NATIONAL ENERGY BOARD IN THE MATTER OF Hearing Order GH-001-2014 – NOVA Gas Transmission Ltd. Application for the North Montney Pipeline Project BOOK OF AUTHORITIES of PROPHET RIVER FIRST NATION December 3, 2014 TO: The Secretary National Energy Board 517 Tenth Avenue Calgary, Alberta T2R 0A8 Index TAB DESCRIPTION 1 Dene Tha’ First Nation v. Canada (Minister of Environment), 2006 FC 1354 2 Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73 3 Halfway River First Nation v. British Columbia (Ministry of Forests), 1999 BCCA 470 Homalco Indian Band v. British Columbia (Minister of Agriculture, Food & Fisheries), 4 2005 BCSC 283 5 Kwikwetlem First Nation v. British Columbia Transmission Corp., 2009 BCCA 68 6 Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69 7 R. v. Badger, [1996] 1 S.C.R. 771 8 R. v. Sparrow, [1990] 1 S.C.R. 1075 9 West Moberly First Nations v. British Columbia (Chief Inspector of Mines), 2011 BCCA 247 TAB 1 Page 1 2006 CarswellNat 3642, 2006 FC 1354, 25 C.E.L.R. (3d) 247, [2007] 1 C.N.L.R. 1, 303 F.T.R. 106 (Eng.), 153 A.C.W.S. (3d) 1, 2006 CF 1354 2006 CarswellNat 3642, 2006 FC 1354, 25 C.E.L.R. (3d) 247, [2007] 1 C.N.L.R. 1, 303 F.T.R. 106 (Eng.), 153 A.C.W.S. (3d) 1, 2006 CF 1354 Dene Tha' First Nation v. Canada (Minister of Environment) Dene Tha' First Nation (Applicant) and Minister of Environment Minister of Fisheries and Oceans, Minister of Indian and Northern Affairs Canada, Minister of Transport, Imperial Oil Resources Ventures Limited, on behalf of the Proponents of the Mackenzie Gas Project, National Energy Board, and Robert Hornal, Gina Dolphus, Barry Greenland, Percy Hardisty, Rowland Harrison, Tyson Pertschy and Peter Usher, all in their capacity as panel members of a Joint Review Panel established pursuant to the Canadian Environmental Assessment Act to conduct an environmental review of the Mackenzie Gas Project (Respondents) Federal Court M.L. Phelan J. Heard: June 19-23, 2006 Judgment: November 10, 2006 Docket: T-867-05 © Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights re- served. Counsel: Mr. Robert J.M. Janes, Mr. Robert Freedman for Applicant Mr. Kirk Lambrecht, Q.C. for Respondent, Attorney General of Canada Ms Mary E. Comeau for Respondent, Imperial Oil Resources Ventures Limited Mr. Andrew Hudson for Respondent, National Energy Board Mr. Greg Chase for Respondent, Joint Review Panel for the Mackenzie Gas Project Subject: Public; Constitutional; Environmental; Natural Resources; Property; Civil Practice and Procedure Aboriginal law --- Constitutional issues — Rights under constitutional statutes generally — Constitution Act, 1982 Applicant was First Nations band residing in Alberta — Federal government began planning massive natural gas pipeline ("MPG") running from gathering facilities in northern Northwest Territories to southern distribution ter- minus in Alberta — Parts of pipeline were to run through applicant's territory as defined by treaty and through further areas over which it had rights to hunt, fish and trap — Federal government set up various regulatory © 2014 Thomson Reuters. No Claim to Orig. Govt. Works Page 2 2006 CarswellNat 3642, 2006 FC 1354, 25 C.E.L.R. (3d) 247, [2007] 1 C.N.L.R. 1, 303 F.T.R. 106 (Eng.), 153 A.C.W.S. (3d) 1, 2006 CF 1354 mechanisms to deal with planning for pipeline, notably a co-operation plan to reduce duplication of environ- mental and regulatory processes and joint review panel agreement ("JRP") which was agreement for environ- mental impact review of MPG — Applicant brought proceedings for judicial review seeking declaration that Federal government breached constitutionally entrenched duty to consult and accommodate First Nations people adversely affected by its conduct — Specifically, applicant claimed breach occurred when it was excluded from discussions and decisions regarding design of regulatory and environmental review process — Application gran- ted — Crown's duty to consult had been breached — Canadian jurisprudence has identified the honour of the Crown as source of Crown's duty to consult in good faith with First Nations, and where reasonable and neces- sary, make required accommodation — Honour of Crown ensures that Crown fulfils goal of reconciliation of pre-existence of aboriginal societies with sovereignty of Crown, as provided in s. 35 of Constitution Act, 1982 — Specific infringement of aboriginal right is not required for government's duty to consult to be engaged — Evidence indicated that Federal government made no effort to consult applicant when formulating cooperation plan or JRP — Public forum process was not substitute for formal consultation — Duty of Federal government to consult arose at earliest sometime during contemplation of cooperation plan, since that plan set up means by which whole process would be managed — None of entities set up by government possessed either separately or together the jurisdiction to engage in consultation — First time government reached out to applicant was when it gave applicant just 24 hours to respond to process for JRP, which was too little, too late — By depriving applic- ant of opportunity to participate from outset, applicant's specific concerns were not incorporated into environ- mental and regulatory process — To preserve situation until final remedy order issued, JPR was enjoined from considering any aspect of MGB affecting applicant and from issuing any report. Aboriginal law --- Constitutional issues — Fiduciary duty Applicant was First Nations band residing in Alberta — Federal government began planning massive natural gas pipeline ("MPG") running from gathering facilities in northern Northwest Territories to southern distribution ter- minus in Alberta — Parts of pipeline were to run through applicant's territory as defined by treaty and through further areas over which it had rights to hunt, fish and trap — Federal government set up various regulatory mechanisms to deal with planning for pipeline, notably a co-operation plan to reduce duplication of environ- mental and regulatory processes and joint review panel agreement ("JRP") which was agreement for environ- mental impact review of MPG — Applicant brought proceedings for judicial review seeking declaration that Federal government breached constitutionally entrenched duty to consult and accommodate First Nations people adversely affected by its conduct — Specifically, applicant claimed breach occurred when it was excluded from discussions and decisions regarding design of regulatory and environmental review process — Application gran- ted — Crown's duty to consult had been breached — Canadian jurisprudence has identified the honour of the Crown as source of Crown's duty to consult in good faith with First Nations, and where reasonable and neces- sary, make required accommodation — Honour of Crown ensures that Crown fulfils goal of reconciliation of pre-existence of aboriginal societies with sovereignty of Crown, as provided in s. 35 of Constitution Act, 1982 — Specific infringement of aboriginal right is not required for government's duty to consult to be engaged — Evidence indicated that Federal government made no effort to consult applicant when formulating cooperation plan or JRP — Public forum process was not substitute for formal consultation — Duty of Federal government to consult arose at earliest sometime during contemplation of cooperation plan, since that plan set up means by which whole process would be managed — None of entities set up by government possessed either separately or together the jurisdiction to engage in consultation — First time government reached out to applicant was when it gave applicant just 24 hours to respond to process for JRP, which was too little, too late — By depriving applic- ant of opportunity to participate from outset, applicant's specific concerns were not incorporated into environ- © 2014 Thomson Reuters. No Claim to Orig. Govt. Works Page 3 2006 CarswellNat 3642, 2006 FC 1354, 25 C.E.L.R. (3d) 247, [2007] 1 C.N.L.R. 1, 303 F.T.R. 106 (Eng.), 153 A.C.W.S. (3d) 1, 2006 CF 1354 mental and regulatory process — To preserve situation until final remedy order issued, JPR was enjoined from considering any aspect of MGB affecting applicant and from issuing any report. Environmental law --- Statutory protection of environment — Environmental assessment — Aboriginal interests Applicant was First Nations band residing in Alberta — Federal government began planning massive natural gas pipeline ("MPG") running from gathering facilities in northern Northwest Territories to southern distribution ter- minus in Alberta — Parts of pipeline were to run through applicant's territory as defined by treaty and through further areas over which it had rights to hunt, fish and trap — Federal government set up various regulatory mechanisms to deal with planning for pipeline, notably a co-operation plan to reduce duplication of environ- mental and regulatory processes and joint review panel agreement ("JRP") which was agreement for environ- mental impact review of MPG — Applicant brought proceedings for judicial review seeking declaration that Federal government breached constitutionally entrenched duty to consult and accommodate First Nations people adversely affected by its conduct — Specifically, applicant claimed breach occurred when it was excluded from discussions and decisions regarding design of regulatory and environmental review process — Application was granted — Crown's duty to consult had been