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Environment (Fed) - Canadian Environmental Assessment Act (CEAA). Roseau River First Nation v. Canada (Attorney General)
In Roseau River First Nation v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal considered an appeal of a JR against a federal Cabinet Orders-in-Council that authorized the National Energy Board to issue a 'Certificate of Public Necessity and Convenience' for an international transmission line crossing Indigenous territory.
A major basis of the JR was the alleged failure of the federal government to meet their indigenous duty to consult about the project/ In considering that process the court reviewed the CEAA-related aspects of it:B. Administrative law principles
[11] The Federal Court properly found that the Order in Council was reasonable in an administrative law sense. The Order in Council was founded upon two statutes, the National Energy Board Act, R.S.C. 1985, c. N-7 (specifically s. 58.16) and the Canadian Environmental Assessment Act, S.C. 1993, c. 37 (specifically the finding that the Project is not likely to cause significant adverse environmental effects).
[12] In this Court, the appellants do not dispute that the Governor in Council had the statutory authority to issue the Order in Council nor do they suggest that the Governor in Council contravened any aspects of the legislative regimes. Instead, they contest the reasonableness of the Order in Council on its merits.
[13] The Order in Council approving the Project is founded upon a public interest determination based on wide considerations of policy. In making the Order in Council, the Governor in Council assessed polycentric, subjective, amorphous and indistinct criteria, applying its view of economics, cultural considerations, and societal costs and benefits. The Governor in Council is “‘to a unique degree the grand co-ordinating body for the divergent provincial, sectional, religious, racial and other interests throughout the nation’ and, by convention, it attempts to represent different geographic, linguistic, religious and ethnic groups” so it is well placed to assess the public interest and has a broad discretion in doing so: League for Human Rights of B’Nai Brith Canada v. Odynsky, 2010 FCA 307, 409 N.R. 298 at para. 77 citing Norman Ward, Dawson’s The Government of Canada, 6th ed. (Toronto: University of Toronto Press, 1987) at 203-204; Richard Schultz, Orest M. Kruhlak and John C. Terry, eds., The Canadian Political Process, 3rd ed. (Toronto: Holt Rinehart and Winston of Canada, 1979) at 393-394; see also Gitxaala Nation v. Canada, 2016 FCA 187, [2016] 4 F.C.R. 418. Such an administrative decision by this sort of decision-maker is often called “quintessentially executive in nature” and “very much unconstrained”: Entertainment Software Association v. Society of Composers, Authors and Music Publishers of Canada, 2020 FCA 100, [2021] 1 F.C.R. 374 at para. 28, aff’d 2022 SCC 30, 471 D.L.R. (4th) 391 at paras. 142-143.
[14] In words apposite to the reasonableness of the Order in Council before us, this Court stated:…[B]y vesting decision-making in the Governor in Council, Parliament implicated the decision-making of Cabinet, a body of diverse policy perspectives representing all constituencies within government. And by defining broadly [the nature of this decision]…literally anything relevant to the public interest…Parliament must be taken to have intended that the decision in issue here be made on the broadest possible basis, a basis that can include the broadest considerations of public policy.
(Gitxaala Nation at para. 144.) [15] The Governor in Council took into account a variety of information and recommendations loaded with economic, social, Indigenous, environmental, cultural and other diffuse, fuzzy, polycentric, and policy-laden considerations: Gitxaala Nation at paras. 148‑149; Canada v. Kabul Farms Inc., 2016 FCA 143, 13 Admin LR (6th) 11 at para. 25. It concluded that “the Project would increase electricity market efficiency, add greater flexibility to Manitoba’s electricity system operator to meet changing energy needs, improve power system reliability, and provide benefits to Indigenous, local, regional and the provincial economy”. Given the large margin of appreciation we must accord to the Governor in Council when it makes this sort of public interest decision, the Order in Council must be found reasonable on its merits. The outcome, expressed and explained in the Order in Council itself, the reasons of the National Energy Board, and the Crown-Indigenous Consultation and Accommodation Report—totalling hundreds of pages—shows justification, transparency and intelligibility. The outcome was open to the Governor in Council.
[16] It was reasonable for the Governor in Council to rely upon the process before the National Energy Board to consult and, where warranted, accommodate Indigenous groups.
[17] It is well-established that the Governor in Council and, more widely, the Crown, may rely on steps undertaken by a regulatory agency to fulfil its duty to consult in whole or in part and, where possible and appropriate, accommodate. This assumes that the regulatory agency to which the Crown delegates responsibility has the ability to exercise functions under its governing legislation that will fulfil what the duty to consult requires in the circumstances: Clyde River (Hamlet) v. Petroleum Geo‑Services Inc., 2017 SCC 40, [2017] 1 S.C.R. 1069 at paras. 30-34; Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43, [2010] 2 S.C.R. 650 at paras. 55 and 60.
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