier International Airport Ground Lease, s. 8.10.02. Similarly, NAV Canada is obligated under s. 9 of CANSCA to provide all users with its civil air navigation services. This reflects the obligation undertaken by Canada under international agreements; see e.g. Air Transport Agreement Between the Government of Canada and the Government of the United States, February 24, 1995 ("USA-Canada Open-Skies Agreement"), Annex I, s.1.
40 With these preliminary comments on context (and in particular the vitally important commercial context in which these statutes were designed to operate), I turn to the two major questions raised by the appeals. Firstly are the legal titleholders liable for the debt incurred by the registered owners and operators of the failed airlines to the service providers? Secondly, even if they are not so liable, are the aircraft to which they hold title subject on the facts of this case to judicially issued seizure and detention orders to answer for the unpaid user charges incurred by Canada 3000 and Inter-Canadian?
A. Are the Legal Titleholders Jointly and Severally Liable to NAV Canada under Section 55 of CANSCA for Outstanding Civil Air Navigation Charges?
41 In my view, on a purposeful interpretation of s. 55, the answer is no. I agree with Ground J. and with the unanimous view of both Courts of Appeal that the legal titleholders are not personally liable for the unpaid charges. Section 55 provides:
55. (1) [Joint and several liability] The owner and operator of an aircraft are jointly and severally liable for the payment of any charge for air navigation services imposed by the Corporation in respect of the aircraft.
(2) [Meaning of "owner"] In subsection (1), "owner", in respect of an aircraft, includes
(a) the person in whose name the aircraft is registered;
(b) a person in possession of an aircraft as purchaser under a conditional sale or hire-purchase agreement that reserves to the vendor the title to the aircraft until payment of the purchase price or the performance of certain conditions;
11 (c) a person in possession of the aircraft as chattel mortgagor under a chattel mortgage; and
(d) a person in possession of the aircraft under a bona fide lease or agreement of hire.
42 The appellants contend that the word "owner" in s. 55(1) should be given its ordinary meaning to include the legal titleholders. Who, more than they, should be considered an "owner"? The legal titleholders respond that it would be absurd to make them jointly and severally liable for civil air navigation charges related to air operations in which they did not participate, any more than the owner of a rented car should be liable for charges incurred by a renter in using a toll bridge. They point out that the practical effect of NAV Canada's argument would be mischievous. In this case, for example, Canada 3000 leased a number of aircraft from International Lease Financing Corporation ("ILFC") based in California, one of the largest aircraft leasing companies in the world. If NAV Canada's interpretation of s. 55 is correct, it would mean that a seizure and detention order issued in respect of Canada 3000's unpaid user charges could in theory attach not only to the ILFC aircraft leased to Canada 3000, but also to any other aircraft to which ILFC holds title, including aircraft leased to other airlines (e.g. Lufthansa, British Airways or United Airlines). Thus the wreckage created by Canada 3000's collapse could spread disruption widely and perhaps unjustifiably trigger a further crisis in other airlines.
43 It seems clear from the statutes and the legislative record that Parliament intended to create a "user- pay" scheme for civil air navigation services, and that the only "users" of the civil air navigation services within the contemplation of the Act are the airlines, not the legal titleholders.
(1) The Meaning of "Owner"
44 If s. 55(1) were read in isolation, the ordinary and grammatical meaning of "owner" would include the legal titleholder. However, this Court held, in Bell ExpressVu Ltd. Partnership v. Rex, [2002] 2 S.C.R. 559, 2002 SCC 42 (S.C.C.), that
...one must consider the "entire context" of a provision before one can determine if it is reasonably capable of multiple interpretations....
...It is necessary, in every case, for the court charged with interpreting a provision to undertake the contextual and purposive approach set out by Driedger, and thereafter to determine if "the words are ambiguous ...". [First emphasis added; second emphasis in original; paras. 29-30.]
45 Accordingly, to paraphrase the Court's decision in Bristol-Myers Squibb Co. v. Canada (Attorney General), [2005] 1 S.C.R. 533, 2005 SCC 26 (S.C.C.), it is necessary to suspend judgment on the precise scope of the word "owner" in s. 55(1) and first to examine the "contextual" elements of the Driedger approach.
(2) Statutory Context of Section 55
46 Understandably, the appellants lay great emphasis on the fact that s. 55(2) is introduced by the words
In subsection (1), "owner", in respect of an aircraft, includes ... followed by a list of four subsections. In the French text, on the other hand, the introductory words are
Pour l'application du paragraph (1), "propriétaire", relativement à un aéronef, s'entend...
There was, as might be expected, much argument over the words "includes" and "s'entend" in s. 55(2). NAV Canada argues that "includes" expands the definition of owner beyond the enumerated groups and that its ordinary meaning encompasses titleholders. The legal titleholders respond that the sense of "s'entend" in the
12 French text is usually conveyed by the English word "means", which generally precedes a definition to be construed as exhaustive, and which would therefore exclude them from personal liability.
47 The English word "includes" may also, depending on the context, precede a list that exhausts the definition; see, e.g. Dilworth v. Commissioner of Stamps, [1899] A.C. 99 (New Zealand P.C.), at pp.105-6; R. v. Loblaw Groceterias Co. (Man.) Ltd. (1960), [1961] S.C.R. 138 (S.C.C.).
48 In this case, in my view there are three significant reasons for adopting a restrictive interpretation of the word "includes" in s. 55(2), and thereby excluding the legal titleholders from liability under s. 55(1).
49 Firstly, it is significant that the French version signals a closed list; see Uniform Law Conference of Canada, Drafting Conventions of the Uniform Law Conference of Canada, s. 21(4). The shared meaning is not conclusive when such an interpretation would be contrary to the purpose and intent of the statute, but it is preferred; see Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038 (S.C.C.), at pp. 1070-72; Schreiber v. Canada (Attorney General), [2002] 3 S.C.R. 269, 2002 SCC 62 (S.C.C.), at para. 56; and R. Sullivan, Sullivan and Driedger on the Construction of Statutes (4th ed. 2002), at pp. 79-90. Further, where one of the linguistic versions is broader than the other, the common meaning favours the more restricted or limited meaning; see Schreiber; R. v. Dubois, [1935] S.C.R. 378 (S.C.C.). As the English version is ambiguous, indicating that the list could be exhaustive or expansive depending on the context, the fact that the relatively clear French version signals that "owner" is restricted to the persons listed in s. 55(2) is a factor weighing against NAV Canada's expansive interpretation.
50 Secondly, I conclude (as did the Courts of Appeal) that interpreting the list enumerated in s. 55(2) as exhaustive of ownership for the purposes of s. 55(1) is consistent with the regulatory scheme as a whole and its legislative history, outlined below. In restricting "owner" to those in possession and legal custody and control of the aircraft, s. 55(2) is brought into conformity with the meaning that the word "owner" carries throughout the interlocking statutes that regulate aeronautics. For example under the Canadian Aviation Regulations, SOR/96-433 ("CARs"), only a person who has legal custody and control may be a registered owner. Sections 55(2)(b)-(d) all explicitly state that the "owner" must be in possession of the aircraft. Also of significance is s. 55(2)(d), which includes as owner someone "in possession of the aircraft under a bona fide lease". No reference is made therein to the lessor. Parliament put its mind to aircraft leasing agreements and decided that the person in possession of the aircraft is the owner for the purposes of user charges.
51 Thirdly, exclusion of legal titleholders is consistent with Parliament's manifest intent to limit the scope of liability to "users" of NAV Canada's civil air navigation services. Section 32 of CANSCA authorizes NAV Canada to impose charges only on a "user", which s. 2(1) of the Act defines as "an aircraft operator." Part III of CANSCA lays out detailed mechanisms through which NAV Canada may impose fees. All of its provisions contemplate that it is the user who will be charged. Section 36(3)(a)(i) states that notice of changes to existing charges and notice of new charges must be sent to representative user organizations. Section 37(4) states that NAV Canada must advise representative user organizations once a new charge has been approved. Section 44 limits the right to appeal charges to "any user, group of users or representative organization of users".
52 In contrast, titleholders are not provided with notice of rates or accounts of the charges that their aircraft accumulate. In this case, the respondents in the Canada 3000 case were only notified of the $7.4 million owing to NAV Canada the day before the airline filed for protection under the CCAA. Thus Cronk J.A. observed that
[] the charges scheme of the CANSCA does not protect aircraft lessors and secured creditors from the possible imposition by NAV Canada of improper or arbitrary navigation charges precisely because it is not envisaged that such persons will have any liability for such charges. [para. 101]
13 53 In summary, in my view, the statutory context supports the exclusion of the legal titleholders from the definition of owner under s. 55 CANSCA.
(3) The Broader Legislative Framework
54 As stated, aeronautics in Canada is governed by a complex web of statutes, regulations and international conventions. CANSCA and the Airports Act are part of this broader legislative framework. In R. v. Ulybel Enterprises Ltd., [2001] 2 S.C.R. 867, 2001 SCC 56 (S.C.C.), the Court emphasized, at para. 52, "the principle of interpretation that presumes a harmony, coherence, and consistency between statutes dealing with the same subject matter". See also Bell ExpressVu, at para. 27.
55 The policy and practice throughout the federal regulatory scheme is to use the term "owner" to refer to the person in legal custody and control of the aircraft, not the legal titleholder. The CARs, for example, define owner as "the person who has legal custody and control of the aircraft" (s. 101.01(1)). The Aeronautics Act refers only to "registered owners" and, under s. 4.4(5), only the operator or registered owner may face liability for charges imposed under that Act. Section 3(1) defines a registered owner as the person to whom a certificate of registration has been issued and the CARs make clear that an aircraft may only be registered by an owner who, again, must have legal custody and control of the aircraft; see ss. 202.15-202.17. Section 2(2) of CANSCA itself states that "[u]nless a contrary intention appears, words and expressions used in this Act have the same meaning as in subsection 3(1) of the Aeronautics Act." I appreciate that arguments are available to counter these points but in my view the legal titleholders have the better side of the debate.
56 Internationally, the Convention on International Civil Aviation, December 7, 1944, Can. T.S. 1944 No. 36 (the "Chicago Convention"), does not require legal title to correspond with registered ownership. Article 19 states that registration shall be in accordance with the laws of the contracting State. It is common ground that, by virtue of ss. 202.15, 202.16 and 202.17 of the CARs, an aircraft may only be registered in the Canadian Civil Aircraft Register by the "owner" of the aircraft as that term is defined under s. 101.01(1) of the CARs, and that that person is the entity having legal custody and control of the aircraft. Thus an airline operating aircraft in Canada under a long-term lease is named on the Certificate of Registration as "owner" of the aircraft, notwithstanding that title is actually held by the lessor; see D. H. Bunker, Canadian Aviation Finance Legislation (1989), p. 764. We have been given no reason why the privatization legislation should be held to depart so strikingly from Canadian regulatory practice.
(4) Legislative History
57 Though of limited weight, Hansard evidence can assist in determining the background and purpose of legislation; Rizzo & Rizzo Shoes Ltd., Re, [1998] 1 S.C.R. 27 (S.C.C.), at para. 35; R. v. Morgentaler, [1993] 3 S.C.R. 463 (S.C.C.), at p. 484. In this case, it confirms Parliament's apparent intent to exclude legal titleholders from personal liability for air navigation charges. The legislative history and the statute itself make it clear that Parliament did not intend CANSCA to replace or override the existing regulatory framework but rather to fit cohesively within it. In introducing CANSCA, the Minister of Transport stated that the Aeronautics Act, which establishes the essential regulatory framework to maintain safety in the aviation industry, "will always take precedence over the commercialization legislation" (House of Commons Debates, March 25, 1996, at p 1154). In the Ontario Court of Appeal, Cronk J.A. highlighted a number of other instances where government spokespersons emphasized to Members of Parliament that CANSCA was to fit within the existing regulatory framework which generally favours the narrow meaning of "owner"; see, e.g. House of Commons Debates, May 15, 1996, at p. 2834; May 29,1996, at p. 3144; June 4, 1996, at pp. 3394 and 3410; and Debates of the Senate, June 10, 1996, at pp. 588-89.
14 58 In 1985, during passage of the Aeronautics Act, a concern was raised in Parliament that liability under s. 4.4(5) (that Act's liability provision) could extend to legal titleholders. In response, the Government inserted the term "registered owner". The Parliamentary Secretary to the Minister of Transport specifically stated that the change was made to ensure that liability did not extend to those who had a security or other financial interest in the aircraft; House of Commons Debates, vol. IV, 1st Sess., 33rd Parl., June 20, 1985, pp. 6065-66.
59 In 1996, the Government considered Bill C-20 (which became CANSCA) as it transferred the operation of the civil navigation system from Transport Canada to NAV Canada. The Clause by Clause Analysis brief presented to the Senate Committee explained that s. 55 is based on the wording of the equivalent section of the Aeronautics Act which, as stated, restricts "owner" to registered owner; see "Clause by Clause Analysis for the Civil Air Navigation Services Commercialization Act", as presented to the Senate Committee on Transport and Communications, at pp. 51-52. However, the textual discrepancy noted above was not addressed.
(5) Conclusion on the Section 55 Issue
60 A purposive interpretation of s. 55 that takes into account the foregoing considerations compels rejection of the position urged by NAV Canada. Moreover, and importantly, the narrow interpretation of "owner" in s. 55(1) conforms with common sense. It would be a severe disruption to the functioning of the airline industry if, as a result of Canada 3000's failure to pay its charges, NAV Canada could seize and detain an aircraft operated by, for example, Air Canada. There is no reason to think Parliament intended to let the damage caused by a failed airline expand beyond that airline's fleet of aircraft.
61 Accordingly, applying Driedger's contextual approach to s. 55(1) of CANSCA, I agree with the Courts of Appeal that the titleholders of the aircraft are not jointly and severally liable for the charges due to NAV Canada. They are not "owners" within the meaning of that section.
B. The Detention Remedy
62 If the legal titleholders are not directly liable for the charges due to the service providers, they argue that it would be unfair and contradictory to hold their aircraft hostage for the payment. Section 56 of CANSCA and s. 9 of the Airports Act should be interpreted consistently with s. 55(1) of CANSCA, the legal titleholders argue, and their right to repossess the aircraft on termination of the lease should take priority over the statutory remedy.
63 On the other hand, Nuss J.A., dissenting in the Quebec Court of Appeal, put the contrary position:
If the titleholder could obtain release of the seized aircraft without the payment of the outstanding charges or providing security, the intention and purpose of the Detention Provisions enacted by Parliament would be defeated. This is so because the debt is constituted of charges incurred by the operator of the aircraft (who is often, as in this case, the registered owner) and not by the titleholder. Thus, if the contention of [the titleholders] were to prevail, the titleholder, who is neither the operator nor the "owner" within the meaning of the statutes, could always obtain release of the aircraft and the charges would not be paid. The recourse provided by Parliament would, inevitably, be of no avail. [para. 126]
I believe that Nuss J.A. is correct on this point.
64 The relevant provisions, which authorize applications to a superior court judge of the province in which any aircraft owned or operated by the person liable to pay the charge or amount is situated, are expressed in the two statutes in similar terms.
15 65 Section 56 of CANSCA provides:
56. (1) [Seizure and detention of aircraft] In addition to any other remedy available for the collection of an unpaid and overdue charge imposed by the Corporation for air navigation services, and whether or not a judgment for the collection of the charge has been obtained, the Corporation may apply to the superior court of the province in which any aircraft owned or operated by the person liable to pay the charge is situated for an order, issued on such terms as the court considers appropriate, authorizing the Corporation to seize and detain any such aircraft until the charge is paid or a bond or other security for the unpaid and overdue amount in a form satisfactory to the Corporation is deposited with the Corporation.
(2) [Application may be ex parte] An application for an order referred to in subsection (1) may be made ex parte if the Corporation has reason to believe that the person liable to pay the charge is about to leave Canada or take from Canada any aircraft owned or operated by the person.
(3) [Release] The Corporation shall release from detention an aircraft seized under this section if
(a) the amount in respect of which the seizure was made is paid;
(b) a bond or other security in a form satisfactory to the Corporation for the amount in respect of which the seizure was made is deposited with the Corporation; or
(c) an order of a court directs the Corporation to do so.
66 Section 9 of the Airports Act, under which the airport authorities bring their seizure and detention applications, is to the same effect.
9. (1) [Seizure and detention for fees and charges] Where the amount of any landing fees, general terminal fees or other charges related to the use of an airport, and interest thereon, set by a designated airport authority in respect of an airport operated by the authority has not been paid, the authority may, in addition to any other remedy available for the collection of the amount and whether or not a judgment for the collection of the amount has been obtained, on application to the superior court of the province in which any aircraft owned or operated by the person liable to pay the amount is situated, obtain an order of the court, issued on such terms as the court considers necessary, authorizing the authority to seize and detain aircraft.
(2) [Application may be made ex parte] Where the amount of any fees, charges and interest referred to in subsection (1) has not been paid and the designated airport authority has reason to believe that the person liable to pay the amount is about to leave Canada or take from Canada any aircraft owned or operated by the person, the authority may, in addition to any other remedy available for the collection of the amount and whether or not a judgment for the collection of the amount has been obtained, on ex parte application to the superior court of the province in which any aircraft owned or operated by the person is situated, obtain an order of the court, issued on such terms as the court considers necessary, authorizing the authority to seize and detain aircraft.
(3) [Release on payment] Subject to subsection (4), except where otherwise directed by an order of a court, a designated airport authority is not required to release from detention an aircraft seized under subsection (1) or (2) unless the amount in respect of which the seizure was made is paid.
(4) [Release on security] A designated airport authority shall release from detention an aircraft seized under subsection (1) or (2) if a bond, suretyship or other security in a form satisfactory to the authority for the amount in respect of which the aircraft was seized is deposited with the authority.
16 (5) [Same meaning] Words and expressions used in this section and section 10 have the same meaning as in the Aeronautics Act.
67 According to these provisions, the airport authorities or NAV Canada (upon obtaining a court order) may take possession of an aircraft and detain it. The aircraft must be either "owned" or "operated" by a person who is liable to pay. Either is a sufficient basis for an application.
68 The key difference between the joint and several liability provisions in s. 55 of CANSCA and the detention remedy provided for in s. 56 of CANSCA and s. 9 of the Airports Act is that the seizure and detention remedy lies against the aircraft. Whereas s. 55 identifies a group of persons who are made legally liable for the amounts owing, the detention remedy has a different focus. It provides for a right to possess aircraft until the debt is paid or security provided.
69 The legal titleholders argue that the claim of NAV Canada and the airport authorities to detain the aircraft must yield to the their right under their respective leases to repossession. They liken the seizure and detention remedies to a Mareva injunction, in which the assets are frozen while various parties work out their respective entitlements; see Aetna Financial Services Ltd. v. Feigelman, [1985] 1 S.C.R. 2 (S.C.C.). However, in my view, there is no need to resort to analogies, especially loose analogies (e.g. Mareva injunctions are interlocutory, whereas the detention remedy is available whether or not a judgment for the collection of the charge or amount has been obtained. Moreover, Mareva injunctions are directed at persons (Aetna Financial Services, at pp. 25-26), whereas the seizure and detention remedy targets the aircraft itself).
70 The CARs, adopted pursuant to the Aeronautics Act, provide that an "operator" in respect of an aircraft "means the person that has possession of the aircraft as owner, lessee or otherwise" (s. 101.01(1)). At the dates of the applications for seizure and detention orders, Canada 3000 and Inter-Canadian were still the registered owners of the aircraft. Accordingly, if the Court is to read the words of the detention remedy in the context of the realities of this industry previously discussed, it seems to me that those remedies must be available against the aircraft of Canada 3000 (except any aircraft already repossessed by the titleholder prior to the CCAA application on November 8, 2001) and Inter-Canadian. (Once a titleholder reclaims possession, it becomes an operator in possession within s. 55(1) of CANSCA. However, as its possession post-dates the charges, no personal liability is incurred on that account.)
71 It is difficult to endorse the indignation of the legal titleholders with respect to detention of their aircraft until payment is made for debts due to the service providers. They are sophisticated corporate players well versed in the industry in which they have chosen to invest. The detention remedies do not affect their ultimate title. Lenders who have done their due diligence will recognize that detention remedies have deep roots in the transport business. In The Emilie Millon, [1905] 2 K.B. 817 (Eng. C.A.) ("Mersey Docks"), for example, the English Court of Appeal, King's Bench Division, examined a statute that stipulated that the Mersey Docks and Harbour Board could cause a ship to be detained until all harbour and tonnage payments had been made despite the fact that the ownership of the ship did not correspond to the debtor who had incurred the charges. The ruling in that case reflects the traditional scope of this type of remedy (at p. 821):
The Mersey Docks and Harbour Board have a right by statute to detain the vessel until the dock tonnage rates and harbour rates are paid. That is an express statutory right, and the board have nothing to do with any sale of the vessel to a purchaser. That is a matter which only concerns those who are interested in the vessel. It does not concern the board. The board are entitled to detain the vessel, whoever is the owner, until the rates are paid. The order appealed against deprives them of that right, and without their consent purports to give them an option to try and make some claim to a lien upon or right against the fund in priority to other claimants. The board have no such lien or right. If this
17 vessel had been allowed to leave the dock, the board would have been left to make a futile claim against the fund in court. [Emphasis added.]
This type of provision is not uncommon in the airline business, see e.g. decisions under a differently worded UK Act such as Channel Airways v. Manchester City Council, [1974] 1 Lloyd's Rep. 456 (Eng. Q.B.), at p. 461, in which it was held that the Manchester Corporation Act "mean[t] what it sa[id]", and that the city could detain aircraft in respect of which charges had been incurred until those charges had been paid. The legal titleholders face this problem on the other side of the Atlantic. It is a risk they manage there. No reason was given as to why they cannot manage it here.
72 The legal titleholders are in a better position to protect themselves against this type of loss than are the airport authorities and NAV Canada. The legal titleholders can select which airlines they are prepared to deal with and negotiate appropriate security arrangements as part of their lease transactions with the airlines. In the case of aircraft at issue in these appeals, many if not all of the leases provided for substantial security deposits. For example, the total amount posted by Canada 3000 to the ILFC as security deposits for airport fees and charges was approximately $15,305,500. It is unnecessary to catalogue all of the possible security arrangements, but these deposits demonstrate a legal titleholder's ability to negotiate protection at a time when the airline is solvent to cover the amounts in overdue charges that the airline may eventually be required to pay to the statutory service providers.
73 I agree with Cronk J.A. (at para. 133) that the detention remedy under the statutes is subject to several constraints: (i) the remedy is not automatic and requires prior court authorization; (ii) the remedy is discretionary and may be subject to such terms as the court considers necessary; (iii) under s. 9(3) of the Airports Act and s. 56(3)(c) of CANSCA, the court also has a discretion to limit the duration of the remedy by requiring the applicable authority to release a detained aircraft from detention prior to payment of the amount with respect to which the seizure was made; (iv) in any event, an authority that obtains an order under the detention provisions is required to release a detained aircraft upon payment of the outstanding amount or charges in respect of which the seizure was made or upon the provision of acceptable security therefor (ss. 9(3) and (4) of the Airports Act and ss. 56(1) and (3) of CANSCA); and (v) an order is not available under the detention provisions if the aircraft in respect of which the order is sought is exempt from seizure and detention under provincial law (s. 10(1) of the Airports Act and s. 57(1) of CANSCA) or, in the case of the Airports Act, under a regulation made by the Governor in Council (s. 10(2)).
74 On the other hand, the conclusion of Juriansz J., dissenting, was correct that "the wording of the Detention Provisions makes apparent that aircraft may be seized and detained without regard to the property interests of persons who are neither the registered owners nor the operators of the aircraft under the legislation. As long as the aircraft is owned or operated by a person liable to pay the outstanding charges, it may be the subject of an application to seize and detain it. The fact that there may be other persons, who are not liable to pay the outstanding charges but have property interests in the aircraft, is of no consequence" (para. 239).
75 I turn, then, to a number of additional arguments raised on both sides which, in my view, with respect, unnecessarily complicate a straightforward task of statutory interpretation.
(1) Whether or Not a Lien Existed
76 In the Ontario case, there was considerable debate about whether the detention remedy created a lien. However, as the English Court of Appeal commented in Mersey Docks, there was no need for the port authority "to ... make some claim to a lien" (p. 821). Nor is it necessary here. In this case, as in Mersey Docks, the remedy is purely a creature of statute. Whether or not a lien could be said to arise by operation of law is perhaps of theoretical interest but it has no practical bearing on the result in these appeals.
18 (2) Effect of the Bankruptcy Proceedings
77 The intervention of bankruptcy proceedings in both Quebec and Ontario created procedural complications. For present purposes, it is sufficient to note that the detention remedies in Quebec were applied for well before the assignment in bankruptcy. In Ontario, the detention remedies were applied for while the CCAA stay was in effect and Canada 3000 remained the registered owner of the aircraft in question. In neither case did the aircraft become part of the bankrupt estate (because ultimate ownership was in the legal titleholder). The aircraft were nevertheless legitimate targets of the detention remedies as they were still sitting on a Canadian airport tarmac and were still "owned or operated" (within the meaning of the relevant statutes) by the airlines at the relevant date.
(3) Resort to the Civil Code of Québec
78 In the Superior Court of Quebec, Tremblay J. held that the seizure and detention provisions create a right similar to that found in arts. 1592 and 1593 of the Civil Code of Québec. However, with respect, there is no need to make reference to provincial law or, more specifically, to the Civil Code, and to do so here is inappropriate. Section 56 of CANSCA and s. 9 of the Airports Act specifically state that the remedy is to be "in addition to any other remedy", which includes remedies under provincial law.
79 The Aeronautics Act, the Airports Act and CANSCA are federal statutes that create a unified aeronautics regime. Parliament endeavoured to create a comprehensive code applicable across the country and not to vary from one province to another. This uniformity is especially vital since aircraft are highly mobile and move easily across jurisdictions.
80 NAV Canada also relied on ss. 8.1 and 8.2 of the Interpretation Act, R.S.C. 1985, c. I-21, to urge that s. 56 of CANSCA provides for a civiliste right of retention. However, neither section applies in this case. Section 8.1 states that
...if in interpreting an enactment it is necessary to refer to a province's rules, principles or concepts forming part of the law of property and civil rights, reference must be made to the rules, principles and concepts in force in the province at the time the enactment is being applied.
If it were necessary to resort to provincial law, then the provincial law to be used is that of the province in which the provision is being applied: People's Department Stores Ltd. (1992) Inc., Re, [2004] 3 S.C.R. 461, 2004 SCC 68 (S.C.C.). Here, for reasons stated, resort to provincial law is not necessary.
81 Section 8.2 of the Interpretation Act states that
when an enactment contains both civil law and common law terminology, or terminology that has a different meaning in the civil law and the common law, the civil law terminology or meaning is to be adopted in the Province of Quebec.
82 The issue here is not one of conflicting terminology. The language used in relation to the detention remedy is perfectly apt to make Parliament's intention clear bilingually and bijuridically. In short, resort to the Civil Code was neither necessary nor appropriate.
(4) Existence of a Power of Sale
83 The appellants argue that the existence of a seizure and detention implies (in their favour) a power of sale. No such power is contained in CANSCA or the Airports Act. Nor is it necessarily implied in the creation of a power to seize and detain. The only claim that the authorities have under federal aeronautics law is the claim to possession of the aircraft until their user charges are paid.
19 (5) Presumption Against Interference With Private Rights
84 The Ontario motions judge applied a narrow approach to the Detention Remedy on the basis that it invades what would otherwise be the proprietary rights of the legal titleholders. Reference was made to Royal Bank v. Sparrow Electric Corp., [1997] 1 S.C.R. 411 (S.C.C.), where it was held that the legislation at issue in that case did not impose a charge in the nature of a lien because of the absence of clear and unambiguous language. However, only if a provision is ambiguous (in that after full consideration of the context, multiple interpretations of the words arise that are equally consistent with Parliamentary intent), is it permissible to resort to interpretive presumptions such as "strict construction". The applicable principle is not "strict construction" but s. 12 of the Interpretation Act, which provides that every enactment "is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects"; see Bell ExpressVu, at para. 28:
Other principles of interpretation — such as the strict construction of penal statutes and the "Charter values" presumption — only receive application where there is ambiguity as to the meaning of a provision. (On strict construction, see: Marcotte v. Deputy Attorney General for Canada, [1976] 1 S.C.R. 108, at p. 115, per Dickson J. (as he then was); R. v. Goulis (1981), 33 O.R. (2d) 55 (C.A.), at pp. 59-60; R. v. Hasselwander, [1993] 2 S.C.R. 398, at p. 413; R. v. Russell, [2001] 2 S.C.R. 804, 2001 SCC 53, at para. 46....
In my view, there is no ambiguity in the statutory language creating the detention remedy and thus resort to "strict construction" is not called for.
(6) Limitation of Debts on an Aircraft by Aircraft Basis
85 The titleholders argue that it would be extremely unfair that one titleholder's aircraft, however recently leased, may ultimately be held hostage for all of the unpaid user charges of the airline that flew it. They contend that if (which they deny) the titleholders must pay charges in order to recover an aircraft, they should only be required to pay the charges incurred by the individual aircraft sought to be released, as opposed to the charges outstanding in relation to the whole fleet of the defaulting airline.
86 However, the statute says that an aircraft operated by the person liable to pay the amount can be seized and, absent further court order, need not be released until the entire amount owed by that operator has been paid. This point is made clearly by the release provisions in s. 9(3) of the Airports Act and s. 56(3) of CANSCA. The authorities must only release the aircraft if "the amount in respect of which the seizure was made is paid". Since s. 9(1) and s. 56(1) do not distinguish between the amounts accumulated by specific aircraft operated by a defaulting owner or operator, it seems clear that the amount in respect of which the seizure was made is the entire amount owed by that registered owner or operator.
(7) Limitation of Seizure to Exclude Engines
87 Two of the respondents, RRPF Engine Leasing Ltd. and Flight Logistics Inc. (the "engine lessors"), leased to Canada 3000 the engines attached to two of the aircraft which, when seized, were airworthy. The engine lessors argue that they should be entitled to repossess their engines because seizure of the aircraft is not seizure of the engines. They cite Laskin J. (as he then was) in Firestone Tire & Rubber Co. v. Industrial Acceptance Corp. (1970), [1971] S.C.R. 357 (S.C.C.), for the proposition that the doctrine of accession does not apply to a removable and identifiable object such as the engines.
88 In my view, the engines are part of the aircraft for present purposes. Engines and equipment such as onboard computers fall under the definition of "aeronautical product" in the Aeronautics Act (s. 3(1)). If the engines could be removed, third-party lessors could cannibalize any "aircraft propeller or aircraft appliance
20 or part or the component parts of any of those things, including any computer system and software"; see Aeronautics Act, s. 3(1).
89 Firestone Tire is not of assistance here. In that case, a truck was repossessed under a conditional sales contract. The vendor in possession of the seized truck sought to retain the tires mounted on the truck as against the claim of the unpaid conditional seller of the tires. Laskin J. was concerned about the windfall one creditor might receive when repossessing the property of another unpaid creditor for which he "has given no value" (p. 359). Here, no beneficial interest is implicated. The engines are attached to the aircraft in respect of which charges were incurred and that are the subject of the detention. The Act does not envisage the dismantling of the aircraft (and thus of its value as a security) on the tarmac.
(8) Effect of Sub-Leases
90 The respondents Ansett Worldwide Aviation, U.S.A. and MSA V leased three aircraft to Canada 3000, two of which, in turn, had been leased by those respondents from other persons under head leases. These sub-lessors stand in no better position than the legal titleholders, and the aircraft in which they have a leasehold interest were subject to seizure.
C. The Important Role of the Motions Judge
91 The detention remedy does not create any rights unless, and until, a court order is made authorizing the seizure and detention of an aircraft. Instead, the provisions create potential remedies, available at the discretion of the court and subject to such conditions as the court considers necessary, as Cronk J.A. noted, at para. 134.
92 Much of the potential unfairness which the titleholders envisage in the operation of the detention remedy can be addressed by the motions judge. Section 56(3)(c) of CANSCA states that NAV Canada must release the aircraft "if an order of the court directs the Corporation to do so". Similarly, s. 9(3) of the Airports Act states that an airport authority need not release the aircraft until the charges are paid, "except where otherwise directed by an order of a court". Parliament has left the door open for the motions judge to work out an arrangement that is fair and reasonable to all concerned, provided that the object and purpose of the remedy (to ensure the unpaid user fees are paid) is fulfilled. It would be open to a judge on a detention remedy hearing to determine an allocation amongst the titleholders that reflected such factors as the number of seized aircraft, the amount of charges in relation to a particular aircraft or the short duration of an aircraft's life spent in the doomed fleet. The judge need not make each aircraft hostage for the full amount of the unpaid charges, provided the result is that the authority is paid in full. In this way, what may otherwise be portrayed as a draconian remedy can be reduced to a fair and proportionate judicial response to the airline collapse.
D. Interest
93 The Airports Act explicitly authorizes the airport authorities to charge interest on the overdue amounts. Section 9(1) defines the amount on account of which the seizure was made as "the amount of any landing fees, general terminal fees or other charges related to the use of an airport, and interest thereon". While CANSCA makes no explicit mention of interest, ss. 32-35 lay out a broad authority for NAV Canada to set and charge its fees. A procedure has been established under s. 35(1)(a), whereby the Minister of Transport approves the charges imposed by NAV Canada. The Minister has approved a regulation imposing interest. Notice was provided to airline operators (although not the legal titleholders) and no judicial review of this regulation was sought.
94 The time value of money is universally accepted in ordinary commercial practice; see Bank of America Canada v. Mutual Trust Co., [2002] 2 S.C.R. 601, 2002 SCC 43 (S.C.C.). There is no reason for this principle
21 to be excluded in the case of privatized aeronautics services, and it is not surprising that NAV Canada has been permitted to incorporate interest on unpaid charges into its charging scheme.
95 The question then turns to how long the interest can run. The airport authorities and NAV Canada have possession of the aircraft until the charge or amount in respect of which the seizure was made is paid. It seems to me that this debt must be understood in real terms and must include the time value of money.
96 Given the authority to charge interest, my view is that interest continues to run to the first of the date of payment, the posting of security or bankruptcy. If interest were to stop accruing before payment has been made, then the airport authorities and NAV Canada would not recover the full amount owed to them in real terms. Once the owner, operator or titleholder has provided security, the interest stops accruing. The legal titleholder is then incurring the cost of the security and losing the time value of money. It should not have to pay twice. While a CCAA filing does not stop the accrual of interest, the unpaid charges remain an unsecured claim provable against the bankrupt airline. The claim does not accrue interest after the bankruptcy: ss. 121 and 122 of the Bankruptcy and Insolvency Act.
97 A particular issue is raised in the Quebec appeals regarding proper notice of the interest charges. This is an issue to be dealt with by the motions judge when these matters are returned for further consideration and disposition.
V. Disposition
98 For these reasons, I would allow the appeals and cross-appeals in part, as follows:
1. I would dismiss the appeals of NAV Canada seeking to hold the respondents liable in their personal/corporate capacity;
2. I would allow the appeals of NAV Canada and the airport authorities of the dismissal of their seizure and detention applications and remit those applications to the respective motions judges to be dealt with in accordance with these reasons;
3. I would set aside the orders requiring NAV Canada and the airport authorities to reimburse the respondents for the aircraft detention costs;
4. I would allow the appeals of NAV Canada and the GTAA of the ruling that the engine lessors are entitled to repossess the leased engines.
5. Interest on overdue charges continues to run to the first of the date of payment, the posting of security or bankruptcy.
In other respects, the appeals and cross-appeals will be dismissed. Aéroports de Montréal, St. John's International Airport Authority Inc. and Charlottetown Airport Authority Inc. are entitled to their costs in the Quebec appeals. All other parties shall bear their own costs. Appeals allowed in part and cross-appeals dismissed.
Pourvois accueillis en partie et pourvois incidents rejetés.
22 2018 BCSC 1034 British Columbia Supreme Court
Canada (Canadian Environmental Assessment Agency) v. Taseko Mines Limited
2018 CarswellBC 1608, 2018 BCSC 1034, 293 A.C.W.S. (3d) 765
Attorney General of Canada (Petitioner) and Taseko Mines Limited (Respondent)
Taseko Mines Limited (Petitioner) and Canadian Environmental Assessment Agency, and The Attorney General of Canada (Respondents)
Forth J.
Heard: April 23, 2018; April 24, 2018; April 25, 2018; May 3, 2018 Judgment: June 22, 2018 Docket: Vancouver S177504, S178664
Counsel: L.D. Lachance, N. Wright, M. Charles, for The Attorney General of Canada and Canadian Environmental Assessment Agency K.M. Stephens, J.E. Roos, K. Knapp, for Taseko Mines Limited
Forth J.:
Introduction
1 The following reasons for judgment address two petitions: one filed by the Attorney General of Canada ("Canada") on August 10, 2017, and one filed by Taseko Mines Ltd. ("Taseko") on September 15, 2017.
2 Canada's petition (action no. S-177504) seeks orders pursuant to the Canadian Environmental Assessment Act, 2012, S.C. 2012, c. 19 [CEAA 2012] enjoining Taseko from proceeding with certain mining-related work, and authorizing designated persons to enter the work areas (the "Injunction Petition").
3 Taseko's petition (action no. S-178664) seeks a declaration that the federal CEAA 2012 does not apply to the work that has been provincially authorized (the "Declaration Petition").
Factual Background
Taseko
4 Taseko is a British Columbia mining company that has proposed to develop a gold-copper mine approximately 125 kilometres to the southwest of Williams Lake, BC. This project is currently known as the New Prosperity Project ("New Prosperity"). It was previously known as the Prosperity Project ("Prosperity"). The Project is a large undeveloped gold-copper porphyry deposit, which Taseko estimates to contain 11 million ounces of gold and four billion pounds of copper.
5 Taseko holds a mineral lease and mineral claims (collectively, the "Tenures") duly issued under the Mineral Tenure Act, R.S.B.C. 1996, c. 292, the boundaries of which include the New Prosperity site. New Prosperity (and formerly Prosperity) has been in various stages of exploration and development over the past 20 years.
1 6 In January 2010, the Government of BC issued an environmental assessment certificate for the original Prosperity project (the "BC EA Certificate"). The BC EA Certificate expires in January 2020 if work on the project is not "substantially started" by that date, as that term is used in the BC Environmental Assessment Act, S.B.C. 2002, c. 43.
Federal environmental assessment of Prosperity and New Prosperity
7 In 2010, the federal government did not approve Prosperity following a federal environmental assessment conducted pursuant to the previous Canadian Environmental Assessment Act, S.C. 1992, c. 37 [CEAA 1992]. However, the federal government invited Taseko to submit a new design for consideration.
8 In August 2011, Taseko submitted a revised project description, New Prosperity, which underwent a new environmental assessment conducted by a federal review panel under the current CEAA 2012.
9 On October 31, 2013, the review panel released a report (the "Panel Report") and submitted it to the then federal Minister of Environment. On February 26, 2014, the Minister of Environment issued a decision statement that rejected New Prosperity on the grounds that it was likely to cause significant adverse environmental effects that could not be justified (the "Decision Statement"). The Decision Statement described the "designated project" as entailing the construction, operation and closing of an open pit mine, concentrator facility, and related support infrastructure such as tailings and waste rock areas, construction of road access and a power transmission corridor, and transport of mine concentrates to a load-out facility.
10 In 2013 and 2014, Taseko initiated two judicial reviews in the Federal Court, challenging both the Panel Report and the Decision Statement. On December 5, 2017, the judicial reviews were dismissed. Taseko has since appealed both decisions to the Federal Court of Appeal.
Provincial mining exploration permits
11 In or about July 2016, Taseko began preparations for an exploration program (the "Exploration Program") to collect data for permitting under, inter alia, the provincial Mines Act, R.S.B.C. 1996, c. 293, and for potential redesigns of New Prosperity. Taseko applied under the Mines Act for permits, including an amendment to an existing permit, MX-3-131, and a licence under the Forest Act, R.S.B.C. 1996, c. 157 (collectively, the "Notice of Work Application").
12 On July 17, 2017, the BC Ministry of Energy and Mines ("MEM") issued an amendment to permit MX-3-131 ("Permit MX-3-131") to Taseko for the New Prosperity Site Investigation Program, dated July 14, 2017. Permit MX-3-131 authorized exploration and reclamation activities, which included the Exploration Program.
Federal response to Permit MX-3-131
13 In February 2017, MEM provided a copy of Taseko's then pending Notice of Work Application to the Canadian Environmental Assessment Office ("CEAA").
14 On July 17, 2017 — the day that Permit MX-3-131 was issued to Taseko — the CEAA wrote to Taseko, inquiring whether the work contemplated under the Permit included any act or thing connected to the carrying out of New Prosperity. The CEAA also asked Taseko to provide its views and supporting rationale as to whether any of the activities described in the Notice of Work Application were designated activities as defined under CEAA 2012 and its associated regulations.
15 On July 21, 2017, Taseko responded to the CEAA, advising that in its view the contemplated work did not include any act or thing connected to the carrying out of New Prosperity.
2 16 On July 28, 2017, Ms. Coverley of the CEAA wrote to Taseko and took the position that the activities proposed in the Notice of Work were contrary to s. 6 of the CEAA 2012 and therefore those activities would constitute a federal offence (the "Coverley Letter"). Taseko responded by letter, disputing the view that the activities were unlawful.
17 On August 2, 2017, Mr. Vitou of the CEAA wrote to Taseko, reiterating the position that the activities were contrary to s. 6 of the CEAA 2012.
18 On August 4, 2017, the CEAA asked Taseko to confirm that it would not proceed with the activities authorized under Permit MX-3-131. This correspondence was in the context of a provincial judicial review of the Permit put forward by an Indigenous group and heard in this Court by Mr. Justice Steeves over four days commencing July 31, 2017 (the "Provincial Judicial Review").
19 On August 9, 2017, Taseko wrote to the CEAA and advised that, in the circumstances, it would not proceed with the Exploration Program.
20 On August 14, 2017, Mr. Justice Steeves adjourned the provincial judicial review generally.
Canada's Injunction Petition
21 On August 10, 2017, Canada filed the Injunction Petition in this Court. The petition seeks the following:
1. an order enjoining Taseko from carrying out the work outlined in Permit MX-3-131, in whole or in part; and
2. an order authorising any person designated under subsection 89(1) of the CEAA 2012 to enter the area of work outlined in Permit MX-3-131, for the purpose of verifying compliance with the order requested in para. 1.
22 The thrust of Canada's claim is that the activities authorized by Permit MX-3-131 are in connection with the carrying out of a designated project, as defined by CEAA 2012, and may cause an environmental effect referred to in s. 5(1). As a result, Canada claims the activities are prohibited and this Court should grant the injunction pursuant to s. 96 of CEAA 2012.
Taseko's Declaration Petition
23 On September 15, 2017, Taseko filed its own petition in this Court, the Declaration Petition. It seeks a declaration that s. 6 of CEAA 2012 does not apply to the activities that Taseko has been provincially authorized to perform pursuant to Permit MX-3-131 issued under the Mines Act.
24 On February 16, 2018, Canada filed a motion to strike the Declaration Petition on the grounds that it is unnecessary, an abuse of process, or, alternatively, on the basis that this Court lacks jurisdiction to grant the relief sought. On March 1, 2018, Mr. Justice Thompson heard the motion and dismissed it from the bench with reasons to follow.
25 On March 20, 2018, Taseko filed Constitutional Question Act Notices for both the Injunction Petition and Declaration Petition.
Discussion
26 From April 23 to 25 and May 3, 2018, I presided over the hearing of both petitions. The hearing of the Injunction Petition proceeded first, followed by the Declaration Petition. I will address the petitions in that order.
3 A) The Injunction Petition
27 Section 96 of the CEAA 2012 gives this Court discretion to issue a statutory injunction upon being satisfied that it appears a person has done, is about to do to, or is likely to do any act constituting an offence under the Act:
Court's power
96 (1) If, on the Minister's application, it appears to a court of competent jurisdiction that a person has done, is about to do or is likely to do any act constituting or directed toward the commission of an offence under section 99, the court may issue an injunction ordering the person who is named in the application to
(a) refrain from doing an act that, in the court's opinion, may constitute or be directed toward the commission of the offence; or
(b) do an act that, in the opinion of the court, may prevent the commission of the offence.
28 Canada submits that this provision grants the authority to issue a statutory injunction upon a bona fide belief, on a balance of probabilities, that a serious possibility exists that an offence has been committed, or is likely to be committed, or conduct directed toward the commission of an offence has occurred or will likely occur unless an injunction is issued: R. v. IPSCO Recycling Inc., 2003 FC 1518 (F.C.) at para. 67, cited in Law Society of Saskatchewan v. Mattison, 2015 SKQB 323 (Sask. Q.B.) at para. 33.
29 Offences are listed in s. 99 of CEAA 2012. Subsection 99(1) provides that it is an offence to contravene s. 6 of the Act. Section 6 provides that:
Proponent
6 The proponent of a designated project must not do any act or thing in connection with the carrying out of the designated project, in whole or in part, if that act or thing may cause an environmental effect referred to in subsection 5(1) unless
(a) the Agency makes a decision under paragraph 10(b) that no environmental assessment of the designated project is required and posts that decision on the Internet site; or
(b) the proponent complies with the conditions included in the decision statement that is issued under subsection 31(3) or section 54 to the proponent with respect to that designated project.
30 Subsection 5(1) provides that:
Environmental effects
5 (1) For the purposes of this Act, the environmental effects that are to be taken into account in relation to an act or thing, a physical activity, a designated project or a project are
(a) a change that may be caused to the following components of the environment that are within the legislative authority of Parliament:
(i) fish and fish habitat as defined in subsection 2(1) of the Fisheries Act,
(ii) aquatic species as defined in subsection 2(1) of the Species at Risk Act,
4 (iii) migratory birds as defined in subsection 2(1) of the Migratory Birds Convention Act, 1994, and
(iv) any other component of the environment that is set out in Schedule 2;
(b) a change that may be caused to the environment that would occur
(i) on federal lands,
(ii) in a province other than the one in which the act or thing is done or where the physical activity, the designated project or the project is being carried out, or
(iii) outside Canada; and
(c) with respect to aboriginal peoples, an effect occurring in Canada of any change that may be caused to the environment on
(i) health and socio-economic conditions,
(ii) physical and cultural heritage,
(iii) the current use of lands and resources for traditional purposes, or
(iv) any structure, site or thing that is of historical, archaeological, paleontological or architectural significance.
31 Canada submits that carrying out the elements of the Notice of Work Application authorized by Permit MX-3-131 will constitute an offence under s. 99 by contravening s. 6 of CEAA 2012. It argues that the provincially authorized work is "in connection with the carrying out of a Designated Project", specifically New Prosperity.
32 New Prosperity is a "designated project" under CEAA 2012 by way of the transition provisions in s. 126(1), the definition of "project" in s. 2(1) of the old CEAA 1992, and the definition of "designated project" in s. 2(1) of CEAA 2012.
33 Canada's submissions regarding Taseko's proposed activities in the context of CEAA 2012 raise the following issues:
1) What is the scope of the New Prosperity "designated project" under CEAA 2012?
2) Are the proposed activities "any act or thing in connection with the carrying out of the designated project in whole or in part"? and
3) Will or may those activities "cause an environmental effect referred to in subsection 5(1)"?
34 The modern principle of statutory interpretation requires that the words of the Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, and the intention of Parliament: Rizzo & Rizzo Shoes Ltd., Re, [1998] 1 S.C.R. 27 (S.C.C.) at para. 21.
35 Canada refers to R. v. Alex, 2017 SCC 37 (S.C.C.) at paras. 31 and 33 for proposition that plain meaning alone is not determinative.
5 36 In interpreting the "entire context" and the "scheme" of a governing statute, both the Act and its regulations may operate together and be mutually informing: MiningWatch Canada v. Canada (Minister of Fisheries & Oceans), 2010 SCC 2 (S.C.C.) [MiningWatch] at para. 31.
37 Other elaborations on statutory interpretation submitted by Taseko include the maxim that the failure to follow an established pattern of expression reinforces the position that Parliament must not have intended the same result; that the legislature does not intend to produce absurd consequences; and that every word of a statute must be given meaning, as constructions that leave without effect any part of the language will normally be rejected: see R. c. Multiform Manufacturing Co., [1990] 2 S.C.R. 624 (S.C.C.) at 631; Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653 (S.C.C.) at 692; Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50 (S.C.C.) at para. 31; R. v. Hinchey, [1996] 3 S.C.R. 1128 (S.C.C.) at para. 36; R. v. Canadian Pacific Ltd., [1995] 2 S.C.R. 1031 (S.C.C.) at para. 65; and Communities Economic Development Fund v. Canadian Pickles Corp., [1991] 3 S.C.R. 388 (S.C.C.) at para. 36.
38 As this matter centres on the interpretation of environmental legislation, further principles of interpretation apply. Referring to the decision in R. v. Castonguay Blasting Ltd., 2013 SCC 52 (S.C.C.) at paras. 9, 20, Canada submits that environmental legislation should be given a generous interpretation to allow effective response to environmental harm, in keeping with the precautionary principle and the role of environmental assessment as a planning tool: Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3 (S.C.C.) at 71.
39 Lastly, I rely on the Court of Appeal in Peace Valley Landowner Assn. v. British Columbia (Minister of Environment), 2016 BCCA 377 (B.C. C.A.) at para. 26 for the overriding principles:
Environmental legislation is often broadly worded, but there is a real danger that bodies motivated by other agendas (including governments overwhelmed by short-term economic goals) will interpret it narrowly. The courts must not allow environmental legislation to be emasculated through unduly narrow interpretation. That said, Friends of Davie Bay, makes the important point that general rules of statutory interpretation apply to environmental statutes. Provisions are interpreted "by reading the words of the provision, in context and in their grammatical and ordinary sense, harmoniously with the scheme of the Act and the object of the statute".
1) What is the scope of the New Prosperity "designated project"?
40 The New Prosperity project is a "designated project" under CEAA 2012, as it was a "project" under CEAA 1992, which was referred to a Review Panel established under that Act. Subsection 126(1) of CEAA 2012 provides the following transition provision:
Completion of assessment by a review panel commenced under former Act
126 (1) Despite subsection 38(6) and subject to subsections (2) to (6), any assessment by a review panel, in respect of a project, commenced under the process established under the former Act before the day on which this Act comes into force is continued under the process established under this Act as if the environmental assessment had been referred by the Minister to a review panel under section 38. The project is considered to be a designated project for the purposes of this Act . . .
41 Under CEAA 1992, "project" is defined to mean:
(a) in relation to a physical work, any proposed construction, operation, modification, decommissioning, abandonment or other undertaking in relation to that physical work, or
6 (b) any proposed physical activity not relating to a physical work that is prescribed or is within a class of physical activities that is prescribed pursuant to regulations made under paragraph 59(b);
42 Under CEAA 2012, "designated project" is defined as:
designated project means one or more physical activities that
(a) are carried out in Canada or on federal lands;
(b) are designated by regulations made under paragraph 84(a) or designated in an order made by the Minister under subsection 14(2); and
(c) are linked to the same federal authority as specified in those regulations or that order.
It includes any physical activity that is incidental to those physical activities.
43 The Decision Statement describes the New Prosperity designated project in the following language:
Taseko Mines Limited (the Proponent) proposes to develop the New Prosperity Gold-Copper Mine Project (the Designated Project), 125 kilometres southwest of Williams Lake, British Columbia. The Designated Project would entail constructing, operating and closing an open pit mine and a 70,000 tonne per day concentrator facility with an average annual production of 108 million pounds of copper and 247 thousand ounces of gold production over a 20 year mine life. The Designated Project includes the open pit mine, a concentrator facility, support infrastructure, and associated tailings and waste rock areas, the construction of a 2.8-kilometre access road to the mine site, the construction of a 125- kilometre long power transmission line corridor, and the transport of mine concentrates to an existing concentrate load-out facility near Macalister, British Columbia.
[Emphasis added.]
44 As a result, the designated project of New Prosperity includes the open pit mine, a concentration facility, support infrastructure, associated tailing and waste rock areas, the access road, the transmission line corridor, the transport of mine concentrates, and any physical activities incidental to those physical activities. This scope is consistent with and supported by the Panel Report dated October 31, 2013.
45 The key issue is whether the activities authorized by Permit MX-3-131 fall within that scope of New Prosperity, either directly, incidentally or by constituting any act or thing in connection with the carrying out of those activities in whole or in part.
2) Are the activities "any act or thing in connection with the carrying out of the designated project in whole or in part"?
46 As of September 15, 2017, Taseko held the following provincial permits:
a) June 5, 2017: Road Use Permit For Industrial Use of a Forest Service Road;
b) June 22, 2017: Authorization for Industrial Activity at Fish Lake Recreation Site; and
c) Permit MX-3-131.
47 Permit MX-3-131 approves the following activities for "exploration and reclamation activities" at mineral/coal tenures 314007, 209325, 314028, 314029, 209326, 516849, 516785, 787863, 314006, 1030098, 1011666, 1011672, 1011668:
7 • Access Roads, Trails, Heli Pads, Air Strips . . . ;
• Camps, Buildings and Staging Areas;
• Cut Lines;
• Exploration Surface Drilling;
• Mechanical Trenching/Test Pits; and
• Settling Ponds.
48 The MEM's reason for decision dated July 17, 2017 further provide that:
Activities
[Taseko] submitted the Application for an amendment to their Mines Act permit MX-3-131 on October 17, 2016. The Application involves a site investigation program consisting of: establishment of a 50 person camp of 11 mobile trailer units; a temporary core shed to store drill core; a base camp staging area; a fuel storage site for up to 10,000 litres of fuel; 20 km of brushed cut lines; construction of 367 test pits; 122 geotechnical drill sites; 48 km of new exploration trails; modification of 28 km of existing access trails; and 7 water intake points.
Disturbance
The Application proposes 47.2 ha of total disturbance (16 ha of which is located on previously disturbed and/or reclaimed areas) and cutting of 1084 m3 of timber. The Application proposes construction of exploration trails and creation of small openings for drill sites and test pits dispersed throughout a polygon of approximately 3067 ha in area. The Application disturbance of 47.2 ha would result in a physical disturbance of about 1.5% of that polygon area.
Term
The Application is for a 3 year, multi-year, area-based approval to conduct work from January 1, 2017 to December 31, 2019. [Taseko] indicates they wish to conduct the majority of their work within a period of 6 months within the first year, but wish to maintain some flexibility in site locations, and/or conduct some of the work in Years 2 and 3, depending on the findings of their initial site investigation work.
49 The reasons also list a number of permit conditions to minimize Aboriginal and environmental concerns stemming from the proposed activities.
50 In his Affidavit #1, dated September 15, 2017, Scott Jones, VP of Engineering for Taseko, describes the nature of the work under the Exploration Program:
36. The nature of the work to be undertaken in respect of the Exploration Program related permits described above does not include the construction of a mine or its supporting infrastructure. As explained above, the work is exploratory work that is intended to gather the necessary data and other information required to:
a) confirm the engineering assumptions for the Project;
8 b) meet further Mines Act permit requirements to authorize construction of the Project once all necessary environmental assessment approvals are in place; and
c) inform applications for other necessary approvals and permits (for example, Environmental Management Act permit applications) required for construction of the Project.
37. Completing the work under the Exploration Program is a necessary prerequisite to applying for subsequent permitting that will be necessary for the ultimate development of the New Prosperity project.
51 At paras. 45-46, Mr. Jones summarizes the activities authorized in the Exploration Permit as follows:
45. The Exploration Permit authorizes the work contemplated under the Exploration Program, as detailed in the Notice of Work Application. In brief, the work is comprised of:
a) Test pits: Test pits will be excavated to about 5 m depth (unless impeded), with a footprint of approximately 5 m x 6 m, and will be accessible by temporary access trails. Test pit locations have been selected to avoid watercourses, standing water and other environmentally sensitive areas.
b) Drill holes, monitoring wells, and pumping wells: The footprint for each drill hole, monitoring well and pumping well will be 20 m x 25 m, with access along temporary access trails. The locations have been selected to avoid watercourses, standing water and other environmentally sensitive areas. Provisions shall be made for sediment control.
c) Geophysical investigation: Geophysical investigations will be completed using a variety of techniques, and involves minimal physical disturbance to the land. Access similar to narrow hiking trails will be cleared to allow the geophysical survey crew to walk along each of the investigation lines (clearing will involve clearing brush and fallen trees only; no standing trees will be felled). And,
d) Camp: The camp will be located within an existing cut block with existing access, and Taseko plans to establish a water well to minimize or eliminate the need to take water from other locations, reducing the need for any activity in riparian zones.
46. The Exploration Permit requires, among other things, reclamation of test pits, drill sites, trail roads, and revegetation of all disturbed areas. Specifically, as part of the Exploration Program Taseko will perform the following reclamation work:
a) Test pits the test pits will be backfilled, the surface smoothed to match the previous terrain using topsoil salvaged from excavation, and soil disturbances seeded with approved forestry mix.
b) Drill holes, monitoring wells, and pumping wells: the access trails to these wells will be temporary. The locations of the holes and wells have been carefully selected to avoid environmentally sensitive areas. After the holes and wells have been drilled, they will be capped (unless exempted by the Inspector of Mines) or instrumentation will be installed for long-term monitoring. Soil disturbance will be reseeded with approved forestry mix.
c) Geophysical investigations: the access will be equivalent to narrow hiking trails, with no standing trees to be felled.
d) Camp: all structures will be mobile units and impermanent. All waste, sewage and grey water produced will be transported offsite. At the end of the exploration activities, all materials and
9 infrastructure will be removed from the camp, sheds, staging and storage areas, and all soil will be de-compacted and seeded with approved forestry seed mix.
e) Any bridges will be small temporary structures. And,
f) Any access trails will be reclaimed by pulling back any sidecast material, re-contouring as required, covering with topsoil and woody debris and seeding with approved forestry mix.
52 Canada and Taseko disagree as to the nature of the activities contemplated by Permit MX-3-131. Canada submits that the activities are not truly exploratory, but instead detailed design work for New Prosperity — a project that has already been rejected through the federal environmental assessment process. Canada highlights several documents and affidavits in support of this claim. These include:
• The Notice of Work Application, dated October 17, 2016, which explicitly states "New Prosperity Project" beside the heading "Project";
• Affidavit #1 of Scott Jones sworn September 15, 2017, in which he refers to the New Prosperity Project in relation to exploration, design, and redesign work; and
• Affidavits of John McManus, CEO of Taseko, sworn July 27, 2017 and February 14, 2018, in which he deposes among other things that "[t]he data and other information gathered from the Exploration Program will assist Taseko in the identification, consideration, evaluation or development of any potential new or revised designs for the mine should Taseko consider such changes to be necessary."
• The Notice of Work Application, which shows substantial overlap of geographical footprint between Permit MX-3-131 activities and New Prosperity.
53 Canada takes issue with the strategy employed by Taseko in conducting work for redesigns of a project already rejected through the federal assessment process. Canada contends that Taseko is motivated by the pending expiration of the BC EA Certificate and that the activities authorized by Permit MX-3-131 are necessary for Taseko to obtain a provincial mine-operating permit to allow New Prosperity to be "substantially started" before the expiry of the BC EA Certificate. Canada points to communications and responses given by Taseko during the 2013 federal assessment process, in which Taseko stated that the geological data it had gathered up to that point was sufficient for the preliminary design of certain features of New Prosperity. Counsel alleges that Taseko represented to the federal review panel in 2013 that the "detailed design" stage of mine development would be purely to confirm estimates and predictions if the environmental assessment was approved.
54 Counsel for Canada also submits that when it comes to the detailed design stage of a project, "the Rubicon is the environmental assessment" process, and that once the assessment is completed, there is no going back to the design stage if the proponent did not receive approval. In Canada's view, the correct approach is to develop a "new proposal" instead of "redesigning of the old one", and then proceed with an environmental assessment for that proposal. Canada asserts that Taseko is, in reality, merely seeking a mulligan of the original decision.
55 Canada submits that this framework and lifecycle for environmental assessment process is well known in "this development world". Whether or not that is accurate, I must still assess the CEAA 2012 according to the principles of statutory interpretation enunciated earlier.
56 Taseko submits that the activities authorized by Permit MX3-131 do not fall within the New Prosperity designated project. Taseko contends that the descriptions of the activities authorized in Permit MX 3-131
10 are plainly different from those described in the Decision Statement, which explicitly states that "[t]he Designated Project would entail constructing, operating and closing an open pit mine".
57 Canada submits (in its response to the Declaration Petition) that the word "construction" may be interpreted to include a series of events, which include securing approvals which are dedicated to and prerequisite for the actual physical step of construction, citing Hamilton-Wentworth (Regional Municipality) v. Canada (Minister of the Environment), 2001 FCT 381 (Fed. T.D.), aff'd 2001 FCA 347 (Fed. C.A.) [Hamilton-Wentworth].
58 The decision in Hamilton-Wentworth is distinguishable to the case at hand in that it was based upon a grandfathering provision of the now-repealed CEAA 1992. That provision paired the word "construction" with the word "initiated": "Where the construction or operation of a physical work or the carrying out of a physical activity was initiated before June 22, 1984, this Act shall not apply" (emphasis added). Such wording, or wording to that effect, is not present in the CEAA 2012 provisions relevant to our case.
59 Although it would be inappropriate to solely rely on regulations to interpret a provision of the governing legislation, see MiningWatch at para. 31, I note that s. 2 of the Regulations Designating Physical Activities, S.O.R/2012-147 [Regulations], provides that:
Designated activities — designated projects
2 The physical activities that are set out in the schedule are designated for the purposes of paragraph (b) of the definition designated project in subsection 2(1) of the Canadian Environmental Assessment Act, 2012.
60 Section 16 of the schedule to the Regulations [Reg. Schedule] provides that:
16 The construction, operation, decommissioning and abandonment of a new
(a) metal mine, other than a rare earth element mine or gold mine, with an ore production capacity of 3 000 t/day or more;
(b) metal mill with an ore input capacity of 4 000 t/day or more;
(c) rare earth element mine or gold mine, other than a placer mine, with an ore production capacity of 600 t/day or more;
(d) coal mine with a coal production capacity of 3 000 t/day or more;
(e) diamond mine with an ore production capacity of 3 000 t/day or more;
(f) apatite mine with an ore production capacity of 3 000 t/day or more; or
(g) stone quarry or sand or gravel pit, with a production capacity of 3 500 000 t/year or more.
61 Taseko highlights that the enumerated physical activities applicable to new mines in s. 16 can be contrasted with those for offshore exploratory wells listed in ss. 10 and 40 of the Reg. Schedule. The activities for the offshore exploratory wells include "drilling, testing, and abandonment". The absence of the words "drilling" and "testing" in s. 16 for new mines supports an interpretation that these activities are not included as relevant physical activities for new-mine designated projects. Taseko submits that when read together, these provisions are consistent with an interpretation that the relevant physical activities with respect to new mines are the "construction, operation, decommissioning and abandonment".
11 62 I am satisfied that the term "construction", should not be construed so broadly as to contain all series of approvals prerequisite to the actual building of the key components or the mine. In my view, the activities authorized by Permit MX-3-131 do not have a sufficient nexus to fall directly within that term.
63 Next, I must determine whether the activities are "incidental to" the New Prosperity designated project, as provided by the definition of "designated project" in CEAA 2012, s. 2(1).
64 Canada submits that the activities are incidental to the construction and completion of New Prosperity and thus fall within the designated project pursuant to s. 2(1). It contends that the purpose of the exploratory work should be considered, and highlights that proposed activities within the same geographical footprint of the New Prosperity project supports a finding the activities are prohibited by s. 6.
65 The word "incidental" has been judicially construed to mean "occurring or liable to occur in fortuitous or subordinate conjunction with something else": Sindaco, Re, 2003 BCSC 1396 (B.C. S.C.) at para. 17; KP Pacific Holdings Ltd. v. Guardian Insurance Co. of Canada, 2001 BCCA 469 (B.C. C.A.) at para. 8, rev'd on other grounds, 2003 SCC 25 (S.C.C.) at para. 14. The Shorter Oxford English Dictionary defines that word as "liable to happen", "naturally attaching to", "occurring as something causal or of secondary importance", and "following upon as a subsequent circumstance". Upon considering these definitions and the scheme and context of CEAA 2012, I am not persuaded that the word "incidental" in s. 6 should be interpreted to include all physical activities that are in subordinate conjunction with and or consequent upon the "construction, operation, decommissioning and abandonment" of the mine.
66 The above definitions, read within the scheme of CEAA 2012, support that "incidental" requires a certain level of proximity as well as possibly causal connection between activities and the designated project. In my view, the activities described in Permit MX-3-131 do not have a sufficient relationship to the actual construction, operation, decommissioning or abandonment of the New Prosperity project. At this stage, I am unable to conclude that the authorized activities are "incidental" to the designated project, as that word can be construed in s. 2(1).
67 Canada also submits that the activities fall within the language of s. 6 of CEAA, which uses the phrases "in connection with . . . in whole or in part". Canada contends that the combined effect of the s. 6 wording is broad enough to capture Permit MX-3-131 activities. In support of this argument, Canada notes that the activities will affect the environment, and some of these activities are necessary in order for Taseko to obtain provincial construction and operation permits for New Prosperity itself. Moreover, Canada submits that the language "in whole or in part" supports a broad meaning.
68 I am not persuaded by Canada's submissions on the construing of s. 6. Although the phrase "in connection with" is indeed broad, it is qualified in my view by the phrase "carrying out". The phrase to "carry out" has been defined by the Shorter Oxford English Dictionary as "perform, conduct to completion, put into practice".
69 I agree with the submission of Taseko that s. 6 connotes the putting into operation or executing the "construction, operation, decommissioning and abandonment" of a mine (or other physical activity incidental thereto as properly construed). In my view, this places a limit on the scope of activities that may trigger the CEAA 2012.
70 I do not assert that preliminary activities prior to the actual construction of a mine will never fall within the ambit of s. 6, however, the wording of s. 6 requires some limits in order to harmoniously fit with the scheme of the Act. In my view, the activities authorized by Permit MX-3-131 amount to preliminary investigation, exploration and associated reclamation work, and fall outside the limits of putting the mine into construction or operation in whole or in part.
12 71 In reaching this conclusion, I have considered certain principles of statutory interpretation that are applicable in the context of constitutional federalism. Although most notably applied in the context of federal paramountcy, I quote the following principle from Newfoundland and Labrador (Workplace Health, Safety & Compensation Commission) v. Ryan Estate, 2013 SCC 44 (S.C.C.) at para. 69:
Courts must not forget the fundamental rule of constitutional interpretation: " . . . [w]hen a federal statute can be properly interpreted so as not to interfere with a provincial statute, such an interpretation is to be applied in preference to another applicable construction which would bring about a conflict between the two statutes": Canadian Western Bank, at para. 75, citing Attorney General of Canada v. Law Society of British Columbia, [1982] 2 S.C.R. 307, at p. 356.
72 This has been employed as a principle of statutory interpretation in the application of the 'regulated conduct defence' as stated by Iacobucci J., for the Court, in Garland v. Consumers' Gas Co., 2004 SCC 25 (S.C.C.) at paras. 76-77:
76 I agree with the approach of Winkler J. The principle underlying the application of the defence is delineated in Attorney General of Canada v. Law Society of British Columbia, [1982] 2 S.C.R. 307, at p. 356:
When a federal statute can be properly interpreted so as not to interfere with a provincial statute, such an interpretation is to be applied in preference to another applicable construction which would bring about a conflict between the two statutes.
Estey J. reached this conclusion after canvassing the cases in which the regulated industries defence had been applied. Those cases all involved conflict between federal competition law and a provincial regulatory scheme, but the application of the defence in those cases had to do with the particular wording of the statutes in question. While I cannot see a principled reason why the defence should not be broadened to apply to cases outside the area of competition law, its application should flow from the above enunciated principle.
77 Winkler J. was correct in concluding that, in order for the regulated industries defence to be available to the respondent, Parliament needed to have indicated, either expressly or by necessary implication, that s. 347 of the Criminal Code granted leeway to those acting pursuant to a valid provincial regulatory scheme. If there were any such indication, I would say that it should be interpreted, in keeping with the above principle, not to interfere with the provincial regulatory scheme. . . .
[Emphasis added.]
73 In the case at hand, s. 92A of the Constitution Act, 1867 provides in part that:
92A. (1) In each province, the legislature may exclusively make laws in relation to
(a) exploration for non-renewable natural resources in the province;
(b) development, conservation and management of non-renewable natural resources and forestry resources in the province, including laws in relation to the rate of primary production therefrom; and
(c) development, conservation and management of sites and facilities in the province for the generation and production of electrical energy.
. . .
13 Authority of Parliament
(3) Nothing in subsection (2) derogates from the authority of Parliament to enact laws in relation to the matters referred to in that subsection and, where such a law of Parliament and a law of a province conflict, the law of Parliament prevails to the extent of the conflict.
74 Pursuant to the constitutional head of power in s. 92A, the BC legislature has enacted the Mines Act, which applies to "all mines during exploration, development, construction, production, closure, reclamation and abandonment (emphasis added)": s. 2. The Mines Act's definition of "mine" includes "all activities including exploratory drilling, excavation, processing, concentrating, waste disposal and site reclamation". The definition of "mining activity" includes "the exploration and development of a mineral, a placer mineral, coal, sand, gravel or rock". Permit MX-3-131 was issued pursuant to statutory powers granted under the Mines Act.
75 An overly broad interpretation of CEAA 2012 would result in that federal statute catching an undue amount of provincial mining exploration activity that could constitute offences under s. 99 of CEAA 2012. Such an outcome would result in impractical consequences for the provincial scheme and would be particularly out of step with one of the purposes of CEAA 2012: "to promote cooperation and coordinated action between federal and provincial governments with respect to environmental assessments": at s. 4(1)(c).
76 Canada submits that the legislative purpose in s. 4(1)(a), "to protect the components of the environment that are within the legislative authority of Parliament from significant adverse environmental effects caused by a designated project", supports a broader interpretation than what Taseko asserts. In my view, as "designated project" is incorporated within the provision, this purpose of the Act does not weigh heavily on my interpretation of the scope of "designated project".
77 In summary, I find that the activities authorized by Permit MX-3-131 are not within the scope of CEAA 2012, s. 6. Therefore, it does not appear to me that Taseko has done or is about to do any act constituting or directed toward the commission of an offence under s. 99. I decline to grant the relief sought pursuant to s. 96. The Injunction Petition is dismissed.
3) Will or may it cause an environmental effect in s. 5(1)?
78 As a result of the above determination, I need not address this issue.
B) The Declaration Petition
79 Recently in Ewert v. Canada, 2018 SCC 30 (S.C.C.) at para. 83, the majority made the following comment with respect to declaratory relief:
[83] A declaration is a discretionary remedy. Like other discretionary remedies, declaratory relief should normally be declined where there exists an adequate alternative statutory mechanism to resolve the dispute or to protect the rights in question: see D. J. M. Brown and J. M. Evans with the assistance of D. Fairlie, Judicial Review of Administrative Action in Canada (loose-leaf), at topic 1:7330.
80 Canada submits that the relief sought by Taseko pursuant to the Declaration Petition is beyond the jurisdiction of this Court. However, Canada does not dispute the jurisdiction of this Court in the Injunction Petition above, and conceded in argument that if I determined that the activities were outside the scope of CEAA 2012, s. 6, the Declaration Petition would be moot.
81 I agree with Canada's submission on this point. My determination with respect to the Injunction Petition has settled the issues in dispute.
14 82 The matter of costs of both petitions can be spoken to if requested by the parties. Petition dismissed.
15 2017 CAF 146, 2017 FCA 146 Federal Court of Appeal
Johnny v. Adams Lake Indian Band
2017 CarswellNat 3103, 2017 CarswellNat 9827, 2017 CAF 146, 2017 FCA 146, 281 A.C.W.S. (3d) 3
COUNCILLORS GEORGINA JOHNNY, BRANDY JULES AND RONALD JULES (Appellants) and ADAMS LAKE INDIAN BAND (Respondent)
Eleanor R. Dawson J.A., Wyman W. Webb J.A., Donald J. Rennie J.A.
Heard: June 19, 2017 Judgment: July 5, 2017 Docket: A-42-17
Proceedings: reversing Johnny v. Adams Lake Indian Band (2017), 2017 FC 156, 2017 CarswellNat 541, René LeBlanc J. (F.C.)
Counsel: Priscilla Kennedy, for Appellants Scott Nicoll, for Respondent
Eleanor R. Dawson J.A.:
1 The appellants were properly elected Band Councillors of the Adams Lake Indian Band. Each was removed from office effective October 23, 2016, and each was prohibited from running for election in the next two Band elections because each was found to have breached their oath of office.
2 The appellants' challenge to the decisions removing them from office was rejected by the Federal Court. The Federal Court found the decisions were reached in a procedurally fair manner (2017 FC 156 (F.C.)). This is an appeal from the judgment of the Federal Court.
3 Before dealing with the merits of the appeal, it is important to record the position of the respondent Adams Lake Indian Band on this appeal.
4 The Band opposed the appellants' application for judicial review in the Federal Court and initially entered an appearance in this Court indicating its intent to oppose the appeal. The Band filed a memorandum of fact and law in which it asked that the appeal be dismissed with costs. However, shortly before the appeal was argued, a notice of change of solicitors was filed. At the hearing of the appeal, new counsel advised that the Band does not take any position on this appeal, and that in disposing of the appeal the Court should have no regard to the Band's memorandum of fact and law. The Court has proceeded on this basis.
5 I now turn to briefly review the relevant facts.
6 Part 24.1 of the 2014 Adams Lake Secwépemc Election Rules provides that a Band Councillor "may be removed from office" on grounds that the Councillor violated the Band's Election Rules or breached their oath of office. In their oath of office, Band Councillors agree, among other things, to "honestly, impartially and fully perform the duties of my office with dignity and respect" and to uphold the "Adams Lake Indian Band Community Vision."
1 7 Of relevance to this appeal are paragraphs 2, 3 and 4 of the oath of office each member of the Band Council is obliged to declare. These paragraphs state:
2. I will honestly, impartially and fully perform the duties of my office with dignity and respect.
3. I will always consider the best interests of the Adams Lake Indian Band.
4. I will uphold the ALIB Election Rules, Band policies, and the Chief and Council Terms and Reference of the Adams Lake Indian Band.
8 Proceedings to remove a Band Councillor are to be commenced by a petition signed by ten electors, accompanied by an affidavit substantiating the grounds for removal (Parts 24.2 and 24.3 of the Election Rules). A decision to remove a Councillor is to be made by an elected Community Panel (Election Rules Part 9.2 and Appendix E).
9 In September 2016, a petition was presented seeking the removal of the appellants from their positions as Band Councillors. The petition was supported by an affidavit sworn by Valerie Michel, an employee of the Band. In her affidavit, the complainant made the following allegations:
Ronnie Jules
Violation: I heard Ronnie was advocating for his immediate family member to get a house.
This violates # 2 Oath of Office; how can you be impartial when you're advocating for an immediate family.
This violates # 3 Oath of Office; by advocating for an immediate family member how can you be thinking in the best interest of the Band.
This violates # 4 Oath of Office; this definitely was not following the Housing Policy showing lack of respect for Band policies.
Violation:
Ron Jules participated in discussion that had a direct effect on his immediate family. Many times he did not declare conflict of interest.
SAME AS ABOVE VIOLATES #2 and #3
Gina Johnny
Violation: Gina advocated for a member of her immediate family to receive money from the band council and approved using council travel budget to attend a workshop.
This violates # 2 Oath of Office; how can you be impartial when you're advocating for an immediate family member.
This violates # 3 Oath of Office; definitely only thinking in the best interest of her family.
This violates # 4 Oath of Office; not following proper procedures and policies for band member receiving money. How can council give money out of their own travel for her brother to attend a workshop, was this offered to anyone else?
Brandy Jules
2 Violation of Oath of Office # 2
Brandy is directing the decision for the release of the Executive Director Lawrence Lewis for personal reasons to do with her family. Brandy holds the Administration portfolio and was part of the decision to hire Lawrence. Council was excited to have Lawrence on board, spoke of his credentials and how he would be an asset to the band, Council even held a welcoming for him. What changed? Well when Lawrence started to hold department's heads accountable to their departments, following band policies and procedure and holding staff accountable to lateral violence? Is this the reason for his release?
Brandy and Ronnie were doing their own investigation [sic] his background to find things to let him go. Should this not have been part of the hiring process?
10 The complainant went on to state that:
... This is the first term in many years it is difficult for me to see what direction the band is going. With all the conflict of Interest and council involving themselves in administration decisions that they should not be involved in, this is demonstrating the council are more worried about administration and ensuring they protect their family than moving the band forward politically. I look forward to meeting with the Community Panel and trust the Community Panel to investigate thoroughly and unveil the truth and make the right decision with the evidence found.
In my opinion this maybe [sic] the tip of the iceberg, I have faith that the community panel will investigate our concerns and should more forthcoming information arise through your investigation you will deal with accordingly.
11 The Community Panel found that all but one of the alleged violations were established. It rejected the allegation that Ronald Jules had advocated that one of his immediate family members should receive a house.
12 The Community Panel also considered a number of allegations not contained in the petition or supporting affidavit. It found that Ronnie Jules made a "direct racial comment to a staff member" and that he participated "in lateral violence towards another member of Council". It found that Gina Johnny participated in discussions, advocated and signed "the Band Council Resolution which transitioned all existing Security Staff" to Adams Lake Indian Band Staff, which benefited her immediate family and that she had advocated for an immediate family member to represent the Band at "Together Shuswap". Finally, it found that Brandy Jules made inquiries of the Band Staff with respect to a job posting involving her immediate family, and that she participated in discussions, advocated and signed "the Band Council Resolution which transitioned all existing Security Staff" to Band Staff, which benefited her family.
13 In the result, the Community Panel found that each appellant had breached paragraphs 2, 3 and 4 of the oath of office, and that each appellant had breached the Band's Code of Conduct and Ethics Policy and the Band's Financial Management Bylaw. Additionally, it found that Ronnie Jules had breached the Conflict Resolution Policy, the Employment Guidelines, and the Respectful Work Place Policy. Brandy Jules was also found to have breached the Respectful Work Place Policy and the Employment Guidelines.
14 As a result of these findings, each appellant was removed from elected office as a Band Councillor effective October 23, 2016, and each appellant was precluded from running for office in the next two Band elections. The appellants may first run for office in the election to be held in 2024.
15 The reasons of the Community Panel are found in the minutes of its meeting of October 22, 2016, and in three letters of that date, one of which was sent to each appellant. The minutes reflect, among other
3 things, three motions made, seconded and carried, finding the appellants to have breached their oaths of office. The letters set out the nature of each violation of the oath considered by the Community Panel and the Panel's conclusion about each alleged violation. Each letter was signed by all of the members of the Community Panel.
16 Following the decisions of the Community Panel, the Federal Court issued an order, with the consent of the parties, which, subject to certain limitations, restored the appellants to their positions on the Band Council pending the outcome of their challenge to the removal orders. A by-election scheduled for the election of new Councillors was cancelled. Thereafter, following the issuance of the Federal Court's judgment, this Court stayed the judgment of the Federal Court pending the disposition of this appeal.
17 On this appeal from the judgment of the Federal Court, the appellants assert that the Federal Court erred by applying the reasonableness standard of review to the decision of the Community Panel. They also assert that the Federal Court erred in failing to find that the Community Panel's decision was reached in a manner that was procedurally unfair in a number of respects.
18 I begin my consideration of the appellants' submissions by rejecting the notion that the Federal Court selected and applied the incorrect standard of review. The Federal Court found that the sole issue before it was whether the Community Panel breached the duty of procedural fairness it owed to the appellants (reasons, paragraph 18). This finding is not challenged by the appellants and, in any event, it is a correct characterization of the issue before the Federal Court.
19 As to the applicable standard of review, at paragraph 21 of its reasons the Court referred to both Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 (S.C.C.), at paragraph 43 and Khela v. Mission Institution, 2014 SCC 24, [2014] 1 S.C.R. 502 (S.C.C.), at paragraph 79, and found it to be well-established that the standard of correctness applies to questions of procedural fairness. No error was made by the Federal Court in selecting the correctness standard of review.
20 As to the application of this standard, in my view the Federal Court reversibly erred in concluding that the decision of the Community Panel was made in compliance with the requirements of procedural fairness. It is not necessary for me to consider all of the errors asserted by the appellants. For the purpose of this appeal, it is only necessary for me to consider the Federal Court's:
i. determination of the content of the duty of fairness;
ii. application of the principle "he who decides must hear";
iii. application of the test for bias or reasonable apprehension of bias.
21 As I have concluded that the Federal Court made a reversible error, and as I would set aside the judgment of the Federal Court, I will also comment on the adequacy of the Community Panel's reasons in the event it comes to reconsider the allegations made against the appellants.
22 The Federal Court began its analysis by correctly observing that the concept of procedural fairness is eminently variable, and its content is to be decided in the specific context and circumstances of each case (reasons, paragraph 27). The Federal Court then relied upon the decision of this Court in Samson Indian Band v. Bruno, 2006 FCA 249, 352 N.R. 119 (F.C.A.), to conclude that the Community Panel should be granted significant latitude to choose its own procedures. In the view of the Federal Court, it was sufficient if basic procedural safeguards were in place. Thus, a full oral hearing was not required (reasons, paragraphs 28 and 29).
4 23 However, Bruno arose in an entirely different context from that now before the Court — an assertion that a successful candidate in a Band election was not qualified to run for the office. The present context involves the removal from office of a properly elected Councillor.
24 The content of the duty of fairness to be applied when removing a duly elected councillor from office was considered by the Federal Court in Testawich v. Duncan's First Nation Chief and Council, 2014 FC 1052, 467 F.T.R. 38 (F.C.). The Federal Court concluded that application of the factors articulated in Baker v. Canada (Minister of Citizenship & Immigration), [1999] 2 S.C.R. 817, 243 N.R. 22 (S.C.C.) favoured a duty of fairness "on the more robust end of the spectrum." The Federal Court reasoned that:
[34] In my view, the Baker factors weigh in favour of a duty on the more robust end of the spectrum. First, the Committee reached its decision through a process resembling that of a court, since it has the task of resolving complaints by reference to Regulations establishing rights and duties. The Supreme Court has stated that such decisions warrant a high degree of procedural fairness: Baker, above, at para 23. The fact that there is no internal appeal in the statutory scheme also militates in this direction: Baker at para 24.
[35] The decision itself did not affect the applicant's liberty or security interests and is, therefore, of moderate importance. However, it has affected his reputation in the community and has also deprived the members of the First Nation of their elected representative. The applicant submits that his expectations were that the hearing would be procedurally fair and that the Committee would maintain a record of the proceedings and provide written reasons of its decision.
25 I agree. To the analysis of the Federal Court I would only add with respect to the importance of the decision to the appellants that the position of Band Councillor is generally a remunerated position. The First Nations Financial Transparency Act, S.C. 2013, c. 7 requires that First Nations disclose and publish on the internet the remuneration and expenses paid to members of Band Councils. This disclosure is also to be published on the website of Indigenous and Northern Affairs Canada. Members of the Adams Lake Indian Band Council receive remuneration of approximately $4,000 per month. This heightens the importance of the decision to the appellants. Their tenure as a paid office holder is at stake.
26 This was a case that involved conflicting evidence and issues of credibility. To briefly illustrate, on October 7, 2016 the then Chief informed the Community Panel that:
• He was not aware of Ronnie Jules being in a conflict of interest with his immediate family members.
• Ronnie Jules excused himself from the discussion concerning Roddy Jules' roof.
• The Chief did not believe Ronnie Jules acted in a position of conflict with respect to David Jules.
• Gina Johnny excused herself from Council when Council discussed having a family member receive funding to attend a conference or a workshop.
27 A current member of the Band Council advised the Community Panel on October 7, 2016 that "for sure" Ronnie Jules declared a conflict of interest with respect to the security staff issue.
28 On the facts of this case, it is not necessary to precisely enumerate the participatory rights enjoyed by the Band Councillors. However, where, as in this case, there is contradictory evidence and issues of credibility, Councillors facing removal are entitled to a full oral hearing before the Community Panel with a right to cross-examine witnesses.
5 29 In this case, the relevance of the content of the duty of fairness arises with respect to the Federal Court's application of the principle "he who decides must hear" and its approach to the test for bias.
30 The maxim "he who decides must hear" expresses the general principle that where an administrative tribunal is responsible for hearing and deciding a case, only those members of the Tribunal who hear the case may take part in the decision.
31 Justice Binnie, in dissent but not on this point, has stated that "[n]othing is more fundamental to administrative law than the principle that he who hears must decide" (I.B.E.W., Local 894 v. Ellis-Don Ltd., 2001 SCC 4, [2001] 1 S.C.R. 221 (S.C.C.), paragraph 66). Where the rule applies it requires that all members of the Tribunal who take part in a decision must hear both the evidence and the representations of the parties. The rule does not apply where legislation expressly or by necessary implication ousts its application (I.W.A., Local 2-69 v. Consolidated Bathurst Packaging Ltd., [1990] 1 S.C.R. 282 (S.C.C.), at pages 329-330).
32 In the present case, nothing allows members of the Community Panel to absent themselves from seeing and hearing the witnesses. The fact that a quorum of the Community Panel is three of five members simply means that if all five members of the Community Panel are not eligible or available to participate in an inquiry, a majority of the members may nonetheless embark upon the inquiry. The quorum provision does not authorize members to come and go and participate in a decision when they have not heard all of the evidence or the submissions of the parties.
33 It is particularly important when witnesses give conflicting accounts that all of the members of the Community Panel conducting the inquiry see and hear all of the witnesses. It is not sufficient for other members of the Community Panel to pass on their recollection of the evidence and their impression of the witness. Nor is it sufficient for an absent member to read a brief written summary in the minutes of what the witness said.
34 The principle that "he who decides must hear" was breached in the present case in two types of circumstances.
35 First, two members of the Community Panel were absent for a number of hearings. Member Lund was not present on October 3, 2016, to hear the questioning of the complainant. She also missed the testimony of three witnesses given on October 11, 2016. Member Nordquist missed an in camera session on October 5, 2016, which session was not minuted and missed the testimony of one witness heard on October 21, 2016.
36 Second, two members of the Community Panel recused themselves from hearing certain evidence. Member Kenoras absented herself on the two occasions her mother, Norma Manuel, was interviewed by the Community Panel. She also absented herself for a portion of the interview of two witnesses on October 15, 2016, when the witnesses were questioned about events involving her mother. She was also asked to leave a portion of the October 14, 2016, meeting while the Community Panel reviewed the interview of her mother.
37 Member Yarama, the Manager of Maintenance and Housing for the Band, was directly responsible for the Band's security staff and independent contractors. She therefore declared a conflict of interest with respect to allegations made against the appellants regarding their conduct with respect to the Band's security contracts. On my review of the record, Member Yarama only removed herself from a portion of the October 13, 2016, meeting.
38 The Federal Court did not refer to the absence from the hearing of Members Lund and Nordquist and viewed the absences of Members Kenoras and Yarama to be appropriate in view of their conflicts (reasons, paragraphs 46, 48).
6 39 I respectfully disagree. The Community Panel interviewed a total of 12 witnesses, yet only one member heard the totality of the information adduced. The Community Panel received contradictory information on central issues. In this circumstance, procedural fairness required all of the members of the Community Panel who participated in the decision to remove each councillor to hear all of the information adduced from all of the witnesses. The members' failure to do so rendered their decision procedurally unfair.
40 While this finding is dispositive of the appeal, I wish to deal with the Federal Court's treatment of the issue of bias and more particularly with its conclusion at paragraph 50 that:
In sum, having regard to all the circumstances of this case, including the context in which the Panel operates, and being mindful of this Court's more lenient approach to bias's [sic] issues raised in the context of decisions made by decisions-makers holding their authority from customary band election codes and of its general reluctance to interfere with such decisions in order to preserve, as much as feasibly possible, First Nations' autonomy in this respect, I find that the Applicants have failed to establish that the process that led to the impugned decision raises a reasonable apprehension of bias.
41 The Election Rules do not preclude Band employees from holding office as a member of the Community Panel. Only members of the Band Council or candidates in an election are precluded from election as a member of the Community Panel. Thus, I do not disagree with the Federal Court's conclusion that the mere fact that a member of the Community Panel is employed by the Band does not give rise to a reasonable apprehension of bias. What is required is an actual conflict of interest in a given case (reasons, paragraph 41). This is consistent with the reasoning in Sparvier v. Cowessess Indian Band No. 73, [1993] 3 F.C. 142, [1994] 1 C.N.L.R. 182 (Fed. T.D.) where Justice Rothstein wrote, at pages 167-168:
... it does not appear to me to be realistic to expect members of the Appeal Tribunal, if they are residents of the reservation, to be completely without social, family or business contacts with a candidate in an election. ...
If a rigorous test for reasonable apprehension of bias were applied, the membership of decision-making bodies such as the Appeal Tribunal, in bands of small populations, would constantly be challenged on grounds of bias stemming from a connection that a member of the decision-making body had with one or another of the potential candidates. Such a rigorous application of principles relating to the apprehension of bias could potentially lead to situations where the election process would be frustrated under the weight of these assertions. Such procedural frustration could, as stated by counsel for the respondents, be a danger to the process of autonomous elections of band governments.
42 It follows that if a member of the Community Panel is in a position of conflict of interest with respect to a particular issue, the member must not participate in any way in the process that leads to a decision on that issue. In some circumstances, where allegations are made with respect to a number of issues and where the nature of the conflict would cause a reasonable and informed person to perceive that the member would, consciously or unconsciously, be unable to decide other issues fairly, the member must not participate at all in deciding any issue.
43 This said, the Community Panel must be free from a reasonable apprehension of bias. A tribunal such as the Community Panel which is primarily adjudicative in its functions, must meet the test for bias articulated in Committee for Justice & Liberty v. Canada (National Energy Board) (1976), [1978] 1 S.C.R. 369 (S.C.C.), at page 394:
...[T]he apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information.... [That] test is "what would an informed person, viewing the matter realistically and practically — and having thought
7 the matter through — conclude. Would he think that it is more likely than not that Mr. Crowe, whether consciously or unconsciously, would not decide fairly."
44 In the present case, the decisions to remove the appellants were made at the October 22, 2016, meeting of the Community Panel.
45 The minutes of this meeting reveal that with respect to Ronnie Jules, Member Yarama did not leave the meeting at all. Member Kenoras withdrew from the meeting for ten minutes while the Community Panel discussed the evidence of her mother, Norma Manuel. Member Kenoras then returned to the meeting and seconded the motion to remove Mr. Jules from office. The motion which was carried found that Mr. Jules had violated his oath of office by, among other things, participating in discussions and signing the Band Council Resolution which transferred all security staff to the Band Staff and that he participated in "lateral violence" toward Member Kenoras' mother.
46 A reasonable apprehension of bias arises from Member Yarama's participation in a decision about Ronnie Jules' conduct with respect to the Band's security contract when she had previously declared this to be an issue in which she was in a position of conflict.
47 Similarly, a reasonable apprehension of bias arises from Member Kenoras' participation in a decision that found misconduct based on Ronnie Jules' treatment of her mother. Absenting herself from her mother's interview and from interviews which discussed her mother was wholly insufficient to cure the perception of bias.
48 With respect to Georgina Johnny, Member Yarama did not leave the October 22, 2016, meeting, yet she voted on a motion that removed Ms. Johnny from office for, among other things, participating in discussions and signing the Council Resolution which transferred all security staff to the Band Staff. Again, a reasonable apprehension of bias arises from Member Yarama's participation.
49 With respect to Brandy Jules, again a reasonable apprehension of bias arises from Member Kenoras' participation in a decision that found misconduct based in part on Brandy Jules' treatment of Member Kenoras' mother.
50 The presence of a reasonable apprehension of bias on the part of two members of the Community Panel provides an independent ground for setting aside the decisions removing the appellants from office as members of the Band Council.
51 As this matter may be returned to the Community Panel, it is important that I also address the issue of the adequacy of its reasons, an issue not addressed by the Federal Court.
52 As explained above, the reasons of the Community Panel consist of the minutes of the October 22, 2016 meeting together with the three letters which set out the nature of the violation of the oath of office considered by the Community Panel for each appellant. Missing from these reasons is any reference to the conflict in the information provided to the Community Panel. Instead, a generic description is given in respect of each violation that describes the nature of the material the Community Panel considered in its investigation. An example is the following statement which described the Panel's investigation into the allegation that Ronnie Jules participated in discussions that had a direct effect on his immediate family without declaring a conflict of interest: "The Community Panel has completed their investigation which consisted of evidence provided by the petitioner, witness interviews, and Chief and Council meeting minutes".
53 The purpose of reasons is to allow a reviewing court to understand why an administrative decision-maker made its decision and to assess whether the decision falls within the range of acceptable
8 outcomes (N.L.N.U. v. Newfoundland & Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708 (S.C.C.), paragraph 16). In the present case, nothing in the record allows this Court to determine why the Community Panel preferred the inculpatory information and ignored the exculpatory information received with respect to the allegations levied against the appellants. In this circumstance, this Court cannot conduct reasonableness review.
54 It follows that I would allow the appeal and set aside the judgment of the Federal Court, with costs here and in the Federal Court. Pronouncing the judgment that should have been pronounced by the Federal Court, I would set aside the decision of the Community Panel in its entirety, including the prohibition placed on the appellants' running for office in the elections to be held in 2018 and 2021.
55 If the petition to remove the appellants is to be pursued, the petition should be returned to the Community Panel for redetermination in accordance with the Court's reasons. For clarity, if allegations related to the appellants' dealings with Norma Manuel are to be pursued, Member Kenoras is to take no part in the decision-making process. Similarly, if allegations related to the transition of the existing security staff to the staff of the Adams Lake Indian Band are to be pursued, Member Yarama is to take no part in the decision-making process.
56 In accordance with the request made by counsel for the Band, if the parties are unable to agree on the quantification of costs in this Court within 14 days of these reasons, they may serve and file written submissions on the issue of costs, each submission not to exceed three pages in length. The appellants shall serve and file their submission within 21 days of these reasons. The respondent shall serve and file its submission within 28 days of these reasons.
Wyman W. Webb J.A.:
I agree.
Donald J. Rennie J.A.:
I agree. Appeal allowed.
9 1990 CarswellOnt 821 Supreme Court of Canada
I.W.A., Local 2-69 v. Consolidated Bathurst Packaging Ltd.
1990 CarswellOnt 2515, 1990 CarswellOnt 821, [1990] 1 S.C.R. 282, [1990] O.L.R.B. Rep. 369, [1990] S.C.J. No. 20, 105 N.R. 161, 38 O.A.C. 321, 42 Admin. L.R. 1, 68 D.L.R. (4th) 524, 73 O.R. (2d) 676 (note), 90 C.L.L.C. 14,007, J.E. 90-472, EYB 1990-67694
CONSOLIDATED-BATHURST PACKAGING LTD. v. INTERNATIONAL WOODWORKERS OF AMERICA, LOCAL 2-69 et al.
Lamer, Wilson, La Forest, L'Heureux-Dubé, Sopinka, Gonthier and McLachlin JJ.
Heard: April 26, 1989 Judgment: March 15, 1990 Docket: Doc. No./n[o] 20114
Counsel: William R. Herridge, Q.C., for appellant. Paul J.J. Cavulluzzo and David I. Bloom, for respondent International Woodworkers of America, Local 2-69. Gordon F. Henderson, Q.C., and R. Ross Wells, for respondent Ontario Labour Relations Board.
Annotation
The Divisional Court decision in the Consolidated-Bathurst case sent shock waves through Canadian administrative tribunals. While the decision of the Ontario Court of Appeal, reversing the Divisional Court, reassured them, 1 when leave to appeal to the Supreme Court of Canada was granted, 2 everyone was again on tenterhooks, awaiting the decision. Undoubtedly, the decision of the Supreme Court of Canada 3 will allow tribunals to breathe a collective sigh of relief, but that will not necessarily be the response of many litigation lawyers who will be concerned that the decision might inadvertently have the effect of permitting tribunals to violate with impunity the principle of "he who hears shall decide". Indeed, the differences between the majority and the dissent in the Supreme Court of Canada may well come down to the degree of faith each has in administrative tribunals not to abuse the confidence shown in them by the Ontario Court of Appeal. The majority emphasized the positive values to be achieved by permitting discussion between members of the panel of a tribunal which heard a case and the other members who did not, provided that the ultimate decision was in fact made by the hearing panel. The dissent felt that the safeguards of the majority's reasons were, in practice, unenforceable and that, therefore, the only practical means of ensuring that those who hear do in fact decide is to prohibit such discussions altogether.
As David Mullan and I suggested in our annotation accompanying the Divisional Court decision, 4 the maxim is not an end in itself, but serves as a means to fulfill several policies, which may vary in importance depending upon the circumstances. Generically, two sets of values need to be balanced. First, there are the tribunals' values, 5 which include:
(a) collective consideration of a major policy issue prior to the decision in a particular case;
(b) uniformity and consistency in decisions;
(c) better-drafted and researched reasons.
1 Against this there are the judicial values, which include:
(a) the need for full disclosure to the parties (the audi alteram partem rule);
(b) the rule that participation by non-hearers gives rise to a reasonable apprehension of bias ("he who hears shall decide");
(c) judicial reluctance to inquire into the internal processes of decision-making by tribunals.
As Crane has noted, 6 these values cannot completely be reconciled. Which values will prevail will tend to depend on whether the court feels the obligation, on the facts of the case, to impose judicial values or permit the tribunals' values to predominate. Moreover, as Professor Janisch astutely predicted, 7 the decision turned on the characterization of the role of the full Board procedure. Since the Court was persuaded that what was involved was a discussion of existing known policy and whether and how it should be applied in the particular case (matters argued by the parties at the hearing), the Court upheld the procedure. However, had the Court been persuaded that these discussions had involved new arguments and issues not raised by or known to the parties and had had a specific impact on the particular decision, the failure to reopen the hearing to deal with these matters would have meant a failure of procedural fairness.
On the record before the Court, it was difficult to conclude that any harm had been done. Hence, the result is understandable. This result, however, may be contrasted with a somewhat analogous case decided by the Court of Appeal of Quebec. 8 The Tremblay case differs significantly in that the meeting of the members included a recorded vote at which the view of the hearing panel was outvoted. One of the two members of the hearing panel then changed her mind. In Consolidated-Bathurst there was no vote taken, and the dissenting member of the panel did not change his mind.
When one considers that no new evidence was presented or offered to the ultimate decision-makers by any of the members of the Board present at the group meeting, that no new issues were raised, and no undue pressure was placed on the hearing panel to conform to anyone else's opinions, it is difficult to see how any harm was done in the instant case. In the circumstances, a judgment which rejected the procedure employed by the O.L.R.B., merely because in other cases it might lead to undue pressure on the panel or the introduction of new evidence which was not disclosed to the parties, could be criticized as not based on the facts. Nevertheless, tribunals should not read this judgment as providing carte blanche to dispense with the principle of "those who hear shall decide" and to begin engaging in what amounts to collective decision- making in cases heard by only a small number of members.
The judgment of the majority in the Supreme Court of Canada was careful to cite from the reasons of the Court of Appeal that no new evidence had been presented and no new issues raised. If even a small amount of new evidence had been blurted out by one of those present at the meeting, or a substantial new issue not dealt with at the hearing had been raised, there is no doubt that there would immediately have arisen an obligation to present this to the parties to allow them an opportunity to make submissions. Accordingly, if a tribunal's members are insufficiently sensitive as to what constitutes new evidence, or unable to distinguish between a new issue and what is merely another way of characterizing an existing issue, it may be better to avoid such meetings unless and until clear guidelines can be developed and members are trained to understand them. 9 Some members of boards have scientific, economic or other training which qualifies them as experts in the field. Frequently, their expressions of opinions will be such a mixture of expert opinion and inferences derived from them that the drawing of any line between "evidence" and "policy" would be artificial. Similarly, the boundaries between existing issues and new issues are not always
2 easy to define. Again, the tribunal should give borderline cases a wide margin of safety: When in doubt, disclose.
There are real risks of abuse. It may, in practice, be difficult to distinguish whether the decision was in substance made by the panel or whether the members merely signed a collective decision. The signatures of the members of the panel on the decision will not necessarily be conclusive as to who decided. 10 If the members were influenced to change their minds from their original draft as a result of discussions with their colleagues who did not hear the evidence, it will not be easy to determine whether the hearing panel actually decided or whether in essence the decision was that of the larger group, or, worse still, if no draft was circulated, whether the hearing panel decided as it did under pressure from the larger group.
In this context, the majority's analogy to judges wandering down the hall to discuss a case with their colleagues is inappropriate. That is because judges are given lifetime tenure (until retirement) and are not subject to any discipline by the Chief Justice. By way of contrast, most tribunal members are appointed only for so long as the government of the day wishes to keep them in those positions or, in some cases, for fixed terms, typically 5 to 7 years. These tribunal members, often in their late forties or fifties when appointed, are vulnerable if not reappointed. Under the public service rules used both federally and provincially, tribunal chairs are expected to rate the members of their tribunals periodically (usually annually) on the basis of their performance. Also significant is the fact that the tribunal chairs are usually held accountable for the results of the tribunal by the Minister. Thus, if a tribunal severely upsets the regulated industry or the public, the chair may be replaced. If the chair is to be accountable in this fashion, understandably he or she will want to have control over the members. The highly valued consistency of decision-making, then, may come to mean consistency with the types of decisions the Minister and the chair regard as acceptable. A collegial decision-making process may provide a way of imposing this hierarchical homogeneity.
Another potential abuse arises through the practice some tribunals have of permitting ex parte meetings between tribunal members (often the chair) and parties which frequently appear before the tribunal. Recently, the chairman of the National Energy Board withdrew himself from a panel to hear an application by a pipeline company on the ground that he had met privately with certain officials of that company to discuss matters of procedure. 11 Although evidence of ex parte discussions of substance is extraordinarily rare, 12 this does go on.
The judgment in Consolidated-Bathurst should not be taken as licence to lobby members of the tribunal who it is known will not be sitting on the hearing panel, in order to have them, at full meetings, apply pressure on the members who have heard the case to decide in accordance with the policy proposed by the lobbyist. If anything, as a result of Consolidated-Bathurst, tribunal members may have to be even more careful, if they are asked to participate in collegial discussions, to avoid any such ex parte meetings.
In many cases, the need for collegial discussions can be avoided entirely by means of the well-established procedure of holding generic hearings. Such hearings to determine what the board's policy should be (or whether it should continue to be what it has been) are a common part of administrative law in the United States, where it is referred to as "rule-making." A somewhat similar participatory process has been endorsed by the Supreme Court of Canada in a case involving the CRTC. 13 The very concern with uniform policy in decision-making suggests that it is better to articulate policy in the first place than to seek to impose it after a particular hearing, when fair procedure issues are bound to arise. 14 Thus, collegial discussions are a second-best procedure, which should be reserved for those situations in which there is simply no time for a generic hearing. In this regard, it should be recalled that generic hearings are regularly conducted in the United States (and can be in Canada as well) without full cross-examination and the other trappings of an adversarial hearing; written submissions will usually suffice.
3 In the course of his judgment, Gonthier J. refers to the possibility that under the Act [Labour Relations Act, R.S.O. 1980, c. 228], a full Board could have in fact convened formally to hear this particular matter in that s. 102 provided for hearings by an enlarged panel. However, he also accepted the argument of Chairman Adams in the reconsideration decision that there were major logistical problems with the use of such enlarged panels whenever major policy issues arose in individual matters. In particular, workload constraints imposed by the number of matters dealt with by the Board made the setting-up and scheduling of such a hearing a very difficult task. It is, however, to be hoped that the Court's sympathy for the Board's scheduling dilemmas will not be seen as an active encouragement to this Board and others not to even think about the use of enlarged panels or generic hearings. It is also to be hoped that this is not seen as determinative of an issue that was not argued in this case, namely, whether a tribunal can ever be under an implied obligation to actually convene a generic hearing in relation to a significant policy issue. Logistical considerations notwithstanding, there are some situations in which a generic hearing may be the only appropriate and fair way of resolving a particular issue of policy, and it is at least arguable that under a mature and flexible common law procedural fairness standard, the courts should stand ready to mandate such a process should a tribunal inappropriately reject the possibility.
There is also another matter for which the decision of the majority can be criticized: namely, the lack of precision in explaining where to draw the line in future cases. The judgment may have dealt directly with a one-time situation before the Labour Relations Board, but it will have ramifications for all tribunals. The Court placed great emphasis on the fact that there was no new evidence presented or new issues raised at the meeting. The dissent correctly pointed out that it is very difficult to obtain such evidence. In future, lawyers who have any reason to believe that a collegial decision-making process was employed may well seek to obtain discovery of the tribunal or to cross-examine the various members who participated in such meetings to find out what was said, in order to determine whether any new evidence was presented or new issues were raised. Predictably, tribunal members will resist providing this disclosure, and litigation will ensue. The courts will then have to decide when such disclosure will be required and when it will not. If the courts do not provide a satisfactory answer, the Legislature may have to intervene.
It is difficult to accept the majority's enthusiasm for the fact that the Board kept no minutes. In this date of access to information legislation, it has become common for government officials to avoid keeping minutes of meetings in order to preserve the confidentiality of their deliberations. However, it is incredible to suggest that not one person present took a single note. Normally, at least one person will prepare a "memorandum" or some other form of writing for either his or her own use or for circulation. The quibble that these are not "minutes" will often prevent their disclosure simply because counsel will not think of asking for something other than minutes. Nevertheless, based on cases such as Padfield, 15 an adverse inference may be drawn from the fact that no minutes were kept. A prudent tribunal is well advised to keep careful minutes of what occurred at the meeting and who said what, failing which it will be much more difficult to resist a motion for disclosure of notes taken by individual members or for cross-examination of the chair and others in attendance. Similarly, a record of who attended the meeting should be made, as well as the result of any vote taken or consensus reached. The fact that these steps were not taken in the O.L.R.B. process should, in my view, give rise to negative rather than positive inferences. If the discussion is truly kept to one of policy rather than evidence, there can be no harm in recording significant points made by various individuals as to what the policy should be. If tribunals do not do this, judges are likely to impose formalized minute requirements to help resolve the problem of detecting abuse. In the context of other tribunals, proceedings, such as law society disciplinary hearings, 16 the courts have not hesitated to require affidavits from the tribunals members and to allow cross-examination thereon. If the decision of the tribunal is quashed and the parties have to re-appear before the tribunal, it will be difficult for the tribunal to maintain the appearance of justice if it reaches the same decision in the second hearing as it did in the first.
4 In conclusion, any tribunal seriously contemplating a procedure similar to that used by the O.L.R.B. would be well advised to develop it with care and sensitivity to the risk of abuse. Wherever possible, rule-making or generic hearings should be the preferred solution; collegial discussions should take place only where the better solution is impractical. As well, tribunals must recognize that this system is an honour system. Accordingly, if the discussion at the meeting has inadvertently strayed into areas of evidence or new issues, the ethical course of conduct would be to advise the parties and seek their comments rather than tacitly agree to ignore that it happened. The chairs and vice-chairs of tribunals must be particularly sensitive not to impose (or even appear to impose) their views on any member of the tribunal, or to structure the meeting in such a way that a consensus hostile to the views of the members of the hearing panel is permitted to develop because it may be seen as pressure on them to conform. These concerns become all the more important if members of the tribunal who did not sit on the panel have at any time in the past participated in ex parte discussions with any of the direct parties, or even with non-parties with a significant direct or indirect interest in the outcome. If, in the years ahead, the fears of abuse expressed by the minority in Consolidated-Bathurst turn out to have been justified, tribunals can look forward to strict judicialization of their proceedings along the lines proposed by the dissenting Judges.
Andrew Roman 17
Gonthier J. (Wilson, La Forest, L'Heureux-Dubé and McLachlin JJ. concurring):
1 I have had the opportunity to read the reasons of my colleague, Sopinka J., and I must respectfully disagree with his conclusions in this case. While I do not generally disagree with the summary of the facts, decisions and issues, I consider it useful to refer to them in somewhat more detail.
2 The appeal is from a decision of the Court of Appeal of Ontario [reported (1986), 56 O.R. (2d) 513, 21 Admin. L.R. 180, 86 C.L.L.C. 14,048, 15 O.A.C. 398, 31 D.L.R. (4th) 444] dismissing an application for judicial review of two decisions of the Ontario Labour Relations Board ("Board"). In the first decision, [reported [1983] O.L.R.B. Rep. 1411, 4 C.L.R.B.R. (N.S.) 178, 83 C.L.L.C. 16,066], a tripartite panel composed of G.W. Adams, Q.C., chairman of the Board, W.H. Wightman and B. F. Lee representing the management and labour sides respectively, decided, Mr. Wightman dissenting, that the appellant had failed to bargain in good faith with the respondent union because it did not disclose during the negotiations its impending decision to close the plant covered by the collective agreement. Counsel for the appellant then learned that a full Board meeting had been called to discuss the policy implications of its decision when it was still in the draft stage. The parties were neither notified of nor invited to par ticipate in this meeting. The appellant applied for a reconsideration of this decision under s. 106 of the Labour Relations Act, R.S.O. 1980, c. 228, on the ground that the full Board meeting had vitiated the Board's decision and on the ground that the evidence adduced at the first hearing had been improperly considered. The same panel rejected both these arguments in the second decision ("the reconsideration decision") [reported [1983] O.L.R.B. Rep. 1985, 5 C.L.R.B.R. (N.S.) 79, 84 C.L.L.C. 16,009].
3 The Board's decisions were challenged in the Divisional Court [reported (1985), 51 O.R. (2d) 481, 16 Admin. L.R. 37, 85 C.L.L.C. 14,031, 10 O.A.C. 34, 20 D.L.R. (4th) 84] on the basis: 1) that the original decision was manifestly unreasonable in fact and in law, and 2) that the full Board meeting called by the Board prior to the panel's decision constituted a violation of the rules of natural justice. The Divisional Court rejected the first ground, and the appellant did not raise this argument in the Court of Appeal nor in this Court. Thus, the only issue before this Court is whether the impugned meeting vitiated the first decision rendered by the Board on the ground that the case was there discussed with panel members by persons who did not hear the evidence nor the arguments.
5 4 In order to determine whether the principles of natural justice have been breached in this case, it is necessary to examine in some detail the facts which led to the initial complaint made by the respondent union. It will also be necessary to examine the evidence as to the purpose and the context of the full board meeting so as to understand the policy matters in issue at that meeting.
I — The Facts:
(a) Plant Closure and Collective Agreement Negotiations
5 The appellant operated a corrugated container plant in Hamilton ("the Hamilton plant") and decided to close it on April 26, 1983. This decision was approved by the board of directors on February 25, 1983, and announced on March 1, 1983. The respondent union was the bargaining agent for the employees of the Hamilton plant and negotiated a new collective agreement with the appellant from November 2, 1982, to January 13, 1983, the date at which a memorandum of settlement was concluded. The collective agreement was signed on April 22, 1983. It is obvious from the evidence heard by the Board that the decision to close the Hamilton plant and the labour negotiations concerning this plant took parallel courses. It is also obvious that the respondent union was never in formed of the possibility of an impending plant closure. Although its demands did initially include a modification of art. 18.26 of the existing collective agreement concerning plant closure and severance pay, the respondent union unilaterally dropped this demand during the negotiations, and art. 18.26 was simply renewed. At no other point during the negotiations did the subject of plant closure arise.
6 According to the testimonies of the representatives of the appellant, the Hamilton plant was so unprofitable that it would have been closed in 1982 if an industry-wide strike had not taken place from June to December of that year. The Hamilton plant remained open during that period, and the appellant hoped that some goodwill would be generated through the new contracts entered into as a result of the industry-wide strike. As early as 1981, following the negotiation of the 1980 to 1982 collective agreement, the appellant and the respondent union met to discuss concerns over the possibility of a plant closure given the severe losses anticipated for that year. The appellant had decided to turn the plant around and sought the respondent union's collaboration, adding that there were no plans to close the Hamilton plant at that time. In October 1981, the employees of the bargaining unit did commit themselves to the improvement of productivity at the plant. After registering a loss of $1.3 million for the year 1981, the appellant continued to invest in the Hamilton plant but warned that it would not continue to "throw 'good money after bad' " and that the plant would have to become profitable in the short term. In May 1982, immediately before the industry-wide strike, 25 employees had to be laid off, and the plant was operating only two shifts a day on a 4-day work week.
7 In this context, the industry-wide strike was a godsend for the Hamilton plant. New clients had to award contracts to the Hamilton plant for the duration of this strike, and the plant was operating at capacity, three shifts a day 7 days a week. Unfortunately, the anticipated goodwill from new customers did not materialize, and Mr. Ted Haiplik, vice-president and general manager of the Container Division, reported to his superiors that in his opinion, the Hamilton plant should be closed. Mr. Souccar, to whom Mr. Haiplik reports, testified that this recommendation was made to him in the "first or second week of February during one of their regular meetings." The matter was brought to the attention of the board of directors during their meeting of February 25, 1983, and they decided that the plant would close on April 26, 1983. Mr. Souccar insisted that it took 4 to 5 weeks following the end of the industry-wide strike to determine the amount of market share retained by the appellant and assess its viability under normal circumstances. Thus, according to Mr. Souccar, no decision concerning the closure of the Hamilton plant could be made before February 1983.
6 8 Throughout this period, no mention was made of the possibility of plant closure during the negotiations, except to point out that customers were monitoring these negotiations closely to see whether there was any possibility of a strike after the deadline set for January 8, 1983, by the respondent union. Moreover, Mr. Gruber, labour negotiator for the appellant, testified that he was not aware of any plans to close the plant during the negotiations. It is in this context that the Board was asked to determine whether the appellant had breached its obligation to bargain in good faith and, more particularly, whether it had the obligation to disclose its plans to close the Hamilton plant.
9 The obligation to disclose, without being asked, information relevant to any particular labour negotiation was held by the Board to be part and parcel of the obligation to bargain in good faith in United Electrical, Radio & Machine Workers of America, Local 504 v. Westinghouse Canada Ltd., [1980] O.L.R.B. Rep. 577, [1980] 2 Can. L.R.B.R. 469, 80 C.L.L.C. 16,053, aff'd (1980), 80 C.L.L.C. 14,062 (Ont. Div. Ct.) ("Westinghouse"), where this information relates to plans "which, if implemented during the term of the collective agreement, would have a significant impact on the economic lives of bargaining unit employees" (at p. 598 [O.L.R.B. Rep.]). In order to understand the policy issues which were the subject of discussion at the full Board meeting held by the Board, it is necessary to analyse the Westinghouse decision and its implications in this case.
(b) The Westinghouse Decision and the Arguments Raised by the Parties before the Board
10 In Westinghouse, management had decided to relocate its Switchgear and Control Division from Hamilton to several other locations 2 months after the conclusion of negotiations for a collective agreement. In this decision, the Board ruled that the obligation to bargain in good faith set out in s. 14 of The Labour Relations Act, R.S.O. 1970, c. 232, now s. 15, comprised the obligation to reveal during the course of negotiations decisions which may seriously affect members of the bargaining unit. However, the Board found it difficult to define the point at which a planned decision becomes sufficiently certain to warrant disclosure during the negotiations without creating unnecessarily threatening perceptions in the bargaining process. The Board described as follows the perils of forced disclosure of plans which may be discarded in the future and held that an employer does not have the obligation to disclose plans until they have become at least de facto decisions, at pp. 598-599 [O.L.R.B. Rep.]:
41. The competitive nature of our economy and the ongoing requirement of competent management to be responsive to the forces at play in the marketplace result in ongoing management consideration of a spectrum of initiatives which may impact on the bargaining unit. More often than not, however, these considerations do not manifest themselves in hard decisions. For one reason or another, plans are often discarded in the conceptual stage or are later abandoned because of changing environmental factors. The company's initiation of an open-ended discussion of such imprecise matters at the bargaining table could have serious industrial relations consequences. The employer would be required to decide in every bargaining situation at what point in his planning process he must make an announcement to the trade union in order to comply with section 14. Because the announcement would be employer initiated and because plans are often not transformed into decisions, the possibility of the union viewing the employer's announcement as a threat (with attendant litigation) would be created. If not seen as a threat the possibility of employee overreaction to a company initiated announcement would exist. A company initiated announcement, as distinct from a company response to a union inquiry may carry with it an unjustified perception of certainty. The collective bargaining process thrusts the parties into a delicate and often difficult interface. Given the requirement upon the company to respond honestly at the bargaining table to union inquiries with respect to company plans which may have a significant impact on the bargaining unit, the effect of requiring the employer to initiate discussion on matters which are not yet decided within his organization would be of marginal benefit to the trade union and could serve to distort the bargaining process and create the potential for additional litigation between
7 the parties. The section 14 duty, therefore, does not require an employer to reveal on his onw [sic] initiative plans which have not become at least de facto decisions.
[Emphasis added.] The Board then decided that management "had not made a hard decision to relocate during the course of bargaining as would have required it to reveal its decision to the trade union" (at p. 599). [Emphasis added.]
11 The facts in this case are substantially similar to those in the Westinghouse case in that a decision which would substantially affect the bargaining unit was taken by management either during or immediately after collective agreement negotiations, thereby raising the issue of whether plans to close the Hamilton plant had gone sufficiently far through management's decision-making process to justify their disclosure to union representatives during the course of the negotiations. Before the Board, the appellant and the respondent union both argued, inter alia, that the test established in the Westinghouse decision ought to be modified. In his reasons, Chairman Adams stated the respondent union's position as follows, at p. 1428 [[1983] O.L.R.B. Rep.]:
26. The complainant's second major alternative argument requested this Board to reconsider its holding in Westinghouse that an employer does not have to reveal on his own initiative plans which have not become at least de facto decisions. The complainant asserted that the test ought to be disclosure where an employer is 'seriously considering an action which if carried out will have a serious impact on employees'.
Chairman Adams later summarized the appellant's arguments as follows, at p. 1429:
29. On behalf of the respondent company it was submitted that the extent of its bargaining duty was to disclose any decisions the company had made about the closing of the plant during the course of negotiations. Counsel submitted that on the evidence before the board one could only conclude that a definitive decision had not been made and that the respondent was not obligated to engage in speculation about a possible plant closing during bargaining.
Thus, although other legal and factual arguments were put forward by the parties, the main issue before the Board was whether the Westinghouse decision had to be reconsidered and the test it adopted replaced by either one of the tests proposed by the parties. This issue was a policy issue which had important implications from the point of view of labour law principles, as well as of the effectiveness of collective bargaining in Ontario. The Board's desire to discuss it in a full Board meeting was therefore understandable.
12 The Board panel decided in this case, Mr. Wightman dissenting on this issue, that the test set out in the Westinghouse case should be confirmed and that in this case, the appellant had made a de facto decision to close the Hamilton plant during the course of the negotiations. Thus, the appellant had the obligation to disclose this decision to the respondent union even if no questions were asked on this subject. The Board also found in the alternative that the decision to close the plant was so highly probable that the appellant should have informed the respondent union that if the Hamilton plant's financial situation did not improve in the short term, a recommendation to close the plant would shortly be made to the board of directors.
(c) The Full Board Meeting
13 On September 23, 1983, Mr. Michael Gordon, counsel for the appellant, became aware that a full Board meeting concerning the Hamilton plant closure was taking place at the Board's offices. Mr. Gordon was aware that full Board meetings have been part of the Board's practice for some time but had never been aware that any of the cases in which he had been involved was the subject of such a meeting. The appellant then filed an application for a reconsideration of the initial decision on the basis, inter alia, that the practice of holding full Board meetings is illegal.
8 14 In this reconsideration decision, Chairman Adams described in detail the purpose of these meetings and the way in which they are held. Not surprisingly, Chairman Adams emphasized the necessity to foster coherence and maintain a high level of quality in the decisions of the Board, at p. 2001 [[1983] O.L.R.B. Rep.]:
6. In considering this question, it is to be noted that the Act confers many areas of broad discretion on the Board in determining how the statute should be interpreted or applied to an infinite variety of factual situations. Within these areas of discretion, decision making has to turn on policy considerations. At this level of 'administrative law', law and policy are to a large degree inseparable. In effect, law and policy come to be promulgated through the form of case by case decisions rendered by panels. It is in this context that the Board is sometimes criticized for not creating enough certainty in 'Board law' to facilitate the planning of the parties regulated by the statute. This criticism, however, ignores the fact that there is a huge corpus of Board law much of which is almost as old as the legislation itself and as settled and st able as law can be. Board decision-making has recognized the need for uniformity and stability in the application of the statute and the discretions contained therein. Indeed, it is because there is so much settled law and policy that upwards to 80% of unfair labour practice charges are withdrawn, dismissed, settled or adjusted without the issuance of a decision and that a high percentage of other matters are either settled or withdrawn without the need for a hearing .... Thus, there is great incentive for the Board to articulate its policies clearly and, once articulated, to maintain and apply them. Nevertheless, there remains, even in applying an established policy, an inevitable area of discretion in applying the statute to each fact situation. Moreover, the Board reserves the right to change its policies as required and new amendments to the Act create additional requirements for ongoing policy analysis. To perform its job effectively, the Board needs all the insight it can muster to evaluate the practical consequences of its decisions, for it lacks the capacity to ascertain by research and investigation just what impact its decisions have on labour relations and the economy generally. In this context therefore, and accepting that no one panel of the Board can bind another panel by any decision rendered, what institutional procedures has the Board developed to foster greater insightfulness in the exercise of the Board's powers by particular panels? What internal mechanisms has the Board developed to establish a level of thoughtfulness in the creation of policies which will meet the labour relations community's needs and stand the test of time? What internal procedures has the Board developed to ensure the greatest possible understanding of these policies by all Board members in order to facilitate a more or less uniform application of such policies? The meeting impugned by the respondent must be seen as only part of the internal administrative arrangements of the Board which have evolved to achieve a maximum regulatory effectiveness in a labour relations setting.
[Emphasis added.]
15 It will be noted that Chairman Adams does not claim that the purpose of full Board meetings is to achieve absolute uniformity in decisions made by different panels in factually similar situations. Chairman Adams accepts that "no one panel of the Board can bind another panel by any decision rendered" (at p. 2001 [O.L.R.B. Rep.]). The methods used at those meetings to discuss policy issues reflect the need to maintain an atmosphere wherein each at tending Board member retains the freedom to make up his mind on any given issue and to preserve the panel members' ultimate responsibility for the outcome of the final decision. Thus, Chairman Adams states that discussions at full Board meetings are limited to policy issues, that the facts of each case must be taken as presented and that no votes are taken nor any attendance recorded, at p. 2002 [O.L.R.B. Rep.]:
8. After deliberating over a draft decision, any panel of the Board contemplating a major policy issue may, through the Chairman, cause a meeting of all Board members and vice-chairmen to be held to acquaint them with this issue and the decision the panel is inclined to make. These 'Full Board' meetings
9 have been institutionalized to facilitate a maximum understanding and appreciation throughout the Board of policy developments and to evaluate fully the practical consequences of proposed policy initiatives on labour relations and the economy in the Province. But this institutional purpose is subject to the clear understanding that it is for the panel hearing the case to make the ultimate decision and that discussion at a 'Full Board' meeting is limited to the policy implications of a draft decision. The draft decision of a panel is placed before those attending the meeting by the panel and is explained by the panel members. The facts set out in the draft are taken as given and do not become the subject of discussion. No vote is taken at these meetings nor is any other procedure employed to identify a consensus. The meetings invariably conclude with the Chairman thanking the members of the panel for outlining their problem to the entire Board and indicating that all Board members look forward to that panel's final decision whatever it might be. No minutes are kept of such meetings nor is actual attendance recorded.
[Emphasis added.] At p. 2004 of his reasons, Chairman Adams confirmed that the impugned meeting was held in accordance with the above-mentioned rules.
16 Finally, Chairman Adams rejected the idea that full Board meetings could have an overbearing effect on the panel members' capacity to decide the issues at hand in accordance with their opinion, at p. 2003 [O.L.R.B. Rep.]:
10. The respondent's submission is really attempting to probe the mental processes of the panel which rendered the decision in question and in so doing ignores the inherent na ture of judicial decision- making and administrative law making .... In general, the deliberations of this panel were not unlike those engaged in by a judge sitting in court. The 'Full Board' meeting, to the extent there is no judicial analogy, distinguishes an administrative agency from somewhat more individual common law judging. But, as an extra-record event, 'Full Board'nn meetings are in substance no different than the post- hearing consultation of a judge with his law clerks or the informal discussions that inevitably occur between brother judges. Such meetings, we also suggest, have no greater or lesser effect than a judge's post-hearing reading of reports and periodicals which may not have been cited or relied on by the advocates.
It follows that the full Board meetings held by the Board are designed to promote discussion on important policy issues and to provide an opportunity for members to share their personal experiences in the regulation of labour relations. There is no evidence that the particular meeting impugned in this case was used to impose any given opinion upon the members of the panel, or that the spirit of discussion and exchange sought through those meetings was not present during those deliberations. Moreover, three sets of reasons were issued by the members of the panel, one member dissenting in part while another dissented on the principal substantive issue at stake in this case. If this meeting had been held for the purpose of imposing policy directives on the members of the panel, it certainly did not meet its objective.
17 Incidentally, the record does not disclose the identity of all the persons who attended the impugned meeting. In his affidavit, Mr. Gordon, counsel for the appellant before the Board, describes the events which led him to conclude that a full Board meeting was taking place; he also lists the persons whom he saw entering or leaving the room where the meeting took place. This affidavit does disclose that Mr. Wightman was seen leaving the room in which the meeting was held, but there is no evidence that the other members of the panel did attend the meeting. However, the Board's decision on the motion for reconsideration indicates that all members of the panel attended the meeting.
II — Decisions of the Courts Below
18 Of the two decisions rendered by the Board in this case, only the reconsideration decision is relevant, since it alone deals with the issue of the legality of the practice of holding full Board meet ings on important
10 policy issues. The Board decided that the practice of holding full Board meetings on policy issues does not breach principles of natural justice because of its tripartite nature, the manner in which they are conducted and because of the institutional requirements which they serve. According to Chairman Adams, with whom Messrs. Lee and Wightman concurred, ss. 102 and 103 of the Labour Relations Act create a procedural framework based on panels composed of three members, and the high number of cases handled by the Board creates the necessity to have a large number of full-time and part-time members and, therefore, a wide variety of panels. Such institutional constraints create the necessity to provide a mechanism which would promote a maximum amount of coherence in Board decisions. In essence, the Board decided that full Board meetings are a necessary component of decision-making within the procedural framework of the Labour Relations Act and that they do not breach the principles of natural justice.
19 In the Divisional Court, Rosenberg J., with whom J. Holland J. concurred, allowed the appellant's application for judicial review on the basis that the impugned full Board meeting allowed persons who did not hear the evidence to "participate" in the decision even though they did not vote. Rosenberg J. adopted the recommendations of the McRuer Report, entitled Royal Commission Inquiry into Civil Rights, vol. 5, Report No. 3 (Toronto: Queen's Printer, 22 February 1971), which dealt specifically with the Board and recommended that the parties be notified and given an opportunity to be heard whenever important policy issues must be dealt with by the entire Board, at pp. 2205-2206:
In Report Number 1 we pointed out that no person should participate in a decision of a judicial tribunal who was not present at the hearing and heard and considered the evidence and that all persons who had heard and considered the evidence should participate in the decision.
The practice we have outlined violates that principle. To take a matter before the full Board for a discussion and obtain the views of others who have not participated in the hearing and without the parties affected having an opportunity to present their views is a violation of the principle that he who decides must hear...... Notwithstanding that the ultimate decision is made by those who were present at the hearing, where a division of the Board considers that a matter should be discussed before the full Board or a larger division, the parties should be notified and given an opportunity to be heard.
The majority stated, at pp. 491-492 [O.R.], that the practice of holding full Board meetings creates situations where members who did not hear the evidence can have an influence over the result, as well as situations where arguments are proposed by persons attending the meeting without giving the parties the opportunity to respond:
Chairman Shaw [sic] states in his reasons that the final decision was made by the three members who heard evidence and argument. He cannot be heard to state that he and his fellow members were not influenced by the discussion at the full board meeting. The format of the full board meeting made it clear that it was important to have input from other members of the board who had not heard the evidence or argument before the final decision was made. The tabling of the draft decision to all the members of the Board plus all of the support staff involved a substantial risk that opinions would be advanced by others and arguments presented. It is probable that some of the people involved in the meeting would express points of view. The full Board meeting was only called when important questions of policy were being considered. Surely, the discussion would involve policy reasons why s. 15 should be given either a broad or narrow interpretation. Members or support staff might relate matters from their own practical experience which might be tantamount to giving evidence. The parties to the dispute would have no way of knowing what was being said in these discussions and no opportunity to respond.
11 [Emphasis added.] Rosenberg J. then added at p. 492 [O.R.] that factual issues are necessarily built into policy issues since it is impossible, in his opinion, to decide factual issues without a prior determination of the legal standards applicable to them.
20 Osler J. dissented on the basis that there is no authority prohibiting decision-makers acting in a judicial capacity to engage in either formal or informal discussions with their colleagues concerning policy issues at stake in a case standing for judgment. Full Board meetings are merely a formalized method of seeking the opinion of colleagues on policy issues. In fact, this practice is desirable, given the importance of achieving a high degree of coherence in Board decisions. Osler J. also noted that the tripartite procedural framework imposed by the Labour Relations Act made it necessary to resort to full Board meetings as a means of achieving such coherence. Finally, Osler J. held that the record in this case does not indicate that either new evidence was heard during the impugned meeting or that new ideas requiring a reply from the parties were discussed during this meeting. The policy alternatives had all been proposed by the parties during argument, and Chairman Adams' decision, as well as Mr. Wightman's dissent, simply adopted one of the alternatives.
21 The Court of Appeal unanimously allowed the appeal for the reasons set out in Osler J.'s dissent. Cory J.A. (as he then was) added that the following limitations on the practice of holding full Board meetings on policy issues must be observed by the Board, at p. 517 [O.R.]:
It must be stressed, however, and indeed it was conceded by the appellants, that if new evidence was considered by the entire Board during its discussion, then both parties would have to be recalled, advised of the new evidence and given full opportunity to respond to it in whatever manner they deemed appropriate. In the absence of the introduction of fresh material, the evidence must be taken as found in the draft reasons for the purposes of the full Board discussions.
As in any judicial or quasi-judicial proceeding, the panel should not decide the matter upon a ground not raised at the hearing without giving the parties an opportunity for argument. It is also an inflexible rule that while the panel may receive advice there can be no participation by other members of the Board in the final decision.
It was therefore the view of the Court of Appeal that while some precautions are necessary in the use of any formalized consultation process, the full Board meeting procedure described by Chairman Adams does not violate any principle of natural justice.
III — Analysis
(a) Introduction
22 It is useful to begin with a summary of the arguments submitted by the parties. The appellant argues that the practice of holding full Board meetings on policy issues constitutes a breach of a rule of natural justice appropriately referred to as "he who decides must hear". According to the appellant's version of this rule, a decision-maker must not be placed in a situation where he can be "influenced" by persons who have not heard the evidence or the arguments. Thus, the appellant's position is that panel members must be totally shielded from any discussion which may cause them to change their minds even if this change of opinion is honest, because the possibility of undue pressure by other Board members is too ominous to be compatible with principles of natural justice. The appellant also claims that full Board meetings do not provide the parties with an adequate opportunity to answer arguments which may be voiced by Board members who have not heard the case.
23 It is important to note at the outset that the appellant's arguments raise issues with respect to two important and distinct rules of natural justice. It has often been said that these rules can be separated in
12 two categories, namely "that an adjudicator be disinterested and unbiased (nemo judex in causa sua) and that the parties be given adequate notice and opportunity to be heard (audi alteram partem)": S.A. De Smith, Judicial Review of Administrative Action 4th ed. by J.M. Evans (London: Stevens, 1980) at 156; see also G. Pépin & Y. Ouellette, Principes de contentieux administratif 2d ed. (Cowansville, Qué.: Yvon Blais, 1982) at 148-149. While the appellant does not claim that the panel was biased, it does claim that full Board meetings may prevent a panel member from deciding the topic of discussion freely and independently from the opinions voiced at the meeting. Independence is an essential ingredient of the capacity to act fairly and judicially, and any procedure or practice which unduly reduces this capacity must surely be contrary to the rules of natural justice.
24 The respondent union argues that the practice of holding full Board meetings on important policy issues is one which is justified for the reasons set forth by Chairman Adams in the reconsideration decision quoted previously.
25 Before embarking on an analysis of these arguments, one should keep in mind the difference between a full Board meeting and a full Board hearing: a full Board hearing is simply a normal hearing where representations are made by both parties in front of an enlarged panel comprised of all the members of the Board in the manner prescribed by s. 102 of the Labour Relations Act; on the other hand, a full Board meeting does not entail reprresentations by the parties, since they are not invited to or even notified of the meeting. The procedure recommended by the McRuer Report is somewhat different in that it entails the presence of the parties at an informal meeting where they would have the right to answer the arguments raised by members of the Board. In this case, the parties have not made any arguments on the relative virtues of these procedures and have restricted their arguments to the legality of the full Board meeting procedure in relation to the rules of natural justice.
26 I agree with the respondent union that the rules of natural justice must take into account the institutional constraints faced by an administrative tribunal. These tribunals are created to increase the efficiency of the administration of justice and are often called upon to handle heavy caseloads. It is unrealistic to expect an administrative tribunal such as the Board to abide strictly by the rules applicable to courts of law. In fact, it has long been recognized that the rules of natural justice do not have a fixed content, irrespective of the nature of the tribunal and of the institutional constraints it faces. This principle was reiterated by Dickson J. (as he then was) in Kane v. University of British Columbia Board of Governors, [1980] 1 S.C.R. 1105 at 1113, 18 B.C.L.R. 124, [1980] 3 W.W.R. 125, 110 D.L.R. (3d) 311, 31 N.R. 214:
2. As a constituent of the autonomy it enjoys, the tribunal must observe natural justice which, as Harman L.J. said, [Ridge v. Baldwin, at p. 850] is only 'fair play in action'. In any particular case, the requirements of natural justice will depend on 'the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter which is being dealt with, and so forth', per Tucker L.J. in Russell v. Duke of Norfolk, at p. 118. To abrogate the rules of natural justice, express language or necessary implication must be found in the statutory instrument.
[Emphasis added.] The main issue is whether, given the importance of the policy issue at stake in this case and the necessity of maintaining a high degree of quality and coherence in Board decisions, the rules of natural justice allow a full Board meeting to take place subject to the conditions outlined by the Court of Appeal and, if not, whether a procedure which allows the parties to be present, such as a full Board hearing, is the only acceptable alternative. The advantages of the practice of holding full Board meetings must be weighed against the disadvantages involved in holding discussions in the absence of the parties.
(b) The Consequences of the Institutional Constraints Faced by the Board
13 27 The Labour Relations Act has entrusted the Board with the responsibility of fostering harmonious labour relations through collective bargaining, as appears clearly in the preamble of the Act:
WHEREAS it is in the public interest of the Province of Ontario to further harmonious relations between employers and employees by encouraging the practice and procedure of collective bargaining between employers and trade unions as the freely designated representatives of employees.
The Board has been granted the powers thought necessary to achieve this task, not the least of which is the power to decide in a final and conclusive manner all matters which fall within its jurisdiction: s. 106(1) of the Labour Relations Act. As was stated by Chairman Adams in his reconsideration decision, the Board has also been given very broad discretionary powers, as is the case with the power to determine what constitutes "bargaining in good faith" (s. 15).
28 The immensity of the task entrusted to the Board should not be underestimated. As Chairman Adams wrote in the reconsideration decision, the Board had a caseload of 3189 cases to handle in 1982 to 1983 and employed 12 full-time chairmen and vice-chairmen, four part-time vice-chairmen, ten full-time Board members representing labour and management, as well as another 22 part-time Board members to hear and decide those cases. The Board's full-time chairman and vice-chairmen have an average caseload of 266 cases per year. Moreover, the tripartite nature of the Board makes it necessary to have an equal representation from management and labour unions on each panel, as appears clearly from s. 102 of the Labour Relations Act:
102. — (1) The Ontario Labour Relations Board is continued.
(2) The Board shall be composed of a chairman, one or more vice-chairmen and as many members equal in number representative of employers and employees respectively as the Lieutenant Governor in Council considers proper, all of whom shall be appointed by the Lieutenant Governor in Council...... (9) The chairman or a vice-chairman, one member representative of employers and one member representative of employees constitute a quorum and are sufficient for the exercise of all the jurisdiction and powers of the Board...... (11) The decision of the majority of the members of the Board present and constituting a quorum is the decision of the Board, but, if there is no majority, the decision of the chairman or vice-chairman governs.
The rules governing the quorum of any panel of the Board are especially suited for panels of three, although they do not appear to prevent the formation of a larger panel. However, even if the Labour Relations Act allows full Board hearings, such a procedure would not necessarily be practical every time an important policy issue is at stake.
29 Indeed, it is apparent from the size of the Board's caseload and from the number of persons which would sit on such an enlarged panel that holding full Board hearings is a highly impractical way of solving important policy issues. Furthermore, the difficulties involved in setting up a panel comprised of an equal number of management and labour representatives and in scheduling such a meeting are also obvious when one takes into consideration the large number of Board members who would have to be present. In fact, one wonders whether it is really possible to call a full Board hearing every time an important policy issue arises. The solution proposed in the McRuer Report, i.e., allowing the parties to be present and to answer the arguments made at the meeting, would entail similar difficulties, since their presence would necessitate some formal procedure and involve organizational difficulties as well.
14 30 The first rationale behind the need to hold full Board meetings on important policy issues is the importance of benefiting from the acquired experience of all the members, chairman and vice-chairmen of the Board. Moreover, the tripartite nature of the Board makes it even more imperative to promote exchanges of opinions between management and union representatives. As was pointed out clearly by Dickson J. (as he then was) in C.U.P.E., Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227, 25 N.B.R. (2d) 237, 51 A.P.R. 237, 26 N.R. 341, 79 C.L.L.C. 14,209, the primary purpose of the creation of administrative bodies such as the Ontario Labour Relations Board is to confer a wide jurisdiction to solve labour disputes on those who are best able, in light of their experience, to provide satisfactory solutions to these disputes, at pp. 235-236 [S.C.R.]:
Section 101 constitutes a clear statutory direction on the part of the Legislature that public sector labour matters be promptly and finally decided by the Board. Privative clauses of this type are typically found in labour relations legislation. The rationale for protection of a labour board's decisions within jurisdiction is straightforward and compelling. The labour board is a specialized tribunal which administers a comprehensive statute regulating labour relations. In the administration of that regime, a board is called upon not only to find facts and decide questions of law, but also to exercise its understanding of the body of jurisprudence that has developed around the collective bargaining system, as understood in Canada, and its labour relations sense acquired from accumulated experience in the area.
The rules of natural justice should not discourage administrative bodies from taking advantage of the accumulated experience of its members. On the contrary, the rules of natural justice should in their application reconcile the characteristics and exigencies of decision-making by specialized tribunals with the procedural rights of the parties.
31 The second rationale for the practice of holding full Board meetings is the fact that the large number of persons who participate in Board decisions creates the possibility that different panels will decide similar issues in a different manner. It is obvious that coherence in administrative decision-making must be fostered. The outcome of disputes should not depend on the identity of the persons sitting on the panel, for this result would be "[TRANSLATION] difficult to reconcile with the notion of equality before the law, which is one of the main corollaries of the rule of law, and perhaps also the most intelligible one": Y.-M. Morissette, "Le contrôle de la compétence d'attribution: thèse, antithèse et synthèse" (1986) 16 R.D.U.S. 591 at 632. Given the large number of decisions rendered in the field of labour law, the Board is justified in taking appropriate measures to ensure that conflicting results are not inadvertently reached in similar cases. The fact that the Board's decisions are protected by a privative clause (s. 108) makes it even more imperative to take measures such as full Board meetings in order to avoid such conflicting results. At the same time, the decision of one panel cannot bind another panel, and the measures taken by the Board to foster coherence in its decision-making must not compromise any panel member's capacity to decide in accordance with his conscience and opinions.
32 A full Board meeting is a forum for discussion which, in Cory J.A.'s words (as he then was) is "no more than an amplification of the research of the hearing panel carried out before they delivered their decision" [56 O.R. (2d) at 517]. Like many other judicial practices, however, full Board meetings entail some imperfections, especially with respect to the opportunity to be heard and the judicial independence of the decision-maker, as is correctly pointed out by Professors P. Blache and S. Comtois in "La décision institutionnelle" (1986) 16 R.D.U.S. 645 at 707-708:
[TRANSLATION]
15 There are advantages and disadvantages to institutionalizing the decision-making process. The main advantages with which it is credited are increasing the efficiency of the organization as well as the quality and consistency of decisions. It is felt that institutional decisions tend to promote the equal treatment of individuals in similar circumstances, increase the likelihood of better quality decisions and lead to a better allocation of resources. Against this it is feared that institutionalization creates a danger of the introduction, without the parties' knowledge, of evidence and ideas obtained extraneously and reduces the decision-maker's personal responsibility for the decision to be made.
The question before this Court is whether the disadvantages involved in this practice are sufficiently important to warrant a holding that it constitutes a breach of the rules of natural justice, or whether full Board meetings are consistent with these rules, provided that certain safeguards be observed.
(c) The Judicial Independence of Panel Members in the Context of a Full Board Meeting
33 The appellant argues that persons who did not hear the evidence or the submissions of the parties should not be in a position to "influence" those who will ultimately participate in the decision, i.e., vote for one side or the other. The appellant cites the following authorities in support of its argument: Mehr v. Law Society of Upper Canada, [1955] S.C.R. 344 at 351, [1955] 2 D.L.R. 289; R. v. Huntingdon Confirming Authority, Ex parte George & Stanford Hotels Ltd., [1929] 1 K.B. 698 at 715 and 717 (C.A.); Re Rosenfeld and College of Physicians & Surgeons (1969), [1970] 2 O.R. 438, 11 D.L.R. (3d) 148 at 161-164 (H.C.); R. v. Broker-Dealers' Assn. of Ontario, Ex parte Saman Investment Corp. (1970), [1971] 1 O.R. 355, 15 D.L.R. (3d) 385 at 394-395 (H.C.); Re Ramm (1957), 7 D.L.R. (2d) 378 at 382-383 (Ont. C.A.); Re Johnston and Halifax (1962), 46 M.P.R. 345, (sub nom. R. v. Committee on Works, Halifax) 34 D.L.R. (2d) 45 at 53-55 (N.S. S.C.); Grillas v. Minister of Manpower & Immigration (1971), [1972] S.C.R. 577 at 594; Re Rogers; Rogers v. Prince Edward Island Land Use Commission (1978), 20 Nfld. & P.E.I.R. 484 at 499, 53 A.P.R. 484 (P.E.I. S.C.); Doyle v. Restrictive Trade Practices Commission, [1985] 1 F.C. 362 at 371, 6 D.L.R. (4th) 407, 60 N.R. 218 (C.A.); Royal Commission Inquiry into Civil Rights, vol. 5, Report No. 3, c. 124 at 2004-2005. In all those decisions with the exception of Re Rogers, some of the members of the panel which rendered the impugned decision had not heard all the evidence or all the representations of the parties; their vote was cast even though some of the members of these panels did not have the benefit of assessing the credibility of the witnesses or the validity of the factual and legal arguments. I agree that, as a general rule, the members of a panel who actually participate in the decision must have heard all the evidence as well as all the arguments presented by the parties, and in this respect I adopt Pratte J.'s words in Doyle v. Restrictive Trade Practices Commission, supra, at pp. 368-369 [F.C.]:
The important issue is whether the maxim 'he who decides must hear' invoked by the applicant should be applied here.
This maxim expresses a well-known rule according to which, where a tribunal is responsible for hearing and deciding a case, only those members of the tribunal who heard the case may take part in the decision. It has sometimes been said that this rule is a corollary of the audi alteram partem rule. This is true to the extent a litigant is not truly 'heard' unless he is heard by the person who will be deciding his case .... This having been said, it must be realized that the rule 'he who decides must hear', important though it may be, is based on the legislator's supposed intentions. It therefore does not apply where this is expressly stated to be the case; nor does it apply where a review of all the provisions governing the activities of a tribunal leads to the conclusion that the legislator could not have intended them to apply. Where the rule does apply to a tribunal, finally, it requires that all members of the tribunal who take part in a decision must have heard the evidence and the representations of the parties in the manner in which the law requires that they be heard.
16 In that case, one of the issues was whether it was sufficient for the members of the panel who had not heard the evidence to read the transcripts, and this question was answered in the negative in light of the relevant statutory provisions. In this case, however, the members of the panel who participated in the impugned decision, i.e., Chairman Adams and Messrs. Wightman and Lee, heard all the evidence and all the arguments. It follows that the cases cited by the appellant cannot support its argument, nor can the presence of other Board members at the full Board meeting amount to "participation" in the final decision, even though their contribution to the discussions which took place at that meeting can be seen as a "participation" in the decision-making process in the widest sense of that expression.
34 However, the appellant claims that the following extract from the reasons of Romer J. in R. v. Huntingdon Confirming Authority, supra, constitutes the basis of a rule whereby decision-makers who have heard all the evidence and representations should not be influenced by persons who have not, at p. 717:
Further, I would merely like to point this out: that at that meeting of May 16 there were present three justices who had never heard the evidence that had been given on oath on April 25. There was a division of opinion. The resolution in favour of confirmation was carried by eight to two, and it is at least possible that that majority was induced to vote in the way it did by the eloquence of those members who had not been present on April 25, to whom the facts were entirely unknown.
[Emphasis added.] Thus, Romer J. was of the opinion that the influence of those who did not hear the evidence could go beyond their vote and that this influence constituted a denial of natural justice. Following that reasoning, it was held in Re Rogers, supra, that the presence of a person who heard neither the evidence nor the representations at one of the meetings where a quorum of the Prince Edward Island Land Use Commission was deliberating invalidated the decision of the Commission, even though that person did not vote on the matter. The opposite result was reached in R. v. Labour Relations Board (Ontario), Ex parte Underwater Gas Developers Ltd., [1960] O.R. 416, 24 D.L.R. (2d) 673 (C.A.), where it was held that the presence of Board members who neither heard the evidence nor voted on the matter did not invalidate the Board's decision, at p. 675 [D.L.R.].
35 I am unable to agree with the proposition that any discussion with a person who has not heard the evidence necessarily vitiates the resulting decision because this discussion might "influence" the decision- maker. In this respect, I adopt Meredith C.J.C.P.'s words in Toronto & Hamilton Highway Commission v. Crabb (1916), 37 O.L.R. 656, 32 D.L.R. 706 (Ont. C.A.) at 659-660 (1916), 32 D.L.R. 706 (Ont. C.A.):
The Board is composed of persons occupying positions analagous [sic] to those of judges rather than of arbitrators merely; and it is not suggested that they heard any evidence behind the back of either party; the most that can be said is that they — that is, those members of the Board who heard the evidence and made the award — allowed another member of the Board, who had not heard the evidence, or taken part in the inquiry before, to read the evidence and to express some of his views regarding the case to them .... [B]ut it is only fair to add that if every Judge's judgment were vitiated because he discussed the case with some other Judge a good many judgments existing as valid and unimpeachable ought to fail; and that if such discussions were prohibited many more judgments might fall in an appellate Court because of a defect which must have been detected if the subject had been so discussed.
[Emphasis added.]
36 The appellant's main argument against the practice of holding full Board meetings is that these meetings can be used to fetter the independence of the panel members. Judicial independence is a long- standing principle of our constitutional law, which is also part of the rules of natural justice even in the absence of constitutional protection. It is useful to define this concept before discussing the effect of full
17 Board meetings on panel members. In R. v. Beauregard, [1986] 2 S.C.R. 56, 30 D.L.R. (4th) 481, 26 C.R.R. 59, Dickson C.J.C. described the "accepted core of the principle of judicial independence" as a complete liberty to decide a given case in accordance with one's conscience and opinions, without interference from other persons, including judges, at p. 69 [S.C.R.]:
Historically, the generally accepted core of the principle of judicial independence has been the complete liberty of individual judges to hear and decide the cases that come before them: no outsider — be it government, pressure group, individual or even another judge — should interfere in fact, or attempt to interfere, with the way in which a judge conducts his or her case and makes his or her decision. This core continues to be central to the principle of judicial independence.
See also R. v. Valente, [1985] 2 S.C.R. 673 at 686-687, 52 O.R. (2d) 779 (headnote only), 37 M.V.R. 9, 49 C.R. (3d) 97, 23 C.C.C. (3d) 193, 24 D.L.R. (4th) 161, 19 C.R.R. 354, 64 N.R. 1, 14 O.A.C. 79, [1986] D.L.Q. 85 (note), and K. Benyekhlef, Les garanties constitutionnelles relatives à l'indépendance du pouvoir judiciaire au Canada (Cowansville, Que.: Yvon Blais, 1988) at 48.
37 It is obvious that no outside interference may be used to compel or pressure a decision-maker to participate in discussions on policy issues raised by a case on which he must render a decision. It also goes without saying that a formalized consultation process could not be used to force or induce decision- makers to adopt positions with which they do not agree. Nevertheless, discussions with colleagues do not constitute, in and of themselves, infringements on the panel members' capacity to decide the issues at stake independently. A discussion does not prevent a decision-maker from adjudicating in accordance with his own conscience and opinions, nor does it constitute an obstacle to this freedom. Whatever discussion may take place, the ultimate decision will be that of the decision-maker, for which he assumes full responsibility.
38 The essential difference between full Board meetings and informal discussions with colleagues is the possibility that moral suasion may be felt by the members of the panel if their opinions are not shared by other Board members, the chairman or vice-chairmen. However, decision-makers are entitled to change their minds, whether this change of mind is the result of discussions with colleagues or the result of their own reflection on the matter. A decision-maker may also be swayed by the opinion of the majority of his colleagues in the interest of adjudicative coherence, since this is a relevant criterion to be taken into consideration even when the decision-maker is not bound by any stare decisis rule.
39 It follows that the relevant issue in this case is not whether the practice of holding full Board meetings can cause panel members to change their minds, but whether this practice impinges on the ability of panel members to decide according to their opinions. There is nothing in the Labour Relations Act which gives either the chairman, the vice-chairmen or other Board members the power to impose his opinion on any other Board member. However, this de jure situation must not be thwarted by procedures which may effectively compel or induce panel members to decide against their own conscience and opinions.
40 It is pointed out that "justice should not only be done, but should manifestly and undoubtedly be seen to be done": R. v. Sussex Justices, Ex parte McCarthy, [1924] 1 K.B. 256, [1923] All E.R. Rep. 233 (D.C.). This maxim applies whenever the circumstances create the danger of an injustice; for example, when there is a reasonable apprehension of bias, even if the decision-maker has completely disregarded these circumstances. However, in my opinion and for the reasons which follow, the danger that full Board meetings may fetter the judicial independence of panel members is not sufficiently present to give rise to a reasonable apprehension of bias or lack of independence within the meaning of the test stated by this Court in Committee for Justice & Liberty v. National Energy Board (1976), [1978] 1 S.C.R. 369 at 394, 68 D.L.R. (3d) 716, 9 N.R. 115, reaffirmed and applied as the criteria for judicial independence in R. v. Valente, supra, at p. 684 [S.C.R.] (see also p. 689 [S.C.R.]):
18 [T]he apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is 'what would an informed person, viewing the matter realistically and practically — and having thought the matter through — concluded.'
41 A full Board meeting set up in accordance with the procedure described by Chairman Adams is not imposed: it is called at the request of the hearing panel or any of its members. It is carefully designed to foster discussion without trying to verify whether a consensus has been reached: no minutes are kept, no votes are taken, attendance is voluntary and presence at the full Board meeting is not recorded. The decision is left entirely to the hearing panel. It cannot be said that this practice is meant to convey to panel members the message that the opinion of the majority of the Board members present has to be followed. On the other hand, it is true that a consensus can be measured without a vote and that this institutionalization of the consultation process carries with it a potential for greater influence on the panel members. However, the criteria for independence is not absence of influence, but rather the freedom to decide according to one's own conscience and opinions. In fact, the record shows that each panel member held to his own opinion, since Mr. Wightman dissented and Mr. Lee only concurred in part with Chairman Adams. It is my opinion, in agreement with the Court of Appeal, that the full Board meeting was an important element of a legitimate consultation process and not a participation in the decision of persons who had not heard the parties. The Board's practice of holding full Board meetings or the full Board meeting held on September 23, 1983, would not be perceived by an informed person viewing the matter realistically and practically — and having thought the matter through — as having breached his right to a decision reached by an independent tribunal thereby infringing this principle of natural justice.
(d) Full Board Meetings and the Audi Alteram Partem Rule
42 Full Board meetings held on an ex parte basis do entail some disadvantages from the point of view of the audi alteram partem rule because the parties are not aware of what is said at those meetings and do not have an opportunity to reply to new arguments made by the persons present at the meeting. In addition, there is always the danger that the persons present at the meeting may discuss the evidence.
43 For the purpose of the application of the audi alteram partem rule, a distinction must be drawn between discussions on factual matters and discussions on legal or policy issues. In every decision, panel members must determine what the facts are, what legal standards apply to those facts and, finally, they must assess the evidence in accordance with these legal standards. In this case, for example, the Board had to determine which events led to the decision to close the Hamilton plant and, in turn, decide whether the appellant had failed to bargain in good faith by not informing of an impending plant closing either on the basis that a "de facto decision" had been taken or on some other basis. The determination and assessment of facts are delicate tasks which turn on the credibility of the witnesses and an overall evaluation of the relevancy of all the information presented as evidence. As a general rule, these tasks cannot be properly performed by persons who have not heard all the evidence, and the rules of natural justice do not allow such persons to vote on the result. Their participation in discussions dealing with such factual issues is less problematic when there is no participation in the final decision. However, I am of the view that generally, such discussions constitute a breach of the rules of natural justice because they allow persons other than the parties to make representations on factual issues when they have not heard the evidence.
44 It is already recognized that no new evidence may be presented to panel members in the absence of the parties: Kane v. University of British Columbia Board of Governors, supra, at pp. 1113-1114 [S.C.R.]. The appellant does not claim that new evidence was adduced at the meeting, and the record does not disclose any such breach of the audi alteram partem rule. The defined practice of the Board at full Board meetings is to discuss policy issues on the basis of the facts as they were determined by the panel. The benefits to be
19 derived from the proper use of this consultation process must not be denied because of the mere concern that this established practice might be disregarded, in the absence of any evidence that this has occurred. In this case, the record contains no evidence that factual issues were discussed by the Board at the September 23, 1983 meeting.
45 In his reasons for judgment, Rosenberg J. has raised the issue of whether discussions on policy issues can be completely divorced from the factual findings, at p. 492 [O.R.]:
In this case there was a minority report. Although the chairman states that the facts in the draft decision were taken as given there is no evidence before us to indicate whether the facts referred to those in the majority report or the minority report or both. Also, without in any way doubting the sincerity and integrity of the chairman in making such a statement, it is not practical to have all of the facts decided except against a background of determination of the principles of law involved. For example, a finding that Consolidated-Bathurst was seriously considering closing the Hamilton plant is of no significance if the requirement is that the failure to bargain in good faith must be a de facto decision to close. Accordingly, until the board decides what the test is the findings of fact cannot be finalized.
With respect, I must disagree with Rosenberg J. if he suggests that it is not practical to discuss policy issues against the factual background provided by the panel.
46 It is true that the evidence cannot always be assessed in a final manner until the appropriate legal test has been chosen by the panel and until all the members of the panel have evaluated the credibility of each witness. However, it is possible to discuss the policy issues arising from the body of evidence filed before the panel, even though this evidence may give rise to a wide variety of factual conclusions. In this case, Mr. Wightman seemed to disagree with Chairman Adams with respect to the credibility of the testimonies of some of the appellant's witnesses. While this might be relevant to Mr. Wightman's conclusions, it was nevertheless possible to outline the policy issues at stake in this case from the summary of the facts prepared by Chairman Adams. In turn, it was possible to outline the various tests which could be adopted by the panel and to discuss their appropriateness from a policy point of view. These discussions can be segregated from the factual decisions which will determine the outcome of the case once a test is adopted by the panel. The purpose of the policy discussions is not to determine which of the parties will eventually win the case, but rather, to outline the various legal standards which may be adopted by the Board and discuss their relative value.
47 Policy issues must be approached in a different manner because they have, by definition, an impact which goes beyond the resolution of the dispute between the parties. While they are adopted in a factual context, they are an expression of principle or standards akin to law. Since these issues involve the consideration of statutes, past decisions and perceived social needs, the impact of a policy decision by the Board is, to a certain extent, independent from the immediate interests of the parties, even though it has an effect on the outcome of the complaint.
48 I have already outlined the reasons which justify discussions between panel members and other members of the Board. It is now necessary to consider the conditions under which full Board meetings must be held in order to abide by the audi alteram partem rule. In this respect, the only possible breach of this rule arises where a new policy or a new argument is proposed at a full Board meeting and a decision is rendered on the basis of this policy or argument without giving the parties an opportunity to respond.
49 I agree with Cory J.A. (as he then was) that the parties must be informed of any new ground on which they have not made any representations. In such a case, the parties must be given a reasonable opportunity to respond, and the calling of a supplementary hearing may be appropriate. The decision to call such a hearing is left to the Board as master of its own procedure: s. 102(13) of the Labour Relations Act. However,
20 this is not a case where a new policy undisclosed or unknown to the parties was introduced or applied. The extent of the obligation of an employer engaged in collective bargaining to disclose information regarding the possibility of a plant closing was at the very heart of the debate from the outset and had been the subject of a policy decision previously in the Westinghouse case. The parties had every opportunity to deal with the matter at the hearing and indeed presented diverging proposals for modifying the policy. There is no evidence that any new gounds were put forward at the meeting, and each of the reasons rendered by Chairman Adams and Messrs. Wightman and Lee simply adopts one of the arguments presented by the parties and summarized at pp. 1427-1430 [[1983] O.L.R.B. Rep.] of Chairman Adams' decision. Though the reasons are expressed in great detail, the appellant does not identify any of them as being new, nor does it contend that it did not have an opportunity to be heard or to deal with them.
50 Since its earliest development, the essence of the audi alteram partem rule has been to give the parties a "fair opportunity of answering the case against [them]": Judicial Review of Administrative Action at 158. It is true that on factual matters the parties must be given a "fair opportunity ... for correcting or contradicting any relevant statement prejudicial to their view": Board of Education v. Rice, [1911] A.C. 179 at 182, [1911-13] All E.R. Rep. 36 (H.L.); see also Local Government Board v. Arlidge (1914), [1915] A.C. 120 at 133 and 141, [1914-15] All E.R. Rep. 1 (H.L.); and Kane v. University of British Columbia Board of Governors at p. 1113 [S.C.R.]. However, the rule with respect to legal or policy arguments not raising issues of fact is somewhat more lenient because the parties only have the right to state their case adequately and to answer contrary arguments. This right does not encompass the right to repeat arguments every time the panel convenes to discuss the case. For obvious practical reasons, superior courts, in particular courts of appeal, do not have to call back the parties every time an argument is discredited by a member of the panel, and it would be anomalous to require more of administrative tribunals through the rules of natural justice. Indeed, a reason for their very existence is the specialized knowledge and expertise which they are expected to apply.
51 I therefore conclude that the consultation process described by Chairman Adams in his reconsideration decision does not violate the audi alteram partem rule, provided that factual issues are not discussed at a full Board meeting and that the parties are given a reasonable opportunity to respond to any new ground arising from such a meeting. In this case, an important policy issue, namely, the validity of the test adopted in the Westinghouse case, was at stake, and the Board was entitled to call a full Board meeting to discuss it. There is no evidence that any other issues were discussed or indeed that any other arguments were raised at that meeting, and it follows that the appellant has failed to prove that it has been the victim of any violation of the audi alteram partem rule. Indeed, the decision itself indicates that it rests on considerations known to the parties, upon which they had full opportunity to be heard.
IV — Conclusion
52 The institutionalization of the consultation process adopted by the Board provides a framework within which the experience of the chairman, vice-chairmen and members of the Board can be shared to improve the overall quality of its decisions. Although respect for the judicial independence of Board members will impede total coherence in decision-making, the Board through this consultation process seeks to avoid inadvertent contradictory results and to achieve the highest degree of coherence possible under these circumstances. An institutionalized consultation process will not necessarily lead Board members to reach a consensus, but it provides a forum where such a consensus can be reached freely as a result of thoughtful discussion on the issues at hand.
53 The advantages of an institutionalized consultation process are obvious, and I cannot agree with the proposition that this practice necessarily conflicts with the rules of natural justice. The rules of natural justice must have a flexibility required to take into account the institutional pressures faced by modern administrative tribunals, as well as the risks inherent in such a practice. In this respect, I adopt the words of Professors Blache and Comtois in "La décision institutionnelle", op. cit., at p. 708:
21 [TRANSLATION]
The institutionalizing of decisions exists in our law and appears to be there to stay. The problem is thus not whether institutional decisions should be sanctioned, but to organize the process in such a way as to limit its dangers. There is nothing revolutionary in this approach: it falls naturally into the tradition of English and Canadian jurisprudence that the rules of natural justice should be flexibly interpreted.
The consultation process adopted by the Board formally recognizes the disadvantages inherent in full Board meetings, namely, that the judicial independence of the panel members may be fettered by such a practice and that the parties do not have the opportunity to respond to all the arguments raised at the meeting. The safeguards attached to this consultation process are, in my opinion, sufficient to allay any fear of violations of the rules of natural justice, provided, as well, that the parties be advised of any new evidence or grounds and given an opportunity to respond. The balance so achieved between the rights of the parties and the institutional pressures the Board faces are consistent with the nature and purpose of the rules of natural justice.
54 For these reasons, I would dismiss the appeal with costs.
Sopinka J. (dissenting) (Lamer J. concurring):
55 The issue in this case is the propriety of a practice of the Ontario Labour Relations Board pursuant to which a full Board session is held to discuss a draft decision of a three-person panel.
Facts
56 The Ontario Labour Relations Board (hereinafter "the Board") derives its statutory authority under the Labour Relations Act, R.S.O. 1980, c. 228 (hereinafter "the Act"). The Board ordinarily sits in panels of three in hearing applications under the Act. This is authorized by s. 102(9) of the Act, which provides:
102...... (9) The chairman or a vice-chairman, one member representative of employers and one member representative of employees constitute a quorum and are sufficient for the exercise of all the jurisdiction and powers of the Board.
57 The original decision of a panel of three members of the Board ([1983] O.L.R.B. Rep. 1411, 4 C.L.R.B.R. (N.S.) 178, 83 C.L.L.C. 16,066) from which this litigation arises was that the appellant had failed to bargain in good faith by not disclosing during negotiations for a collective agreement that it planned to close its Hamilton plant. In the course of deliberating over this decision, a meeting was held of the full Board to discuss a draft of the reasons. No express statutory authority exists for this practice.
58 Although we are told that the full Board consists of 48 members, it does not appear from the record how many attended the meeting in question and whether labour and management were equally represented as contemplated by s. 102(9) of the Act. The affidavit of Mr. Michael Gordon, filed on behalf of the appellant, identifies 13 of the people present, among them an alternate chairman, several vice-chairmen, a number of Board members, solicitors and senior employees of the Board. Of those specifically identified, only Board member Wightman was a member of the panel which heard the case. Nevertheless, it appears from the Board's reasons on reconsideration that the other members of the panel of three were also present.
59 While it is not contested that no evidence was introduced at this full Board meeting, it is not clear from the record what was discussed. The meeting took several hours, but no minutes were kept. The reasons of the Board on reconsideration describe the practice of the Board in relation to full Board hearings but provide
22 no details as to what was discussed. It may be assumed that the matters discussed were in accordance with the Board's practice in this regard. This practice is described in the decision of the Board on Consolidated- Bathurst's application to reconsider the original decision, [1983] O.L.R.B. Rep. 1995, 5 C.L.R.B.R. (N.S.) 79, 84 C.L.L.C. 16,009, which reads, in part, at para. 8:
8. After deliberating over a draft decision, any panel of the Board contemplating a major policy issue may, through the Chairman, cause a meeting of all Board members and vice-chairmen to be held to acquaint them with this issue and the decision the panel is inclined to make. These 'Full Board' meetings have been institutionalized to facilitate a maximum understanding and appreciation throughout the Board of policy developments and to evaluate fully the practical consequences of proposed policy initiatives on labour relations and the economy in the Province.
There is no evidence that the procedure at the meeting in question departed from the Board's usual practice, whereby discussion is limited to the policy implications of a draft decision, the facts contained in the decision are taken as given, no vote or consensus is taken, no minutes are kept, and no attendance is recorded. The practice is not a recent innovation. It goes back at least as far as 1971, when it was referred to, disapprovingly, in Chief Justice McRuer's report in the Royal Commission Inquiry into Civil Rights, vol. 5, Report No. 3 (Toronto: Queen's Printer, 22 February 1971) at 2004-2006.
60 The appellant learned of the full Board meeting by chance and requested a reconsideration by the Board of its decision. This request was denied. In the course of its reasons, the Board, as mentioned above, described its practice in detail and defended it as promoting consistency in the Board's decisions and as an institutionalization of the informal practice of conferral among colleagues. The Board considered its practice not a breach of natural justice, but rather, a procedure well suited to the Board's size, composition and statutory mandate. Subsequent to the Board's refusal to reconsider its decision, the appellant applied to the Divisional Court for judicial review.
Divisional Court (1985), 51 O.R. (2d) 481, 16 Admin. L.R. 37, 85 C.L.L.C. 14,031, 10 O.A.C. 34, 20 D.L.R. (4th) 84
61 The majority of the Divisional Court, with Osler J. dissenting, granted the application, quashed the Board's decision, and ordered the Board to reconsider the matter in light of the Court's reasons for judgment. The reasons of the majority of the Divisional Court, delivered by Rosenberg J., were to the effect that because the parties had no knowledge as to what had been said in the discussions and no opportunity to respond, there was a violation of the principle that he who hears must decide. It could not be said with certainty that the three-member panel was not influenced in its decision by the full Board, because of the lack of evidence as to what transpired at the meeting. Thus, the Court quashed the Board's decision. Osler J., on the other hand, was of the view that the common law contained no prohibition of consultation among decision-makers and their colleagues, so long as those who have not heard the evidence and submissions do not participate in the decision. While the parties must be given the opportunity to respond to new ideas or evidence, this case provided no evidence that the full Board meeting had yielded any such ideas or evidence.
Court of Appeal (1986), 56 O.R. (2d) 513, 21 Admin. L.R. 180, 86 C.L.L.C. 14,048, 15 O.A.C. 398, 31 D.L.R. (4th) 444
62 The decision of the Divisional Court was reversed on appeal to the Court of Appeal. Cory J.A., as he then was, in the Court of Appeal concluded that pursuant to s. 102(13) of the Labour Relations Act, the Labour Relations Board had exclusive jurisdiction to determine its own practice and procedure, subject only to the obligation to give a full opportunity to the parties to the proceedings to present evidence and make submissions. He further concluded there there was no denial of natural justice in this case and that the meeting was an exercise of common sense whereby the significance and effect of a decision was discussed
23 with other experts in the field. He emphasized, however, that the full Board procedure was limited in that the parties must be recalled if new evidence is considered in the full Board's discussion, and that while the panel can receive advice from the full Board, there can be no participation by the other Board members in the decision.
Issues
63 The issue in this appeal is whether the following rules of natural justice have been violated:
(a) he who decides must hear;
(b) the right to know the case to be met.
The Effect of the Full Board Procedure
64 The first step in deciding whether the rules of natural justice have been breached is to assess what role, if any, the full Board procedure played in the decision-making process. The appellant submits that the outcome of its case may have been influenced by a formalized meeting of the full Board. The respondent union counters by submitting that the appellant must establish a breach of the rules of natural justice but can point to no new evidence or arguments in the decision of the Board that were obtained as a result of the full Board procedure. The purport of the Board's reasons on the application for reconsideration is that the ultimate decision was left to the panel and therefore, presumably, that the discussion of policy implications did not influence the final decision.
65 In the Board's reasons on reconsideration, it is stated that the object of the full Board hearings is as follows, at p. 2002 [O.L.R.B. Rep.]:
These 'Full Board' meetings have been institutionalized to facilitate a maximum understanding and appreciation throughout the Board of policy developments and to evaluate fully the practical consequences of proposed policy initiatives on labour relations and the economy in the Province.
66 The Board further states, at pp. 2002-2003 [O.L.R.B. Rep.] that:
9. 'Full Board' meetings are as important to fashioning informed and practical decisions which will withstand the scrutiny of subsequent panels as is the research and reflection undertaken by the vice- chairmen in preparing their draft decisions .... The 'Full Board' meeting merely institutionalizes these discussions and better emphasizes the broad ranging policy implications of individual decisions.
67 The learned authors of Sack and Mitchell, Ontario Labour Relations Board Law & Practice (Toronto: Butterworths, 1985) at 7, summarized the practice in the following terms:
When such a matter is referred in this way, the full Board does not consider the evidence or the facts of the case, but individual members may express their views on questions of law or policy. No vote is taken. The panel which heard the case then confers in private session and reaches a decision. In this way, some uniformity in Board decisions on matters of policy and procedure has been achieved in spite of the fact that differently constituted panels sit every day.
68 The issue before the Board was whether unsolicited disclosure of a proposed plant closing which was alleged to be at least under serious consideration was an aspect of the duty to bargain in good faith. In this regard, the Board was being asked by the respondent union to extend its decision in United Electrical, Radio & Machine Workers of America, Local 504 v. Westinghouse Canada Ltd., [1980] O.L.R.B. Rep. 577, [1980] 2 Can. L.R.B.R. 469, 80 C.L.L.C. 16,053, aff'd (1980), 80 C.L.L.C. 14,062 (Ont. Div. Ct.), or at least to give it a broad interpretation. That case had decided that as part of the employer's obligation to negotiate
24 in good faith, an employer had a duty to disclose a de facto decision to close a plant. Resolution of this issue required the panel to choose between competing policies. The important role of policy is depicted in the following passages in the Board's original reasons at pp. 1430-1431, 1436 and 1443 [O.L.R.B. Rep.]:
In cases of this kind there are, of course, significant conflicting values at stake. There is the desirability of stability in collective bargaining relationships as evidenced by the statutory policy requiring a collective agreement for a minimum term of one year and the twin statutory requirements of 'no strike and no lockout'. All differences during the term of an agreement are to be funnelled through grievance arbitration. It is also widely understood that management must have the ability to take initiatives in responding to the new demands posed by changing circumstances. The market place seldom awaits labour and management consensus. On the other hand, unilateral management initiatives can adversely affect significant interests of employees and unions who, in the absence of change, may have built up certain expectations and attitudes concerning the status quo...... The Board must also be sensitive to the statutory purpose of the bargaining duty, the language describing that duty, and the industrial relations implications of one approach over another...... What policy justification then supports greater unsolicited disclosure and merits the Board's intervention in the face of these potential difficulites?
69 In the result, the Board chose to broaden the application of Westinghouse by extending the meaning of a de facto decision to the facts of this case. At para. 53, p. 1447 of its decision [O.L.R.B. Rep.], it stated:
In any event, we find that the matter of the impending closing was so concrete and highly probable in early January and dealt with by the board of directors in such a perfunctory manner (in that there was no documentation or apparent consideration of alternatives), the company had a minimum obligation to say that unless a certain percentage of the new business was retained or unless there was a dramatic turn in the operation a recommendation to close would be made within the next few weeks. Having regard to the Christmas letter to employees; the productive second half of 1982; and to the then state of dialogue between local labour and management on the future of the plant, the company's silence at the bargaining table was tantamount to a misrepresentation within the meaning of the de facto decision doctrine established in Westinghouse.
70 The following passage, at p. 2004 [O.L.R.B. Rep.] from the Board's reasons on reconsideration summarizes the participation of the full Board in the application of policy:
Unsolicited disclosure in collective bargaining — the issue involved in the case — is an area of great significance to effective and harmonious collective bargaining in this Province and it is fair to say that many of the labour and management Board members in attendance at the meeting gave their reaction to the principles and their application as set out in the draft decision. No vote, however, was held and no other mechanism for measuring consensus was employed.
Given the number of Board members present and the fact that included were an alternate chairman, vice- chairmen and solicitors, the views expressed were potentially very influential.
71 In view of the above, I adopt the following from the reasons of the majority of the Divisional Court as a correct statement as to the effect of the full Board meeting [51 O.R. (2d) at 491-492]:
Chairman Shaw [sic] states in his reasons that the final decision was made by the three members who heard evidence and argument. He cannot be heard to state that he and his fellow members were not influenced by the discussion at the full board meeting. The format of the full board meeting made it
25 clear that it was important to have input from other members of the board who had not heard the evidence or argument before the final decision was made. The tabling of the draft decision to all of the members of the board plus all of the support staff involved a substantial risk that opinions would be advanced by others and arguments presented. It is probable that some of the people involved in the meeting would express points of view. The full board meeting was only called when important questions of policy were being considered. Surely, the discussion would involve policy reasons why s. 15 should be given either a broad or narrow interpretation. Members or support staff might relate matters from their own practical experience which might be tantamount to giving evidence. The parties to the dispute would have no way of knowing what was being said in these discussions and no opportunity to respond.
72 I would conclude from the foregoing that the full Board meeting might very well have affected the outcome. The Board in its reasons on reconsideration does not directly seek to refute this inference. It does affirm that the final decision was that of the panel. There are two difficulties which confront the Board in seeking to negate the inference. First, I find it difficult to understand how the full Board practice can achieve its purpose of bringing about uniformity without affecting the decision of individual panels. Uniformity can only be achieved if some decisions are brought into line with others by the uniform application of policy. The second difficulty is that in matters affecting the integrity of the decision-making process, it is sufficient if there is an appearance of injustice. The tribunal will not be heard to deny what appears as a plausible objective conclusion. The principle was expressed by Mackay J. in Re Ramm (1957), 7 D.L.R. (2d) 378 (Ont. C.A.). Mackay J. wrote at p. 382:
With respect to the difference in the constitution of members of the Public Accountants Council on the first and second hearings, it may very well be that the two members of the Public Accountants Council who were not present at the earlier hearing, abstained from argument on the issues which fell for determination. It appears, however, that they did vote inasmuch as the decision to revoke the licence of the appellant Ramm was unanimous. It is well established that it is not merely of some importance but of fundamental importance, that 'justice should not only be done but should manifestly and undoubtedly be seen to be done'. In a word, it is not irrelevant to inquire whether two members of the Council who were not present at the earlier meeting took part in the proceeding in the Council's deliberation on the subsequent hearing. What is objectionable is their presence during the consultation when they were in a position which made it impossible for them to discuss in a judicial way, the evidence that had been given on oath days before and in their absence and on which a finding must be based.
[Emphasis added.]
73 In Mehr v. Law Society of Upper Canada, [1955] S.C.R. 344 at 350, [1955] 2 D.L.R. 289, Cartwright J. cited with approval the following passage from the judgment of Lord Eldon L.C. in Walker v. Frobisher (1801), 6 Ves. 70 at 72, 31 E.R. 943 at 944:
But the arbitrator swears, it [hearing further persons] had no effect upon his award. I believe him. He is a most respectable man. But I cannot from respect for any man do that, which I cannot reconcile to general principles. A Judge must not take upon himself to say, whether evidence improperly admitted had or had not an effect upon his mind. The award may have done perfect justice: but upon general principles it cannot be supported.
This statement had been approved previously by this Court in Szilard v. Szasz (1954), [1955] S.C.R. 3, [1955] 1 D.L.R. 370. Cartwright J. was also impressed by the statement of Romer J. in R. v. Huntingdon Confirming Authority, Ex parte George & Stamford Hotels Ltd., [1929] 1 K.B. 698 at 717 (C.A.):
Further, I would merely like to point this out: that at that meeting of May 16 there were present three justices who had never heard the evidence that had been given on oath on April 25. There was a division
26 of opinion. The resolution in favour of confirmation was carried by eight to two, and it is at least possible that that majority was induced to vote in the way it did by the eloquence of those members who had not been present on April 25, to whom the facts were entirely unknown.
74 I turn next to consider whether a discussion of policy matters at the full Board meeting which may have affected the outcome constituted a breach of the rules of natural justice.
The Principles of Natural Justice
75 Section 102(13) of the Act provides that the Board shall give full opportunity to the parties to present their evidence and make their submissions. The Board is empowered to determine its own practice and procedure, but rules governing its practice and procedure are subject to the approval of the Lieutenant Governor in Council. While not every practice of the Board would necessarily be subject to the approval of the Lieutenant Governor, the full Board practice is one which might require such approval. No such approval has been given, and indeed, the practice does not appear to have been adopted formally as a rule of the Board. In view of the fact, however, that this point was not argued, I do not propose to deal with it further.
76 The full Board hearing in this case is said to violate the principles of natural justice in two respects: first, that members of the Board who did not preside at the hearing participated in the decision; and second, that the case is decided at least in part on the basis of materials which were not disclosed at the hearing and in respect of which there was no opportunity to make submissions.
77 Although these are distinct principles of natural justice, they have evolved out of the same concern: a party to an administrative proceeding entitled to a hearing is entitled to a meaningful hearing in the sense that the party must be given an opportunity to deal with the material that will influence the tribunal in coming to its decision, and deal with it in the presence of those who make the decision. As stated by B.A. Crane in his case comment on the Consolidated Bathurst decision, (1988) 1 C.J.A.L.P. 215 at 217: "The two rules have the same purpose: to preserve the integrity and fairness of the process." In the first case, the party has had no opportunity to persuade some of the members at all, while in the second the party has not been afforded an opportunity to persuade the tribunal as to the impact of material obtained outside the hearing.
78 The concern for justice is aptly put by the pithy statement in the McRuer Report criticizing the full Board procedure. At pp. 2005-2006, the former Chief Justice of the High Court of Ontario states:
To take a matter before the full Board for a discussion and obtain the views of others who have not participated in the hearing and without the parties affected having an opportunity to present their views is a violation of the principle that he who decides must hear...... Notwithstanding that the ultimate decision is made by those who were present at the hearing, where a division of the Board considers that a matter should be discussed before the full Board or a larger division, the parties should be notified and given an opportunity to be heard.
79 Although I am satisfied that at least formally, the decision here was made by the three-member panel, that does not determine the matter. The question, rather, is whether the introduction of policy considerations in the decision-making process by members of the Board who were not present at the hearing and their application by members who were present but who heard no submissions from the parties in respect thereto violates the rationale underlying the above principles.
80 In answering this question, it is necessary to consider the role of policy in the decision-making processes of administrative tribunals. There is no question that the Labour Board is entitled to consider policy in
27 arriving at its decisions. See Dickson J. (as he then was) in C.U.P.E., Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227 at 235-236, 25 N.B.R. (2d) 237, 51 A.P.R. 237, 26 N.R. 341, 79 C.L.L.C. 14,209:
The labour board is a specialized tribunal which administers a comprehensive statute regulating labour relations. In the administration of that regime, a board is called upon not only to find facts and decide questions of law, but also to exercise its understanding of the body of jurisprudence that has developed around the collective bargaining system, as understood in Canada, and its labour relations sense acquired from accumulated experience in the area.
81 The Board, then, is obliged by statute to hold a hearing and to give the parties a full opportunity to present evidence and submissions. It is also entitled to apply policy. At a time when the content of the rules of natural justice was determined by classifying tribunals as quasi-judicial or administrative, the Board would have been classified as exercising hybrid functions. A tribunal exercising hybrid functions did so in two stages. As a quasi-judicial tribunal, it was required to comply with the rules of natural justice. In making its decision, however, it assumed its administrative phase and could overrule the conclusion which was indicated at the hearing by the application of administrative policy. Examples of this type of tribunal and the jurisprudence relating to its functions can be found in cases such as B. Johnson & Co. (Builders) Ltd. v. Minister of Health, [1947] 2 All E.R. 395 (C.A.), and Cloverdale Shopping Centre v. Etobicoke, [1966] 2 O.R. 439, 57 D.L.R. (2d) 206 (C.A.). In this state of the law, there was no obligation on a tribunal during its administrative phase to comply with the rules of natural justice and hence to disclose policy which was being applied. Although tribunals exercising so-called administrative functions were subject to a general duty of fairness, disclosure of the policy to be applied by the tribunal was generally not a requirement. In the case of hybrid tribunals, therefore, such non-disclosure at the quasi-judicial stage would not have been considered a breach of the rules of natural justice. In this respect, policy was treated on the same footing as the law. Both law and policy might be dealt with at the hearing, but the tribunal was entitled to supplement it by its own researches without disclosure to the parties.
82 This view of the role of policy must be reappraised in light of the evolution of the law relating to the classification of tribunals and the application to them of the rules of natural justice and fairness. The content of these rules is no longer dictated by classification as judicial, quasi-judicial or executive, but by reference to the circumstances of the case, the governing statutory provisions and the nature of the matters to be determined. See Nicholson v. Haldimand-Norfolk Regional Board of Police Commissioners (1978), [1979] 1 S.C.R. 311, 78 C.L.L.C. 14,181, 88 D.L.R. (3d) 671, 23 N.R. 410; Martineau v. Matsqui Institution Disciplinary Board (1979), [1980] 1 S.C.R. 602, 30 N.R. 119, (sub nom. Martineau v. Matsqui Institution Inmate Disciplinary Board (No. 2)) 13 C.R. (3d) 1, 15 C.R. (3d) 315 (Fr.), (sub nom. Martineau v. Matsqui Institution Disciplinary Board (No. 2)) 50 C.C.C. (2d) 353, 106 D.L.R. (3d) 385 ; and Syndicat des employés de production du Québec et de l'Acadie v. Canada (Canadian Human Rights Commission), [1989] 2 S.C.R. 879, 62 D.L.R. (4th) 385, 89 C.L.L.C. 17,022, 11 C.H.R.R. D/1, 100 N.R. 241.
83 It is no longer appropriate, therefore, to conclude that failure to disclose policy to be applied by a tribunal is not a denial of natural justice without examining all the circumstances under which the tribunal operates.
84 The proceedings which are the subject of this appeal involve the exercise of extraordinary powers by the Board. In this case the Board was asked to order reopening of the Hamilton plant, although it had operated at a loss. Although the Board declined to make that order, it apparently considered that it had jurisdiction to do so. In lieu thereof, the employer was ordered to pay damages. These are civil consequences that affect the rights of employers to a greater degree than many civil actions in the courts, in which a litigant enjoys the whole panoply of protection afforded by the rules of practice, procedure and the rules of evidence. The Act here provides for a full opportunity to the parties to present evidence and to make submissions. Is this opportunity denied when the tribunal considers and applies policy without giving the
28 parties an opportunity to deal with it at the hearing? Is it a breach of the standard of fairness which underlies the rules of natural justice?
85 The answers to these questions lie in the nature of policy and whether it is correct to treat it on the same footing as the law. In Innisfil v. Vespra, [1981] 2 S.C.R. 145, 15 M.P.L.R. 250, 12 O.M.B.R. 129, 123 D.L.R. (3d) 530, 37 N.R. 43, this Court was called upon to deal with the question whether a party to a proceeding before the Ontario Municipal Board was entitled to challenge policy by leading evidence and by cross-examination — the traditional methods for contesting fact. The Court of Appeal of Ontario had held that government policy introduced at the hearing was not binding but could be met by other evidence. Cross- examination was, however, denied. In this Court, the right to challenge policy by evidence was affirmed. In addition, the appellants were accorded the right to cross-examine and the Court of Appeal was reversed in this respect. Estey J., who delivered the judgment of the Court, stated, at p. 167 [S.C.R.]:
On the other hand, where the rights of the citizen are involved and the statute affords him the right to a full hearing, including a hearing of his demonstration of his rights, one would expect to find the clearest statutory curtailment of the citizen's right to meet the case made against him by cross-examination.
86 If a party has the right to attack policy in the same fashion as fact, it follows that to deprive the party of that right is a denial of a full opportunity to present evidence and is unfair. Policy in this respect is not like the law, which cannot be the subject of evidence or cross-examination. Policy often has a factual component which the law does not. Furthermore, under our system of justice it is crucial that the law be correctly applied. The court or tribunal is not bound to rely solely on the law as presented by the parties. Accordingly, a tribunal can rely on its own research, and, if that differs from what has been presented at the hearing, it is bound to apply the law as found. Ordinarily there is no obligation to disclose to the parties the fruits of the tribunal's research as to the law, although it is a salutary practice to obtain their views in respect of an authority which has come to the tribunal's attention and which may have an important influence on the case. For an example of the application of this practice in this Court, see Kamloops v. Nielsen, [1984] 2 S.C.R. 2 at 36, 11 Admin. L.R. 1, 29 C.C.L.T. 97, 8 C.L.R. 1, 26 M.P.L.R. 81, [1984] 5 W.W.R. 1, 66 B.C.L.R. 273, 10 D.L.R. (4th) 641, 54 N.R. 1. We do not have the same attitude to policy. There is not necessarily one policy that is the right policy. Often there are competing policies, selection of the better policy being dependent on being subjected to the type of scrutiny which was ordered in Innisfil, supra.
87 Ample support can be found in the cases and writings for the proposition that generally, policy is to be treated more like fact than law. In Capital Cities Communications Inc. v. Canadian Radio-Television Commission (1977), [1978] 2 S.C.R. 141, 36 C.P.R. (2d) 1, 81 D.L.R. (3d) 609, 18 N.R. 181, Laskin C.J.C. in holding that the Commission was entitled to rely on policy, stated at p. 171 [S.C.R.]:
[I]t was eminently proper that it lay down guidelines from time to time as it did in respect of cable television. The guidelines on this matter were arrived at after extensive hearings at which interested parties were present and made submissions. An overall policy is demanded in the interests of prospective licensees and of the public under such a regulatory regime as is set up by the Broadcasting Act. Although one could mature as a result of a succession of applications, there is merit in having it known in advance.
In S.A. De Smith's Judicial Review of Administrative Action, 4th ed. by J.M. Evans (London: Stevens, 1980) at 223, the learned author states:
[A]n opportunity to be heard, both on the application and the merits of the policy, may be required in order to prevent a fettering of discretion.
29 In support, the learned author cites R. v. Criminal Injuries Compensation Board, Ex parte Ince, [1973] 1 W.L.R. 1334 at 1345, [1973] 3 All E.R. 808 (C.A.) per Megaw L.J.:
As to the question of the board's minutes, I think that justice and paragraph 22 of the Scheme alike require that if the board in any particular case are minded to be guided by any principle laid down in any pre-existing minute of the board, the applicant must be informed of the existence and terms of that minute, so that he can, if he wishes, make his submissions with regard thereto: that is, submissions on the questions whether the principle is right or wrong in relation to the terms of the Scheme and whether the principle, if right, is applicable or inapplicable to the facts of the particular case.
88 Another comment from De Smith is found in the section on the right to a hearing, at p. 182, note 92:
Whilst it would be going too far to assert that in all circumstances there is an implied right to be apprised of and to argue against policy proposals, there are some indications pointing in this direction: see for example, British Oxygen Co. Ltd. v. Board of Trade, [1971] A.C. 610, 625, 631 (desirable that notice be given to applicants for industrial grants of any rule or policy generally followed by the Department, and an opportunity for the applicants to make representations on the soundness or applicability of the policy or rule: this would make applications more effective and prevent the Department from fettering its statutory discretion).
89 In Professor Patrice Garant's Droit administratif, 2d ed. (Montreal: Yvon Blais, 1985), he states, at pp. 792-793:
La jurisprudence nous semble bien à l'effet qu'un énoncé de politique ou des directives prises préalablement par un tribunal ne donnent pas lieu à crainte raisonnable de préjugé, si le tribunal respecte la règle audi alteram partem, même si la décision à intervenir est conforme à l'énoncé de politique ou aux directives.
90 See also R. Dussault & L. Borgeat, Traité de droit administratif, vol. 1, 2d ed. (Laval, Que.: Laval University Press, 1984) at 423; translated by M. Rankin [as Administrative Law: A Treatise] (Toronto: Carswell, 1986); and G. Pépin & Y. Ouellette, Principes de contentieux administratif, 2d ed. (Cowansville, Que: Yvon Blais, 1982) at 269.
91 In the discussion of "The Duty of Disclosure", M. Aronson and N. Franklin in Review of Administrative Action 2d ed. (Sydney: Law Book, 1987) write, at p. 183:
The extent to which policy, expertise and independent inquiry are integral to the decision-making process will inevitably vary according to the subject matter for decision or investigation. But even in a trial-type hearing, the adjudicator is not bound exclusively by the parties' proofs and arguments, and will need to accommodate public and institutional interests. The more 'polycentric', policy-oriented or technical a problem, the greater is the pressure on decision-makers to seek out solutions, to confer separately with interested persons, and to use their experience to find a settlement. The ability of administrators to inform themselves, and to apply their expertise and accumulated experience, and the expectation that they will do so, makes the duty of disclosure sometimes difficult to define, and to observe. At the same time, however, it enhances the importance of the duty. Disclosure can act as an important safeguard against the use of inaccurate material or untested theories. It can also contribute to the efficiency of the hearing by directing argument and information to the relevant issues and materials.
[Emphasis added.]
92 H.W.R. Wade, Administrative Law, 4th ed. (Oxford: Clarendon Press, 1977) states, at p. 470:
30 Policy is of course the basis of administrative discretion in a great many cases, but this is no reason why the discretion should not be exercised fairly vis-à-vis any person who will be adversely affected. The decision will require the weighing of any such person's interests against the claims of policy; and this cannot fairly be done without giving that person an opportunity to be heard.
93 In my opinion, therefore, the full Board hearing deprived the appellant of a full opportunity to present evidence and submissions and constituted a denial of natural justice. While it cannot be determined with certainty from the record that a policy developed at the full Board hearing and not disclosed to the parties was a factor in the decision, it is fatal to the decision of the Board that this is what might very well have happened.
94 While achieving uniformity in the decisions of individual boards is a laudable purpose, it cannot be done at the expense of the rules of natural justice. If it is the desire of the Legislature that this purpose be pursued, it is free to authorize the full Board procedure. It is worthy of note that Parliament has given first reading to Bill C-40, a revised Broadcasting Act, 2d Sess., 34th Parl., 1989-90, which authorizes individual panels to consult with the Commission and officers of the Commission in order to achieve uniformity to the application of policy (s. 19(4)). Provision is made, however, for the timely issue of guidelines and statements with respect to matters within the jurisdiction of the Commission.
Section 114
95 The respondents do not contend that if a breach of natural justice has occurred, the privative clause in s. 108 of the Act would apply. They have, however, submitted that if there was a breach of natural justice, it was technical only, and hence no remedy should be available. The respondents cite s. 114 of the Act, as well as Toshiba Corp. v. Anti-Dumping Tribunal; Sharp Corp. v. Anti-Dumping Tribunal; Sanyo Corp. v. Anti- Dumping Tribunal (1984), 8 Admin. L.R. 173, (sub nom. Toshiba Corp. v. Anti-Dumping Tribunal) 6 C.E.R. 258 (Fed. C.A.). Section 114 reads:
114. No proceedings under this Act are invalid by reason of any defect of form or any technical irregularity and no such proceedings shall be quashed or set aside if no substantial wrong or miscarriage of justice has occurred.
Toshiba concerned a preliminary staff report prepared for the Anti-Dumping Tribunal which was not revealed to the parties and which the Court described as "a dangerous practice." Nonetheless, the Court of Appeal was satisfied that the report contained only matters of general knowledge or was based upon facts and sources which were brought out at the hearing in such a manner that the parties had the opportunity to test them. Thus, any breach of natural justice was minor and inconsequential, and the application for judicial review was dismissed.
96 The submission that there is no prejudice as a result of a technical breach of rules of natural justice requires that the party making the allegation establish this fact. To do so in this case, it would be necessary for the respondents to satisfy the Court that the matters discussed were all matters that had been brought out at the hearing. This has not occurred; unlike Toshiba, there is no report or minutes of the full Board meeting against which the hearing proceedings can be compared. The appellant can hardly be expected to establish prejudice when it was not privy to the discussion before the full Board and there is no evidence as to what in fact was discussed. In the absence of such evidence, the gravity of the breach of natural justice cannot be assessed, and I cannot conclude that no substantial wrong has occurred.
Section 102(13)
31 97 Nor can I conclude that the full Board procedure is saved by virtue of s. 102(13) of the Labour Relations Act. Section 102(13) reads:
102...... (13) The Board shall determine its own practice and procedure but shall give full opportunity to the parties to any proceedings to present their evidence and to make their submissions, and the Board may, subject to the approval of the Lieutenant Governor in Council, make rules governing its practice and procedure and the exercise of its powers and prescribing such forms as are considered advisable.
[Emphasis added.] I recognize the importance of deference to a Board's choice of procedures expressed by this Court in Komo Construction Inc. v. Quebec Labour Relations Board (1967), [1968] S.C.R. 172, 68 C.L.L.C. 14,108, (sub nom. R. v. Labour Relations Board, Ex parte Komo Construction Inc.) 1 D.L.R. (3d) 125 at 127, per Pigeon J.:
While upholding the rule that the fundamental principles of justice must be respected, it is important to refrain from imposing a code of procedure upon an entity which the law has sought to make master of its own procedure.
However, in this case the appellant was not given a full opportunity to present evidence and make submissions, which is an explicit limit placed by statute on the Board's control of its procedure. Furthermore, when the rules of natural justice collide with a practice of the Board, the latter must give way.
Disposition
98 In the result, the appeal is allowed, the judgment of the Court of Appeal is set aside and the order of the Divisional Court restored with costs to the appellant against the respondents, both here and in the Court of Appeal. Appeal dismissed.
Footnotes 1 See M. Falardeau-Ramsay, Q.C., "Collegiality and Decision-Making in the Aftermath of the Consolidated- Bathurst Decision" (1988) 1 C.J.A.L.P. 207. The Divisional Court judgment is reported at (1985), 51 O.R. (2d) 481, 16 Admin. L.R. 37, 85 C.L.L.C. 14,031, 10 O.A.C. 34, 20 D.L.R. (4th) 84, and the Court of Appeal judgment is at (1986), 56 O.R. (2d) 513, 21 Admin. L.R. 180, 86 C.L.L.C. 14,048, 15 O.A.C. 398, 31 D.L.R. (4th) 444.
2 (1987), 77 N.R. 160n (S.C.C.).
3 Released April 26, 1990, not yet reported [now reported 42 Admin. L.R. 1].
4 (1986), 16 Admin. L.R. 39.
5 See Falardeau-Ramsay, above, note 1 at 210-211, and also B.A. Crane, Q.C., "Comment on the Consolidated- Bathurst Decision" in (1988) 1 C.J.A.L.P. 215 at 216.
6 Above, note 5 at 216.
7 H.N. Janisch, "Emerging Issues: Rule Making, Consistency and Consolidated-Bathurst" in Administrative Law, Past Present and Future, Proceedings of the Canadian Bar Association National C.L.E. Program (Ottawa, 17-18 November 1989) at 11.
32 8 Québec (Commission des affaires sociales) c. Tremblay, [1989] R.J.Q. 2053, 25 Q.A.C. 169 (C.A.). Leave to appeal was granted on March 1, 1990 by the Supreme Court of Canada. See commentary on this case by S. Comtois, "L'affaire Noémie Tremblay et le droit à une décision prise par un tribunal indépendent d'esprit" (1989) 2 C.J.A.L.P. 223.
9 Before many tribunals, evidence is presented not only in the form of facts but of expert opinions or inferences drawn therefrom. For example, in Operation Dismantle Inc. v. R., [1985] 1 S.C.R. 441, 12 Admin. L.R. 16, 13 C.R.R. 287, 18 D.L.R. (4th) 481, (sub nom. Operation Dismantle Inc. v. Canada) 59 N.R. 1 (the "Cruise Missile" case) Wilson J. at 478 wrote: What we are concerned with for purposes of the application of the principles is, it seems to me, 'evidentiary' facts. These may be either real or intangible. Real facts are susceptible of proof by direct evidence. Intangible facts, on the other hand, may be proved by inference from real facts or through the testimony of experts. Intangible facts are frequently the subject of opinion.
10 See, for example P.P.G. Industries Canada Ltd. v. Attorney General of Canada (1975), [1976] 2 S.C.R. 739, 65 D.L.R. (3d) 354, 7 N.R. 209.
11 "NEB Head Steps down from TCPL Hearings" The Globe and Mail (27 March 1990); "Epp Calls Priddle's Decision to Quit TCPL Hearing Appropriate" The Globe and Mail (28 March 1990).
12 See Yukon Conservation Society v. Yukon Territory Water Board (1982), 11 C.E.L.R. 99, 45 N.R. 591 (Fed. T.D.); "Charge of NEB Bias May Force Changes" Financial Post (2 April 1990).
13 Capital Cities Communications Inc. v. Canadian Radio-Television Commission (1977), [1978] 2 S.C.R. 141, 36 C.P.R. (2d) 1, 81 D.L.R. (3d) 609, 18 N.R. 181.
14 See Janisch, above, note 7 at 12.
15 Padfield v. Minister of Agriculture, Fisheries & Food, [1968] A.C. 997, [1968] 1 All E.R. 694 (H.L.), and also Alkali Lake Indian Band v. Westcoast Transmission Co., 7 Admin. L.R. 64, [1984] 4 W.W.R. 263, 53 B.C.L.R. 323, 8 D.L.R. (4th) 610 (B.C. C.A.).
16 See, for example, Spring v. Law Society of Upper Canada (1988), 64 O.R. (2d) 719, 30 Admin. L.R. 151, 50 D.L.R. (4th) 523, 28 O.A.C. 375 (Div. Ct.) and Re Emerson and Law Society of Upper Canada (1983), 44 O.R. (2d) 729, 41 C.P.C. 7, 5 D.L.R. (4th) 294 (H.C.).
17 Some of the material in this case comment results from discussions about the case with David Mullan.
33 File OF-Fac-Oil-T260-2013-03 02 1 March 2016
Mr. Jason Gratl Gratl & Company, Barristers and Solicitors 601 – 510 West Hastings Street Vancouver, BC V6B 1L8 Email: [email protected]
Dear Mr. Gratl:
Hearing Order OH-001-2014 Trans Mountain Pipeline ULC (Trans Mountain) Application for the Trans Mountain Expansion Project (Application) Pro Information Pro Environment United People’s Network (PIPE UP) 30 December 2015 Request for review of Ruling No. 101 Ruling No. 122
The National Energy Board (Board or NEB) is in receipt of a request for review, filed 30 December 2015, by Mr. Gratl on behalf of PIPE UP requesting a review (Review) of the Board’s decision in its 7 December 2015 Ruling No. 101. Trans Mountain responded to the review request on 11 January 2016. PIPE UP did not file a reply.
PIPE UP’s Request for Review
PIPE UP requests, pursuant to section 21 of the National Energy Board Act, that the Board remit its 13 October 2015 motion (Original Motion) for a rehearing, and that the Board substitute its own decision and grant the relief sought in the Original Motion.
PIPE UP submits, as grounds for the rehearing request, that the Board, in Ruling No. 101:
• erred in drawing certain conclusions;
• made certain conclusions that are incorrect in law; and
• failed to make certain determinations.
…/2 -2-
Further, PIPE UP submits that the Board failed to consider the Charter argument it made, and that it “[r]eferred to and relied on Ruling 2 made August 19, 2014, which (i) deals with climate change from upstream and downstream activities rather that the immediate threat of boilover; and (ii) relies “on the antiquated “proven to result” threshold for s. 7 infringement rather than the modern “sufficient causal connection” and “imposing heightened risk” threshold for s. 7 infringement from Canada v. Bedford, 2013 SCC 72 at paras. 73-92.” (Bedford)
Trans Mountain’s Response
Trans Mountain submitted that the review request had failed to raise a doubt as to the correctness of Ruling No. 101 and should, therefore, be dismissed as it fails to satisfy the threshold test for determining whether a review should be heard. Trans Mountain also stated that PIPE UP’s Charter arguments amount to an impermissible collateral attack on the Board’s Ruling No. 29, for which leave was denied by the Federal Court of Appeal.
Views of the Board
Reviews are governed by subsection 21(1) of the National Energy Board Act (NEB Act) and by Part III of the National Energy Board Rules of Practice and Procedure, 1995 (Rules). On an application for a review, the Board first considers whether the application has raised a doubt as to the correctness of the ruling being challenged.
The grounds provided by PIPE UP in the review request consist of unsupported statements of opinion that the Board made various errors or failed to determine various issues.
PIPE UP’s asserts that the Board failed to consider its section 7 Charter argument, and applied the wrong test. In Ruling No. 101, the Board noted that the Charter argument had not been “adequately developed” and that PIPE UP’s submissions on this topic were incomplete. While the Board did make reference to Ruling No. 29 and the remoteness issue, it did not dismiss the Charter argument on this basis alone.
In the review request, PIPE UP provided additional authority (with no explanation as to why it wasn’t provided in the Original Motion) regarding section 7 of the Charter, in the form of the Bedford decision. Within the portion of the Bedford decision cited by PIPE UP, the Supreme Court writes in relation to claims regarding section 7 “[t]he claimant bears the burden of establishing this connection. Even if established, it does not end the inquiry, since the claimant must go on to show that the deprivation of her security of the person is not in accordance with the principles of fundamental justice.” (Bedford para. 78) The Board is not satisfied that PIPE UP has shown that Ruling No. 101, based on PIPE UP’s section 7 Charter submissions in the Original Motion, was incorrect.
Further, as the Board has noted previously, a review request is not an opportunity to re-argue the same points previously raised, or to provide new argument that could have been raised in the Original Motion. -3-
For all these reasons, no doubt is raised about the correctness of Ruling No. 101. Therefore, the Review is dismissed.
D. Hamilton Presiding Member
P. Davies Member
A. Scott Member
c.c. All intervenors and Trans Mountain
CANADA
CONSOLIDATION CODIFICATION
National Energy Board Act Loi sur l’Office national de l’énergie
R.S.C., 1985, c. N-7 L.R.C. (1985), ch. N-7
Current to November 8, 2018 À jour au 8 novembre 2018
Last amended on March 29, 2018 Dernière modification le 29 mars 2018
Published by the Minister of Justice at the following address: Publié par le ministre de la Justice à l’adresse suivante : http://laws-lois.justice.gc.ca http://lois-laws.justice.gc.ca OFFICIAL STATUS CARACTÈRE OFFICIEL OF CONSOLIDATIONS DES CODIFICATIONS
Subsections 31(1) and (2) of the Legislation Revision and Les paragraphes 31(1) et (2) de la Loi sur la révision et la Consolidation Act, in force on June 1, 2009, provide as codification des textes législatifs, en vigueur le 1er juin follows: 2009, prévoient ce qui suit :
Published consolidation is evidence Codifications comme élément de preuve 31 (1) Every copy of a consolidated statute or consolidated 31 (1) Tout exemplaire d'une loi codifiée ou d'un règlement regulation published by the Minister under this Act in either codifié, publié par le ministre en vertu de la présente loi sur print or electronic form is evidence of that statute or regula- support papier ou sur support électronique, fait foi de cette tion and of its contents and every copy purporting to be pub- loi ou de ce règlement et de son contenu. Tout exemplaire lished by the Minister is deemed to be so published, unless donné comme publié par le ministre est réputé avoir été ainsi the contrary is shown. publié, sauf preuve contraire.
Inconsistencies in Acts Incompatibilité — lois (2) In the event of an inconsistency between a consolidated (2) Les dispositions de la loi d'origine avec ses modifications statute published by the Minister under this Act and the origi- subséquentes par le greffier des Parlements en vertu de la Loi nal statute or a subsequent amendment as certified by the sur la publication des lois l'emportent sur les dispositions in- Clerk of the Parliaments under the Publication of Statutes compatibles de la loi codifiée publiée par le ministre en vertu Act, the original statute or amendment prevails to the extent de la présente loi. of the inconsistency.
NOTE NOTE
This consolidation is current to November 8, 2018. The Cette codification est à jour au 8 novembre 2018. Les last amendments came into force on March 29, 2018. Any dernières modifications sont entrées en vigueur amendments that were not in force as of November 8, le 29 mars 2018. Toutes modifications qui n'étaient pas 2018 are set out at the end of this document under the en vigueur au 8 novembre 2018 sont énoncées à la fin de heading “Amendments Not in Force”. ce document sous le titre « Modifications non en vigueur ».
Current to November 8, 2018 À jour au 8 novembre 2018 Last amended on March 29, 2018 Dernière modification le 29 mars 2018 R.S.C., 1985, c. N-7 L.R.C., 1985, ch. N-7
An Act to establish a National Energy Board Loi constituant l’Office national de l’énergie Short Title Titre abrégé
Short title Titre abrégé 1 This Act may be cited as the National Energy Board 1 Loi sur l’Office national de l’énergie. Act. S.R., ch. N-6, art. 1. R.S., c. N-6, s. 1. Interpretation Définitions et interprétation
Definitions Définitions 2 In this Act, 2 Les définitions qui suivent s’appliquent à la présente loi. abandoned pipeline means a pipeline the operation of which has been abandoned with the leave of the Board as certificat Certificat d’utilité publique délivré aux termes required by paragraph 74(1)(d) and that remains in des parties III ou III.1, mais visant respectivement aux place; (pipeline abandonné) parties III et III.1 un certificat délivré pour un pipeline et une ligne internationale ou interprovinciale. (certificate) Aboriginal governing body means a council, govern- ment or other entity authorized to act on behalf of comité d’arbitrage Comité d’arbitrage nommé confor- mément à l’article 91. (Arbitration Committee) (a) a band as defined in subsection 2(1) of the Indian Act, or compagnie Vise également toute personne autorisée aux termes d’une loi spéciale à construire ou à exploiter (b) a First Nation, an Aboriginal people or any Abo- un pipeline et toute personne morale régie par la Loi ca- riginal organization that is a party to a land claims nadienne sur les sociétés par actions. (company) agreement or any other treaty, a self-government agreement or a settlement agreement; (corps diri- corps dirigeant autochtone Conseil, gouvernement ou geant autochtone) autre entité autorisé à agir pour le compte :
Arbitration Committee means an Arbitration Commit- a) soit d’une bande au sens du paragraphe 2(1) de la tee appointed pursuant to section 91; (comité d’arbi- Loi sur les Indiens; trage) b) soit d’une première nation, d’un peuple autochtone Board means the National Energy Board established by ou de tout organisme autochtone qui est partie à un section 3; (Office) accord sur des revendications territoriales ou à tout autre traité, à un accord sur l’autonomie gouverne- certificate means a certificate of public convenience and mentale ou à une entente de règlement. (Aboriginal necessity issued under Part III or III.1 except that certifi- governing body) cate means
Current to November 8, 2018 1 À jour au 8 novembre 2018 Last amended on March 29, 2018 Dernière modification le 29 mars 2018 National Energy Board Office national de l’énergie Interpretation Définitions et interprétation Sections 2-3 Articles 2-3
(b) letters patent issued under section 5.1 or 5.4 of the biens réels et intérêts fonciers, ainsi qu’aux droits et inté- Canada Corporations Act, chapter C-32 of the Revised rêts afférents et, dans la province de Québec, aux im- Statutes of Canada, 1970, except for the purpose of meubles ainsi qu’aux droits afférents et aux droits des lo- paragraph 115(b) of this Act; (loi spéciale) cataires relativement aux immeubles. Ces droits et intérêts peuvent porter sur la surface ou le sous-sol de toll includes any toll, rate, charge or allowance charged ces terrains. (lands) or made Tribunal Tribunal d’indemnisation en matière de pipe- (a) for the shipment, transportation, transmission, lines constitué en application du paragraphe 48.18(1). care, handling or delivery of hydrocarbons or of an- (Tribunal)
other commodity that is transmitted through a L.R. (1985), ch. N-7, art. 2; L.R. (1985), ch. 28 (3e suppl.), art. 299; 1990, ch. 7, art. 1; pipeline, or for storage or demurrage or the like, 1994, ch. 24, art. 34(F); 1996, ch. 10, art. 237, ch. 31, art. 90; 2004, ch. 25, art. 147; 2012, ch. 19, art. 69, ch. 31, art. 337; 2015, ch. 21, art. 2. (b) for the provision of a pipeline when the pipeline is available and ready to provide for the transmission of oil or gas, and
(c) in respect of the purchase and sale of gas that is the property of a company and that is transmitted by the company through its pipeline, excluding the cost to the company of the gas at the point where it enters the pipeline; (droit)
Tribunal means a pipeline claims tribunal established under subsection 48.18(1). (Tribunal) R.S., 1985, c. N-7, s. 2; R.S., 1985, c. 28 (3rd Supp.), s. 299; 1990, c. 7, s. 1; 1994, c. 24, s. 34(F); 1996, c. 10, s. 237, c. 31, s. 90; 2004, c. 25, s. 147; 2012, c. 19, s. 69, c. 31, s. 337; 2015, c. 21, s. 2. Application Champ d’application
Binding on Her Majesty Obligation de Sa Majesté 2.1 This Act is binding on Her Majesty in right of Cana- 2.1 La présente loi lie Sa Majesté du chef du Canada ou da or a province. d’une province. 1990, c. 7, s. 2. 1990, ch. 7, art. 2.
PART I PARTIE I National Energy Board Office national de l’énergie Establishment of the Board Constitution
Board established Constitution 3 (1) There is hereby established a Board, to be called 3 (1) Est constitué l’Office national de l’énergie, compo- the National Energy Board, consisting of not more than sé d’au plus neuf membres nommés par le gouverneur en nine members to be appointed by the Governor in Coun- conseil. cil.
Tenure of members Mandat (2) Subject to subsection (3), each member of the Board (2) Sous réserve du paragraphe (3), les membres de l’Of- shall be appointed to hold office during good behaviour fice occupent leur poste à titre inamovible pour un man- for a period of seven years, but may be removed at any dat de sept ans, sous réserve de révocation par le gouver- time by the Governor in Council on address of the Senate neur en conseil sur adresse du Sénat et de la Chambre and House of Commons. des communes.
Current to November 8, 2018 5 À jour au 8 novembre 2018 Last amended on March 29, 2018 Dernière modification le 29 mars 2018 National Energy Board Office national de l’énergie PART I National Energy Board PARTIE I Office national de l’énergie Establishment of the Board Constitution Sections 3-4 Articles 3-4
Reappointment Reconduction du mandat (3) A member appointed under subsection (2) is eligible (3) Le mandat des membres peut être reconduit pour to be reappointed to hold office during good behaviour toute période de sept ans ou moins. for any term of seven years or less.
Eligibility Conditions de nomination (4) A person is not eligible to be appointed or to continue (4) Pour être membre de l’Office, il faut, d’une part, être as a member of the Board if that person is not a Canadian un citoyen canadien ou un résident permanent au sens citizen or permanent resident within the meaning of sub- du paragraphe 2(1) de la Loi sur l’immigration et la pro- section 2(1) of the Immigration and Refugee Protection tection des réfugiés, d’autre part, ne pas participer, à titre Act or is, as owner, shareholder, director, officer, partner notamment de propriétaire, d’actionnaire, d’administra- or otherwise, engaged in the business of producing, sell- teur, de dirigeant ou d’associé, à une entreprise se livrant ing, buying, transmitting, exporting, importing or other- à la production, la vente, l’achat, le transport, l’exporta- wise dealing in hydrocarbons or electricity or holds any tion ou l’importation d’hydrocarbures ou d’électricité, ou bond, debenture or other security of a corporation en- à d’autres opérations concernant ceux-ci, ni être déten- gaged in any such business. teur de titres de créance, entre autres, obligations ou dé- bentures, d’une personne morale exploitant une entre- prise de cette nature.
Residence and other employment Lieu de résidence et incompatibilités (5) Each member, other than a member appointed under (5) Les membres, à l’exception de ceux qui sont nommés subsection 4(1), shall, during his term of office, aux termes du paragraphe 4(1), doivent, durant leur mandat : (a) reside in, or within a reasonable commuting dis- tance of, Calgary, Alberta or at such other place in a) résider à Calgary (Alberta) ou dans un lieu suffi- Canada as the Governor in Council may approve; and samment proche de cette ville ou encore dans tout autre lieu au Canada agréé par le gouverneur en (b) devote the whole of his time to the performance of conseil; his duties under this Act, and shall not accept or hold any office or employment inconsistent with his duties b) se consacrer à l’accomplissement des fonctions and functions under this Act. prévues par la présente loi, à l’exclusion de tout poste R.S., 1985, c. N-7, s. 3; 1990, c. 7, s. 3; 1991, c. 27, s. 1; 2001, c. 27, s. 262; 2015, c. 21, s. ou emploi incompatible avec celles-ci. 3. L.R. (1985), ch. N-7, art. 3; 1990, ch. 7, art. 3; 1991, ch. 27, art. 1; 2001, ch. 27, art. 262; 2015, ch. 21, art. 3.
Temporary members Membres temporaires 4 (1) In addition to the number of members that may be 4 (1) Le gouverneur en conseil peut nommer des appointed under subsection 3(1), the Governor in Coun- membres temporaires de l’Office, aux conditions qu’il cil may, notwithstanding subsection 3(2), appoint tempo- fixe; ceux-ci remplissent les fonctions que leur assigne le rary members of the Board on such terms and conditions président. as the Governor in Council may prescribe and any tem- porary member so appointed shall carry out such duties as may be assigned to that member by the Chairperson of the Board.
(2) [Repealed, 2012, c. 19, s. 70] (2) [Abrogé, 2012, ch. 19, art. 70]
Temporary members, other employment Incompatibilités (3) A member appointed under subsection (1) shall not, (3) Les membres temporaires ne peuvent, durant leur during his term of office, accept or hold any office or em- mandat, occuper un poste ou un emploi incompatible ployment inconsistent with the member’s duties under avec les fonctions que leur confère la présente loi. this Act. L.R. (1985), ch. N-7, art. 4; 2012, ch. 19, art. 70 et 99(A). R.S., 1985, c. N-7, s. 4; 2012, c. 19, ss. 70, 99(E).
Current to November 8, 2018 6 À jour au 8 novembre 2018 Last amended on March 29, 2018 Dernière modification le 29 mars 2018 National Energy Board Office national de l’énergie PART I National Energy Board PARTIE I Office national de l’énergie Powers of the Board Pouvoirs de l’Office Sections 11-12 Articles 11-12
Powers with respect to witnesses, etc. Pouvoirs quant aux témoins (3) The Board has, with respect to the attendance, swear- (3) L’Office a, pour la comparution, la prestation de ser- ing and examination of witnesses, the production and in- ment et l’interrogatoire des témoins, la production et spection of documents, the enforcement of its orders, the l’examen des documents, l’exécution de ses ordonnances, entry on and inspection of property and other matters la visite de lieux et toutes autres questions relevant de sa necessary or proper for the due exercise of its jurisdic- compétence, les attributions d’une cour supérieure d’ar- tion, all such powers, rights and privileges as are vested chives. in a superior court of record.
Expeditious proceedings Rapidité (4) Subject to subsections 6(2.1) and (2.2), all applica- (4) Sous réserve des paragraphes 6(2.1) et (2.2), l’Office tions and proceedings before the Board are to be dealt tranche les demandes et procédures dont il est saisi le with as expeditiously as the circumstances and consider- plus rapidement possible, compte tenu des circonstances ations of fairness permit, but, in any case, within the time et de l’équité, mais en tout état de cause dans le délai pré- limit provided for under this Act, if there is one. vu sous le régime de la présente loi, le cas échéant. R.S., 1985, c. N-7, s. 11; 2012, c. 19, s. 74. L.R. (1985), ch. N-7, art. 11; 2012, ch. 19, art. 74.
Jurisdiction Compétence 12 (1) The Board has full and exclusive jurisdiction to 12 (1) L’Office a compétence exclusive pour examiner, inquire into, hear and determine any matter entendre et trancher les questions soulevées par tout cas où il estime : (a) where it appears to the Board that any person has failed to do any act, matter or thing required to be a) soit qu’une personne contrevient ou a contrevenu, done by this Act or by any regulation, certificate, li- par un acte ou une omission, à la présente loi ou à ses cence or permit, or any order or direction made by the règlements, ou à un certificat, une licence ou un per- Board, or that any person has done or is doing any act, mis qu’il a délivrés, ou encore à ses ordonnances ou matter or thing contrary to or in contravention of this instructions; Act, or any such regulation, certificate, licence, permit, order or direction; or b) soit que les circonstances peuvent l’obliger, dans l’intérêt public, à prendre une mesure — ordonnance, (b) where it appears to the Board that the circum- instruction, autorisation, sanction ou approbation — stances may require the Board, in the public interest, qu’en droit il est autorisé à prendre ou qui se rapporte to make any order or give any direction, leave, sanc- à un acte que la présente loi ou ses règlements, un cer- tion or approval that by law it is authorized to make or tificat, une licence ou un permis qu’il a délivrés, ou en- give, or with respect to any matter, act or thing that by core ses ordonnances ou instructions interdisent, this Act or any such regulation, certificate, licence, sanctionnent ou exigent. permit, order or direction is prohibited, sanctioned or required to be done.
Inquiry Enquête (1.1) The Board may inquire into any accident involving (1.1) L’Office peut enquêter sur tout accident relatif à un a pipeline, abandoned pipeline, international power line pipeline, à un pipeline abandonné, à une ligne internatio- or other facility the construction or operation of which is nale ou à toute autre installation dont la construction ou regulated by the Board and may, at the conclusion of the l’exploitation est assujettie à sa réglementation, en déga- inquiry, make ger les causes et facteurs, faire des recommandations sur les moyens d’éviter que des accidents similaires ne se (a) findings as to the cause of the accident or factors produisent et rendre toute décision ou ordonnance qu’il contributing to it; lui est loisible de rendre.
(b) recommendations relating to the prevention of fu- ture similar accidents; or
(c) any decision or order that the Board can make.
Current to November 8, 2018 11 À jour au 8 novembre 2018 Last amended on March 29, 2018 Dernière modification le 29 mars 2018 National Energy Board Office national de l’énergie PART III Construction, Operation and Abandonment of Pipelines PARTIE III Construction, exploitation et cessation d’exploitation des pipelines Certificates Certificats Section 53 Article 53
Order to reconsider Décret ordonnant un réexamen 53 (1) After the Board has submitted its report under 53 (1) Une fois que l’Office a présenté son rapport en section 52, the Governor in Council may, by order, refer vertu de l’article 52, le gouverneur en conseil peut, par the recommendation, or any of the terms and conditions, décret, renvoyer la recommandation ou toute condition set out in the report back to the Board for reconsidera- figurant au rapport à l’Office pour réexamen. tion.
Factors and time limit Facteurs et délais (2) The order may direct the Board to conduct the recon- (2) Le décret peut préciser tout facteur dont l’Office doit sideration taking into account any factor specified in the tenir compte dans le cadre du réexamen ainsi que le délai order and it may specify a time limit within which the pour l’effectuer. Board shall complete its reconsideration.
Order binding Caractère obligatoire (3) The order is binding on the Board. (3) Le décret lie l’Office.
Publication Publication (4) A copy of the order must be published in the Canada (4) Une copie du décret est publiée dans la Gazette du Gazette within 15 days after it is made. Canada dans les quinze jours de sa prise.
Obligation of Board Obligation de l’Office (5) The Board shall, before the expiry of the time limit (5) L’Office, dans le délai précisé — le cas échéant — specified in the order, if one was specified, reconsider its dans le décret, réexamine la recommandation ou toute recommendation or any term or condition referred back condition visée par le décret, établit un rapport de réexa- to it, as the case may be, and prepare and submit to the men et le présente au ministre. Minister a report on its reconsideration.
Contents of report Rapport de réexamen (6) In the reconsideration report, the Board shall (6) Dans son rapport de réexamen, l’Office :
(a) if its recommendation was referred back, either a) si le décret vise la recommandation, confirme celle- confirm the recommendation or set out a different ci ou en formule une autre; recommendation; and b) si le décret vise une condition, confirme la condi- (b) if a term or condition was referred back, confirm tion visée par le décret, déclare qu’il ne la propose plus the term or condition, state that it no longer supports ou la remplace par une autre. it or replace it with another one.
Terms and conditions Conditions (7) Regardless of what the Board sets out in the recon- (7) Peu importe ce qu’il mentionne dans le rapport de ré- sideration report, the Board shall also set out in the re- examen, l’Office y mentionne aussi toutes les conditions port all the terms and conditions, that it considers neces- qu’il estime utiles, dans l’intérêt public, de rattacher au sary or desirable in the public interest, to which the certificat si le gouverneur en conseil donne instruction à certificate would be subject if the Governor in Council l’Office de délivrer le certificat. were to direct the Board to issue the certificate.
Report is final and conclusive Caractère définitif (8) Subject to section 54, the Board’s reconsideration re- (8) Sous réserve de l’article 54, le rapport de réexamen port is final and conclusive. est définitif et sans appel.
Current to November 8, 2018 63 À jour au 8 novembre 2018 Last amended on March 29, 2018 Dernière modification le 29 mars 2018 CANADA
CONSOLIDATION CODIFICATION
Canadian Environmental Loi canadienne sur l’évaluation Assessment Act, 2012 environnementale (2012)
S.C. 2012, c. 19, s. 52 L.C. 2012, ch. 19, art. 52
NOTE NOTE [Enacted by section 52 of chapter 19 of the [Édictée par l’article 52 du chapitre 19 des Lois du Statutes of Canada, 2012, in force July 6, 2012, see Canada (2012), en vigueur le 6 juillet 2012, voir TR/ SI/2012-56.] 2012-56.]
Current to November 8, 2018 À jour au 8 novembre 2018
Last amended on June 22, 2017 Dernière modification le 22 juin 2017
Published by the Minister of Justice at the following address: Publié par le ministre de la Justice à l’adresse suivante : http://laws-lois.justice.gc.ca http://lois-laws.justice.gc.ca OFFICIAL STATUS CARACTÈRE OFFICIEL OF CONSOLIDATIONS DES CODIFICATIONS
Subsections 31(1) and (2) of the Legislation Revision and Les paragraphes 31(1) et (2) de la Loi sur la révision et la Consolidation Act, in force on June 1, 2009, provide as codification des textes législatifs, en vigueur le 1er juin follows: 2009, prévoient ce qui suit :
Published consolidation is evidence Codifications comme élément de preuve 31 (1) Every copy of a consolidated statute or consolidated 31 (1) Tout exemplaire d'une loi codifiée ou d'un règlement regulation published by the Minister under this Act in either codifié, publié par le ministre en vertu de la présente loi sur print or electronic form is evidence of that statute or regula- support papier ou sur support électronique, fait foi de cette tion and of its contents and every copy purporting to be pub- loi ou de ce règlement et de son contenu. Tout exemplaire lished by the Minister is deemed to be so published, unless donné comme publié par le ministre est réputé avoir été ainsi the contrary is shown. publié, sauf preuve contraire.
Inconsistencies in Acts Incompatibilité — lois (2) In the event of an inconsistency between a consolidated (2) Les dispositions de la loi d'origine avec ses modifications statute published by the Minister under this Act and the origi- subséquentes par le greffier des Parlements en vertu de la Loi nal statute or a subsequent amendment as certified by the sur la publication des lois l'emportent sur les dispositions in- Clerk of the Parliaments under the Publication of Statutes compatibles de la loi codifiée publiée par le ministre en vertu Act, the original statute or amendment prevails to the extent de la présente loi. of the inconsistency.
NOTE NOTE
This consolidation is current to November 8, 2018. The Cette codification est à jour au 8 novembre 2018. Les last amendments came into force on June 22, 2017. Any dernières modifications sont entrées en vigueur amendments that were not in force as of November 8, le 22 juin 2017. Toutes modifications qui n'étaient pas en 2018 are set out at the end of this document under the vigueur au 8 novembre 2018 sont énoncées à la fin de ce heading “Amendments Not in Force”. document sous le titre « Modifications non en vigueur ».
Current to November 8, 2018 À jour au 8 novembre 2018 Last amended on June 22, 2017 Dernière modification le 22 juin 2017 S.C. 2012, c. 19, s. 52 L.C. 2012, ch. 19, art. 52
An Act respecting the environmental Loi concernant l’évaluation assessment of certain activities and the environnementale de certaines activités et prevention of significant adverse visant à prévenir les effets environmental effects environnementaux négatifs importants
[Assented to 29th June 2012] [Sanctionnée le 29 juin 2012]
Short Title Titre abrégé
Short title Titre abrégé 1 This Act may be cited as the Canadian Environmental 1 Loi canadienne sur l’évaluation environnementale Assessment Act, 2012. (2012). Interpretation Définitions
Definitions Définitions 2 (1) The following definitions apply in this Act. 2 (1) Les définitions qui suivent s’appliquent à la pré- sente loi. Agency means the Canadian Environmental Assessment Agency continued under section 103. (Agence) Agence L’Agence canadienne d’évaluation environne- mentale maintenue en vertu de l’article 103. (Agency) assessment by a review panel means an environmen- tal assessment that is conducted by a review panel. (exa- autorité fédérale men par une commission) a) Ministre fédéral; Canadian Nuclear Safety Commission means the Canadian Nuclear Safety Commission established by sec- b) agence fédérale, société d’État mère au sens du pa- tion 8 of the Nuclear Safety and Control Act. (Commis- ragraphe 83(1) de la Loi sur la gestion des finances sion canadienne de sûreté nucléaire) publiques ou autre organisme constitué sous le régime d’une loi fédérale et tenu de rendre compte au Parle- designated project means one or more physical activi- ment de ses activités par l’intermédiaire d’un ministre ties that fédéral;
(a) are carried out in Canada or on federal lands; c) ministère ou établissement public mentionnés aux annexes I et II de la Loi sur la gestion des finances pu- (b) are designated by regulations made under para- bliques; graph 84(a) or designated in an order made by the Minister under subsection 14(2); and d) tout autre organisme mentionné à l’annexe 1.
Current to November 8, 2018 1 À jour au 8 novembre 2018 Last amended on June 22, 2017 Dernière modification le 22 juin 2017 Canadian Environmental Assessment, 2012 Évaluation environnementale (2012) Interpretation Définitions Section 2 Article 2
(c) are linked to the same federal authority as speci- Sont exclus le conseil exécutif et les ministres du Yukon, fied in those regulations or that order. des Territoires du Nord-Ouest et du Nunavut, ainsi que les ministères et les organismes de l’administration pu- It includes any physical activity that is incidental to those blique de ces territoires, tout conseil de bande au sens physical activities. (projet désigné) donné à « conseil de la bande » dans la Loi sur les In- diens, Exportation et développement Canada et l’Office environment means the components of the Earth, and d’investissement du régime de pensions du Canada. Est includes également exclue toute société d’État qui est une filiale à cent pour cent au sens du paragraphe 83(1) de la Loi sur (a) land, water and air, including all layers of the at- la gestion des finances publiques, commission portuaire mosphere; constituée par la Loi sur les commissions portuaires ou société sans but lucratif qui a conclu une entente en vertu (b) all organic and inorganic matter and living organ- du paragraphe 80(5) de la Loi maritime du Canada, à isms; and moins qu’elle ne soit mentionnée à l’annexe 1. (federal ) (c) the interacting natural systems that include com- authority ponents referred to in paragraphs (a) and (b). (envi- autorité responsable L’autorité visée à l’article 15, rela- ronnement) tivement à un projet désigné devant faire l’objet d’une évaluation environnementale. (responsible authority) environmental assessment means an assessment of the environmental effects of a designated project that is con- commission Toute commission constituée aux termes ducted in accordance with this Act. (évaluation environ- du paragraphe 42(1) ou au titre d’un accord conclu aux ) nementale termes des paragraphes 40(1) ou (2) ou au titre du docu- ment visé au paragraphe 41(2). (review panel) environmental effects means the environmental effects described in section 5. ( ) effets environnementaux Commission canadienne de sûreté nucléaire La Com- mission canadienne de sûreté nucléaire constituée par federal authority means l’article 8 de la Loi sur la sûreté et la réglementation nu- (a) a Minister of the Crown in right of Canada; cléaires. (Canadian Nuclear Safety Commission)
(b) an agency of the Government of Canada or a par- développement durable Développement qui permet de ent Crown corporation, as defined in subsection 83(1) répondre aux besoins du présent sans compromettre la of the Financial Administration Act, or any other possibilité des générations futures de répondre aux leurs. body established by or under an Act of Parliament that (sustainable development) is ultimately accountable through a Minister of the Crown in right of Canada to Parliament for the con- document Tous éléments d’information, quels que duct of its affairs; soient leur forme et leur support, notamment correspon- dance, note, livre, plan, carte, dessin, diagramme, illus- (c) any department or departmental corporation that tration ou graphique, photographie, film, microformule, is set out in Schedule I or II to the Financial Adminis- enregistrement sonore, magnétoscopique ou informatisé, tration Act; and ou toute reproduction de ces éléments d’information. (record) (d) any other body that is set out in Schedule 1. effets environnementaux Les effets environnementaux It does not include the Executive Council of — or a minis- prévus à l’article 5. (environmental effects) ter, department, agency or body of the government of — Yukon, the Northwest Territories or Nunavut, a council environnement Ensemble des conditions et des élé- of the band within the meaning of the Indian Act, Export ments naturels de la Terre, notamment : Development Canada or the Canada Pension Plan Invest- ment Board. It also does not include a Crown corporation a) le sol, l’eau et l’air, y compris toutes les couches de that is a wholly-owned subsidiary, as defined in subsec- l’atmosphère; tion 83(1) of the Financial Administration Act, a harbour commission established under the Harbour Commis- b) toutes les matières organiques et inorganiques ain- sions Act or a not-for-profit corporation that enters into si que les êtres vivants;
Current to November 8, 2018 2 À jour au 8 novembre 2018 Last amended on June 22, 2017 Dernière modification le 22 juin 2017 Canadian Environmental Assessment, 2012 Évaluation environnementale (2012) Interpretation Définitions Section 2 Article 2
an agreement under subsection 80(5) of the Canada Ma- c) les systèmes naturels en interaction qui com- rine Act, that is not set out in Schedule 1. (autorité prennent les éléments visés aux alinéas a) et b). (envi- fédérale) ronment)
federal lands means évaluation environnementale Évaluation des effets en- vironnementaux d’un projet désigné effectuée conformé- (a) lands that belong to Her Majesty in right of Cana- ment à la présente loi. (environmental assessment) da, or that Her Majesty in right of Canada has the power to dispose of, and all waters on and airspace examen par une commission Évaluation environne- above those lands, other than lands under the admin- mentale effectuée par une commission. (assessment by istration and control of the Commissioner of Yukon, a review panel) the Northwest Territories or Nunavut; instance (b) the following lands and areas: a) Autorité fédérale; (i) the internal waters of Canada, in any area of the sea not within a province, b) organisme établi sous le régime d’une loi fédérale et ayant des attributions relatives à l’évaluation des ef- (ii) the territorial sea of Canada, in any area of the fets environnementaux d’un projet désigné; sea not within a province, c) gouvernement d’une province; (iii) the exclusive economic zone of Canada, and d) organisme établi sous le régime d’une loi provin- (iv) the continental shelf of Canada; and ciale et ayant des attributions relatives à l’évaluation des effets environnementaux d’un projet désigné; (c) reserves, surrendered lands and any other lands that are set apart for the use and benefit of a band and e) organisme constitué aux termes d’un accord sur that are subject to the Indian Act, and all waters on des revendications territoriales visé à l’article 35 de la and airspace above those reserves or lands. (territoire Loi constitutionnelle de 1982 et ayant des attributions domanial) relatives à l’évaluation des effets environnementaux d’un projet désigné; follow-up program means a program for f) organisme dirigeant constitué par une loi relative à (a) verifying the accuracy of the environmental as- l’autonomie gouvernementale des Indiens et ayant des sessment of a designated project; and attributions relatives à l’évaluation des effets environ- nementaux d’un projet désigné; (b) determining the effectiveness of any mitigation measures. (programme de suivi) g) gouvernement d’un État étranger ou d’une subdivi- sion politique d’un État étranger ou un de leurs orga- interested party, with respect to a designated project, nismes; means any person who is determined, under subsection (2), to be an interested party. (partie intéressée) h) organisation internationale d’États ou un de ses or- ganismes. (jurisdiction) Internet site means the Internet site that is established under section 79. (site Internet) mesures d’atténuation Mesures visant à éliminer, ré- duire ou limiter les effets environnementaux négatifs jurisdiction means d’un projet désigné. Y sont assimilées les mesures de ré- paration de tout dommage causé par ces effets, notam- (a) a federal authority; ment par remplacement, restauration ou indemnisation. (mitigation measures) (b) any agency or body that is established under an Act of Parliament and that has powers, duties or func- ministre Le ministre de l’Environnement. (Minister) tions in relation to an assessment of the environmen- tal effects of a designated project; Office national de l’énergie L’Office national de l’éner- gie constitué par l’article 3 de la Loi sur l’Office national (c) the government of a province; de l’énergie. (National Energy Board)
Current to November 8, 2018 3 À jour au 8 novembre 2018 Last amended on June 22, 2017 Dernière modification le 22 juin 2017 Canadian Environmental Assessment, 2012 Évaluation environnementale (2012) Interpretation Définitions Sections 2-4 Articles 2-4
responsible authority means the authority that is re- ferred to in section 15 with respect to a designated project that is subject to an environmental assessment. (autorité responsable) review panel means a review panel established under subsection 42(1) or under an agreement or arrangement entered into under subsection 40(1) or (2) or by docu- ment referred to in subsection 41(2). (commission) sustainable development means development that meets the needs of the present, without compromising the ability of future generations to meet their own needs. (développement durable)
Interested party Partie intéressée (2) One of the following entities determines, with respect (2) L’entité ci-après décide, relativement à un projet dé- to a designated project, that a person is an interested signé, qu’une personne est une partie intéressée si elle party if, in its opinion, the person is directly affected by estime que la personne est directement touchée par la the carrying out of the designated project or if, in its réalisation du projet ou qu’elle possède des renseigne- opinion, the person has relevant information or exper- ments pertinents ou une expertise appropriée : tise: a) s’agissant d’un projet pour lequel l’autorité respon- (a) in the case of a designated project for which the re- sable est visée à l’alinéa 15b), cette autorité respon- sponsible authority is referred to in paragraph 15(b), sable; that responsible authority; or b) s’agissant d’un projet pour lequel l’évaluation envi- (b) in the case of a designated project in relation to ronnementale a été renvoyée au titre de l’article 38 which the environmental assessment has been re- pour examen par une commission, cette commission. ferred to a review panel under section 38, that review panel. Her Majesty Sa Majesté
Binding on Her Majesty Sa Majesté 3 This Act is binding on Her Majesty in right of Canada 3 La présente loi lie Sa Majesté du chef du Canada et des or a province. provinces. Purposes Objet
Purposes Objet 4 (1) The purposes of this Act are 4 (1) La présente loi a pour objet :
(a) to protect the components of the environment that a) de protéger les composantes de l’environnement are within the legislative authority of Parliament from qui relèvent de la compétence législative du Parlement significant adverse environmental effects caused by a contre tous effets environnementaux négatifs impor- designated project; tants d’un projet désigné;
(b) to ensure that designated projects that require the b) de veiller à ce que les projets désignés dont la réali- exercise of a power or performance of a duty or func- sation exige l’exercice, par une autorité fédérale, d’at- tion by a federal authority under any Act of Parliament tributions qui lui sont conférées sous le régime d’une other than this Act to be carried out, are considered in loi fédérale autre que la présente loi soient étudiés a careful and precautionary manner to avoid signifi- avec soin et prudence afin qu’ils n’entraînent pas d’ef- cant adverse environmental effects; fets environnementaux négatifs importants;
Current to November 8, 2018 5 À jour au 8 novembre 2018 Last amended on June 22, 2017 Dernière modification le 22 juin 2017 Canadian Environmental Assessment, 2012 Évaluation environnementale (2012) Purposes Objet Sections 4-5 Articles 4-5
(c) to promote cooperation and coordinated action c) de promouvoir la collaboration des gouvernements between federal and provincial governments with re- fédéral et provinciaux et la coordination de leurs acti- spect to environmental assessments; vités en matière d’évaluation environnementale;
(d) to promote communication and cooperation with d) de promouvoir la communication et la collabora- aboriginal peoples with respect to environmental as- tion avec les peuples autochtones en matière d’évalua- sessments; tion environnementale;
(e) to ensure that opportunities are provided for e) de veiller à ce que le public ait la possibilité de par- meaningful public participation during an environ- ticiper de façon significative à l’évaluation environne- mental assessment; mentale;
(f) to ensure that an environmental assessment is f) de veiller à ce que l’évaluation environnementale completed in a timely manner; soit menée à terme en temps opportun;
(g) to ensure that projects, as defined in section 66, g) de veiller à ce que soient étudiés avec soin et pru- that are to be carried out on federal lands, or those dence, afin qu’ils n’entraînent pas d’effets environne- that are outside Canada and that are to be carried out mentaux négatifs importants, les projets au sens de or financially supported by a federal authority, are l’article 66 qui sont réalisés sur un territoire domanial, considered in a careful and precautionary manner to qu’une autorité fédérale réalise à l’étranger ou pour avoid significant adverse environmental effects; lesquels elle accorde une aide financière en vue de leur réalisation à l’étranger; (h) to encourage federal authorities to take actions that promote sustainable development in order to h) d’inciter les autorités fédérales à favoriser un déve- achieve or maintain a healthy environment and a loppement durable propice à la salubrité de l’environ- healthy economy; and nement et à la santé de l’économie;
(i) to encourage the study of the cumulative effects of i) d’encourager l’étude des effets cumulatifs d’activités physical activities in a region and the consideration of concrètes dans une région et la prise en compte des ré- those study results in environmental assessments. sultats de cette étude dans le cadre des évaluations en- vironnementales.
Mandate Mission (2) The Government of Canada, the Minister, the Agen- (2) Pour l’application de la présente loi, le gouvernement cy, federal authorities and responsible authorities, in the du Canada, le ministre, l’Agence, les autorités fédérales et administration of this Act, must exercise their powers in les autorités responsables doivent exercer leurs pouvoirs a manner that protects the environment and human de manière à protéger l’environnement et la santé hu- health and applies the precautionary principle. maine et à appliquer le principe de précaution. Environmental Effects Effets environnementaux
Environmental effects Effets environnementaux 5 (1) For the purposes of this Act, the environmental ef- 5 (1) Pour l’application de la présente loi, les effets envi- fects that are to be taken into account in relation to an act ronnementaux qui sont en cause à l’égard d’une mesure, or thing, a physical activity, a designated project or a d’une activité concrète, d’un projet désigné ou d’un projet project are sont les suivants :
(a) a change that may be caused to the following com- a) les changements qui risquent d’être causés aux ponents of the environment that are within the legisla- composantes ci-après de l’environnement qui relèvent tive authority of Parliament: de la compétence législative du Parlement :
(i) fish and fish habitat as defined in subsection (i) les poissons et leur habitat, au sens du para- 2(1) of the Fisheries Act, graphe 2(1) de la Loi sur les pêches,
Current to November 8, 2018 6 À jour au 8 novembre 2018 Last amended on June 22, 2017 Dernière modification le 22 juin 2017 Canadian Environmental Assessment, 2012 Évaluation environnementale (2012) Environmental Effects Effets environnementaux Section 5 Article 5
(ii) aquatic species as defined in subsection 2(1) of (ii) les espèces aquatiques au sens du paragraphe the Species at Risk Act, 2(1) de la Loi sur les espèces en péril,
(iii) migratory birds as defined in subsection 2(1) of (iii) les oiseaux migrateurs au sens du paragraphe the Migratory Birds Convention Act, 1994, and 2(1) de la Loi de 1994 sur la convention concernant les oiseaux migrateurs, (iv) any other component of the environment that is set out in Schedule 2; (iv) toute autre composante de l’environnement mentionnée à l’annexe 2; (b) a change that may be caused to the environment that would occur b) les changements qui risquent d’être causés à l’envi- ronnement, selon le cas : (i) on federal lands, (i) sur le territoire domanial, (ii) in a province other than the one in which the act or thing is done or where the physical activity, (ii) dans une province autre que celle dans laquelle the designated project or the project is being car- la mesure est prise, l’activité est exercée ou le projet ried out, or désigné ou le projet est réalisé,
(iii) outside Canada; and (iii) à l’étranger;
(c) with respect to aboriginal peoples, an effect occur- c) s’agissant des peuples autochtones, les répercus- ring in Canada of any change that may be caused to sions au Canada des changements qui risquent d’être the environment on causés à l’environnement, selon le cas :
(i) health and socio-economic conditions, (i) en matière sanitaire et socio-économique,
(ii) physical and cultural heritage, (ii) sur le patrimoine naturel et le patrimoine cultu- rel, (iii) the current use of lands and resources for tra- ditional purposes, or (iii) sur l’usage courant de terres et de ressources à des fins traditionnelles, (iv) any structure, site or thing that is of historical, archaeological, paleontological or architectural sig- (iv) sur une construction, un emplacement ou une nificance. chose d’importance sur le plan historique, archéo- logique, paléontologique ou architectural.
Exercise of power or performance of duty or function Exercice d’attributions par une autorité fédérale by federal authority (2) However, if the carrying out of the physical activity, (2) Toutefois, si l’exercice de l’activité ou la réalisation the designated project or the project requires a federal du projet désigné ou du projet exige l’exercice, par une authority to exercise a power or perform a duty or func- autorité fédérale, d’attributions qui lui sont conférées tion conferred on it under any Act of Parliament other sous le régime d’une loi fédérale autre que la présente loi, than this Act, the following environmental effects are also les effets environnementaux comprennent en outre : to be taken into account: a) les changements — autres que ceux visés aux ali- (a) a change, other than those referred to in para- néas (1)a) et b) — qui risquent d’être causés à l’envi- graphs (1)(a) and (b), that may be caused to the envi- ronnement et qui sont directement liés ou nécessaire- ronment and that is directly linked or necessarily inci- ment accessoires aux attributions que l’autorité dental to a federal authority’s exercise of a power or fédérale doit exercer pour permettre l’exercice en tout performance of a duty or function that would permit ou en partie de l’activité ou la réalisation en tout ou en the carrying out, in whole or in part, of the physical ac- partie du projet désigné ou du projet; tivity, the designated project or the project; and b) les répercussions — autres que celles visées à l’ali- (b) an effect, other than those referred to in paragraph néa (1)c) — des changements visés à l’alinéa a), selon (1)(c), of any change referred to in paragraph (a) on le cas :
Current to November 8, 2018 7 À jour au 8 novembre 2018 Last amended on June 22, 2017 Dernière modification le 22 juin 2017 Canadian Environmental Assessment, 2012 Évaluation environnementale (2012) Environmental Assessment of Designated Projects Évaluation environnementale des projets désignés Factors To Be Considered Éléments à examiner Section 19 Article 19
Factors To Be Considered Éléments à examiner
Factors Éléments 19 (1) The environmental assessment of a designated 19 (1) L’évaluation environnementale d’un projet dési- project must take into account the following factors: gné prend en compte les éléments suivants :
(a) the environmental effects of the designated a) les effets environnementaux du projet, y compris project, including the environmental effects of mal- ceux causés par les accidents ou défaillances pouvant functions or accidents that may occur in connection en résulter, et les effets cumulatifs que sa réalisation, with the designated project and any cumulative envi- combinée à celle d’autres activités concrètes, passées ronmental effects that are likely to result from the des- ou futures, est susceptible de causer à l’environne- ignated project in combination with other physical ac- ment; tivities that have been or will be carried out; b) l’importance des effets visés à l’alinéa a); (b) the significance of the effects referred to in para- graph (a); c) les observations du public — ou, s’agissant d’un projet dont la réalisation requiert la délivrance d’un (c) comments from the public — or, with respect to a certificat au titre d’un décret pris en vertu de l’article designated project that requires that a certificate be is- 54 de la Loi sur l’Office national de l’énergie, des par- sued in accordance with an order made under section ties intéressées — reçues conformément à la présente 54 of the National Energy Board Act, any interested loi; party — that are received in accordance with this Act; d) les mesures d’atténuation réalisables, sur les plans (d) mitigation measures that are technically and eco- technique et économique, des effets environnemen- nomically feasible and that would mitigate any signifi- taux négatifs importants du projet; cant adverse environmental effects of the designated project; e) les exigences du programme de suivi du projet;
(e) the requirements of the follow-up program in re- f) les raisons d’être du projet; spect of the designated project; g) les solutions de rechange réalisables sur les plans (f) the purpose of the designated project; technique et économique, et leurs effets environne- mentaux; (g) alternative means of carrying out the designated project that are technically and economically feasible h) les changements susceptibles d’être apportés au and the environmental effects of any such alternative projet du fait de l’environnement; means; i) les résultats de toute étude pertinente effectuée par (h) any change to the designated project that may be un comité constitué au titre des articles 73 ou 74; caused by the environment; j) tout autre élément utile à l’évaluation environne- (i) the results of any relevant study conducted by a mentale dont l’autorité responsable ou, s’il renvoie l’é- committee established under section 73 or 74; and valuation environnementale pour examen par une commission, le ministre peut exiger la prise en (j) any other matter relevant to the environmental as- compte. sessment that the responsible authority, or — if the environmental assessment is referred to a review pan- el — the Minister, requires to be taken into account.
Scope of factors Portée des éléments (2) The scope of the factors to be taken into account un- (2) L’évaluation de la portée des éléments visés aux ali- der paragraphs (1)(a), (b), (d), (e), (g), (h) and (j) is de- néas (1)a), b), d), e), g), h) et j) incombe : termined by a) à l’autorité responsable; (a) the responsible authority; or
Current to November 8, 2018 13 À jour au 8 novembre 2018 Last amended on June 22, 2017 Dernière modification le 22 juin 2017 CANADA
CONSOLIDATION CODIFICATION
National Energy Board Rules of Règles de pratique et de Practice and Procedure, 1995 procédure de l’Office national de l’énergie (1995)
SOR/95-208 DORS/95-208
Current to November 8, 2018 À jour au 8 novembre 2018
Published by the Minister of Justice at the following address: Publié par le ministre de la Justice à l’adresse suivante : http://laws-lois.justice.gc.ca http://lois-laws.justice.gc.ca OFFICIAL STATUS CARACTÈRE OFFICIEL OF CONSOLIDATIONS DES CODIFICATIONS
Subsections 31(1) and (3) of the Legislation Revision and Les paragraphes 31(1) et (3) de la Loi sur la révision et la Consolidation Act, in force on June 1, 2009, provide as codification des textes législatifs, en vigueur le 1er juin follows: 2009, prévoient ce qui suit :
Published consolidation is evidence Codifications comme élément de preuve 31 (1) Every copy of a consolidated statute or consolidated 31 (1) Tout exemplaire d'une loi codifiée ou d'un règlement regulation published by the Minister under this Act in either codifié, publié par le ministre en vertu de la présente loi sur print or electronic form is evidence of that statute or regula- support papier ou sur support électronique, fait foi de cette tion and of its contents and every copy purporting to be pub- loi ou de ce règlement et de son contenu. Tout exemplaire lished by the Minister is deemed to be so published, unless donné comme publié par le ministre est réputé avoir été ainsi the contrary is shown. publié, sauf preuve contraire.
... [...]
Inconsistencies in regulations Incompatibilité — règlements (3) In the event of an inconsistency between a consolidated (3) Les dispositions du règlement d'origine avec ses modifica- regulation published by the Minister under this Act and the tions subséquentes enregistrées par le greffier du Conseil pri- original regulation or a subsequent amendment as registered vé en vertu de la Loi sur les textes réglementaires l'emportent by the Clerk of the Privy Council under the Statutory Instru- sur les dispositions incompatibles du règlement codifié publié ments Act, the original regulation or amendment prevails to par le ministre en vertu de la présente loi. the extent of the inconsistency.
NOTE NOTE
This consolidation is current to November 8, 2018. Any Cette codification est à jour au 8 novembre 2018. Toutes amendments that were not in force as of November 8, modifications qui n'étaient pas en vigueur au 8 novembre 2018 are set out at the end of this document under the 2018 sont énoncées à la fin de ce document sous le titre heading “Amendments Not in Force”. « Modifications non en vigueur ».
Current to November 8, 2018 À jour au 8 novembre 2018 National Energy Board Rules of Practice and Procedure, 1995 Règles de pratique et de procédure de l’Office national de l’énergie (1995) PART II Public Hearings PARTIE II Audiences publiques ou audiences publiques sur pièces Argument Plaidoiries Sections 42-44 Articles 42-44
Argument Plaidoiries
42 The Board may order parties to submit written argu- 42 L’Office peut ordonner aux parties de présenter des ment in addition to or in lieu of oral argument. plaidoiries écrites en sus ou au lieu des plaidoiries orales.
PART III PARTIE III Applications for Review or Demandes de révision ou de Rehearing nouvelle audition
[SOR/99-380, s. 6(F)] [DORS/99-380, art. 6(F)] General Dispositions générales
43 In this Part, 43 Les définitions qui suivent s’appliquent à la présente partie. application for review includes an application to vary or rescind any decision or order of the Board; (demande de demande de révision Est assimilée à une demande de révision) révision la demande de modification ou d’annulation d’une décision ou d’une ordonnance de l’Office. (applica- original proceeding means tion for review)
(a) in respect of an application for a review pursuant procédure initiale to subsection 21(1) of the Act, the proceeding that gave rise to the decision or order in respect of which the re- a) En ce qui concerne une demande de révision aux view is sought, termes du paragraphe 21(1) de la Loi, la procédure ayant donné lieu à la décision ou à l’ordonnance dont (b) in respect of an application for a rehearing pur- la révision est demandée; suant to subsection 21(1) of the Act, the proceeding in respect of which the rehearing is sought, or b) en ce qui concerne une demande de nouvelle audi- tion aux termes du paragraphe 21(1) de la Loi, la pro- (c) in respect of an application for leave to appeal to cédure pour laquelle une nouvelle audition est deman- the Federal Court of Appeal pursuant to subsection dée; 22(1) of the Act, the proceeding that gave rise to the decision or order in respect of which leave to appeal is c) en ce qui concerne une demande d’autorisation sought. (procédure initiale) d’en appeler à la Cour d’appel fédérale en vertu du pa- SOR/99-380, s. 6(F). ragraphe 22(1) de la Loi, la procédure ayant donné lieu à la décision ou à l’ordonnance visée par cette de- mande. (original proceeding) DORS/99-380, art. 6(F). Applications Demande
44 (1) Any application for review or rehearing pursuant 44 (1) Toute demande de révision ou de nouvelle audi- to subsection 21(1) of the Act shall be in writing, signed tion aux termes du paragraphe 21(1) de la Loi est formu- by the applicant or the applicant’s authorized representa- lée par écrit, signée par le demandeur ou son représen- tive, filed with the Board and served on all parties to the tant autorisé, déposée auprès de l’Office et signifiée à original proceeding. chacune des parties à la procédure initiale.
(2) An application for review or rehearing shall contain (2) La demande de révision ou de nouvelle audition contient les éléments suivants : (a) a concise statement of the facts; a) un exposé concis des faits;
Current to November 8, 2018 20 À jour au 8 novembre 2018 National Energy Board Rules of Practice and Procedure, 1995 Règles de pratique et de procédure de l’Office national de l’énergie (1995) PART III Applications for Review or Rehearing PARTIE III Demandes de révision ou de nouvelle audition Applications Demande Sections 44-45 Articles 44-45
(b) the grounds that the applicant considers suffi- b) les motifs que le demandeur juge suffisants pour cient, in the case of an application for review, to raise mettre en doute le bien-fondé de la décision ou de l’or- a doubt as to the correctness of the decision or order donnance, s’il s’agit d’une demande de révision, ou or, in the case of an application for rehearing, to estab- pour justifier la tenue d’une nouvelle audition, s’il s’a- lish the requirement for a rehearing, including git d’une demande de nouvelle audition, notamment :
(i) any error of law or of jurisdiction, (i) une erreur de droit ou de compétence,
(ii) changed circumstances or new facts that have (ii) des faits nouveaux ou des circonstances nou- arisen since the close of the original proceeding, or velles survenus depuis la clôture de la procédure initiale, (iii) facts that were not placed in evidence in the original proceeding and that were then not discov- (iii) des faits qui n’ont pas été présentés en preuve erable by reasonable diligence; lors de la procédure initiale et qui ne pouvaient, avec toute la diligence raisonnable, être découverts (c) the nature of the prejudice or damage that has re- à ce moment; sulted or will result from the decision or order; and c) la nature du préjudice ou des dommages qui ont ré- (d) the nature of the relief sought. sulté ou qui résulteront de la décision ou de l’ordon- nance;
d) la nature de la réparation demandée.
(3) For the purposes of subsection (2), unless otherwise (3) Pour l’application du paragraphe (2), sauf décision determined by the Board, an original proceeding is con- contraire de l’Office, la procédure initiale est réputée sidered to be closed close :
(a) in the case of an oral hearing, at the end of the fi- a) au terme de la dernière plaidoirie, dans le cas d’une nal argument; and audience;
(b) in the case of a written hearing, on the close of b) à la fermeture des bureaux de l’Office à la plus tar- business for the Board on the later of dive des dates suivantes, dans le cas d’une audience sur pièces : (i) the last date for filing of written evidence, and (i) la date limite de dépôt des témoignages écrits, (ii) the last date for filing argument. SOR/99-380, s. 6(F). (ii) la date limite de présentation des plaidoiries. DORS/99-380, art. 6(F). Disposition Décision
45 (1) Upon receipt of an application for review or re- 45 (1) Lorsqu’il est saisi d’une demande de révision ou hearing, the Board may, subject to subsection (2), de nouvelle audition, l’Office peut, sous réserve du para- graphe (2) : (a) dismiss the application if the Board is of the view that the applicant has not a) rejeter la demande s’il estime que le demandeur :
(i) in the case of an application for review, raised a (i) n’a pas soulevé de doute quant au bien-fondé de doubt as to the correctness of the Board’s decision la décision ou de l’ordonnance de l’Office, dans le or order, or cas d’une demande de révision,
(ii) in the case of an application for rehearing, es- (ii) n’a pas démontré la nécessité d’une nouvelle tablished that a rehearing is required; or audition, dans le cas d’une demande de nouvelle audition; (b) issue an order granting a review or rehearing and issue such other order as the Board considers to be just and reasonable.
Current to November 8, 2018 21 À jour au 8 novembre 2018 National Energy Board Rules of Practice and Procedure, 1995 Règles de pratique et de procédure de l’Office national de l’énergie (1995) PART III Applications for Review or Rehearing PARTIE III Demandes de révision ou de nouvelle audition Disposition Décision Sections 45-46 Articles 45-46
b) rendre une ordonnance faisant droit à la demande de révision ou de nouvelle audition et rendre toute autre ordonnance qu’il estime juste et raisonnable.
(2) Before making a determination under subsection (1) (2) Avant de rendre la décision visée au paragraphe (1), the Board may l’Office peut :
(a) issue directions on procedure giving interested a) donner des instructions invitant les personnes inté- persons the opportunity to make submissions and in- ressées à présenter des mémoires et indiquant les mo- dicating the manner of making the submissions dalités procédurales pour leur présentation, lesquels mémoires précisent : (i) in the case of an application for review, on whether or not a doubt has been raised as to the (i) dans le cas d’une demande de révision, si un correctness of the Board’s decision or order or, in doute a été soulevé quant au bien-fondé de la déci- the case of an application for rehearing, on whether sion ou de l’ordonnance de l’Office ou, dans le cas or not a rehearing is required, d’une demande de nouvelle audition, si une nou- velle audition s’impose, (ii) on the merits of confirming, amending or over- turning the Board’s decision or order or rehearing (ii) s’il y a lieu de confirmer, de modifier ou d’infir- the application, and mer la décision ou l’ordonnance de l’Office ou d’en- tendre à nouveau la demande, (iii) on the merits of granting the decision or order sought; or (iii) s’il y a lieu d’accorder la décision ou l’ordon- nance demandée; (b) determine that a review or rehearing is required and issue directions on procedure giving interested b) déterminer qu’une révision ou une nouvelle audi- persons the opportunity to make submissions and in- tion s’impose et donner des instructions invitant les dicating the manner of making the submissions personnes intéressées à présenter des mémoires et in- diquant les modalités procédurales pour leur présen- (i) in the case of an application for review, on the tation, lesquels mémoires précisent : merits of confirming, amending or overturning the Board’s decision or order or, in the case of an appli- (i) dans le cas d’une demande de révision, s’il y a cation for rehearing, on the merits of rehearing the lieu de confirmer, de modifier ou d’infirmer la déci- original proceeding, and sion ou l’ordonnance de l’Office ou, dans le cas d’une demande de nouvelle audition, s’il y a lieu (ii) on the merits of granting the decision or order d’entendre à nouveau la procédure initiale, sought. SOR/99-380, s. 6(F). (ii) s’il y a lieu d’accorder la décision ou l’ordon- nance demandée. DORS/99-380, art. 6(F).
46 Directions on procedure issued pursuant to subsec- 46 Les instructions données conformément au para- tion 45(2) shall provide that graphe 45(2) indiquent :
(a) the applicant for a review or rehearing shall serve a) que le demandeur de la révision ou de la nouvelle a copy of the directions on procedure on all parties to audition doit signifier une copie de ces instructions à the original proceeding; chacune des parties à la procédure initiale;
(b) an interested person who files a submission with b) que les personnes intéressées qui déposent des mé- the Board shall serve a copy on the applicant for a re- moires auprès de l’Office doivent en signifier copie à view or rehearing and on all parties to the original ce demandeur et à chacune des parties à la procédure proceeding; initiale;
(c) the applicant for a review or rehearing shall be giv- c) que ce demandeur se voit accorder la possibilité de en an opportunity to reply to all submissions; and répliquer à tous les mémoires présentés;
Current to November 8, 2018 22 À jour au 8 novembre 2018 PREAMBLE TO THE UNITED NATIONS CONVENTION ON THE LAW OF THE SEA
PART V
EXCLUSIVE ECONOMIC ZONE
Article55
Specific legal regime of the exclusive economic zone
The exclusive economic zone is an area beyond and adjacent to the territorial sea, subject to the specific legal regime established in this Part, under which the rights and jurisdiction of the coastal State and the rights and freedoms of other States are governed by the relevant provisions of this Convention.
Article56
Rights, jurisdiction and duties of the coastal State in the exclusive economic zone
1. In the exclusive economic zone, the coastal State has:
(a) sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the seabed and of the seabed and its subsoil, and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds;
(b) jurisdiction as provided for in the relevant provisions of this Convention with regard to:
(i) the establishment and use of artificial islands, installations and structures;
(ii) marine scientific research;
(iii) the protection and preservation of the marine environment;
(c) other rights and duties provided for in this Convention.
2. In exercising its rights and performing its duties under this Convention in the exclusive economic zone, the coastal State shall have due regard to the rights and duties of other States and shall act in a manner compatible with the provisions of this Convention.
3. The rights set out in this article with respect to the seabed and subsoil shall be exercised in accordance with Part VI.
Article57
Breadth of the exclusive economic zone
The exclusive economic zone shall not extend beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured.
Article58
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Rights and duties of other States in the exclusive economic zone
1. In the exclusive economic zone, all States, whether coastal or land-locked, enjoy, subject to the relevant provisions of this Convention, the freedoms referred to in article 87 of navigation and overflight and of the laying of submarine cables and pipelines, and other internationally lawful uses of the sea related to these freedoms, such as those associated with the operation of ships, aircraft and submarine cables and pipelines, and compatible with the other provisions of this Convention.
2. Articles 88 to 115 and other pertinent rules of international law apply to the exclusive economic zone in so far as they are not incompatible with this Part.
3. In exercising their rights and performing their duties under this Convention in the exclusive economic zone, States shall have due regard to the rights and duties of the coastal State and shall comply with the laws and regulations adopted by the coastal State in accordance with the provisions of this Convention and other rules of international law in so far as they are not incompatible with this Part.
Article59
Basis for the resolution of conflicts
regarding the attribution of rights and jurisdiction
in the exclusive economic zone
In cases where this Convention does not attribute rights or jurisdiction to the coastal State or to other States within the exclusive economic zone, and a conflict arises between the interests of the coastal State and any other State or States, the conflict should be resolved on the basis of equity and in the light of all the relevant circumstances, taking into account the respective importance of the interests involved to the parties as well as to the international community as a whole.
Article60
Artificial islands, installations and structures
in the exclusive economic zone
1. In the exclusive economic zone, the coastal State shall have the exclusive right to construct and to authorize and regulate the construction, operation and use of:
(a) artificial islands;
(b) installations and structures for the purposes provided for in article 56 and other economic purposes;
(c) installations and structures which may interfere with the exercise of the rights of the coastal State in the zone.
2. The coastal State shall have exclusive jurisdiction over such artificial islands, installations and structures, including jurisdiction with regard to customs, fiscal, health, safety and immigration laws and regulations.
3. Due notice must be given of the construction of such artificial islands, installations or structures, and permanent means for giving warning of their presence must be maintained. Any installations or structures which are abandoned or
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disused shall be removed to ensure safety of navigation, taking into account any generally accepted international standards established in this regard by the competent international organization. Such removal shall also have due regard to fishing, the protection of the marine environment and the rights and duties of other States. Appropriate publicity shall be given to the depth, position and dimensions of any installations or structures not entirely removed.
4. The coastal State may, where necessary, establish reasonable safety zones around such artificial islands, installations and structures in which it may take appropriate measures to ensure the safety both of navigation and of the artificial islands, installations and structures.
5. The breadth of the safety zones shall be determined by the coastal State, taking into account applicable international standards. Such zones shall be designed to ensure that they are reasonably related to the nature and function of the artificial islands, installations or structures, and shall not exceed a distance of 500 metres around them, measured from each point of their outer edge, except as authorized by generally accepted international standards or as recommended by the competent international organization. Due notice shall be given of the extent of safety zones.
6. All ships must respect these safety zones and shall comply with generally accepted international standards regarding navigation in the vicinity of artificial islands, installations, structures and safety zones.
7. Artificial islands, installations and structures and the safety zones around them may not be established where interference may be caused to the use of recognized sea lanes essential to international navigation.
8. Artificial islands, installations and structures do not possess the status of islands. They have no territorial sea of their own, and their presence does not affect the delimitation of the territorial sea, the exclusive economic zone or the continental shelf.
Article61
Conservation of the living resources
1. The coastal State shall determine the allowable catch of the living resources in its exclusive economic zone.
2. The coastal State, taking into account the best scientific evidence available to it, shall ensure through proper conservation and management measures that the maintenance of the living resources in the exclusive economic zone is not endangered by over-exploitation. As appropriate, the coastal State and competent international organizations, whether subregional, regional or global, shall cooperate to this end.
3. Such measures shall also be designed to maintain or restore populations of harvested species at levels which can produce the maximum sustainable yield, as qualified by relevant environmental and economic factors, including the economic needs of coastal fishing communities and the special requirements of developing States, and taking into account fishing patterns, the interdependence of stocks and any generally recommended international minimum standards, whether subregional, regional or global.
4. In taking such measures the coastal State shall take into consideration the effects on species associated with or dependent upon harvested species with a view to maintaining or restoring populations of such associated or dependent species above levels at which their reproduction may become seriously threatened.
5. Available scientific information, catch and fishing effort statistics, and other data relevant to the conservation of fish stocks shall be contributed and exchanged on a regular basis through competent international organizations, whether subregional, regional or global, where appropriate and with participation by all States concerned, including States whose nationals are allowed to fish in the exclusive economic zone.
Article62
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Utilization of the living resources
1. The coastal State shall promote the objective of optimum utilization of the living resources in the exclusive economic zone without prejudice to article 61.
2. The coastal State shall determine its capacity to harvest the living resources of the exclusive economic zone. Where the coastal State does not have the capacity to harvest the entire allowable catch, it shall, through agreements or other arrangements and pursuant to the terms, conditions, laws and regulations referred to in paragraph 4, give other States access to the surplus of the allowable catch, having particular regard to the provisions of articles 69 and 70, especially in relation to the developing States mentioned therein.
3. In giving access to other States to its exclusive economic zone under this article, the coastal State shall take into account all relevant factors, including, inter alia, the significance of the living resources of the area to the economy of the coastal State concerned and its other national interests, the provisions of articles 69 and 70, the requirements of developing States in the subregion or region in harvesting part of the surplus and the need to minimize economic dislocation in States whose nationals have habitually fished in the zone or which have made substantial efforts in research and identification of stocks.
4. Nationals of other States fishing in the exclusive economic zone shall comply with the conservation measures and with the other terms and conditions established in the laws and regulations of the coastal State. These laws and regulations shall be consistent with this Convention and may relate, inter alia, to the following:
(a) licensing of fishermen, fishing vessels and equipment, including payment of fees and other forms of remuneration, which, in the case of developing coastal States, may consist of adequate compensation in the field of financing, equipment and technology relating to the fishing industry;
(b) determining the species which may be caught, and fixing quotas of catch, whether in relation to particular stocks or groups of stocks or catch per vessel over a period of time or to the catch by nationals of any State during a specified period;
(c) regulating seasons and areas of fishing, the types, sizes and amount of gear, and the types, sizes and number of fishing vessels that may be used;
(d) fixing the age and size of fish and other species that may be caught;
(e) specifying information required of fishing vessels, including catch and effort statistics and vessel position reports;
(f) requiring, under the authorization and control of the coastal State, the conduct of specified fisheries research programmes and regulating the conduct of such research, including the sampling of catches, disposition of samples and reporting of associated scientific data;
(g) the placing of observers or trainees on board such vessels by the coastal State;
(h) the landing of all or any part of the catch by such vessels in the ports of the coastal State;
(i) terms and conditions relating to joint ventures or other cooperative arrangements;
(j) requirements for the training of personnel and the transfer of fisheries technology, including enhancement of the coastal State's capability of undertaking fisheries research;
(k) enforcement procedures.
5. Coastal States shall give due notice of conservation and management laws and regulations.
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Article63
Stocks occurring within the exclusive economic zones of
two or more coastal States or both within the exclusive economic zone
and in an area beyond and adjacent to it
1. Where the same stock or stocks of associated species occur within the exclusive economic zones of two or more coastal States, these States shall seek, either directly or through appropriate subregional or regional organizations, to agree upon the measures necessary to coordinate and ensure the conservation and development of such stocks without prejudice to the other provisions of this Part.
2. Where the same stock or stocks of associated species occur both within the exclusive economic zone and in an area beyond and adjacent to the zone, the coastal State and the States fishing for such stocks in the adjacent area shall seek, either directly or through appropriate subregional or regional organizations, to agree upon the measures necessary for the conservation of these stocks in the adjacent area.
Article64
Highly migratory species
1. The coastal State and other States whose nationals fish in the region for the highly migratory species listed in Annex I shall cooperate directly or through appropriate international organizations with a view to ensuring conservation and promoting the objective of optimum utilization of such species throughout the region, both within and beyond the exclusive economic zone. In regions for which no appropriate international organization exists, the coastal State and other States whose nationals harvest these species in the region shall cooperate to establish such an organization and participate in its work.
2. The provisions of paragraph 1 apply in addition to the other provisions of this Part.
Article65
Marine mammals
Nothing in this Part restricts the right of a coastal State or the competence of an international organization, as appropriate, to prohibit, limit or regulate the exploitation of marine mammals more strictly than provided for in this Part. States shall cooperate with a view to the conservation of marine mammals and in the case of cetaceans shall in particular work through the appropriate international organizations for their conservation, management and study.
Article66
Anadromous stocks
1. States in whose rivers anadromous stocks originate shall have the primary interest in and responsibility for such stocks.
2. The State of origin of anadromous stocks shall ensure their conservation by the establishment of appropriate regulatory measures for fishing in all waters landward of the outer limits of its exclusive economic zone and for fishing
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provided for in paragraph 3(b). The State of origin may, after consultations with the other States referred to in paragraphs 3 and 4 fishing these stocks, establish total allowable catches for stocks originating in its rivers.
3. (a) Fisheries for anadromous stocks shall be conducted only in waters landward of the outer limits of exclusive economic zones, except in cases where this provision would result in economic dislocation for a State other than the State of origin. With respect to such fishing beyond the outer limits of the exclusive economic zone, States concerned shall maintain consultations with a view to achieving agreement on terms and conditions of such fishing giving due regard to the conservation requirements and the needs of the State of origin in respect of these stocks.
(b) The State of origin shall cooperate in minimizing economic dislocation in such other States fishing these stocks, taking into account the normal catch and the mode of operations of such States, and all the areas in which such fishing has occurred.
(c) States referred to in subparagraph (b), participating by agreement with the State of origin in measures to renew anadromous stocks, particularly by expenditures for that purpose, shall be given special consideration by the State of origin in the harvesting of stocks originating in its rivers.
(d) Enforcement of regulations regarding anadromous stocks beyond the exclusive economic zone shall be by agreement between the State of origin and the other States concerned.
4. In cases where anadromous stocks migrate into or through the waters landward of the outer limits of the exclusive economic zone of a State other than the State of origin, such State shall cooperate with the State of origin with regard to the conservation and management of such stocks.
5. The State of origin of anadromous stocks and other States fishing these stocks shall make arrangements for the implementation of the provisions of this article, where appropriate, through regional organizations.
Article67
Catadromous species
1. A coastal State in whose waters catadromous species spend the greater part of their life cycle shall have responsibility for the management of these species and shall ensure the ingress and egress of migrating fish.
2. Harvesting of catadromous species shall be conducted only in waters landward of the outer limits of exclusive economic zones. When conducted in exclusive economic zones, harvesting shall be subject to this article and the other provisions of this Convention concerning fishing in these zones.
3. In cases where catadromous fish migrate through the exclusive economic zone of another State, whether as juvenile or maturing fish, the management, including harvesting, of such fish shall be regulated by agreement between the State mentioned in paragraph 1 and the other State concerned. Such agreement shall ensure the rational management of the species and take into account the responsibilities of the State mentioned in paragraph 1 for the maintenance of these species.
Article68
Sedentary species
This Part does not apply to sedentary species as defined in article 77, paragraph 4.
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Article69
Right of land-locked States
1. Land-locked States shall have the right to participate, on an equitable basis, in the exploitation of an appropriate part of the surplus of the living resources of the exclusive economic zones of coastal States of the same subregion or region, taking into account the relevant economic and geographical circumstances of all the States concerned and in conformity with the provisions of this article and of articles 61 and 62.
2. The terms and modalities of such participation shall be established by the States concerned through bilateral, subregional or regional agreements taking into account, inter alia:
(a) the need to avoid effects detrimental to fishing communities or fishing industries of the coastal State;
(b) the extent to which the land-locked State, in accordance with the provisions of this article, is participating or is entitled to participate under existing bilateral, subregional or regional agreements in the exploitation of living resources of the exclusive economic zones of other coastal States;
(c) the extent to which other land-locked States and geographically disadvantaged States are participating in the exploitation of the living resources of the exclusive economic zone of the coastal State and the consequent need to avoid a particular burden for any single coastal State or a part of it;
(d) the nutritional needs of the populations of the respective States.
3. When the harvesting capacity of a coastal State approaches a point which would enable it to harvest the entire allowable catch of the living resources in its exclusive economic zone, the coastal State and other States concerned shall cooperate in the establishment of equitable arrangements on a bilateral, subregional or regional basis to allow for participation of developing land-locked States of the same subregion or region in the exploitation of the living resources of the exclusive economic zones of coastal States of the subregion or region, as may be appropriate in the circumstances and on terms satisfactory to all parties. In the implementation of this provision the factors mentioned in paragraph 2 shall also be taken into account.
4. Developed land-locked States shall, under the provisions of this article, be entitled to participate in the exploitation of living resources only in the exclusive economic zones of developed coastal States of the same subregion or region having regard to the extent to which the coastal State, in giving access to other States to the living resources of its exclusive economic zone, has taken into account the need to minimize detrimental effects on fishing communities and economic dislocation in States whose nationals have habitually fished in the zone.
5. The above provisions are without prejudice to arrangements agreed upon in subregions or regions where the coastal States may grant to land-locked States of the same subregion or region equal or preferential rights for the exploitation of the living resources in the exclusive economic zones.
Article70
Right of geographically disadvantaged States
1. Geographically disadvantaged States shall have the right to participate, on an equitable basis, in the exploitation of an appropriate part of the surplus of the living resources of the exclusive economic zones of coastal States of the same subregion or region, taking into account the relevant economic and geographical circumstances of all the States concerned and in conformity with the provisions of this article and of articles 61 and 62.
2. For the purposes of this Part, "geographically disadvantaged States" means coastal States, including States bordering
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enclosed or semi-enclosed seas, whose geographical situation makes them dependent upon the exploitation of the living resources of the exclusive economic zones of other States in the subregion or region for adequate supplies of fish for the nutritional purposes of their populations or parts thereof, and coastal States which can claim no exclusive economic zones of their own.
3. The terms and modalities of such participation shall be established by the States concerned through bilateral, subregional or regional agreements taking into account, inter alia:
(a) the need to avoid effects detrimental to fishing communities or fishing industries of the coastal State;
(b) the extent to which the geographically disadvantaged State, in accordance with the provisions of this article, is participating or is entitled to participate under existing bilateral, subregional or regional agreements in the exploitation of living resources of the exclusive economic zones of other coastal States;
(c) the extent to which other geographically disadvantaged States and land-locked States are participating in the exploitation of the living resources of the exclusive economic zone of the coastal State and the consequent need to avoid a particular burden for any single coastal State or a part of it;
(d) the nutritional needs of the populations of the respective States.
4. When the harvesting capacity of a coastal State approaches a point which would enable it to harvest the entire allowable catch of the living resources in its exclusive economic zone, the coastal State and other States concerned shall cooperate in the establishment of equitable arrangements on a bilateral, subregional or regional basis to allow for participation of developing geographically disadvantaged States of the same subregion or region in the exploitation of the living resources of the exclusive economic zones of coastal States of the subregion or region, as may be appropriate in the circumstances and on terms satisfactory to all parties. In the implementation of this provision the factors mentioned in paragraph 3 shall also be taken into account.
5. Developed geographically disadvantaged States shall, under the provisions of this article, be entitled to participate in the exploitation of living resources only in the exclusive economic zones of developed coastal States of the same subregion or region having regard to the extent to which the coastal State, in giving access to other States to the living resources of its exclusive economic zone, has taken into account the need to minimize detrimental effects on fishing communities and economic dislocation in States whose nationals have habitually fished in the zone.
6. The above provisions are without prejudice to arrangements agreed upon in subregions or regions where the coastal States may grant to geographically disadvantaged States of the same subregion or region equal or preferential rights for the exploitation of the living resources in the exclusive economic zones.
Article71
Non-applicability of articles 69 and 70
The provisions of articles 69 and 70 do not apply in the case of a coastal State whose economy is overwhelmingly dependent on the exploitation of the living resources of its exclusive economic zone.
Article72
Restrictions on transfer of rights
1. Rights provided under articles 69 and 70 to exploit living resources shall not be directly or indirectly transferred to
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third States or their nationals by lease or licence, by establishing joint ventures or in any other manner which has the effect of such transfer unless otherwise agreed by the States concerned.
2. The foregoing provision does not preclude the States concerned from obtaining technical or financial assistance from third States or international organizations in order to facilitate the exercise of the rights pursuant to articles 69 and 70, provided that it does not have the effect referred to in paragraph 1.
Article73
Enforcement of laws and regulations of the coastal State
1. The coastal State may, in the exercise of its sovereign rights to explore, exploit, conserve and manage the living resources in the exclusive economic zone, take such measures, including boarding, inspection, arrest and judicial proceedings, as may be necessary to ensure compliance with the laws and regulations adopted by it in conformity with this Convention.
2. Arrested vessels and their crews shall be promptly released upon the posting of reasonable bond or other security.
3. Coastal State penalties for violations of fisheries laws and regulations in the exclusive economic zone may not include imprisonment, in the absence of agreements to the contrary by the States concerned, or any other form of corporal punishment.
4. In cases of arrest or detention of foreign vessels the coastal State shall promptly notify the flag State, through appropriate channels, of the action taken and of any penalties subsequently imposed.
Article74
Delimitation of the exclusive economic zone
between States with opposite or adjacent coasts
1. The delimitation of the exclusive economic zone between States with opposite or adjacent coasts shall be effected by agreement on the basis of international law, as referred to in Article 38 of the Statute of the International Court of Justice, in order to achieve an equitable solution.
2. If no agreement can be reached within a reasonable period of time, the States concerned shall resort to the procedures provided for in Part XV.
3. Pending agreement as provided for in paragraph 1, the States concerned, in a spirit of understanding and cooperation, shall make every effort to enter into provisional arrangements of a practical nature and, during this transitional period, not to jeopardize or hamper the reaching of the final agreement. Such arrangements shall be without prejudice to the final delimitation.
4. Where there is an agreement in force between the States concerned, questions relating to the delimitation of the exclusive economic zone shall be determined in accordance with the provisions of that agreement.
Article75
Charts and lists of geographical coordinates
1. Subject to this Part, the outer limit lines of the exclusive economic zone and the lines of delimitation drawn in http://www.un.org/depts/los/convention_agreements/texts/unclos/part5.htm[11/22/2018 5:42:48 PM] PREAMBLE TO THE UNITED NATIONS CONVENTION ON THE LAW OF THE SEA
accordance with article 74 shall be shown on charts of a scale or scales adequate for ascertaining their position. Where appropriate, lists of geographical coordinates of points, specifying the geodetic datum, may be substituted for such outer limit lines or lines of delimitation.
2. The coastal State shall give due publicity to such charts or lists of geographical coordinates and shall deposit a copy of each such chart or list with the Secretary-General of the United Nations.
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Home About Us Acts and Regulations Regulations, Guidance Notes and Related Documents under the National Energy Board Act Filing Manual Filing Manual – Guide O – Review, Rehearing or Variance Applications (NEB Act s.21)
Filing Manual – Guide O – Review, Rehearing or Variance Applications (NEB Act s.21) Release 2012-01
An applicant may apply under section 21 of the NEB Act for a review or rehearing of a previous Board decision or order or to vary a certificate, licence or permit. Part III of the Rules sets out the procedure to be followed for a review or rehearing.
Goal The application must identify the decision, order, certificate, licence or permit affected and must include the grounds for review or rehearing of the decision or order or the reason variation of the certificate, licence or permit is required.
Filing Requirements 1. Applications for review or rehearing must meet the requirements set out in Part III of the Rules, which may be summarized as follows:
The application must be in writing, signed by the applicant or the applicant's authorized representative, filed with the Board and served on all parties to the proceeding that gave rise to the decision or order in respect of which the review or rehearing is sought. The application must contain: a concise statement of the facts; the grounds that that applicant considers sufficient in the case of a review, to raise a doubt as to the correctness of the decision or order, or in the case of a rehearing, to establish the requirement for rehearing, including: (a) any error of law or jurisdiction;
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(b) changed circumstances or new facts that have arisen since the close or the original proceeding; or (c) facts that were not placed in evidence in the original proceeding and that were then not discoverable by reasonable diligence; the nature of the prejudice or damage that has resulted or will result from the decision or order; and the nature of the relief sought.
2. Where the application is to vary an order, certificate, licence or permit, include the reason the variation is required and all information necessary to support the change proposed, including the information required by the relevant Filing Manual Guide.
Guidance In Part III of the Board’s Rules, and in this guidance, a reference to an application for review includes an application to vary or rescind any decision or order of the Board.
Reviews or Rehearings
There is no automatic right of review or rehearing. In other words, the Board’s power under section 21(1) of the NEB Act is discretionary. In past decisions, the Board has stated this discretion must be exercised sparingly and with caution.
Section 45 of the Rules establishes a two-step process for review or rehearing applications. The Board first determines whether the decision or order should be reviewed or the application reheard. In order to find that a review or rehearing is required, the Board must be satisfied that the applicant has raised a doubt as to the correctness of the decision or order under review or has demonstrated that a rehearing is required. Before making its determination, the Board may, but is not required to, give interested parties the opportunity to file submissions. If the first test is met, the Board considers the review or rehearing application on its merits. In doing so, the Board may establish a process to govern the conduct of the review or rehearing.
An applicant may apply for an order staying the decision or order in respect of which the review is sought pending the review or staying the original proceeding pending the rehearing by meeting the requirements of section 47 of the Rules.
Variance Applications
Applications to vary an order, certificate, licence or permit are generally required to reflect changes to previously-approved applications. Such an application may be required to:
modify facilities previously approved under the NEB Act; make changes to tolls and tariffs approved under Part IV of the NEB Act; or make changes to the name of the holder of the certificate, licence or permit.
In each case, the applicant must satisfy the filing requirements of the relevant Filing Manual Guide.
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For example, an application seeking to vary a certificate of public convenience and necessity to reflect a design change must include all information required under Guide A to support the proposed change. The applicant must examine the Guide pursuant to which the original Board instrument was issued to determine specific filing requirements.
Variation of a Board decision, order or permit does not require the approval of the Governor in Council. However, Governor in Council approval of a variation of a certificate or licence is required under section 21(2)of the NEB Act. Applicants should be aware that this requirement may extend the timeline for obtaining certificate and licence variations.
A variance to a certificate or order under section 21 is required where the company who operates the pipeline will change, for example, in the event of a sale, purchase, transfer or lease of a pipeline, or amalgamation, for which leave was granted by the Board under section 74.
Where the company who is authorized under the order or certificate to operate the pipeline has not changed (e.g., in the event of a simple corporate name change), a variance is not required. However, for administrative purposes, the Board strongly encourages companies to notify the Board and request an amendment to their order or certificate in the event of a corporate name change. At a minimum, and if not done earlier, the changes should be noted when filing certain annual compliance information each January. 12
Further, in the event of a variance or corporate name change, signage on facilities and communication with landowners must be updated within 30 days to facilitate communication and safety reporting (see OPR, paragraph 36(f)).
Next Steps...
File the completed application. Applicants are encouraged to include the completed relevant checklists from Appendix I.
12 See MH-001-2013 Reasons for Decision Set-aside and collection mechanisms May 2014 Pipeline Abandonment – Financial issues, Appendix XV Reporting Form – Companies using Trusts for Set-aside mechanism, Appendix XVI and Appendix XVI Reporting Form – companies using Set-aside mechanisms other than trusts, and Exempt Companies, page 157-8, pdf 175-6.
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STATUTORY INTERPRETATION
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r-, z Ruth Sullivan 0
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STATUTORY INTERPRETATION THIRD EDITION
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ESSENTIALS OF CANADIAN LAW
STATUTORY INTERPRETATION THIRD EDITION
RUTH SULLIVAN
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Page 5 of 5
Statutory Interpretation, third edition Irwin Law Inc., 2016 All rights reserved. No part of this publication may be reproduced, stored in a re- trieval system, or transmitted, in any form or by any means, without the prior writ- ten permission of the publisher or, in the case of photocopying or other reprographic copying, a licence from Access Copyright (Canadian Copyright Licensing Agency), 1 Yonge Street, Suite 800, Toronto, ON, M5E 1E5. Published in 2016 by Irwin Law Inc. 14 Duncan Street Suite 206 Toronto, ON M5H 3G8 www.irwinlaw.com ISBN: 978-1-55221-432-9 e-book ISBN: 978-1-55221-433-6
Library and Archives Canada Cataloguing in Publication Sullivan, Ruth, 1946–, author Statutory interpretation / Ruth Sullivan, Faculty of Law, Common Law Section, University of Ottawa. — Third edition. (Essentials of Canadian law) Includes bibliographical references and index. Issued in print and electronic formats. ISBN 978-1-55221-432-9 (paperback).—ISBN 978-1-55221-433-6 (pdf) 1. Law—Canada—Interpretation and construction. I. Title. II. Series: Essentials of Canadian law KE482.584S94 2016 349.71 C2016-905250-8 KF425.S94 2016 C2016-905251-6 r v_
Canada Ontario Ontario Media Development Corporation Sad * te de developpentent de !Industrie des media, de l'Onterio
Printed and bound in Canada. 1 2 3 4 5 20 19 18 17 16 Although the author is an employee of the Department of Justice, the views expressed in this edition do not derive from her work there, nor do they in any way reflect the department's views.
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Ordinary Meaning 71 meaning of the words is clear. On either approach, considerations like purpose, context, and consequence and the extrinsic aids to interpret- ation are taken into account only if the ordinary meaning is ambiguous. Furthermore, these considerations and aids may not be used to create the ambiguity in the first place. The provision to be interpreted must be looked at in isolation: if its meaning is clear, that is the end of it; if its meaning is doubtful, only then may interpretation begin. In both formulations, the plain meaning rule draws a sharp dis- tinction between reading a legislative text and interpreting it. It pre- supposes that the intended meaning is captured by the words of the text and therefore invariable from one reader to the next. When a court reads a text, it uses the rules of language to discover this pre-existing meaning, which is more or less clear. When a court interprets a text, it must choose between alternative possible meanings, relying on other contexts and various types of analysis. This allows for a creative di- mension in interpretation that is absent in mere reading. The plain meaning rule tells judges that they should engage in the more creative process of interpretation only if the more mechanical process of read- ing yields uncertain results. There are problems with the plain meaning rule. In the first place, the distinction it draws between reading and interpretation is illuso- ry. Establishing the ordinary meaning of a text is a creative, interpre- tive activity that involves more than the simple application of language rules. Considerations of purpose and consequence, as well as the com- mon sense on which interpreters necessarily draw, have a role to play in every act of reading. And where the language is vague or complex, these non-linguistic factors are determinative, whether or not they are acknowledged. Second, the plain meaning rule expressly requires courts to distin- guish between clear or plain meaning on the one hand and ambiguous or doubtful meaning on the other. This distinction has no solid basis. Whether a text is more, or less, clear is a judgment that may vary wide- ly from one person to the next. The courts do not say how clear a text must be, what qualities it must have, to be "plain." They do not reveal the tests or criteria they use to decide that one text is sufficiently clear while another is not. In many cases the labels "plain" and "not plain" appear to be arbitrary or result driven. The chief objection to the plain meaning rule, however, is that it imposes artificial constraints on interpretation. If the task is to give effect to the intention of the legislature, interpreters need to look at all relevant evidence of that intention. There is no cogent reason to limit one's
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72 STATUTORY INTERPRETATION consideration to the words to be interpreted, isolated in their immediate context. As a rule of statutory interpretation, the plain meaning rule is un- satisfactory. However, in practice the courts invoke plain meaning less to constrain their own interpretive practice and more as a reason to discount the arguments of the other side. In other words, it functions primarily as a rhetorical strategy designed to discount the weight of the arguments that favour alternative interpretations. The court says, in effect, "Since my interpretation is dictated by the plain meaning, other considerations (which don't support my interpretation) should be ignored." But in most instances the court has not reached this conclu- sion simply by reading the text. It has instead considered many or all of the relevant contextual factors and concluded that there is nothing to rebut the presumption favouring ordinary meaning. Only then is this meaning labelled "plain," and other evidence of intent dismissed as unnecessary or inadmissible.
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Reliance on Extrinsic Aids 283
Adjudicator Shime's view that certain forms of sexual harass- ment fall within the statutory prohibition on sex discrimination has been adopted by human rights adjudication boards and tribunals across the country."
3) Administrative Interpretation While the primary interpreters in the legal system are judges, they are only a small minority of the persons—fishery officers, building in- spectors, customs officials, police and parole officers, and government officials of all descriptions—who interpret legislation as part of their job. Officials who administer legislation are often well placed to in- terpret it. They may develop extensive knowledge of the matters dealt with in the legislation. They usually have a clear grasp of its purpose and scheme, and they see how it operates in practice on a day-to-day basis. Because of their familiarity with this context, they can readily imagine the consequences of possible interpretations. On the other hand, most administrative officials are not trained in the law or in legal interpretation. Their interpretations may be inappro- priately influenced by departmental or agency interests or by their pro- fessional culture. Another drawback to administrative interpretation is that it is often private and inaccessible. While administrative agencies may issue official interpretation documents addressed to the public at large, and often posted online, some administrative interpretation is set out in internal memoranda or individual case files and is not sys- tematically recorded. Nonetheless, administrative interpretation has become an increasingly important part of the context in which legis- lation is interpreted. The basic rule governing judicial use of administrative materials was stated by Dickson J in R v Nowegijick: "Administrative policy and interpretation are not determinative but are entitled to weight and can be an 'important factor' in case of doubt about the meaning of legis- lation."67 In other words, these materials are admissible to resolve in- terpretative doubt, but their weight is dependent on the circumstances. Many of the early cases in which administrative interpretation was relied on involved interpretation bulletins published by the Department of Revenue and widely circulated among taxpayers. A taxpayer who relies in good faith on the department's understanding of a provision
66 Ibid at 1276-78. 67 119831 1 SCR 29 at 37. See also Canada v GlaxoSmithKline Inc, 2012 SCC 52 at para 20ff; Merck Frosst Canada Ltd v Canada (Health), 2012 SCC 3 at paras 89 and 109-11.
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Reliance on Extrinsic Aids 279 The basic rule of international law governing the interpretation of treaties is stated by O'Connell, International Law . . . as follows: "The primary end of treaty implementation is to give effect to the inten- tions of the parties, and not frustrate them." This is sometimes called the effectiveness principle which requires courts to read a treaty as a whole to ascertain its purpose and intent and to give effect thereto rather than to rely on literal interpretation." The principles governing the interpretation of international conventions are partially codified in articles 31 and 32 of the Vienna Convention on the Law of Treaties, which is often cited by Canadian courts. As the Supreme Court of Canada noted in Febles v Canada (Citizenship and Immigration), Parliament has incorporated Articles 1E and 1F of the Refugee Con- vention into s. 98 of the IRPA [Immigration and Refugee Protection Act]. Interpretation of an international treaty that has been directly incor- porated into Canadian law is governed by Articles 31 and 32 of the Vi- enna Convention on the Law of Treaties . . . . It follows that the meaning of the incorporated Articles of the Refugee Convention must be deter- mined in accordance with the Vienna Convention.55 While international interpretation law used to differ from the common law approach in its emphasis on purpose and in permitting freer access to and greater reliance on extrinsic materials, especially travaux prepa- ratoires, in recent years these differences have largely disappeared.
2) Legislative Formulation Although international law is binding on Canada, Canadian legisla- tures are free to depart from it. Implementing legislation may therefore carry out more, or less, fully and exactly the obligations assumed under an international agreement. Sometimes the legislation closely mirrors the agreement; at other times there may be significant differences be- tween the two. In the event of a conflict between legislation and the terms of an international agreement, the legislation prevails. Although Canadian legislatures are not bound by international law, there is a presumption that the legislature intends to comply with Can- ada's international law obligations.' 6 Thus, in interpreting implementing
54 (1984), 45 OR (2d) 269 at 277-78 (CA), Blair JA, quoting DP O'Connell, Interna- tional Law, 2d ed (London: Stevens, 1970) vol 1 at 251. 55 2014 SCC 68 at para 11. [Citations omitted.] 56 This presumption is discussed in Chapter 18.
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Guide to Preparing a Description of a Designated Project under the Canadian Environmental Assessment Act, 2012 Updated: March 2015
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Disclaimer The Guide to Preparing a Description of a Designated Project under the Canadian Environmental Assessment Act, 2012 is for information purposes only. It is not a substitute for the Canadian Environmental Assessment Act, 2012 (CEAA 2012) or any of its regulations. In the event of any inconsistency between this guide and CEAA 2012 or regulations, CEAA 2012 or regulations would prevail.
For the most up-to-date versions of CEAA 2012 and regulations, please consult the Department of Justice website.
Updates This document may be reviewed and updated periodically by the Canadian Environmental Assessment Agency (the Agency). For the most up-to-date version, please consult the Policy and Guidance page of the Agency website.
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ISBN: 978-1-100-20957-9
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Table of Contents Introduction Purpose of the Guide Pre-Submission Submission of a Project Description Public Disclosure Contents of a Project Description 1.0 General Information and Contact(s) 2.0 Project Information 3.0 Project Location 4.0 Federal Involvement – Financial Support, Lands and Legislative Requirements 5.0 Environmental Effects 6.0 Proponent Engagement and Consultation with Aboriginal Groups 7.0 Consultation with the Public and Other Parties 8.0 Executive Summary How to Submit a Project Description
Introduction Under the Canadian Environmental Assessment Act, 2012 (CEAA 2012), an environmental assessment may be required of designated projects. A designated project includes one or more physical activities that are listed in the Regulations Designating Physical Activities as well as any physical activity incidental to those listed physical activities[1].
Proponents of designated projects—other than designated projects regulated by the Canadian https://www.canada.ca/...-guidance/guide-preparing-description-designated-project-under-canadian-environmental-assessment-act-2012.html[11/30/2018 1:51:37 PM] Guide to Preparing a Description of a Designated Project under the Canadian Environmental Assessment Act, 2012 - Canada.ca
Nuclear Safety Commission (CNSC) or the National Energy Board (NEB) — are required to submit a description of the designated project to the Canadian Environmental Assessment Agency (the Agency) to inform a decision on whether an environmental assessment of the designated project is required. The designated project description (project description) must include the prescribed information set out in the Prescribed Information for the Description of a Designated Project Regulations – including information about the possible adverse environmental effects of the project.
The Agency recognizes that projects may be in the early planning stages when project descriptions are being prepared. In many cases, proponents have not made final decisions concerning the placement of project infrastructure and the technologies to be employed, or several options may exist for various project components. In these situations, project proponents are strongly encouraged to describe the various options under consideration and their associated environmental effects within the project description. Project proponents should contact the Agency for further guidance in this area prior to the submission of the project description.
Once the Agency has received a complete project description with sufficient information from a proponent, it will have 45 days, including a 20-day public comment period, to conduct a screening of the designated project and determine whether an environmental assessment is required[2]. Changes to the project brought forward by the proponent during this phase may result in the cancellation of the screening process and the requirement for the project proponent to submit a new project description to the Agency.
If the Agency is of the opinion that the project description is incomplete or does not contain sufficient details to determine whether an environmental assessment of the project is required, the Agency may, within 10 days after receiving the project description, request the proponent to provide the necessary information.
During the screening phase, the Agency will examine whether the project may cause adverse environmental effects as defined in CEAA 2012. Considering that the Regulations Designating Physical Activities reflect those major projects that have the greatest potential for significant adverse environmental effects in areas of federal jurisdiction, it is expected that the majority of designated projects will warrant an environmental assessment. However, a determination that an environmental assessment under CEAA 2012 is not warranted could be made, for instance, if it is established through the review of the project description and public comments received on the project description that the designated project has no potential to cause adverse environmental effects, or has the potential to cause minor environmental effects that can be adequately managed through other existing legislative or regulatory processes.
Purpose of the Guide The Guide to Preparing a Description of a Designated Project under the Canadian Environmental Assessment Act, 2012 (the Guide) specifies the information that is required in a project description to:
conform with the requirements set out in the Prescribed Information for a Description of a
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Designated Project Regulations. inform the Agency of the possibility that the carrying out of the designated project may cause adverse environmental effects enable the Agency to determine whether an environmental assessment is required under CEAA 2012.
Pre-Submission
Early Engagement with the Agency Before Submitting a Project Description Proponents of designated projects are strongly encouraged to communicate directly with the Agency early in the project description preparation process. The objective of early engagement is to facilitate development of a complete project description and support a more timely and efficient environmental assessment process, should it be determined that an environmental assessment is required. Proponents are encouraged to meet with the Agency before submitting a formal project description to discuss possible environmental assessment requirements.
Proponents should also contact the provincial government(s) for project information requirements that are required by provincial authorities.
Submission of a Project Description The proponent must provide the information requested in this document that is relevant to its particular designated project. This Guide outlines information that is required to enable the Agency to reach a decision on whether an environmental assessment of the designated project is required under CEAA 2012. The provision of timely and complete information is necessary to facilitate an efficient and predictable decision-making process. The decision to proceed to the screening phase may be delayed if the project description information is incomplete.
After receiving a project description, the Agency will review it to determine whether it contains all of the required information. Within 10 days of receiving a project description, the Agency will notify the proponent as to whether additional information is required or if the project description contains all of the information required to proceed to the screening phase. In the event the Agency determines that additional information is required, a proponent will be required to submit a revised project description to the Agency.
Public Disclosure The project description, including any annexes and appendices, will be circulated to relevant government departments and agencies. A summary of the designated project and a link or electronic copy of the document will be made publicly available on the Agency website (www.ceaa-acee.gc.ca). https://www.canada.ca/...-guidance/guide-preparing-description-designated-project-under-canadian-environmental-assessment-act-2012.html[11/30/2018 1:51:37 PM] Guide to Preparing a Description of a Designated Project under the Canadian Environmental Assessment Act, 2012 - Canada.ca
Copies of the project description may be provided to interested parties. If the confidentiality of any information is an issue, it should be discussed with the Agency prior to submitting the project description.
The Government of Canada accepts no liability whatsoever for any claim that might in any way arise as a consequence of the Government of Canada’s handling, use, publication or release of the project description, or the information contained therein, either in whole or in part. Proponents must ensure that the project description is substantially accurate and that nothing contained in it is subject to any confidentiality requirements. Proponents are not to provide confidential, personal or proprietary information that should not be made accessible to the public in its entirety.
Contents of a Project Description
1.0 General Information and Contact(s) 1. Describe the nature of the designated project, and proposed location (2–3 paragraphs; note that additional location details are to be provided in section 3). 2. Proponent information 1. Name of the designated project. 2. Name of the proponent. 3. Address of the proponent. 4. Chief Executive Officer or equivalent (include name, official title, email address and telephone number). 5. Principal contact person for purposes of the project description (include name, official title, email address and telephone number). 3. Provide a list of any jurisdictions and other parties including Aboriginal groups and the public that were consulted during the preparation of the project description. (A description of the result of any consultations undertaken is to be provided in sections 6 and 7). 4. Provide information on whether the designated project is subject to the environmental assessment and/or regulatory requirements of another jurisdiction(s). 5. Provide information on whether the designated project will be taking place in a region that has been the subject of an environmental study. Proponents are advised to contact the Agency during the preparation of the project description for information regarding any regional environmental studies that may be relevant.
2.0 Project Information Provide the following information to the extent that it is available or applicable.
1. Provide a general description of the project, including the context and objectives of the project. Indicate whether the designated project is a component of a larger project that is not listed in the Regulations Designating Physical Activities.
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2. Indicate the provisions in the schedule to the Regulations Designating Physical Activities that describe the designated physical activities that are proposed to be carried out as part of the designated project. 3. Components and activities Provide a description of the components associated with the designated project, including: 1. The physical works associated with the designated project (e.g., large buildings, other structures, such as bridges, culverts, dams, marine transport facilities, mines, pipelines, power plants, railways, roads, and transmission lines) including their purpose, approximate dimensions, and capacity. Include existing structures or related activities that will form part of or are required to accommodate or support the designated project. 2. Anticipated size or production capacity of the designated project, with reference to thresholds set out in the Regulations Designating Physical Activities, including a description of the production processes to be used, the associated infrastructure, and any permanent or temporary structures. The production capacity does not refer to the planned production capacity of a project but the maximum production capacity based on the project’s design and operating conditions. 3. If the designated project or one component of the designated project is an expansion, describe the size and nature of the expansion with reference to the thresholds set out in the Regulations Designating Physical Activities 4. A description of the physical activities that are incidental to the designated project. In determining such activities, the following criteria shall be taken into account: nature of the proposed activities and whether they are subordinate or complementary to the designated project; whether the activity is within the care and control of the proponent; if the activity is to be undertaken by a third party, the nature of the relationship between the proponent and the third party and whether the proponent has the ability to “direct or influence” the carrying out of the activity; whether the activity is solely for the benefit of the proponent or is available for other proponents as well; and, the federal and/or provincial regulatory requirements for the activity. Should an EA be required for the designated project, the Agency will take these criteria into consideration in determining the activities that are incidental to the designated project. 4. Emissions, discharges and waste Provide a description of any waste that is likely to be generated during any phase of the designated project and plans to manage that waste, including the following: 1. Sources of atmospheric contaminant emissions during the designated project phases (focusing on criteria air contaminants and greenhouse gases, or other non-criteria contaminants that are of potential concern) and location of emissions. 2. Sources and location of liquid discharges. 3. Types of wastes and plans for their disposal (e.g., landfill, licenced waste management facility, marine waters, or tailings containment facility). 5. Construction, operation, decommissioning and abandonment phases and scheduling.
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Provide a description of the timeframe in which the development is to occur and the key project phases, including the following: 1. Anticipated scheduling, duration and staging of key project phases, including preparation of the site, construction, operation, decommissioning and abandonment. 2. Main activities in each phase of the designated project that are expected to be required to carry out the proposed development (e.g., activities during site preparation or construction might include, but are not limited to, land clearing, excavating, grading, de-watering, directional drilling, dredging and disposal of dredged sediments, infilling, and installing structures).
3.0 Project Location 1. Provide a description of the designated project’s location including: 1. Coordinates (i.e. longitude/latitude using international standard representation in degrees, minutes, seconds) for the centre of the facility or, for a linear project, provide the beginning and end points. 2. Site map/plan(s) depicting location of the designated project components and activities. The map/plan(s) should be at an appropriate scale to help determine the relative size of the proposed components and activities. 3. Map(s) at an appropriate scale showing the location of the designated project components and activities relative to existing features, including but not limited to: watercourses and waterbodies with names where they are known; linear and other transportation components (e.g., airports, ports, railways, roads, electrical power transmission lines and pipelines); other features of existing or past land use (e.g., archaeological sites, commercial development, houses, industrial facilities, residential areas and any waterborne structures); location of Aboriginal groups, settlement land (under a land claim agreement) and, if available, traditional territory; federal lands[3] including, but not limited to National parks, National historic sites, and reserve lands; nearby communities; permanent, seasonal or temporary residences; fisheries and fishing areas (i.e., Aboriginal, commercial and recreational); environmentally sensitive areas (e.g., wetlands, and protected areas, including migratory bird sanctuary reserves, marine protected areas, National Wildlife areas, and priority ecosystems as defined by Environment Canada); and, provincial and international boundaries. 4. Photographs of work locations to the extent possible. 5. Proximity of the designated project to: any permanent, seasonal or temporary residences; traditional territories, settlement land (under a land claim agreement) as well as
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lands and resources currently used for traditional purposes by Aboriginal peoples; and, any federal lands. 2. Land and Water Use To the extent that is known at this time, describe the ownership and zoning of land and water that may be affected by the project, including the following. 1. Zoning designations. 2. Legal description of land to be used (including information on sub-surface rights) for the designated project, including the title, deed or document and any authorization relating to a water lot. 3. Any applicable land use, water use (including ground water), resource management or conservation plans applicable to or near the project site. Include information on whether such plans were subject to public consultation. 4. Describe whether the designated project is going to require access to, use or occupation of, or the exploration, development and production of lands and resources currently used for traditional purposes by Aboriginal peoples.
4.0 Federal Involvement – Financial Support, Lands and Legislative Requirements 1. Describe if there is any proposed or anticipated federal financial support that federal authorities are, or may be, providing to support the carrying out of the designated project. 2. Describe any federal lands that may be used for the purpose of carrying out the designated project. This is to include any information on any granting of interest in federal land (i.e., easement, right of way, or transfer of ownership). 3. Provide a list of any federal permits, licences or other authorizations that may be required to carry out of the project.
5.0 Environmental Effects The information to be provided in this section is meant to be a brief assessment of the environmental interactions of the project. A detailed examination of the potential environmental effects of the project does not need to be included in the project description. If the proponent is of the opinion that the designated project is not likely to cause adverse environmental effects, it must provide evidence to support its view.
Using existing knowledge and available information provide an overview of the following:
1. A description of the physical and biological setting, including the physical and biological components in the area that may be adversely affected by the project (e.g., air, fish, terrain, vegetation, water, wildlife, including migratory birds, and known habitat use). 2. A description of any changes that may be caused as a result of carrying out the designated project to:
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1. fish and fish habitat, as defined in the Fisheries Act; 2. marine plants, as defined in the Fisheries Act; and, 3. migratory birds, as defined in the Migratory Birds Convention Act, 1994. 3. A description of any changes to the environment that may occur, as a result of carrying out the designated project, on federal lands, in a province other than the province in which the project is proposed to be carried out, or outside of Canada. 4. A description of the effects on Aboriginal peoples of any changes to the environment that may be caused as a result of carrying out the designated project, including effects on health and socio-economic conditions, physical and cultural heritage, the current use of lands and resources for traditional purposes, or any structure, site or thing that is of historical, archaeological, paleontological or architectural significance.
6.0 Proponent Engagement and Consultation with Aboriginal Groups Experience has shown that engagement by proponents with Aboriginal groups early in the planning and design phases of a proposed project can benefit all concerned. By learning about Aboriginal interests and concerns and identifying ways to avoid or mitigate potential impacts, proponents can build these considerations into their project design, thereby improving project design and reducing the potential for future project delays and increased costs.
Provide the following information to the extent that it is available or applicable:
1. A list of Aboriginal groups that may be interested in, or potentially affected by, the designated project. 2. A description of the engagement or consultation activities carried out to date with Aboriginal groups, including: names of Aboriginal groups engaged or consulted to date with regard to the designated project; date(s) each Aboriginal group was engaged or consulted; and, means of engagement or consultation (e.g., community meetings, mail or telephone). 3. An overview of key comments and concerns expressed by Aboriginal groups identified or engaged to date, including any responses provided to these groups. 4. A consultation and information-gathering plan that outlines the ongoing and proposed Aboriginal engagement or consultation activities, the general schedule for these activities and the type of information to be exchanged and collected (or, alternatively, an indication of why such engagement or consultation is not required).
The proponent is encouraged to provide background information on Aboriginal groups’ potential or established Aboriginal or treaty rights. The proponent is also encouraged to provide information on the impact area of the designated project and how it overlaps with uses by Aboriginal groups that have potential or established Aboriginal or treaty rights.
This information will be used to facilitate the Agency’s understanding of the scope of Aboriginal interests in relation to the designated project, including the potential for impacts on Aboriginal rights
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and issues of concern.
7.0 Consultation with the Public and Other Parties (other than Aboriginal consultation included above) Provide the following information to the extent that it is available or applicable:
1. An overview of key comments and concerns expressed to date by stakeholders and any responses that have been provided. 2. An overview of any ongoing or proposed stakeholder consultation activities. 3. A description of any consultations that have occurred with other jurisdictions that have environmental assessment or regulatory decisions to make with respect to the project.
8.0 Summary of the Project Description Proponents are to include as part of the project description a standalone section that summarizes the information identified in Sections 1 to 7 of this Guide. Under CEAA 2012, the Agency is required to consult the public on a summary of the project description that has to be posted on the Agency’s Internet site in both of Canada’s official languages as required under the Official Languages Act. As a result, in order to be in a position to initiate the screening phase in a timely manner, the summary is to be prepared and submitted to the Agency in both English and French.
The Agency strongly encourages proponents to submit accessible documents to reduce barriers and support public participation. The Government of Canada’s Standard on Web Accessibility refers to the internationally accepted Web Content Accessibility Guidelines 2.0 (WCAG 2.0) produced by the World Wide Web Consortium (W3C). The WCAG 2.0 sets out principles for accessible web content and the W3C website offers additional guidance for making content accessible.
How to Submit a Project Description To submit a project description for consideration under CEAA 2012, please visit the Agency’s website.
For alternate means of submitting a project description or other enquiries, please send an e-mail to the Agency at [email protected] or call 1-866-582-1884.
[1] As a safeguard to protect the environment and to respond to public concerns regarding the potential adverse environmental effects of a project, the Minister of the Environment may designate a project that is not described in the regulations and require an environmental assessment under CEAA 2012.
[2] Designated projects that are regulated by the CNSC or the NEB will not undergo this “screening” phase and will automatically require an environmental assessment by those responsible authorities.
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In addition, if the Minister of the Environment designates a project, the project would not be subject to the screening provision of the CEAA 2012.
[3] As defined in CEAA 2012, “federal lands” means
a. lands that belong to Her Majesty in right of Canada, or that Her Majesty in right of Canada has the power to dispose of, and all waters on and airspace above those lands, other than lands under the administration and control of the Commissioner of Yukon, the Northwest Territories or Nunavut; b. the internal waters of Canada (in any area of the sea not within a province), the territorial sea of Canada (in any area of the sea not within a province), the exclusive economic zone of Canada, and the continental shelf of Canada; and c. reserves, surrendered lands and any other lands that are set apart for the use and benefit of a band and that are subject to the Indian Act, and all waters on and airspace above those reserves or lands.
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https://www.canada.ca/...-guidance/guide-preparing-description-designated-project-under-canadian-environmental-assessment-act-2012.html[11/30/2018 1:51:37 PM] ARTICLES
COASTAL STATE'S JURISDICTION OVER FOREIGN VESSELS
Anne Bardin
I. Introduction ...... 28 II. The Rights and Duties of States in the Different Sea Zones Under the United Nations Convention on the Law of the Sea ...... 30 A. Internal W aters ...... 30 1. Jurisdiction Over Foreign Merchant V essels ...... 30 2. Jurisdiction Over Foreign Warships ...... 31 3. The Right of all Vessels to Free Access to P ort ...... 32 B. The Territorial Sea ...... 33 1. Innocent Passage in the Territorial Sea .... 34 2. Legislative Competence of the Coastal State ...... 35 3. Implementation of its Legislation by the Coastal State ...... 36 4. Criminal Jurisdiction of the Coastal State ...... 37 5. W arships ...... 39 C. The Contiguous Zone ...... 39 D. The Exclusive Economic Zone (EEZ) ...... 40 1. Rights of the Coastal State in its EEZ ..... 41 2. Artificial Islands and Scientific Research .. 41 3. Rights of Foreign States in the EEZ ...... 43 4. Residual Rights ...... 44 E. The High Seas ...... 44 1. Freedom of Navigation and Exclusivity of the Flag State ...... 45
1 PACE INT'L L. REV. [Vol. 14:27
2. Jurisdiction Over Vessels Given to States Other than the Flag State ...... 46 III. The Rights and Duties of States Regarding Certain Specific Matters ...... 48 A. Freedom of Navigation and Nationality of Ships ...... 49 1. Freedom of Navigation ...... 49 2. Stateless Vessels ...... 49 3. Nationality of Ships ...... 50 B. The Right of Visit and the Right of Hot Pursuit ...... 51 1. Right of Visit ...... 51 2. Right of Hot Pursuit ...... 52 C . Fisheries ...... 53 1. Full Sovereignty of the Coastal State in Internal Waters and the Territorial Sea ... 53 2. Preference of the Coastal State in its EEZ and its Duty of Conservation ...... 54 3. Freedom to Fish in the High Seas and Duties on All States ...... 56 4. The Canada/Spain Turbot War ...... 57 D . Pollution ...... 58 1. Protection: A Duty for All States ...... 58 2. Implementing Powers Given to Coastal States ...... 60 E. Military Uses of the Sea and Self Defense ..... 63 1. Internal W aters ...... 63 2. The Territorial Sea ...... 64 3. The Exclusive Economic Zone ...... 67 4. The High Seas ...... 68 F. The Saiga Case ...... 71 IV . Conclusion ...... 75
I. INTRODUCTION The freedom to use the world's marine waters is one of the oldest customary principles of international law. However, the freedom of the seas has been under attack since the time of Gro- tius. Specifically, the shrinking of the areas where such a prin- ciple applies started with the First Conference of the United Nations on the Law of the Sea in the 1950s. The main actor in
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this diminution of freedom is the coastal State seeking to assert control over maritime areas and resources. The end result is an encroachment on the freedom of the movement of goods, ser- vices, and persons, which ultimately interferes with the free- dom of navigation. Frequently, the coastal State claims to assert jurisdiction over foreign vessels in particular zones of the sea. The coastal State attempts to regulate certain activities in these zones by imposing duties on foreign vessels, and thereby flirting with the concept of extraterritoriality. Over the years, the coastal State has been given more power over a wider and wider surface of the sea. Since 1982, the sea has had a constitution regulating not only the rights and duties of the coastal State, but also of vessels navigating in the different sea zones. The United Nations Convention on the Law of the Sea (UN- CLOS)' gives to the coastal State sovereign rights in varying degrees over the different zones of the sea. These zones are: 1. internal waters; 2. territorial sea; 3. contiguous zone; 4. ex- clusive economic zone; and 5. the high seas. It also gives coastal States more or less jurisdiction over foreign vessels depending on where the vessel is located. This note primarily addresses the coastal State's assertion of jurisdiction over foreign vessels in light of UNCLOS. Part II examines what extent of power is given to the coastal State in the different sea zones, i.e. legislative and jurisdictional powers, as well as what are the activities a foreign vessel is allowed to undertake therein. Part III analyzes how a coastal State can assert jurisdiction over foreign vessels in specific activities such as navigation, fisheries, pollution, and military activities. Fi- nally, Part IV provides an overview of the concepts set forth in this note by examining the first case of the new International 2 Tribunal of the Law of the Sea, the MIV Saiga case.
1 United Nations Convention on the Law of the Sea, Dec. 10, 1982, A/ CONF.62/122 [hereinafter UNCLOSI. 2 MV Saiga Case (Saint-Vincent and the Grenadines), I.T.L.O.S. Case No. 1 (1997) and 2 (1999) available at http://www.itlos.org/start2-en.html.
3 PACE INT'L L. REV. [Vol. 14:27
II. THE RIGHTS AND DUTIES OF STATES IN THE DIFFERENT SEA ZONES UNDER THE UNITED NATIONS CONVENTION ON THE LAW OF THE SEA As stated earlier, coastal States have varying degrees of ju- risdictional and legislative power in the five zones of the sea. Similarly, foreign vessels are authorized to undertake different activities in the said zones with varying degrees of freedom. This note examines what these rights are, along with the di- verse duties of all States in the different zones, starting with a discussion on the internal waters and ending with the high seas.
A. Internal Waters Internal waters3 are assimilated to the terrestrial territory, and the coastal State can enjoy full and exclusive sovereignty over them. A foreign vessel, located in internal waters, is sub- ject to the legislative, administrative, judicial and jurisdictional powers of the coastal State with regard to any illicit acts com- mitted on board the vessel or on land by crewmembers. The coastal State does not have to allow innocent passage, 4 except where straight baselines enclose "as internal water areas which had not previously been considered as such. [In those circum- stances] a right of innocent passage as provided in [UNCLOS] shall exist through those waters." 5
1. Jurisdiction Over Foreign Merchant Vessels The coastal State has civil jurisdiction over foreign merchant vessels. Specifically, foreign merchant vessels are subject to the coastal State's regulations on navigation and its sanitary, fiscal, technical and customs controls,6 which must be implemented without any discrimination between the vessels. 7 Nonetheless, when a dispute arises between crewmembers
3 See UNCLOS, supra note 1, art. 8. For a definition of internal waters, see R. R. CHURCHILL & A. V. LOWE, THE LAW OF THE SEA (1988). 4 This is a characteristic of the territorial sea, see infra, Part II(B). 5 UNCLOS, supra note 1, art. 8(2). 6 See Ren-Jean Dupuy, La Mer sous Compdtence Nationale, in TRAIT9 DU NOUVEAU DROIT DE LA MER, 219, 221 (Ren6-Jean Dupuy & Daniel Vignes eds., 1985). 7 See LAURENT LucCHINI & MICHEL VOECKEL, DROIT DE LA MER 155 (1990).
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(whatever their nationality may be), the coastal State will usu- ally not assert jurisdiction.8 When a dispute arises between a crewmember and a non-crewmember, the State will assert jurisdiction.9 As for penal jurisdiction, the coastal State has exclusive competence over illicit acts committed on board foreign merchant vessels located within its internal waters. 10 It can also intervene at the request of the captain of the ship or consul of the flag State. The coastal State can also enforce its legisla- tion when its interests are engaged, when the offense affects its peace and good order or when its security is at stake." How- ever, foreign ships will not usually be subject to coastal State jurisdiction if they entered its internal waters because of force 12 majeure or distress.
2. Jurisdiction Over Foreign Warships
On the other hand, foreign warships, including government vessels used for non-commercial purposes, are exempt from the coastal State's civil jurisdiction due to the principle of sovereign immunity.' 3 This immunity, according to UNCLOS Article 32, is subject to the behavior of the vessel that must abstain from any hostile attitude or act of violence. Should a vessel engage in 4 such acts, the coastal State will have a right of self defense.' Thus, the coastal State will not intervene in matters exclusively regarding crewmembers of a warship, or when the offence is
8 See id. at 158. 9 See Dupuy, supra note 6, at 221. 10 See LucCHINI & VOECKEL, supra note 7, at 158. 11 See Dupuy supra note 6, at 222. In the Sally and Newton Incident, the French Conseil d' tat had to decide if French jurisdictions had competence over incidents that occurred on two American vessels during which two crewmembers were injured. The Avis of November 20, 1806 stated that, in principle, the port State will not try to repress illicit acts which occurred on board vessels staying in a port. However, the port authorities can intervene in three hypotheses: if the crime is committed by a non-crewmember; if the intervention of local authorities was requested by the Master of the vessel, or if the peace and good order of the port was compromised. See also CHURCHILL & LOWE, supra note 3, at 55. 12 See CHURCHILL & LowE, supra note 3, at 56-57. 13 See E. DU PONTAVICE & P. CORDIER, LA MER ET LE DROIT: 1 DROIT DE LA MER: PROBLkMES ACTUELS 52 (1984); see also Ingrid Delupis, Foreign Warships and Immunity for Espionage, 78 AMER. J. INT'L L. 53, 54-61 (1984). 14 See LucCHINI & VOECKEL, supra note 7, at 150.
5 PACE INT'L L. REV. [Vol. 14:27
committed on board the vessel. 15 But, it will be fully competent if neither the offender nor the victim is a crewmember. 16 Simi- larly, the coastal State is incompetent regarding acts by officers or crewmembers accomplished as agents of the State. When an act is committed within the conduct of public af- fairs, the coastal State may proceed and make an arrest, but it must deliver the offender to the captain of the ship, if he so re- quests.' 7 On the other hand, if the acts have no relationship to the conduct of public affairs, the injured parties can sue before the tribunals of the coastal State.' Immunities will also protect warships in regard to seizure, arrest or detention of the vessel and persons on board (police or customs authorities have no right to board), in cases of collision.19 Nonetheless, fiscal, navigational, sanitary and port regula- tions, as well as the competence of the local authorities in charge of policing and maintaining good order, have to be respected by foreign warships. 20 Each coastal State also has specific regulations regarding the duration of stay, the number of warships simultaneously allowed, and the interdiction of re- search and military exercises.2 1
3. The Right of All Vessels to Free Access to Port Foreign vessels have a right of free access to the ports of any coastal State. 22 The coastal State, however, can close its
15 See Dupuy, supra note 6, at 222. 16 See LucCHINI & VOECKEL, supra note 7, at 153: the coastal State will be concurrently competent with the flag State if the victim is a crewmember, but not the offender; see also PONTAVICE & CORDIER, supra note 13, at 52. 17 See LUCCHINI & VOECKEL, supra note 7, at 153; PONTAVICE & CORDIER, supra note 13, at 52 (states that if the delinquent reaches the vessel, the coastal authorities cannot arrest him but can ask that he be deferred to competent tribu- nals according to the law of the flag). 18 See PONTAVICE & CORDIER, supra note 13, at 52. 19 See LuCCHINI & VOECKEL, supra note 7, at 152; see also International Con- vention for the Unification of Certain Rules Concerning the Immunity of State- owned Ships, Apr. 10, 1926, 176 LNTS 199 (states that warships are exempt from any seizure, arrest, or detention pursuant to a judicial measure or an in rem proce- dure in relation to civil obligations arising from a collision by a warship or from assistance or salvage given to it). 20 See Dupuy, supra note 6, at 222. 21 See LUCCHINI & VOECKEL, supra note 7, at 151. 22 See Article 2 of the Statute on the International Regime of Maritime Ports, Dec. 9, 1923, 25 LNTS 202.
http://digitalcommons.pace.edu/pilr/vol14/iss1/2 6 2002] COASTAL JURISDICTION OVER FOREIGN VESSELS 33 ports when it feels it is necessary for the security of navigation, for reasons of maintaining public internal good order, or for the preservation of the coastal or terrestrial maritime environment, i.e. its vital interests. 23 In such cases, the closure can be made discriminatorily and need only apply to a particular vessel, cer- tain types of vessels, 24 or to vessels flying a specific flag.25 Con- cerning commercial vessels, the closure of a port can be authorized for sanitary reasons, for reasons of presence of mili- tary installations in the port, or following grave events regard- ing the security of the port State. 26 There can be more important limitations on warships, such as restrictions on the number of warships admitted to a port at the same time.27 Ex- cept in cases of distress, the access can be discretionally prohib- 28 ited to a warship or a merchant vessel serving as a warship.
B. The TerritorialSea According to UNCLOS, the coastal State exercises full com- petence in the territorial sea29 with, however, certain conces- sions. The principal limitation on this sovereignty is the right of innocent passage of foreign vessels, whether private or mili- tary.30 This customary principle can be found in UNCLOS Arti- cle 17, which states as follows: "ships of all States, whether coastal or land-locked, enjoy the right of innocent passage through the territorial sea."
23 See JEAN-PAUL PANCRACio, DROIT INTERNATIONAL DES ESPACES: AIR/MER/ FLEUvEs/CosMos 71 (1997); see also PONTAVICE & CORDIER, supra note 13, at 79- 80. 24 For information on nuclear-propulsion vessels, see PONTAVICE & CORDIER, supra note 13, at 75-78. 25 See PANcRACIo, supra note 23, at 72; see also PONTAVICE & CORDIER, supra note 13, at 80-81. 26 See Dupuy, supra note 6, at 223. 27 See LUCCHINI & VOECKEL, supra note 7, at 151; Dupuy, supra note 6, at 223. 28 See PANCRACLO, supra note 23, at 72. 29 See UNCLOS, supra note 1, art. 2(1). 30 For a good discussion of innocent passage, see FRANCIS NGANTCHA, THE RIGHT OF INNOCENT PASSAGE AND THE EVOLUTION OF THE INTERNATIONAL LAW OF THE SEA (1990). See also William T. Burke, Contemporary Developments Affecting Navigation Rights in the Law of the Sea, in THE LAW OF THE SEA: WHAT LIES AHEAD? 141, 142-48 (Thomas A. Clingan Jr. ed., 1986); Tullio Treves, Codification du Droit Internationalet Pratiquedes Ptats dans le Droit de la Mer, in 223 Cor- LECTED COURSES OF THE HAGUE ACADEMY OF INTERNATIONAL LAw 9, 109-24 (1990).
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1. Innocent Passage in the TerritorialSea UNCLOS Article 18 defines "passage" as navigation through the territorial sea without entering the internal waters of the coastal State or for the purpose of entering or leaving the internal waters, with the condition that the passage be continu- ous and expeditious, save in cases incidental to navigation, of force majeure, distress, or for rendering assistance to other ves- sels.3 ' UNCLOS defines "innocent passage" in Article 19(1) as "innocent so long as it is not prejudicial to the peace, good order or security of the coastal State." Article 19 lists activities that constitute a threat to the peace and security of the coastal State, and are therefore pro- hibited in the territorial sea. Those activities are: 1. military activities; 2. activities contrary to the coastal State's customs, fiscal, immigration or sanitary regulations; 3. pollution; 4. fish- ing activities; 5. research or survey activities; 6. interference with systems of communication or any other facilities or instal- lations; and 7. "any other activity not having a direct bearing on passage." 32 Article 20 also imposes on foreign submarines and other underwater vehicles the obligation to navigate on the sur- face and show their flags while in the territorial sea of another State. In 1949, in the Corfu Channel case, 33 the International Court of Justice (ICJ) recognized that all vessels have a right of passage through international straits, even warships, as long as they do not engage in activities that are currently listed in UN- CLOS Article 19. On May 15, 1946, two British cruisers, while passing through the Corfu Channel, were fired upon by an Al- banian coastal battery. The British protested, claiming their right of passage through international straits, while the Albani- ans replied that foreign warships and merchant vessels had no
31 Where the vessels only cruise around in the territorial sea, they would be engaged in activities not having a direct bearing on passage, and thus not pro- tected by Articles 17 through 32 of UNCLOS. See CHURCHILL & LOWE, supra note 3, at 69-73; see also Military and Paramilitary Activities (Nicar. v. U.S.), 1986 I.C.J. 14 (June 27). 32 J. ASHLEY ROACH & ROBERT W. SMITH, EXCESSIVE MARITIME CLAIMS, 164-66 n.5 (1994). This list refers to activities conducted in the territorial sea only. Thus, the determination of the innocence of the passage must be made on the basis of activities which occurred in the territorial sea only. 33 See Corfu Channel case (U.K. v. Albania), 1949 I.C.J. 1 (April 9).
http://digitalcommons.pace.edu/pilr/vol14/iss1/2 8 2002] COASTAL JURISDICTION OVER FOREIGN VESSELS 35 right to pass through Albanian territory without prior authori- zation. On October 22, 1946, two British destroyers were struck by mines while passing through the Channel and suffered seri- ous damage, including loss of life. Subsequently, on November 12 and 13, 1947, the United Kingdom mine-swept the Channel without the authorization of Albania. The ICJ upheld the United Kingdom's right of passage through international straits and found that the British vessels were effectuating innocent passage in the Corfu Channel. 34 In- deed, as for the first two passages, the Court held that a some- what robust transit by the United Kingdom of four warships was still innocent passage and the purpose of the transit was intended to be a demonstration of force seeking to test Albanian attitudes. 35 The court, however, condemned the United King- dom for having swept the mines without Albania's consent.
2. Legislative Competence of the Coastal State The coastal State can impose its legislative competence in its territorial sea in eight areas, but such legislation should not impair the right of innocent passage of foreign vessels, 36 nor should it apply to the "design, construction, manning or equip- ment of foreign ships unless they are giving effect to generally accepted international rules or standards."37 Thus, according to UNCLOS Article 21(1), the coastal State can:
(a) adopt laws regarding the safety of navigation: it can organize maritime traffic and passage of ships by drawing sea-lanes 38 and traffic separation schemes in its territorial sea; (b) adopt laws regarding the protection of navigational aids and facilities or installations, which would comprise artificial islands and oil rigs; (c) regulate the protection of pipelines and cables;
34 See Dupuy, supra note 6, at 229. 35 See Corfu Channel case, 1949 I.C.J., at 30. 36 See UNCLOS, supra note 1, art. 21(1). 37 Id. art. 21(2). 38 See UNCLOS, supra note 1, arts. 22 & 23. Article 22 pertains to "tankers, nuclear-powered ships and ships carrying nuclear or other inherently dangerous or noxious substances or materials." Id. Article 23 states that such vessels have an obligation to be in possession of documents and to take special precautionary mea- sures as established by international agreements. See id.
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(d) adopt legislation regarding the conservation of living resources of its territorial sea; 39 (e) regulate the fishery activities; (f) ensure the preservation of the environment by adopting regu-40 lations on the prevention, reduction and control of pollution; (g) regulate the activities of marine scientific research and hydro- graphic surveys; 41 (h) apply its customs, fiscal, immigration and sanitary laws.
This list is exhaustive and inclusive. 42 These regulations must be made public, 43 and foreign vessels in the territorial sea must conform to the coastal State's legislation regarding security of 4 navigation. 4
3. Implementation of Its Legislation by the Coastal State In applying its regulations, according to UNCLOS Article 24, the coastal State cannot impose requirements on foreign vessels that have as a consequence the denial or impairment of the right of innocent passage. Nor can it discriminate against vessels of any State or vessels transporting cargoes to, from, or on behalf of any State. Furthermore, the coastal State has the duty to appropriately warn others of any danger to navigation in its territorial sea of which it has knowledge. 45 The coastal State may also not levy charges on foreign vessels for the sole reason of their passage in its territorial sea, but it may do so as 46 payment for services rendered to the vessel. Notwithstanding the provisions of UNCLOS Article 24, ac- cording to Article 25, the coastal State may take steps necessary to prevent passage in its territorial sea that is not innocent. The coastal State can, without discrimination among foreign ves- sels, temporarily suspend the innocent passage of foreign ships in specific areas of its territorial sea, if it is essential to the pro-
39 See ROACH & SMITH, supra note 32, at 143 n.5. 40 See UNCLOS, supra note 1, art. 21(1)(f). 41 See PANcRAcIo, supra note 23, at 89. 42 See ROACH & SMITH, supra note 32, at 144. 43 See UNCLOS, supra note 1, arts. 21(3) & 22(4). 44 See id. art. 21(4); see also PANcRAcIo, supra note 23, at 90. 45 See UNCLOS, supra note 1, art. 24(2); see generally Corfu Channel case, 1949 I.C.J. 1. 46 See UNCLOS, supra note 1, art. 26.
http://digitalcommons.pace.edu/pilr/vol14/iss1/2 10 20021 COASTAL JURISDICTION OVER FOREIGN VESSELS 37 tection of its security.4 7 Iran did so when from August 4 to Au- gust 6, 1987, it suspended the passage of all foreign vessels in its territorial sea on the pretext of naval exercises, following the arrival of the American fleet in the Persian Gulf. However, this interdiction was illicit in regard to international law be- cause it fulfilled only four out of the five conditions set forth by UNCLOS Article 25(3), i.e. 1. a temporary suspension; 2. in spe- cific zones of the territorial sea; 3. without discrimination be- tween the vessels; 4. for a national security necessity; and 5. with prior notification. The Iranian suspension did not concern a specific zone of its territorial sea, but rather included the en- tire zone. Moreover, it had as a consequence the effect of block- ing access to the strait of Ormuz, the only way to get to and from the Persian Gulf.48
4. Criminal Jurisdictionof the Coastal State Criminal jurisdiction, i.e., arresting a person or conducting an investigation, should normally be exercised only if the conse- quences of the crime extend to the coastal State. Examples of when criminal jurisdiction should be exercised include: 1. if the crime was committed on board the ship during its passage in the territorial waters and if it is of a nature to disturb the peace and good order of the coastal State; 2. if the assistance of the local authorities has been requested by the master of the vessel or a diplomatic agent of the flag State; or 3. if the crime is the illicit trafficking of narcotic drugs or psychotropic substances. 49 However, the coastal State is not permitted to take actions if the vessel is only passing through the territorial sea without entering internal waters and the crime was committed before the vessel entered its territorial sea.50 The coastal State has the same criminal jurisdiction over government vessels operated for commercial purposes, pursuant to UNCLOS Article 27. Under UNCLOS Article 28, the coastal State can arrest a foreign vessel that has infringed upon its local laws. While under the same Article, the coastal State cannot take conserva-
47 See id. art. 25(3); see also CHURCHILL & LowE, supra note 3, at 73-74; ROACH & SMITH, supra note 32, at 145-46. 48 See PANcRACio, supra note 23, at 92. 49 See id. at 89; UNCLOS, supra note 1, art. 27(1). 50 See UNCLOS, supra note 1, art. 27(5).
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tory or executionary measures against a foreign vessel in pas- sage in its territorial sea, it could do so "in respect of obligations or liabilities assumed or incurred by the ship itself in the course [ofi or for the purpose of its voyage through the waters of the coastal State," or against a foreign ship lying in the territorial sea or passing through it after leaving the internal waters of the coastal State. The right to arrest a vessel in its territorial sea also gives the coastal State the right of hot pursuit of a vessel that flees toward the high seas if the pursuit started in the ter- 1 ritorial sea. 5 A good example of the coastal State asserting criminal ju- risdiction can be found in the McRuby case.5 2 In that case, nine stowaways who boarded the McRuby vessel (which was regis- tered in the Bahamas) during a stop in Ghana were discovered while on the high seas by the crewmembers of the McRuby. Not wanting to bring the stowaways back to Ghana, the Ukrainian crew decided to make them disappear by savagely killing them and throwing their bodies overboard. 53 However, one of the stowaways succeeded in hiding and was able to go to the police upon arrival in Le Havre, France. The French court based its finding of jurisdiction on two grounds. 54 First, part of the crime had been committed in the territorial waters of France. Indeed, when the McRuby entered the French territorial sea, the crewmembers were still search- ing for the last survivor. The court found that these searches were subsequent to the sequestrations and executions, and all the facts constituted an indivisible whole. It is common practice in France for the courts to hear matters concerning acts com- mitted outside the country by foreigners, if the acts are indivisi- ble and part of them are undertaken on French territory. The second ground used by the French court was UNCLOS Article
51 See infra, Part I(B). 52 See Arnaud De Raulin, La Rpression dans les Eaux Internationales,in XV ANNUAIRE DE DROIT MARITIME ET OCtANIQUE 189, 214-26 (1997). 53 See id. at 214; see generally Arnaud De Raulin, A Propos de l'Affaire du McRuby, 7 ESPACES ET RESOURCES MARITIMES 217 (1993). 54 See Cour D'Assises du Departement de la Seine -Maritime (10 Dcembre 1995).
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101 regarding the universal competence in cases of piracy, 55 which seems to be an erroneous qualification.
5. Warships The flag State will be held responsible for Warships, includ- ing government vessels operated for non-commercial pur- poses, 56 if the coastal State suffers any loss or damage of any nature, caused by such vessels as a result of non-compliance with the laws and regulations of the coastal State, 57 provisions of UNCLOS or other rules of international law. 58 If a Warship is asked to comply with regulations and fails to act as directed, the coastal State may require it to leave its territorial sea immedi- 6 0 ately59 and may use any force necessary to compel it to do So. In any case, the flag State will be liable for damages caused by a warship or any other government vessel operated for non-com- mercial purposes, pursuant to UNCLOS Article 31.61
C. The Contiguous Zone The concept of the contiguous zone seems to be obsolete. It should be noted that the contiguous zone is part of the exclusive economic zone (EEZ), and thus of the high seas where the prin- ciple of freedom of navigation applies. 62 Therefore, in its contig- uous zone, the coastal State does not exercise sovereignty, but rather only has specialized competences. According to UNCLOS Article 33, the coastal State can exercise the control necessary to prevent and repress violations of its legislation concerning customs, taxes, immigration and sanitation within its territo- rial sea. Warships are immune; therefore, this provision applies only to private vessels. 63
55 See De Raulin, supra note 52, at 223 (according to the author, this last qualification is however erroneous). 56 For a definition of warship, see UNCLOS, supra note 1, art. 29. 57 Particularly, regulations relating to passage through the territorial sea. 58 See UNCLOS, supra note 1, art. 31; Dupuy, supra note 6, at 231. 59 See UNCLOS, supra note 1, art. 30. 60 See CHURCHILL & LOWE, supra note 3, at 83. 61 See infra, Part III(E). 62 For a discussion about the contiguous zone, see CHURCHILL & LOWE, supra note 3, at 112-19; LucCHINI & VOECKEL, supra note 7, at 198-200; Treves, supra note 30, at 137-40. 63 See PONTAVICE & CORDIER, supra note 13, at 70.
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Furthermore, pursuant to UNCLOS Article 303(2), "to con- trol traffic in historical and archeological objects, the coastal State may presume that the removal of such objects from the contiguous zone without the State's consent would violate the laws mentioned in [UNCLOS] Article 33, and the State may act accordingly."64 In addition, because the contiguous zone is a part of the EEZ, the coastal State will also have all the rights and duties, without exception, that pertain to the EEZ. Thus, the coastal State can board, search, and ultimately bring to port vessels infringing upon its legislation in order to submit them to justice.65 These powers of the coastal State can be exercised to protect both its contiguous zone and its terres- trial territory. However, the coastal State must act on the basis of a palpable threat to its public order and must have great doubts against the said vessel, such as suspect behavior, sus- pect information, or a beginning of a proof.66 This also includes the right of hot pursuit.67 However, the coastal State can exer- cise such powers only in respect to private vessels en route to- 68 ward or from its coast.
D. The Exclusive Economic Zone (EEZ) The EEZ69 "does not follow either the concept of sover- eignty, prevailing in the territorial sea, or the concept of free- dom, which characterizes the high seas."70 According to UNCLOS Article 55, the EEZ is "more similar to a list and allo- cation of rights or corresponding duties than to an abstract le- gal category."71
64 ARND BERNAERT, BERNAERT'S GUIDE TO THE LAW OF THE SEA, THE 1982 UNITED NATIONS CONVENTION 30 (1988); see also Treves, supra note 30, at 140-41. 65 See PANcRAcIO, supra note 23, at 137. 66 See id. 67 See UNCLOS, supra note 1, art. 111. 68 See PANcRAcio, supra note 23, at 137. 69 See CHURCHILL & LOWE, supra note 3, at 133-52; Treves, supra note 30, at 194-202; see generally BARBARA KWAITKOWSKA, THE 200 MILE EXCLUSIVE Eco- NOMIC ZONE IN THE NEW LAW OF THE SEA (1989); FRANCISCO ORREGO VIcu&A, THE EXCLUSIVE ECONOMIC ZONE (1989). 70 Tullio Scovazzi, Coastal State Practicein the Exclusive Economic Zone: The Right of Foreign States to Use this Zone, in THE LAW OF THE SEA: WHAT LIES AHEAD, supra note 30, at 310. 71 Id. at 311; see also Francisco Orrego Vicufia, La Zone Aconomique Exclusive dans la Lgislation et la Pratiquedes Atats, in JEAN COMBACAU and PIERRE-MARIE
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1. Rights of the Coastal State in Its EEZ Pursuant to UNCLOS Article 56(1), the coastal State has sovereign rights only for the purpose of exploring, exploiting, conserving, and managing the natural resources, whether living or non-living, of the waters superjacent to the seabed and of the seabed and its subsoil, and with regard to other activities for the economic exploitation and exploration of the zone, such as 72 the production of energy from the water, currents and winds. UNCLOS Article 56 also gives jurisdiction to the coastal State regarding artificial islands and installations, marine scientific research, and the protection and preservation of the marine en- vironment. However, the coastal State, in exercising its rights, must have due regard for the rights of other States in the EEZ.73 In summary, we can say that the EEZ created by UN- CLOS Article 56 provides the coastal State with exclusive juris- diction over the economic uses of the 188 miles located seaward 74 of the territorial sea, where fishing is most important.
2. Artificial Islands and Scientific Research Later we will examine in greater detail the rights and du- ties of the different States regarding fisheries and pollution, but a few words can be said here about artificial islands and scien- tific research. According to UNCLOS Article 246(1), coastal States have a right to regulate, authorize, and conduct marine scientific re- search in their EEZ and on their continental shelf.75 No State can conduct research in the EEZ of a coastal State without the consent of that State. 76 The coastal State shall, however, grant
Dupuy, DROIT DE LA MER (VOL. 2) 1, 13-32 (Pedone ed. 1990); see generally ORREGO VICUi4A, supra note 69; KWAITKOWSKA, supra note 69. 72 See ORREGO VICURA, supra note 69, at 24-27. 73 See UNCLOS, supra note 1, art. 56(2). 74 See LucCHINI & VOECKEL, supra note 7, at 216-17 (quoting J.C. Phillips: "It is clear from this wording that the 'sovereign rights' of the coastal State pertain only to the resources of the zone rather than to the zone itself'). 75 See UNCLOS, supra note 1, arts. 238-304 (Articles 238-44 set forth the gen- eral provisions promoting international cooperation and peaceful ends); LucCHINI & VOECKEL, supra note 7, at 221; ORREGO VICUIhA, supra note 69, at 77-83; KWAITKOWSKA, supra note 69, at 134-59; CHURCHILL & LOWE, supra note 3, at 288- 306; Treves, supra note 30, at 162-70. 76 See UNCLOS, supra note 1, art. 246(2).
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its consent in normal circumstances. 77 Exceptions to this in- clude: 1. when the project is of "direct significance for the ex- ploitation of natural resources"; 2. when it involves "drilling into the continental shelf, the use of explosives or the introduc- tion of harmful substances into the marine environment"; 3. when it involves the construction of artificial islands or installa- tions; 4. when the project contains information due under UN- CLOS Article 24878 but which is inaccurate; or 5. when the 79 foreign State has outstanding obligations to the coastal State. Furthermore, pursuant to UNCLOS Article 246(8), a for- eign State has the obligation to refrain from interfering with the rights and duties of the coastal State when undertaking marine scientific research with the consent of that State. It also has to comply with the conditions stated in UNCLOS Article 249.80 Finally, under UNCLOS Article 253, the coastal State can require the suspension of any research if it is conducted in such a way that it is contrary to the information provided and upon which the coastal State gave its consent, or if it does not respect the rights and duties of the coastal State listed in UN- CLOS Article 249. 8 Regarding artificial islands, installations, and structures, ' pursuant to UNCLOS Article 60(1), the coastal State has an "exclusive right to construct and to authorize, and regulate the construction, operation, and use" of these installations for the purposes stated in UNCLOS Article 56 (regarding natural re-
77 See id. art. 252 (provides for the possibility of an implied consent on the part of the Coastal State). 78 According to UNCLOS Article 248, the State seeking to undertake marine scientific research must provide the coastal State with a full description of the project, the vessel and equipment to be used, the targeted geographical area, the schedule of the project, the sponsors and persons in charge, and the possibility of participation of the Coastal State in the project. 79 See id. art. 246(5). 80 According to UNCLOS Article 249, the foreign State must ensure the right of participation of the coastal State, provide the coastal State with preliminary reports and final results, provide access for the coastal State to all data and sam- ples, make the results internationally available, inform the coastal State of any major change in the research programme, and finally, remove any scientific re- search installations or equipment once the research is complete. 81 See LUCCHINI & VOECKEL, supra note 7, at 220-21; ORREGO VICUifA, supra note 69, at 73-77; KWAITKOWSKA, supra note 69, at 103-33; Treves, supra note 30, at 176-81.
http://digitalcommons.pace.edu/pilr/vol14/iss1/2 16 2002] COASTAL JURISDICTION OVER FOREIGN VESSELS 43 sources) and other economic purposes.8 2 The coastal State has exclusive jurisdiction regarding artificial islands and other in- stallations with regard to customs, fiscal, health, safety, and immigration laws.8 3 At the same time, the coastal State must give due notice of the construction and presence of such struc- tures, and it may establish safety zones around them to ensure 8 4 safety of navigation. Foreign vessels must respect these zones.
3. Rights of Foreign States in the EEZ Foreign States are also given rights regarding navigation8 5 and non-economic uses of the EEZ.8 6 According to UNCLOS Ar- ticle 58, foreign States shall enjoy some of the freedoms of the high seas as set forth in Article 87. Those freedoms are: 1. navi- gation; 2. overflight; 3. the laying of submarine cables and pipe- lines; and 4. "other internationally lawful uses of the sea related to those freedoms. 8 7 This gives the right to other States to engage in non-economic activities in the EEZ.88 The other freedoms listed in Article 87 are not included in Article 58 be- cause such activities are exclusively reserved to the coastal State. These freedoms include 1. the freedom to construct artifi- cial islands and other installations; 2. fishing; and 3. marine sci- entific research. UNCLOS Article 58 goes further and states that Articles 88 through 115, which apply to the high seas, can be applied to the EEZ as long as they are not incompatible with the UNCLOS Articles pertaining to the EEZ.8 9 These Articles, which will be fully discussed under the high seas section of this study, relate to the right of navigation, nationality and status of ships, duties of the flag State, immunities of warships and government ves- sels, collisions, duty to render assistance, slavery, piracy, drug
82 See Francis Rigaldies, La Zone Aconomique Exclusive dans la Pratique des Ptats, 35 C.Y.B.I.L. 3, 31 (1997). 83 See UNCLOS, supra note 1, art. 60(2). 84 See id. arts. 60(3)-(7). 85 For a discussion of navigation in the EEZ, see ORREGO VICUNA, supra note 69, at 93-108; KWAITKOWSKA, supra note 69, at 198-245. 86 See ORREGO VICUNA, supra note 69, at 27-33. 87 Among others, the EEZ shall be reserved for peaceful purposes, according to UNCLOS Article 88. 88 See Scovazzi, supra note 70, at 311. 89 See Treves, supra note 30, at 180-94.
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trafficking, unauthorized broadcasting, rights of visit and hot pursuit, and submarine cables and pipelines.
4. Residual Rights This brings up the question of residual rights and to whom they should belong.90 UNCLOS does not give a clear answer on this point, but rather states that, if a conflict arises between the coastal State and a foreign State, it "should be resolved on the basis of equity and in light of all the relevant circumstances, taking into account the respective importance of the interests involved to the parties as well as the international community as a whole."91 In any case, a foreign State and its vessels must have due regard for the rights of the coastal State in exercising its own rights and freedoms, and should comply with the laws and regulations of the coastal State adopted in accordance with UNCLOS and international law. 92
E. The High Seas Freedom is the fundamental principle underlying the legal concept of the high seas. According to UNCLOS Article 87, the general freedom of the high seas include, inter alia, the freedom of navigation 93 and overflight,94 as well as the freedom to lay submarine cables and pipelines, 95 to construct artificial islands and other installations permitted under international law, 96 to fish,97 and to engage in marine scientific research. 98 After stat- ing that all States should exercise these freedoms with due re- gard to the rights of others, 99 UNCLOS reminds us that the
90 See ORREGO VICUIRA, supra note 69, at 35-39; see also Treves, supra note 30, at 213-27. 91 UNCLOS, supra note 1, art. 59. 92 See id. arts. 58(3) and 87(2). 93 See PANcRAcIo, supra note 23, at 186; see also Tullio Treves, La Navigation, in TRAIT9 DU NOUVEAU DROIT DE LA MER, supra note 6, at 687. 94 See LucCHINI & VOECKEL, supra note 7, at 279. 95 See UNCLOS, supra note 1, arts. 112-15; PANcRAcio, supra note 23, at 188; D. Momtaz, La Haute Mer, in TRALT] DU NOUVEAU DROIT DE LA MER, supra note 6, at 337, 368. 96 See LUCCHINI & VOECKEL, supra note 7, at 280. 97 See UNCLOS, supra note 1, arts. 116-20. 98 See UNCLOS, supra note 1, arts. 238-63; PANcRAcio, supra note 23, at 189; Momtaz, supra note 95, at 344. 99 See UNCLOS, supra note 1, art. 87(2); Momtaz, supra note 95, at 350.
http://digitalcommons.pace.edu/pilr/vol14/iss1/2 18 20021 COASTAL JURISDICTION OVER FOREIGN VESSELS 45 high seas "shall be reserved for peaceful purposes." 100 Moreo- ver, under Article 89, "no State may validly purport to subject any part of the high seas to its sovereignty."
1. Freedom of Navigation and Exclusivity of the Flag State The freedom of navigation is the oldest of the freedoms of the high seas 01 and cannot be impaired, as stated under UN- CLOS and international law. As UNCLOS Article 90 provides, "every State, whether coastal or land-locked, has the right to sail ships flying its flag on the high seas." The underlying conse- quence is that a flag State has exclusive jurisdiction over the vessels flying its flag.102 Similarly, it can be understood from Articles 90 through 92, that each vessel must have only one na- tionality. 10 3 Moreover, every State has the right to determine 10 4 how it will grant nationality to a vessel. Flag States have several duties listed in UNCLOS Article 94.105 Additionally, on the high seas, as in other sea zones, war- ships and government vessels used for non-commercial service have complete immunity. 0 6 Furthermore, according to Article 97, in the event of a collision or any other accident of navigation involving the penal responsibility of a crewmember, only the flag State or the State of which the responsible person is a na-
100 UNCLOS, supra note 1, art. 88 (Articles 88-115 also apply to the EEZ). 101 See PANcRAcIo, supra note 23, at 186. 102 See UNCLOS, supra note 1, art. 92; PANcRAcIo, supra note 23, at 190; Rob- ert C. F. Reuland, Interference with Non-National Ships on the High Seas: Peace- time Exceptions to the Exclusivity Rule of the Flag-State Jurisdiction,22 VAND. J. TRANSNAT'L L. 1161, 1165-69 (1989) (treating the exclusive jurisdiction of the flag state). 103 For a discussion about convenience flags and vessels without nationality. See infra, Part III(A). 104 See UNCLOS, supra note 1, art. 91; Momtaz, supra note 95, at 354. 105 For example, a State must effectively exercise jurisdiction and control over vessels flying its flag; it must maintain a register of ships containing all particu- lars; it shall assume jurisdiction under its internal law over each vessel and its Master, officers and crewmembers; it must take measures to ensure safety at sea with regard to the construction, equipment and seaworthiness of the ship, the manning of the vessel and labor conditions, the use of signals, the maintenance of communication and the prevention of collision. In doing so, the State must conform to generally accepted international regulations, procedures and practices. See id. art. 94; see also JAMES C. F. WANG, HANDBOOK ON OCEAN POLITICS & LAw 398-404 (1992). 106 See UNCLOS, supra note 1, arts. 95 & 96; Momtaz, supra note 95, at 360-
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tional can institute proceedings. Specifically, Article 97 pro- vides that "no arrest or detention of the ship, even as a measure of investigation, shall be ordered by any authorities other than those of the flag State." This was not always the case, as illustrated in the Lotus case. ' 0 7 In that case, the question was whether a State, other than the flag State, could assert penal jurisdiction on the high seas. Indeed, in 1926, after a collision between a French vessel (the Lotus) and a Turkish vessel, Turkey filed a lawsuit against the French Master. France opposed these proceedings, and the case was submitted before the CPJI. According to the Court, the principle of exclusivity of the flag State, in applying only to acts of authority, is not an obstacle to the jurisdictional competence of foreign tribunals.10 8 However, today, Turkey should recog- nize the exclusive competence of France,' 0 9 as set forth in the Brussels Convention on penal jurisdiction in matters of colli- sion, and UNCLOS Article 97.110
2. Jurisdiction Over Vessels Given to States Other Than the Flag State The exclusive jurisdiction of the flag State is not absolute and there are several situations in which other States "are granted in varying degrees a share of legislative or enforcement jurisdic- tion with the flag State.""' First, every State has a duty to re- quire the master of a vessel flying its flag to render assistance to any vessel in distress, its crew, its passengers, or any person found at sea, in so far as he can do so without serious danger to the ship, the crew, or the passengers. 1 2 Second, every State must take adequate measures to prevent and punish the trans- port of slaves in vessels flying its flag. 1 3 Third, all vessels are prohibited from conducting piracy, and all States must cooper-
107 Lotus case (France v. Turkey), 1927 C.P.J.I. (Sept. 7). 108 See Momtaz, supra note 95, at 360. 109 See De Raulin, supra note 52, at 200. 110 See JACQUES-YVES MORIN ET AL., DROIT INTERNATIONAL PUBLIC, NOTES ET DOCUMENTS, TOME 1: DOCUMENTS D'INTERPT GtNfRAL 793 (editions Th6mis 1997). 111 BERNAERT, supra note 64, at 46; see also Reuland, supra note 102, at 1169. 112 See UNCLOS, supra note 1, art. 98(1); see also Momtaz, supra note 95, at 366-67; UNCLOS Article 98 also states that the coastal State shall promote the maintenance of an adequate and effective search and rescue service. 113 See UNCLOS, supra note 1, art. 99; Reuland, supra note 102, at 1190-96.
http://digitalcommons.pace.edu/pilr/vol14/iss1/2 20 2002] COASTAL JURISDICTION OVER FOREIGN VESSELS 47 ate in repressing acts of piracy.114 If a warship or a government vessel should commit such acts, it is assimilated to acts commit- ted by a private ship, and thus loses its immunity. 115 According to UNCLOS Article 105, every State may seize a pirate vessel on the high seas (or in any other place outside the jurisdiction of any State), arrest the persons controlling this vessel, and seize the property on board."1 6 The seizing State can also institute proceedings before its courts to decide on the penalties to be im- posed and the action to be taken with regard to the offending vessel.'1 7 Similarly, coastal States are given the right of inter- vention on the high seas in cases of collision entailing pollu- tion.118 Fourth, UNCLOS Article 108 imposes a duty on all States to "cooperate in the suppression of illicit traffic in nar- cotic drugs and psychotropic substances engaged in by ships on the high seas.""19 Thus, the Article permits any State, if it has reasonable doubt, to request the cooperation of others to sup- press the traffic of a ship flying its flag, which is believed to be engaged in the trafficking of narcotics or psychotropic substances. The same cooperation is put forward in UNCLOS Article 109 regarding the suppression of unauthorized broadcasting
114 See UNCLOS, supra note 1, arts. 100-1. According to Article 101, piracy is: any illegal acts of violence or detention, or any act of depredation, commit- ted for private ends by the crew or the passengers of a private ship [... 1 directed (i) on high seas, against another ship [...1 or against persons or property on board such ship [... (ii) against a ship, [...1 persons or prop- erty in a place outside the jurisdiction of any State. Id. See PANCRAcIO, supra note 23, at 192-95; Reuland, supra note 102, at 1177-90; see generally Malvina Halberstam, Terrorism on the High Seas: The Achille Lauro, Piracy and the IMO Convention on Maritime Safety, 82 AMER. J. INT'L L. 269 (1988). 115 See UNCLOS, supra note 1, art. 102. 116 According to UNCLOS Article 107, only "warships or military aircrafts, or other ships or aircrafts clearly marked and identifiable as being on government service and authorized to that effect" can carry out a seizure on account of piracy. UNCLOS, supra note 1, art. 107. 117 However, according to UNCLOS Article 106, the State making the seizure will be liable to the State of the nationality of the ship for all losses and damages if the seizure was effectuated without adequate grounds. 118 See id. art. 221; see also LucCHINI & VOECKEL, supra note 7, at 289-90. 119 PANcRAcio, supra note 23, at 197; see also De Raulin, supra note 52, at 205; Tullio Treves, Intervention en Haute Mer et Navires 9trangers, in XLI ANNUAIE FRANQAIS DE DROIT INTERNATIoNAL 651, 658-61 (1995); Treves, supra note 30, at 221-24.
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from the high seas. 120 If a vessel is engaged in such an activity, several States have jurisdiction to arrest the ship. 121 Those states are: 1. the flag State; 2. the State of registry of the instal- lation of a broadcasting system; 3. the State of which the person broadcasting is a national; and 4. the State where the transmis- sion can be received, or the State where authorized radio com- 122 munication is suffering interference. Thus, according to UNCLOS Article 110, a warship of any nationality may board a vessel it encounters on the high seas, if it has reasonable grounds to suspect that such a vessel is en- gaged in piracy, slave trade, unauthorized broadcasting, or if it has a reasonable suspicion that the vessel is without national- ity. 123 Moreover, as we have seen regarding the territorial sea, a government vessel of the coastal State can pursue a foreign ves- sel if it has good reason to believe it has violated its laws and regulations according to the right of hot pursuit 124 provided for in UNCLOS Article 111. However, damages caused by an arrest based on insufficient motives engage the responsibility of the seizing State. 125 Finally, outside the specified cases of piracy, slavery, drug trafficking and unauthorized broadcasting, States can only exercise a right of visit to identify the flag of the vessel.126
III. THE RIGHTS AND DUTIES OF STATES REGARDING CERTAIN SPECIFIC MATTERS Now that the general rights and duties of coastal States and foreign vessels in the different zones of the sea have been discussed, this note will examine what these international ac- tors can and must do in a few particular situations. However, before determining the rules applicable to fisheries and pollu- tion, it is important to understand the concept of freedom of navigation, as well as the rules set forth in UNCLOS on the rights of visit and hot pursuit, as they are the underlying princi-
120 See Momtaz, supra note 95, at 370. 121 See UNCLOS, supra note 1, art. 109(4). 122 See id. art. 109(3). 123 See id. art. 120. 124 See PANCRAcIo, supra note 23, at 198-99; see also LuCCHINI & VOECKEL, supra note 7, at 287-89; Momtaz, supra note 95, at 362-63. 125 See De Raulin, supra note 52, at 201-02. 126 See id. at 206.
http://digitalcommons.pace.edu/pilr/vol14/iss1/2 22 20021 COASTAL JURISDICTION OVER FOREIGN VESSELS 49 ples prohibiting or permitting the coastal State to take actions against a foreign vessel. Additionally, this note clarifies the pos- sibility of military uses of the sea, and the accompanying con- cept of self-defense. Finally, as an overview of our study, this note analyzes the interesting Saiga case settled by the Interna- tional Tribunal of the Law of the Sea.
A. Freedom of Navigation and Nationality of Ships 1. Freedom of Navigation Freedom of Navigation in the high seas is provided for in UNCLOS Article 87. This provision is thought to give each State the right to assume, with the exceptions set forth by inter- national law, that a vessel flying its flag will not sustain any interference from any other State.127 However, the freedom of navigation is not a positive right (for example, the freedom of a vessel to navigate) but rather a negative one; a restriction as to the interferences a State can put on the navigation of a foreign vessel. Hence, the following conclusion: a State can exercise any interference it wants on vessels flying its own flag. Therefore, on the high seas, vessels are only subject to the exclusive juris- 128 diction of the State under the flag of which they sail.
2. Stateless Vessels According to UNCLOS Article 110(1), on the high seas, a warship1 29 can board a vessel if "the ship is without nationality; or though flying a foreign flag or refusing to show its flag, the ship is, in reality, of the same nationality as the warship." UN- CLOS also assimilates a vessel sailing under the flags of two or more States, using them according to convenience, to a ship without nationality. 30 The conclusion, which is true concerning a merchant vessel, a warship, or a government vessel used for non-commercial purposes, is that a vessel should sail under the flag of one State only, and is not allowed to change its flag dur- ing a voyage or at port (unless a real transfer of ownership or
127 See Treves, supra note 119, at 688. 128 See id. at 688; see also the Lotus case, 1927 C.P.J.I. at 25. 129 For a definition of warship, see UNCLOS, supra note 1, art. 29. 130 See id. art. 92(2); see Reuland, supra note 102, at 1196-207.
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change of registry takes place), 131 as exemplified in the Asya 1 Case. 32 In that case, the Asya was arrested by a British warship in the High Seas. It had previously flown the Turkish flag, without having any papers proving its right to fly such a flag, and later the Zionist flag, i.e. the flag of a country that did not yet exist. In its decision of March 2, 1948, the Privy Council stated that the lawfulness of the arrest of the Asya by the British warship was based on the fact that the Asya could invoke the protection of no State and no State could claim that a principle of interna- 33 tional law had been violated by the seizure of the vessel. The freedom of the open sea, whatever those words connote, is a freedom of the ships which fly, and are entitled to fly, the flag of a State which is within the comity of nations. The Asya did not sat- isfy these elementary conditions. No question of comity nor of any breach of international law can arise if there is no State under whose flag the vessel sails... the Asya could not claim the protec- tion of any State nor could any State claim that any principle of 34 international law was broken by her seizure.' Indeed, this comes from the principle of the exclusive jurisdic- tion of the flag State, which is the only State that can assert jurisdiction over its vessels on the high seas. However, when a vessel does not fly a flag, no State can assert the right not to suffer interference.
3. Nationality of Ships Each vessel must have one and only one nationality. 135 Under UNCLOS Article 90, each State, coastal or land-locked, has a right to sail ships flying its flag. 136 It is left to each State to fix the conditions for the grant of its nationality to vessels, for the registration of vessels in its territory, and for the right to fly
131 See UNCLOS, supra note 1, art. 92(1). 132 Molvan v. Attorney-General for Palestine (Asya case), 1948 App. Cas. 351 (P.C.). 133 See Treves, supra note 93, at 689. 134 Asya case, 1948 App. Cas. at 369-70. 135 See CHURCHILL & LOWE, supra note 3, at 205-09; see also LUCCHINI & VOECKEL, supra note 7, at 282. Government vessels and warships are faced with different problems regarding nationality, and will thus not be treated in this study. 136 See PONTAVICE & CORDIER, supra note 13, at 46-49.
http://digitalcommons.pace.edu/pilr/vol14/iss1/2 24 2002] COASTAL JURISDICTION OVER FOREIGN VESSELS 51 its flag. 137 The only condition stated in UNCLOS is that there is to be a "genuine link" between the ship and the State. 138 This latter requirement purports to ensure that, where a State has sovereign competence to grant its nationality, the international effects of this nationality can be enforced.' 39 This condition is intended to counterbalance the appearance and spreading of flags of convenience. 140 If the conditions are not respected, the flag State will be held liable, the vessel's flag will not be recog- nized, and the vessel will lose the protection of the flag State. 141 Another problem concerns the exercise, by the State, of the law of the flag.' 42 In the high seas, the flag State has exclusive jurisdiction over its vessels. 143 However, in the other zones of the sea, the flag State's jurisdiction is limited by the rights and competences given to the coastal State. Moreover, even on the high seas, other States might have a right to board and visit a vessel suspected of one of the activities listed in UNCLOS Arti- cle 110. Those activities are: 1. slavery; 2. piracy; 3. unautho- rized broadcasting; and 4. drug trafficking.
B. The Right of Visit and the Right of Hot Pursuit
1. The Right of Visit
Pursuant to UNCLOS Article 110, a warship, or "any other duly authorized ship or aircraft clearly marked and identifiable
137 See UNCLOS, supra note 1, art. 91(2) (states that this principle is from jurisprudential origin); see also LucCHINI & VOECKEL, supra note 7, at 283. 138 See UNCLOS, supra note 1, art. 91(2). Under UNCLOS Article 92 the State must also issue documents evidencing the fact that it has granted the right to fly its flag on the vessel; see also Momtaz, supra note 95, at 355-57 (for a discussion on genuine link). 139 See the famous obiter dictum of the Nottebohm case (Liech v. Guat.), 1955 I.C.J. 4, at 20 (Apr. 6). These conditions of registration are more thoroughly and strictly defined in the United Nations Convention on the Conditions of Registra- tion of Ships adopted in Geneva on February 7, 1986, TD/RS/Conf.23 or 7 Law of the Sea Bulletin 85 (April 1986), available at http://www.admiraltylawguide.com/ conven/registrationl986.html. 140 For a discussion on open registry, see Burke, supra note 30 at 141-42. See also Wang, supra note 105, at 398-404. 141 For a good overview of the sanctions in cases of non-observance of the condi- tions of nationality attribution, see Momtaz, supra note 95, at 357-59. 142 See LucCHINI & VOECKEL, supra note 7, at 285. 143 See PANcRAcIo, supra note 23, at 190-91.
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as being on government service," 144 may board a vessel it en- counters on the high seas or the EEZ, if it has reasonable grounds to suspect such a vessel is engaged in piracy, slave trade, unauthorized broadcasting, or if it has a reasonable sus- picion that the vessel is without nationality. 145 This right of visit 146 gives a government vessel the authority to verify the ship's right to fly its flag by checking its documents and, if sus- picion remains, to further examine the ship. 147 However, if sus- picions are unfounded, the ship must be compensated for any loss or damage, as long as it has not committed any act justify- ing such suspicions. 148 However, this right of visit cannot be ex- ercised by a government vessel of one State against warships and government vessels of another State, pursuant to their im- munity set forth in UNCLOS Articles 95 and 96.
2. Right of Hot Pursuit According to UNCLOS Article 111(1), the right of hot pur- suit is given to a State having serious reasons to believe that the pursued vessel has violated the laws and regulations of the coastal State.' 49 The limitations on the exercise of this right are that such a pursuit must be commenced when the foreign vessel is "within the internal waters, the archipelagic waters, the ter- ritorial sea, or the contiguous zone of the pursuing State," and the pursuit must not be interrupted. 150 Moreover, the pursuit can begin only "after a visual or auditory signal to stop has been given at a distance which enables it to be seen or heard by the foreign ship."' 5 ' Another condition is that the right of hot pur- suit can only be exercised by warships or military aircraft, "or other ships or aircraft clearly marked and identifiable as being
144 UNCLOS, supra note 1, art. 110(5); see Robert C. Reuland, The Customary Right of Hot Pursuit onto the High Seas, 33 VA. J. INT'L L. 557, 561-64 (1993). 145 See Reuland, supra note 144, at 568-69. 146 See PANcRAcIo, supra note 23, at 197-98; see also Momtaz, supra note 95, at 371-72; Reuland, supra note 102, at 1170-76. 147 See UNCLOS, supra note 1, art. 110(2). 148 See id. art. 110(3); see also Reuland, supra note 144, at 586-87. 149 See PANcRAcIo, supra note 23, at 49-51, 198-99; see also LucCHINI & VOECKEL, supra note 7, at 287-89. 150 See UNCLOS, supra note 1, art. 111(1); Reuland, supra note 144, at 573-76, 584. 151 UNCLOS, supra note 1, art. 111(4); see Reuland, supra note 144, at 582-84.
http://digitalcommons.pace.edu/pilr/vol14/iss1/2 26 2002] COASTAL JURISDICTION OVER FOREIGN VESSELS 53 on government service and authorized to that effect." 152 The right of hot pursuit also applies to violations in the EEZ of laws and regulations of the coastal State applicable to this zone 153 under UNCLOS. The right of hot pursuit, however, ceases as soon as the pursued vessel enters the territorial sea of its own State or that of another State. 5 4 Nonetheless, the release of a vessel, ar- rested pursuant to UNCLOS Article 111 and escorted to a port of the coastal State may not be claimed simply because bring- ing the vessel to port necessitated sailing across a portion of the EEZ or the high seas.' 55 Finally, as in any other case, if the vessel has been stopped or arrested outside the territorial sea in circumstances that did not justify the exercise of hot pursuit, the arresting State must compensate the vessel for any loss or 56 damages sustained. The I'm Alone case' 5 7 is a good example of what is prohib- ited in the exercise of hot pursuit. In that case, the Arbitral Commission condemned the destruction of a Canadian vessel that was intercepted following the exercise of the right of hot pursuit by an American Coast Guard vessel. 158 Evidently, this destruction was an abusive means of exercising the right of hot pursuit, not supported by any principle of law.' 59 Indeed, the pursuit, although justified by a necessity to ensure the effective exercise of jurisdiction by the coastal State, should not have 160 gone beyond the capture of the vessel.
C. Fisheries 1. Full Sovereignty of the Coastal State in Internal Waters and the TerritorialSea UNCLOS recognizes the right of coastal States to exercise full sovereignty over their internal waters and territorial seas
152 Id. art. 111(5). 153 See id. art. 111(2). 154 See id. art. 111(3); see also Reuland, supra note 144, at 576-81. 155 See UNCLOS, supra note 1, art. 111(7). 156 See id. art. 111(8). 157 I'm Alone case (Canada v. U.S.) 29 AMER. J. INT'L L. 326 (1935). 158 See A.V. Lowe, National Security and the Law of the Sea, in XVII THESAU- RUS AcRoAsiuM 129, 189 (1991). 159 See Momtaz, supra note 95, at 363. 160 See id.
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and the fisheries located therein. 161 Access to these resources by foreign vessels may be prohibited by the coastal State,162 and "any regulations affecting exploitation are those of the coastal State, except as may be modified by agreement."1 6 3 UNCLOS, however, does not contain provisions requiring the coastal State to conserve or optimally utilize the biological resources located in its internal waters or territorial sea, giving such States a wide margin of discretion in regulating the use of those re- sources subject to their sovereignty.1 64
2. Preference of the Coastal State in Its EEZ and Its Duty of Conservation The coastal State can also regulate fishery activities within its EEZ by applying and enforcing its regulations, and its tribu- nals are competent to decide questions on this subject.' 65 Ac- cording to UNCLOS Article 56(1)(a), the coastal State has sovereign rights for the purposes of exploring, exploiting, con- serving, and managing the natural resources, i.e. the fish stocks, of its EEZ. 66 As we have seen, however, the coastal State is not allowed to adopt and apply regulations as to the construction and equipment of foreign vessels that would render impossible a foreign vessel's right to fish, which is recog- nized by international law. 167 The coastal State must also exer- cise its rights in light of the general provision of "good faith and non-abuse of rights" contained in UNCLOS Article 300.168
161 For a good summary of fisheries in the different sea zones, see CHURCHILL & LOWE, supra note 3, at 223-40. See generally Jose A. DE YTURRIAGA, THE INTER- NATIONAL REGIME OF FISHERIES (1997). 162 See Grant Hewison, Balancing the Freedom of Fishing and Coastal State Jurisdiction,in DEVELOPMENTS IN INTERNATIONAL FISHERIES LAW 161, 175-76 (El- len Hey ed. 1999). 163 W.T. Burke, The Law of the Sea Convention Provisions on Condition of Ac- cess to Fisheries Subject to National Jurisdiction,63 ORE. L. REV. 73, 75 (1984). 164 For a good discussion of the rights and duties regarding fisheries, see Ellen Hey, The Fisheries Provisionsof the LOS Convention, in DEVELOPMENTS IN INTER- NATIONAL FISHERIES LAW 13, 20 (Ellen Hey ed., 1999). 165 See C.A. Fleischer, La Pche, in TRAITE Du NOUVEAU DROIT DE LA MER, supra note 6, at 819, 930; see also PONTAVICE & CORDIER, supra note 13, at 278-89; ORREGO VICURA, supra note 69, at 49-67; KWAITKOWSKA, supra note 69, at 45-102; Treves, supra note 30, at 149-62; see generally M. DAHMANI, THE FISHERIES REGIME OF THE EXCLUSIVE ECONOMIC ZONE (1987). 166 See CHURCHILL & LOWE, supra note 3, at 232. 167 See C.A. Fleischer, supra note 165, at 930. 168 See BERNAERT, supra note 64, at 38.
http://digitalcommons.pace.edu/pilr/vol14/iss1/2 28 2002] COASTAL JURISDICTION OVER FOREIGN VESSELS 55
However, unlike the rights enjoyed by coastal States in their internal or territorial waters, a coastal State must pro- mote the optimal utilization of the living resources in its EEZ in accordance with UNCLOS Articles 61 and 62. According to Arti- cle 61, the coastal State must determine the allowable catch of each fish stock in its EEZ in order to ensure that fish stocks are not endangered by over-exploitation. 169 It can also adopt mea- sures of conservation and management in order to maintain the stability of the stock. 170 Under Article 62, the coastal State must then evaluate its own capacity of catch. If such capacity is inferior to the total allowable catch, the coastal State must au- thorize other States, by means of agreements or arrangements, 71 to exploit the remainder of the allowable volume of catch.' Thus, with regard to fisheries, the EEZ should be qualified as a "preferential" economic zone.' 72 The coastal State must make the evaluation and authorizations taking due account of the needs of developing, landlocked, and other disadvantaged countries, 73 as well as the possible rights of countries histori- cally fishing in the zone.' 74 On the other hand, such countries to which a right to fish has been granted must respect the coastal State's regulations as to the conservation of the resources, nota- bly the species and size of fish that can be caught, quotas of catch, seasons of fishing, gear to be used, fishing zones, number and type of vessels allowed, observers on board foreign vessels, etc.175 This right gives the coastal State great latitude, which in turn seriously impairs the "right" of access to the surplus of the 6 catch recognized to third countries by UNCLOS. 7
169 See CHURCHILL & LowE, supra note 3, at 232. 170 See UNCLOS, supra note 1, art. 61(2); LUCCHINI & VOECKEL, supra note 7, at 219. 171 See UNCLOS, supra note 1, art. 62(2); see also PANcRAcio, supra note 23, at 143. For a discussion of the coastal State requirements for foreign fishing and ac- cess to surplus, see GERALD K. MOORE, COASTAL STATE REQUIREMENTS FOR FOR- EIGN FISHING, F.A.O. LEGISLATIVE STUDY No. 21, REV. 2, at 6 (1985). 172 See Francis Rigaldies, L'entrde en Vigueur de la Convention de 1982 sur le Droit de la Mer, 29 REVUE JURIDIQUE THIMIS 213, 239 (1995). 173 See Kiriakoulas Hatzikiriakos, La Zone APconomique Exclusive, 3 REVUE D']TUDE JURIDIQUE 161, 168 (1996). 174 See UNCLOS, supra note 1, arts. 62(2),(3); PANcRAcIo, supra note 23, at 143. 175 See UNCLOS, supra note 1, art. 62(4). 176 See Rigaldies, supra note 172, at 251 n. 53.
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According to UNCLOS Article 73(1), the coastal State can take any necessary measures to ensure compliance with its leg- islation relating to the exploration, exploitation, conservation and management of the living resources within its EEZ, such as boarding, inspection, arrest, and judicial proceedings. The coastal State then has a duty to promptly notify the flag State of the arrest and penalties. 177 Moreover, the arrested vessel must 178 be promptly released upon payment of a reasonable security. Furthermore, the penalties imposed for such violations cannot 179 include imprisonment nor any form of corporal punishment.
3. Freedom to Fish in the High Seas and Duties on All States On the high seas, beyond the EEZ, every vessel of every State has an unlimited right to fish, as stated in UNCLOS Arti- cle 116.180 However, it is recognized that 90% of the living re- sources of the oceans are now concentrated in zones subject to the sovereignty of a coastal State. Consequently, the freedom to fish beyond these zones has little real significance.' 8 ' Moreover, even this right to fish is subject to treaties in force,'8 2 i.e., the rights and duties of coastal States under Articles 63(2), 64 through 67, and Articles 117 through 120. Under Article 63(2), the coastal State and other States shall make arrangements as to the necessary measures to take in order to ensure the conser- vation of stocks occurring within the EEZ of two or more coastal States, or both within the EEZ and in an area beyond and adja- cent to it. As for Articles 64 through 67, they relate to the rights and duties of the coastal State with regard to the exploitation and conservation of highly migratory species, marine mammals, anadromous stocks, and catadromous species and their conservation.
177 See UNCLOS, supra note 1, art. 73(4). 178 See id. art. 73(2); 179 See id. art. 73(3). 180 See also Treves, supra note 30, at 225-34; see generally ORREGO VICURiA, supra note 69. 181 See BERNAERT, supra note 64, at 120. 182 For a discussion on the 1995 Agreement on Straddling and Highly Migra- tory Fish Stocks, see generally Moritaka Hayashi, Enforcement by Non-Flag States on the High Seas Under the 1995 Agreement on Straddlingand Highly Mi- gratory Fish Stocks, 9 GEO. INT'L ENVT'L L. REV. 1 (1996); Christopher J. Carr, Recent Developments in Compliance and Enforcement for InternationalFisheries, 24 Ecology L.Q. 847 (1997); Treves, supra note 119, at 667-73.
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In addition, UNCLOS Article 117 imposes a duty on inter- ested States to cooperate and take measures for the manage- ment and conservation of the biological resources applicable to their own nationals. 8 3 In order to do this, the State must coop- erate with, and take account of the special interests of the coastal State.18 4 This can be done with the help or under the auspices of international fishery commissions.'8 5 Any conserva- tion measure adopted pursuant to UNCLOS should not discrim- inate, in form or in fact, against nationals of any State. 186 Finally, on the high seas, UNCLOS provides only for flag State jurisdiction regarding all high seas fishing activities under- taken by vessels flying their flag. Hence, the coastal States can- not take enforcement actions.'8 7
4. The Canada/SpainTurbot War The Canada v. Spain Turbot War is one of the most publi- cized disputes on the law of the sea.' 88 In March 1995, after having complained that Spanish fishing vessels violated the in- ternational quotas designed to protect turbot straddling Ca- nada's jurisdictional lines in the Grand Banks region off the
183 See PANCRACiO, supra note 23, at 187; see also Serge Pannatier, Probl~mes Actuels de la Pche en Haute Mer, CI REVUE GANtRALE DE DROIT INTERNATIONAL PUBLIC 421, 426-32 (1997); S. Duchemin, La Pollution du Milieu Marin et la Pro- tection de la Mer dans le Cadre de la Convention sur le Droit de la Mer, in XVII THESAURUS ACROASIUM 789 (1991). 184 See Pannatier, supra note 183, at 432-36; see also Treves, supra note 119, at 665-67. 185 See CHURCHILL & LowE, supra note 3, at 235; see also Pannatier, supra note 183, at 436-40. 186 See CHURCHILL & LOWE, supra note 3, at 235. 187 See Hewison, supra note 162, at 183. 188 See W. M. Von Zharen, The Shrinking Sea and Expanding Sovereignty: The Fate of Fisheries, 15 NAT. RESOURCES & ENV'T 24, 65 (2000); see also Okon Akiba, International Law of the Sea: The Legality of Canadian Seizure of the Spanish Trawler (Estai), 37 NAT. RESOURCES J. 809 (1997); Andrew Schaefer, 1995 Canada- Spain Fishing Dispute (The Turbot War), 8 GEO. INT'L ENVT'L L. REV. 437 (1996); David A. Teece, Global Overfishing and the Spanish-Canadian Turbot War, 8 COLO. J. INT'L ENVT'L L. & POL'Y 89 (1997); William T. Abel, Fishingfor an Interna- tional Norm to Govern StraddlingStocks: The Canada-SpainDispute of 1995, 27 U. MIMI INTER-AM. L. REV. 553 (1996); A. Anna Zumwalt, Straddling Stock Spawn Fish War on the High Seas, 3 U.C. Davis J. Int'l L. & Pol'y 35 (1997); Pat- rick Shavloske, The Canadian-SpanishFishing Dispute: A Template for Assessing the Inadequacies of the United Nations Convention on the Law of the Sea and a Clarion Call for Ratification of the New Fish Stock Treaty, 7 IND. INT'L & COMP. L. REV. 223 (1996).
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Newfoundland coast, a Canadian gunboat seized a Spanish- flagged vessel, the Estai, which was fishing for turbot.18 9 The gunboat pursued the Spanish fishing trawler, fired warning shots across her bow, and confiscated the vessel. 190 On board the Estai, Canadian investigators found that nearly 80 percent of the catch was illegal: "young, small fish caught by nets with small holes."' 9' Spain immediately instituted proceedings against Canada before the ICJ maintaining that the Court should declare the boarding of the Estai by the Canadian Coast Guard and the temporary detention of her Spanish crew as violative of the freedoms of navigation and fishing on the high seas that exist under international law. Canada responded that the ICJ lacked jurisdiction over this dispute because of its own law "specifically excluding the compulsory jurisdiction of the ICJ in conservation and management disputes, as well as in measures taken by Ca- nada with respect to vessels fishing in the North Atlantic Fish- 92 eries Organization's regulatory area of the high seas."' Indeed, on December 4, 1998, the ICJ decided by a twelve to five 193 vote that it lacked jurisdiction over the dispute.
D. Pollution 1. Protection:A Duty for All States Part XII of UNCLOS regulates pollution and states that each State has an obligation to protect and preserve the marine environment.' 94 Thus, each State has a duty to take all mea-
189 See Von Zharen, supra note 188, at 65. 190 See Jeremy Faith, Enforcement of FishingRegulations in InternationalWa- ters: Piracy or Protection,is Gunboat Diplomacy the Only Means Left?, 19 Loy. L.A. INT'L & COMP. L.J. 199, 204 (1996). 191 Pannatier, supra note 183, at 65. 192 Id. at 66. 193 See Fisheries Jurisdiction case (Spain v. Canada), 1998 I.C.J. 96 (December 4). 194 See UNCLOS, supra note 1, art. 192; PONTAVICE & CORDIER, supra note 13, at 508-25; see also Mario Valenzuela, Enforcing Rules Against Vessel-Source Deg- radation of the Marine Environment: Coastal, Flag and Port State Jurisdiction,in DAVOR VIDAS & WILLY OSTRENG, ORDER FOR THE OCEANS AT THE TURN OF THE CEN- TURY 485 (Kluwer Law International ed., 1999); David S. Ardia, Does the Emperor Have No Clothes? Enforcement of InternationalLaws Protectingthe Marine Envi- ronment, 19 MICH. J. INT'L L. 497 (1998); David M. Dzidzornu, Coastal State Obli- gations and Powers Respecting EEZ Environmental Protection Under PartXII of the UNCLOS: A DescriptiveAnalysis, 8 COLO. J. INT'L ENVT'L L. & POL'Y 283, 291-
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95 (1997); ORREGO VICU&A, supra note 69, at 83-90; KWAITKOWSKA, supra note 69, at 160-97; CHURCmiLL & LOWE, supra note 3, at 241-87. 195 See UNCLOS, supra note 1, art. 207; see also Duchemin, supra note 183, at 801-02; De Raulin, supra note 52, at 209-11. 196 See UNCLOS, supra note 1, arts. 208-09; see also Duchemin, supra note 183, at 795. 197 See UNCLOS, supra note 1, art. 210. 198 See id. art. 212. 199 See id. art. 211. 200 See id. art. 194(1). 201 See id. art. 194(2). 202 See id. arts. 194(3) and (4). 203 See UNCLOS, supra note 1, art. 195. 204 Id. art. 197. 205 See id. arts. 197-203. 206 See id. art. 235(1).
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2. Implementing Powers Given to Coastal States According to UNCLOS Article 211(1), States with the help, or under the auspices of international organizations must "es- tablish international rules and standards to prevent, reduce, and control pollution of the marine environment" by vessels. To accomplish these goals, States can adopt routing systems de- signed to minimize the threat of accidents, which might cause pollution of the marine environment, including the coastline and damage to any related interest of the coastal State. Moreo- ver, coastal States can establish particular requirements for the prevention, reduction and control of pollution of the marine en- vironment as a condition to the entry of foreign vessels into their ports or internal waters, as long as they give due publicity of such requirements. 20 7 Similarly, coastal States can "adopt laws and regulations for the prevention, reduction and control of marine pollution from foreign vessels" within their territorial sea, but such laws and regulations should not impair innocent passage of foreign vessels. 20 8 According to UNCLOS Article 211(5), coastal States have the same rights in their EEZ, as long as they are "conforming to and giving effect to generally ac- cepted international rules and standards established through competent international organizations or general diplomatic conferences." When a vessel is voluntarily within a port or at an off-shore terminal of a State, pursuant to UNCLOS Article 220(1), that State can "institute proceedings in respect of any violation of its laws and regulations adopted in accordance with this Conven- tion [UNCLOS] or applicable international rules and standards for the prevention, reduction and control of pollution from ves- sels when the violation has occurred within the territorial sea [or the EEZ] of that State."20 9 Moreover, if the coastal State has clear grounds to believe that a vessel navigating in its territo-
207 See id. art. 211(3); see also Dzidzornu, supra note 194, at 295-96. 208 See UNCLOS, supra note 1, art. 211(4). 209 For a discussion of the enforcement powers of the Coastal State and its regulations concerning environmental protection in the EEZ, see Dzidzornu, supra note 194, at 304-10; see also Amy de Generes Berret, UNCLOS III: Pollution Con- trol in the Exclusive Economic Zone, 55 LA. L. REV. 1165, 1170-74 (1995); Claude Douay, Les Sanctions en Matires de Pollutiondans la Zone Pconomique Exclusive, in PERSPECTIVES DU DROIT DE LA MER A L'ISSUE DE LA 3E CONFtIRENCE DES NATIONS UNIEs 210 (Colloque de Rouen, Soci6t4 pour le Droit International, 1983).
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210 UNCLOS, supra note 1, art. 220(2); see Dzidzornu, supra note 194, at 304- 08. 211 UNCLOS, supra note 1, art. 220(3); see Duchemin, supra note 183, at 798- 99. 212 UNCLOS, supra note 1, art. 220(5). 213 Id. art. 220(6); Douay, supra note 209, at 214-16. 214 See UNCLOS, supra note 1, art. 226.
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Once again, if a reasonable security is paid, the coastal State must promptly release the vessel. 215 Obviously, in accor- dance with UNCLOS Article 224, only military aircraft, or other ships or aircraft clearly marked and identifiable as being on government service and authorized to that effect, have the power of enforcement against foreign vessels. Finally, in the ex- ercise of their powers of enforcement against foreign vessels, States shall not endanger the safety of navigation or otherwise create any hazard to a vessel, bring it to an unsafe port or anchorage, or expose the marine environment to an unreasona- ble risk,2 16 nor should States discriminate in form or in fact against vessels of any other State.21 7 Finally, according to Arti- cle 236, the power of enforcement of the coastal State cannot be applied against warships or government vessels used for non- 218 commercial purposes, due to their immunity. An interesting illustration of the problem of how and when the coastal State can act against a polluting vessel is given by the Torrey Canyon incident. 21 9 In 1967, the Torrey Canyon grounded off the English coasts, and was later bombed by Brit- ish planes in order to prevent an already significant oil pollu- tion problem from increasing.220 As a result of British actions, the bombs ignited the oil. The United Kingdom based its actions on the doctrine of the "state of necessity and self-defense," in order to intervene on a foreign vessel which represented an im- mediate threat to the security of the British coasts. 221 According to Robert Reuland, "the United Kingdom's action was of ques- tionable legality; [and] the bombing of the vessel was not clearly justifiable under then-existing customary international law, be- cause the landing occurred on the high seas and not within Brit- '222 ish territorial waters.
215 See id. arts. 220(7) & 292; Dzidzornu, supra note 194, at 305. 216 See UNCLOS, supra note 1, art. 225. 217 See id. art. 227. 218 See Douay, supra note 209, at 223. 219 See Treves, supra note 93, at 711. See also Reuland, supra note 102, at 1221. 220 See Treves, supra note 93, at 711. 221 See PANcRAcio, supra note 23, at 197. 222 Reuland, supra note 102, at 1221.
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E. Military Uses of the Sea and Self Defense As has already been mentioned, UNCLOS promotes peace- ful uses of the sea. Article 301 states that "in exercising their rights and duties under this Convention (UNCLOS, States Parties shall refrain from any threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the principles of interna- 223 tional law embodied in the Charter of the United Nations." This is confirmed by UNCLOS Articles 88 and 301.224 Further- more, State Parties must fulfill their obligations in good faith and refrain from abusing their rights. 225 However, the use of force is subject to the exception of self-defense recognized by Ar- ticle 51 of the United Nations Charter and customary law which conditions are defined by the ICJ in the Nicaraguacase. 226 The two criteria set forth by the Court were: 1. necessity; and 2. pro- 227 portionality of the measures taken.
1. Internal Waters In internal waters, the coastal State has full sovereignty. Consequently, there is no right for foreign vessels to enter inter- nal waters. As a result, "there are no general restrictions upon the right of the coastal State to deploy defensive or offensive military systems in its internal waters, apart from those arising in connection with the duty not to impede any right of innocent 228 passage which might exist through newly-enclosed waters." However, a problem arises when determining the limits of per- missible action against unauthorized intruders in internal waters. Professor Ingrid Delupis maintains that "the immunity of a submarine is not even relevant to unlawful intrusions, which
223 See the United Nations Charter Articles 1 and 2 for a discussion regarding maintaining peace and security, preventing and removing threats to peace, strengthening universal peace, and refraining from the threat and use of force against territorial integrity or political independence of any State. 224 See UNCLOS, supra note 1, arts. 141 (area), 58(2) (EEZ), 246 (marine sci- entific research), 88 (high seas). 225 See id. art. 300. 226 See generally Nicaragua case, 1986 I.C.J. 14. 227 See id. at 194. 228 Lowe, supra note 158, at 150.
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give rise to the right of proportional self-defense. ' 229 Since a foreign vessel has no right to be in the internal waters of an- other State, it may be asked to leave. If it refuses to leave, or refuses to surface in the case of a submarine, the coastal State can request it to leave, "using force if necessary."230 Moreover, the coastal State has a right, to be distinguished from the right to expel unauthorized entrants, to use force against unautho- rized entrants in certain ill-defined circumstances and subject to certain limitations. The protection of security interests is the most frequently used reason to justify use of force against for- eign vessels. 231 This use of force is, however, limited by the ne- cessity of such counteractions that must be proportionate to the threat and have the removal of the threat as an end. Thus, an accidental intrusion into an insignificant bay would not be con- sidered a threat while a foreign vessel monitoring activities 232 near a naval base would be a threat.
2. The TerritorialSea In the territorial sea, coastal States as well as foreign ves- sels have the duty to respect the principle of innocent passage. A study of UNCLOS Article 19(2) leads to the conclusion that most of the activities listed as incompatible with innocent pas- sage are activities that are characteristic of warships. 233 Thus, for self-protection, some States require notification prior to en- try into their territorial sea by warships, while others require prior authorization, and some oppose any pre-condition to inno- cent passage.234 All in all, "there appears to be in practice a mo- dus vivendi according to which warships do give prior notice of the intended passage, not at the diplomatic level, but informally 35 to the local coastal authorities."2 Under UNCLOS Articles 25 and 30, the coastal State can ask a foreign warship to comply with its regulations and with
229 Delupis, supra note 13, at 74. 230 Lowe, supra note 158, at 151. 231 See id. at 152. 232 See id. 233 For example, threat or use of force, weapons exercises, and launching and receiving aircraft or military devices. 234 See F. David Froman, Uncharted Waters: Non-Innocent Passage of War- ships in the TerritorialSea, 21 SAN DIEGO L. REV. 625, 639-44 (1984). 235 Lowe, supra note 158, at 157.
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the rules of passage through the territorial sea. If the latter fails to do so, the coastal State can request it to immediately leave the territorial sea.236 The violation of the coastal State's legislation does not automatically render the warship's passage non-innocent. 237 However, if a warship disregards requests for compliance, the coastal State may require it to leave its territo- rial waters. According to UNCLOS Article 25, if a warship does not obey such a request, the coastal State can take the neces- sary steps, including "a degree of force proportionate to the threat which the continuing presence of the ship represents," to 238 compel them to leave. Finally, as R.R. Churchill and A.V. Lowe noted, "States en- joy a general right of self-defense in international law and, if they are facing an imminent attack from foreign vessels in their territorial sea and have no other means of protection, they may use any necessary force against the vessels in order to defend 23 9 themselves." The USS Pueblo incident 240 illustrates the right of the coastal State to protect its security. In 1968, an American war- ship, the Pueblo, was seized by North Korea. It was not dis- puted that the vessel was equipped with electronic devices for collecting information on North Korea's coastal defenses, but while the United States claimed the vessel to be on the high seas, North Korea maintained it was in its territorial waters. However, the U.S. stated that: Even if the Pueblo had been in the territorial waters of North Ko- rea, its seizure would have been improper [... in the absence of [an] immediate threat of [an] armed attack (the Pueblo was armed with only two machine guns)[,] escorting foreign naval ves- sels out of the territorial waters is the strongest action a coastal State should take. The seizure of foreign war ships or other at- tacks upon them are much too dangerous and provocative acts to be permitted by international law. This restriction on the use of force by a coastal State is set forth in Article 23 of the 1958 Con-
236 See UNCLOS, supra note 1, art. 30. 237 See Froman, supra note 234, at 660. 238 Lowe, supra note 158, at 161-62. 239 CHURCHILL & LowE, supra note 3, at 83-84. 240 See generally Contemporary Practice of the U.S. Relating to International Law - Seizure of the USS Pueblo, 62 AMER. J. INT'L L. 754 (1968).
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vention [UNCLOS] on the territorial sea, which authorizes, as 24 1 sole remedy, requiring a war ship to leave the territorial sea. According to Natalino Ronzitti, the U.S. position in the Pueblo case was contrary to the doctrine of "necessary steps. 242 Indeed, as illustrated, if a vessel does not leave when requested to do so, it becomes non-innocent and thus loses its right to pas- sage in the territorial sea. According to Article UNCLOS 19(2)(c), "collecting information to the prejudice of the defense or security of the coastal State" also renders passage non-inno- cent. In such cases, the coastal State can take necessary steps, which includes the use of force. In the Corfu Channel case, 243 however, the ICJ recognized the right of States to demonstrate force in order to vindicate or protect the right of innocent passage of foreign vessels unjustly denied by the coastal State. Indeed, as to the issue of passage through the Channel itself the Court stated: The legality of this measure taken by the Government of the United Kingdom [i.e. sending the warships through the Corfu Channel to carry out a passage for purposes of navigation] cannot be disputed, provided that it was carried out in a manner consis- tent with the requirements of international law. The "mission" was designed to affirm a right which had been unjustly denied. The government of the United Kingdom was not bound to abstain from exercising its right of passage, which the Albanian Govern- 4 ment had illegally denied.24 The ICJ recognized the lawfulness of the first two passages through the Corfu Channel even if they were undertaken not only for the purpose of navigation, but also "to demonstrate such force that she [Albania] would abstain from firing again on passing ships,"245 and ordered Albania to pay for all damages caused by its unlawful actions. 246 The ICJ condemned the
241 Id. at 757. 242 Natalino Ronzitti, The Right of Self-Defense at Sea and its Impact on the Law of Naval Warfare, in XVII THESAURUS ACROASIUM 266, 270-71 (Constanto- poulos ed. 1991). 243 See Corfu Channel case, 1949 I.C.J., at 13; see generally D.G. Stephens, The Impact of the 1982 Law of the Sea Convention on the Conduct of Peacetime Naval / Military Operations, 29 CAL. W. INT'L L.J. 283 (1999). 244 Corfu Channel case, 1949 I.C.J., at 30. 245 Id. at 31. 246 See Ronzitti, supra note 242, at 273.
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United Kingdom for having swept the mines in the Albanian waters without Albania's consent and stated that it could not condone the United Kingdom for the action taken, "be it moti- vated by the reason of securing the corpa delicti or as a measure 247 of self-help aimed at protecting the safety of passage." Similarly, on October 27, 1981, a Soviet submarine, the Wiskey-137, grounded on the coasts of Sweden near a naval base, and was unable to move without assistance. 248 This act was regarded as highly suspicious by Swedish authorities since they require, prior to the entry of any foreign warships into their territorial sea, the official notification of the flag State. The Swedish authorities inspected the submarine and con- ducted a complete inquiry. However, the immunity of warships was not claimed by the Soviet Union. 249 Similarly, on February 24, 1982, a Soviet submarine entered the Italian Gulf of Ta- ranto, which was claimed by Italy to be a historic bay, and thus internal waters. The Italian Navy intercepted the submarine and was ready to use force in order to oblige the submarine to surface if it represented a threat to Italy.250 The difficulty in such cases is the interference of the sovereign immunity of war- ships and other government vessels.
3. The Exclusive Economic Zone The determination as to the legality of military uses of the EEZ poses problems because of the following ambiguous word- ing of UNCLOS Article 58(1): "and other internationally lawful uses of the sea" and because of the problem of attribution of the residual rights in the EEZ.25 1 Some States maintain that mili- tary operations, exercises, and activities have always been re- garded as lawful uses of the sea, while other countries point out that UNCLOS does not authorize such activities without the consent of the coastal State.252 According to UNCLOS Articles 58 (authorizing lawful uses of the sea related to the "operation
247 Id. at 272; see also Corfu Channel case, 1949 I.C.J., at 34-35. 248 See Delupis, supra note 13, at 53. 249 See PANcRacio, supra note 23, at 93. 250 See Ronzitti, supra note 242, at 271. 251 Claude Emanuelli, Le Nouveau Droit de la Mer et les Conflits Entre Atats, in XVI ANNUAIRE DE DROIT MARITIME ET OCtANIQUE 209, 222 (Pedone ed., 1998). 252 Scovazzi, supra note 70, at 319 (examples of countries requiring the consent of the coastal State include Cape Verde, Uruguay, and Brazil, while countries such
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of ships, aircraft and submarine cable and pipelines") and 59 (on residual rights in the EEZ), warships may "engage in mili- tary maneuvers, collect information, carry out tests of weapons of any kind, lay mines and other arms on the sea-bed, at least when the latter activity is not prohibited by general interna- tional law or treaties,"25 3 provided that they do so "with due re- gard to the rights of the coastal State and other States."25 4 On the other hand, it would be much more difficult to justify, under international law, "an extended exercise with weapons, such as launching torpedoes and firing artillery, or [the] secret laying of arms within an EEZ" as included in the right of navigation or 255 other freedoms of the high seas. Also controversial are the countermeasures that can be taken against a warship violating coastal State laws in the EEZ. Unlike the rules pertaining to the territorial sea, the coastal State has no similar right to request a warship to leave its EEZ. A refusal on the part of the vessel to comply with the regulations of the coastal State does not eliminate the right of the vessel to be in the EEZ, where the rule is freedom of naviga- tion. Furthermore, foreign warships are protected by their sov- 256 ereign immunity and cannot be arrested.
4. The High Seas In the high seas, there is no doubt that warships enjoy the freedom of navigation as well as other freedoms of the high seas. Thus, the "stationing of naval fleets. . .with the clear threat of armed intervention in the coastal State," the "deploy- ment of missiles and other weapons, nuclear and non-nuclear," and the "testing of weapons and conduct of naval manoeuvres" are generally recognized as included in the freedom of the high seas, provided they are undertaken with reasonable and due re- gard for the rights of others.257 Since the phrase "reasonable and due regard for the rights of others" is of little practical
as the United States, France, and Italy do not require the consent of the Coastal State). 253 Id. at 319. 254 ROACH & SMITH, supra note 32, at 249. 255 Scovazzi, supra note 70, at 319. 256 See Lowe, supra note 158, at 193. 257 See id. at 181.
http://digitalcommons.pace.edu/pilr/vol14/iss1/2 42 20021 COASTAL JURISDICTION OVER FOREIGN VESSELS 69 value, the potential for conflict is great, as is illustrated in the following examples. On August 19, 1981, the United States Sixth Fleet shot down two Libyan aircrafts, while the United States was con- ducting naval exercises in the Gulf of Sidra, approximately 60 miles from the Libyan coast. Libya claimed that the American fleet was in its internal waters because it claimed the Gulf of Sidra to be a historic bay. The two planes were shot down while they were trying to attack an American aircraft carrier. 258 The U.S. claimed that the Libyan attack was unprovoked and that the American aircraft were participating in a routine naval ex- ercise in international waters that had been publicly 259 announced. The second incident was factually quite similar to the first one. On March 24, 1986, the U.S. Sixth Fleet was attacked by Libyan missiles fired from the coast, while conducting similar exercises in the Gulf of Sidra. As a response, the U.S. forces bombed the Libyan battery located on the coast and attacked three Libyan vessels.260 President Reagan qualified this re- sponse as a lawful exercise "of self-defense necessary to protect 261 [the U.S. forces] from continued attack." The lawfulness of the United States' actions depends on the validity of the Libyan claim regarding the status of the Gulf of Sidra. The United States did not regard the Gulf of Sidra as a historic bay and accordingly disagreed with Libya on this point. Moreover, the Libyan contention had met the protest of many States. As a consequence, it was found that the U.S. could thus continue to exercise all rights recognized by the regime of the high seas in the Gulf of Sidra, including naval exercises. 262 Ac- cording to Ronzitti, by taking into account the decision in the Corfu Channel case, one can conclude that "if foreign warships dispatched to exercise navigational rights stemming from the regime of high seas are attacked by the coastal State, the armed response is to be seen as a lawful exercise of the right of self-
258 See Ronzitti, supra note 242, at 273. 259 See America's Blueprint for Controlling Nuclear Weapons, August 19, 1981, DEP'T ST. BULL., Aug. 1981, No. 2055, at 60. 260 See Ronzitti, supra note 242, at 274. 261 Gulf of Sidra Incident, March 26, 1986, DEP'T ST. BULL., Mar. 1986, No. 2111, at 72. 262 See Ronzitti, supra note 242, at 274.
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defense, since the coastal State cannot claim it was compelled to resort to force in order to protect its territorial sovereignty."263 States have also resorted to quarantine or blockades in times of peace. "This was generally considered a lawful measure of self-help to which naval powers resorted against the wrong- doer."264 While it is difficult to state the limits of the right of self-defense, it is clear that the immediacy of the threat and the proportionality of the response are essential to the legality of the self-defense operations, 265 as exemplified in the Cuban and Algerian crises. During the Cuban Missile Crisis, by the presidential deci- sion of October 23, 1962, the United States reserved the right to arrest and inspect any vessel on the high seas that was travel- ing toward Cuba, in order to ascertain whether they carried missiles.266 For the United States, this maritime quarantine was based on the fact that the Soviet Union had installed long- range missiles in Cuba that were a threat to hemisphere secur- ity. The United States wanted to stop any transfer of missiles to Cuba, and have those already installed removed: Any vessel or craft which may be proceeding toward Cuba may be intercepted and may be directed to identify itself, [... 1 to stop, to lie to, to submit to visit and search, or to proceed as directed. Any vessel or craft which fails or refuses to respond or to comply with directions shall be subject to being taken into custody. Any vessel or craft which is believed is en route to Cuba and may be carrying prohibited material or may itself constitute such material shall, whenever possible, be directed to proceed to another direction of its own choice [... I All vessels or craft taken into custody shall be sent into a port of the United States for appropriate disposition. In carrying out this order, force shall not be used except in case of failure or refusal to comply with directions, or with regulations or directives of the Secretary of Defense issued hereunder, after rea- sonable efforts have been made to communicate them to the ves- sel or craft, or in case of self-defense. In any case, force shall be used only to the extent necessary. 267
263 Id. at 275. 264 Id. 265 See Lowe, supra note 158, at 184. 266 See Momtaz, supra note 95, at 365. 267 The Soviet Threat to Americans, Nov. 12, 1962, DEP'T ST. BULL., Nov. 1962, at 717.
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According to Ronzitti, "this maritime quarantine. . .was con- trary to the principle of the freedom of the high seas, even though armed force was not actually used."268 France undertook a similar surveillance against Algeria. During the Algerian Revolution, French authorities arrested and inspected, on the high seas and even outside the Mediterra- nean, numerous foreign commercial vessels suspected of sup- plying arms and munitions to the Algerian rebels, without previous recognition of belligerence. 269 The conduct of France was contested before French courts by the shipping companies, but was "not held subject to trial, since it bore upon the interna- tional relations of the French State."270 However, it is impor- tant to note that in the case of the Duizar (an Italian vessel boarded on the high seas), the French Minister of Defense ar- gued that the boarding of the vessel was a lawful measure of self-defense, while the Paris Administrative Tribunal held that the operation of the French Navy was a "measure of police af- fecting the external safety of the State [which was] necessary for safety reasons, and had no vexatious character. '271 Nonethe- less, the number of vessels arrested and the area of operation "seemed to many disproportionately too large; '272 and the de- fensive response was found to be "far out of proportion to the perceived threat." Thus, the international community con- demned France's actions. 273
F. The Saiga Case The Saiga case 274 is the first case of the new International Tribunal on the Law of the Sea (Tribunal), and provides a good overview of some of the elements that were previously discussed in this note. On October 27, 1997, the MIV Saiga, flying the flag of Saint Vincent and the Grenadines, refueled fishing vessels at sea off
268 Ronzitti, supra note 242, at 276. 269 See Momtaz, supra note 95, at 365. 270 Ronzitti, supra note 242, at 282. 271 Tribunal administratif de Paris, 22 Octobre 1962, Socit6 Ignazio Messina et Cie c. lEtat (Minist6re des Armies "Marine") 8 Annuaire Frangais de Droit In- ternational, 920-21 (1962); see Reuland, supra note 102, at 1218-19. 272 Lowe, supra note 158, at 184. 273 See Reuland, supra note 102, at 1218-19. 274 MIV Saiga case, I.T.L.O.S., Case No. 1.
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the coast actually in the EEZ, of Guinea. The next day, Guinean customs patrol boats arrested the Saiga off the coast of Sierra Leone, during which two arrested crewmembers were injured. The vessel and its crew were then brought to Conakry, Guinea, 275 detained, and the cargo of oil was ordered to be discharged. As a result, Saint Vincent and the Grenadines moved for provisional measures for the prompt release of the Saiga before the new Tribunal. 276 After declaring its jurisdiction, the Tribu- nal decided that it was sufficient, for the moment, to note the non-compliance with UNCLOS Article 73 for the application to be admissible. 27 7 Indeed, Saint Vincent and the Grenadines ar- gued that Guinea failed to promptly release the Saiga and its Master. Thus, more importantly, the Tribunal arrived at the conclusion that: 77. There may be an infringement of [A]rticle 73, paragraph 2, of the Convention [UNCLOS] even when no bond has been posted. The requirement of promptness has a value in itself and may pre- vail when the posting of the bond has not been possible, has been rejected or is not provided for in the coastal State's laws or when it is alleged that the required bond is unreasonable. 78. In the case under consideration Guinea has not notified the detention as provided for in [Alrticle 73, paragraph 4, of the Con- vention [UNCLOS]. Guinea has refused to discuss the question of the bond and the ten-day time-limit relevant for the application for prompt release has elapsed without indication of willingness to consider the question. In the circumstances, it does not seem
275 See Bernard Oxman, InternationalDecision: The M/V "Saiga," 92 Am. J. INT'L L. 278, 279 (1998). For a factual background on both cases, see MIV Saiga case, I.T.L.O.S., Case No. 1, IT 25-33; MV Saiga case, I.T.L.O.S., Case No. 2, 31-39. 276 See generally MV Saiga case, I.T.L.O.S., Case No. 1. 277 See MIV Saiga case, I.T.L.O.S., Case No. 1, [ 59; in paragraph 56 of the Case, the Tribunal put forward the question to be decided in the case: "is bunker- ing (refueling) of a fishing vessel within the exclusive economic zone of a State to be considered as an activity the regulation of which falls within the scope of the exercise by the coastal State of its 'sovereign rights to explore, exploit, conserve and manage the living resources in the exclusive economic zone?'" If the answer to this question was yes, the Tribunal continued, bunkering would violate the laws and regulations of the coastal State concerning the regulation of fisheries; hence the arrest of a vessel allegedly violating such rules would fall within Article 73(1) of the 1982 Convention. Accordingly, the prompt release of the vessel upon posting of a reasonable bond would be an obligation of the coastal State under Article 73(2). But, the Tribunal concluded, such a determination is not necessary for the case.
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possible to the Tribunal to hold Saint Vincent and the Grenadines 278 responsible for the fact that a bond has not been posted. The Tribunal found that Guinea must promptly release the M/V Saiga and its crewmembers who were being detained.27 9 It also decided that a reasonable bond should be posted by Saint Vin- cent and the Grenadines, equivalent to the amount of oil dis- charged from the Saiga, plus $400,000.280 In Saiga No. 2, the Tribunal had to decide whether "the laws applied or the measures taken by Guinea against the Saiga were compatible with the Convention [UNCLOS [. .and] [wihether, under the Convention [UNCLOSI, there was justifi- cation for Guinea to apply its customs laws in the exclusive eco- nomic zone within a customs radius extending to a distance of 250 kilometers from the coast."28l After noting that while the coastal State can apply its customs laws and regulations in its territorial sea (UNCLOS Articles 2 and 21), and that it may ex- ercise control necessary to prevent infringement of its customs in its contiguous zone (Article 33(1)), the Tribunal concluded that the coastal State had jurisdiction to apply its customs laws in its EEZ only in respect to artificial islands, installations and structures (Article 60(2)), and not "in respect of any other parts of the exclusive economic zone not mentioned above."28 2 The Tribunal further rejected the Guinean argument of "public interest" as it found that it would be incompatible with UNCLOS Articles 56 and 58 regarding the rights of the coastal State in the EEZ because it would "entitle it to prohibit any ac- tivities in the said zone which it decides to characterize as activ- ities which affect its economic 'public interest' or entail 'fiscal losses' for it."283 Furthermore, no evidence had been presented by Guinea that its essential interests were in grave and immi- 4 nent peril.28 The Tribunal, therefore, finds that, by applying its customs laws to a customs radius which includes parts of the exclusive eco-
278 Id. 77-78. 279 See id. 79. 280 See id. 85. 281 M/V Saiga case, I.T.L.O.S., Case No. 2, 126. 282 Id. 127. 283 Id. 131. 284 See id. W135.
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nomic zone, Guinea acted in a manner contrary to the Convention [UNCLOS]. Accordingly, the arrest and detention of the Saiga, the prosecution and conviction of its Master, the confiscation of the cargo and the seizure of the ship were contrary to the Conven- 28 5 tion [UNCLOS]. Regarding hot pursuit, the Tribunal concluded that several of the conditions set forth under UNCLOS Article 111 were not met. As for the first pursuit on October 27, 1997, at the time the order was given by the government of Guinea to arrest the Saiga, the authorities of Guinea could have had no more than a suspicion, while under UNCLOS, a good reason to believe that a vessel has violated the law is necessary. Furthermore, no visual or auditory signals to stop were given to the Saiga. Finally, the patrol boat was recalled, interrupting the alleged pursuit, when Guinea received information that the Saiga had changed its course. 28 6 As for the second pursuit on October 28, 1997, again, no auditory or visual signals to stop were given to the Saiga prior to the commencement of the pursuit.2 7 Thus, the Tribu- nal concluded that the Saiga was stopped and arrested by Guinea "in circumstances which did not justify the exercise of the right of hot pursuit in accordance with the Convention [UNCLOSI."288 The last question to be decided by the Tribunal was related to the degree of the use of force by Guinea in stopping and ar- resting the Saiga: Although the Convention [UNCLOSI does not contain express provisions on the use of force in the arrest of ships, international law [... requires that the use of force must be avoided as far as possible and, where force is unavoidable, it must not go beyond what is reasonable and necessary in the circumstances. 28 9 The Tribunal went further by indicating steps that must be taken in arresting a vessel: The normal practice used to stop a ship at sea is first to give an auditory or visual signal to stop, using internationally recognized
285 Id. 136. 286 See id. 146-47. 287 See M/V Saiga case, I.T.L.O.S., Case No. 2, 9 148. 288 Id. 150. 289 Id. T1155.
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signals. Where this does not succeed, a variety of actions may be taken, including the firing of shots across the bows of the ships. It is only after the appropriate actions fail that the pursuing vessel may, as a last resort, use force. Even then, appropriate warning must be issued to the ship and all efforts should be made to en- 290 sure that life is not endangered. The Tribunal noted that, at the time of its arrest, the Saiga was fully laden and low in the water, and therefore incapable of high speed. Consequently, Guinean officers could have boarded it without much difficulty. Therefore, "there is no excuse for the fact that the officers fired at the ship with live ammunition [... ] without issuing any of the signals and warnings required by in- ternational law and practice."29 1 Even worse, the Guinean of- ficers also used excessive force on board the Saiga, injuring two 292 persons and damaging the vessel because of use of gunfire. For these reasons, the Tribunal found that Guinea violated the rights of Saint Vincent and the Grenadines under UNCLOS and international law, by arresting the vessel, detaining the crewmembers, prosecuting and convicting its Master, and by seizing the Saiga and confiscating its cargo. The Tribunal fur- ther decided that in arresting the Saiga, "Guinea acted in con- travention of the Convention [UNCLOS] on the exercise of the right of hot pursuit and thereby violated the rights of Saint Vin- cent and the Grenadines,... that while stopping and arresting the Saiga, Guinea used excessive force contrary to international law and thereby violated the rights of Saint Vincent and the Grenadines." 293 The court granted compensation for Saint Vin- 294 cent and the Grenadines.
IV. CONCLUSION
Throughout this note it has been shown that the coastal State has broad powers over the oceans, and more particularly over its territorial sea. Even if the coastal State does not exer- cise sovereignty over its EEZ, it still retains the most important
290 Id. 156. 291 Id. 157. 292 See id. 158. 293 MIV Saiga case, I.T.L.O.S., Case No. 2, 183(8). 294 See id. 183(12).
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sovereign rights: the exclusive economic use of this zone, mainly for fisheries. With its right to legislate in varying degrees in the different zones, the coastal State can impose a great burden on foreign vessels by forcing them to comply with the State's regulations. It can also assert jurisdiction over infringing vessels, and bring them before its courts. However, the ancient principle of free- dom of the seas has not completely disappeared, and coastal States are confronted with a few limits to their powers. Indeed, we have seen that foreign vessels have a right of free navigation on the high seas, including the EEZ and the con- tiguous zone. They must, however, respect the coastal State's regulations in these different zones. Foreign vessels also have a right of innocent passage in the territorial sea, as long as they comply with the coastal State's duly publicized legislation that is permitted under UNCLOS. In the event that foreign vessels do not respect coastal States' laws and regulations, the latter can take several actions depending on where the non-complying vessel is located. The concept of self-defense underlies the possibility of such actions. Although the best way to resolve such an incident is by diplo- matic means, the coastal State is allowed to take forceful mea- sures if the foreign vessel refuses to obey demands of compliance. However, the use of force against the vessel must be necessary and proportionate to the offense committed. Even on the high seas, the foreign vessel can be arrested if it has com- mitted crimes that are deemed so important that any State can take actions against them. Thus, because of the economic importance of the resources of the sea, coastal States are given broad powers to intervene against a foreign vessel. However, if such a vessel respects the rules set forth in international conventions such as UNCLOS, and national legislation adopted in compliance with those con- ventions, it will be allowed to freely navigate on the oceans. Moreover, arresting a vessel and creating an international inci- dent is not always politically acceptable by the international community.
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