Introduction

For this year’s survey of administrative law developments of significance for energy law and regulation, there were many candidates for inclusion, several of which arose out of the energy regulatory process itself. Faced with this embarrassment of riches, I have selected four topics that I trust will be of interest for those involved in energy law and regulation: participatory rights in regulatory proceedings on the basis of public interest standing; the role of regulators in the duty to consult and, where appropriate, accommodate when the rights and claims of indigenous peoples are at stake; a revisiting of a matter discussed last year, the principles respecting the granting of leave on questions on law and jurisdiction including this time the scope of the concept of “jurisdiction” in this setting; and the relevance of standard of review analysis to judicial review applications respecting the Crown’s fiduciary duties to indigenous peoples and the implementation of treaties between Canadian governments and indigenous peoples. Omitted from this survey, not in any sense because of its lack of importance but rather reasons of space and the primarily constitutional nature of the questions raised, is the extent to which provincial and municipal governments have regulatory authority over aspects of matters coming within federal constitutional jurisdiction and, in particular though not exclusively, interprovincial pipelines.

Participatory Rights

Contemporary energy regulatory law frequently raises issues as to participatory entitlements and standing. Who should be allowed to take part in regulatory hearings? Who is entitled to appeal the outcome of those proceedings? Who has standing to seek judicial review of regulatory decisions and rulings? Who should be accorded intervenor status before the courts on statutory appeals and applications for judicial review?¹ In many contexts, the answer to these questions will depend on the interpretation of a relevant statutory standard or formula such as “directly affected”. Participation may also be conditioned on the exercise of a specific discretion by a regulatory body or a court and the legal constraints on the exercise of that discretion. On other occasions, especially in the context of statutory appeals to the courts or applications for judicial review, the relevant standard will be that established by the common law and depend on that law’s conception of both personal and public interest standing and the factors relevant to each. Some of these issues have been discussed in my 2014 survey.²

On January 19, 2018, the Supreme Court of Canada rendered a split judgment on another participatory issue: the entitlement of a citizen to make a complaint to a regulatory body alleging failure on the part of a market participant to adhere to its legal obligations. While this case did not involve an energy regulator but the Canadian Transportation Agency, the outcome and the terms of the majority judgment will have ramifications for those energy regulators which exercise a complaint jurisdiction such as the Alberta Utilities Commission under section 26 of the Electric Utilities Act.³ This provides the Commission with authority to entertain complaints by “any person” about the conduct of the Alberta Electric System Operator.

Delta Air Lines v. Lukács⁴ arose out of a complaint by a prominent airline passengers’ rights activist, Gábor Lukács that Delta’s policies and practices on the carriage of obese persons was “discriminatory” in terms of a provision in the Air Transportation Regulations.⁵ In bringing this complaint, he relied upon sections 37 and 67.1(2) of the Canada Transportation Act.⁶ The first conferred authority on the Agency to hear and determine complaints relating to a failure to observe provisions of Acts administered by the Agency while the second was more specific and provided “on complaint … by any person [emphasis added]” for Agency suspension or disallowance of terms and conditions of carriage that were “unreasonable or unduly discriminatory”. For these purposes, Lukács relied upon a statement of Delta policy contained in an email responding to a person who had complained to Delta about having to sit next to an allegedly obese passenger.

The Agency⁷ was concerned as to whether Lukács had standing to complain and dealt with this issue as a preliminary matter. In doing so, it first rejected the argument that, as a self-described “large” man, Lukács had a sufficient personal interest under the principles of standing.⁸ It then proceeded to consider whether there was a basis for public interest standing by reference to the three criteria adopted by the Supreme Court for the purposes of court challenges to the constitutional validity of legislation. As stated initially by the Agency,⁹ this required an evaluation of three factors:

1. Is there a serious issue as to the validity of the legislation?
2. Is the party seeking public interest standing affected by the legislation or does the party have a genuine interest as a citizen in the validity of the legislation?
3. Is there another reasonable and effective manner in which the issue may be brought to the court?

The Agency’s response is encapsulated in the following summary:

74. Even looking at the three factors cumulatively and in light of their purposes, the fact remains that, in regard to the second factor, the challenge made by Mr. Lukács is not related to the constitutionality of legislation or to the non-constitutionality of administrative action.¹⁰ Considering that the second part of the test for granting public interest standing does not expand beyond cases in which constitutionality of legislation or the non-constitutionality of administrative action is contested, this is a fatal flaw in Mr. Lukács’s submissions [emphasis added].

Lukács appealed this ruling to the Federal Court of Appeal under section 41 of the Canada Transportation Act.¹¹ While he conceded on the issue of personal standing, he argued that the Agency had erred in applying the principles respecting public interest standing in court proceedings to the complaint provisions of that Act. In any event, he also argued against the restriction of public interest standing to situations in which the constitutionality of legislation or administrative action was in issue. His appeal was successful on the first ground. The Federal Court of Appeal¹² held that, even though the Agency did have a screening jurisdiction with respect to complaints, the Agency erred in the application of the general law of standing in this context. Therefore, the appeal was allowed, and the matter remitted to the Agency to redetermine “otherwise than on the basis of standing”¹³ whether it would allow the complaint to proceed. While not formally ruling on the second ground, de Montigny JA, delivering the judgment of the Court, did express the view that the public interest standing standards developed in a judicial setting with respect to constitutional validity challenges to either legislation or decisions “ha[ve] no bearing on a complaint scheme designed to complement a regulatory regime.”¹⁴

Delta obtained leave to appeal to the Supreme Court which by a majority of 6-3,¹⁵ in a judgment delivered by McLachlin CJ, disallowed the appeal on the merits though modifying the remission order so as not to restrict the Agency from reasonable adaptation of “the standing tests of civil courts in light of its statutory scheme.”¹⁶

The majority provided two bases for rejecting the appeal on the merits. First, even though the standard of review was deferential reasonableness, the Agency could not reasonably accept that a complainant could assert public interest standing but then adopt a test for public interest standing that could never be met given the Agency’s reliance on the requirement that it was restricted to situations where the “constitutionality of legislation or the illegality of administrative action” was an issue. Under such a regime, only those who were personally affected by the policy or behaviour could launch a complaint. Such a position was not “justifiable, transparent and intelligible”.¹⁷ It did not fall “within a range of possible, acceptable outcomes”.¹⁸ This meant that the Agency had “unreasonably fettered its discretion.”¹⁹ Secondly, the Agency’s ruling was an unreasonable interpretation of the relevant legislation as revealed by a consideration of the objectives of the statutory regime. Notwithstanding the breadth of the Agency’s implicit discretion as to the acceptance of complaints, it was unreasonable to effectively eliminate the possibility of any form of public interest standing, once again restricting use of the statutory mechanism to those targeted by the legislation.

It is difficult to take issue with these aspects of the majority judgment. Indeed, it is bizarre that the Agency would recognize the possibility of public interest standing but then apply a test that is confined to the recognition of public interest standing in the context of regular court proceedings where the constitutionality of legislation or administrative action is at stake. Nonetheless, the majority was also correct to modify the remission order to allow scope for the Agency to develop its own standing rules respecting those who could make complaints. Of course, it might be argued (as Lukács apparently did²⁰) that the statutory use of the term “any person” in section 67.2(1) should be taken literally and require the Agency to accept complaints from every source. However, it is an equally, if not far more plausible reading of the statutory scheme to read the more generic or umbrella provision, section 37 and its conferral of a discretion with respect to complaints (“may”) as allowing the Agency the scope to develop its own standing rules. As to whether the Agency adopts standing rules or other gatekeeping restrictions is for the most part a matter for the Agency’s discretion and, as McLachlin CJ states in the penultimate paragraph of the majority judgment:

It is not for this Court to tell the Agency which of these methods is preferable. Deference requires that we let the Agency determine for itself how to use its discretion, provided it does so reasonably.²¹

How then did the minority reach a contrary position? Abella J, delivering the judgment of the minority, provides a more extensive justification of deference to the Agency’s choice of gatekeeping rules and policies. However, at no point does she go so far as to say that this allows for the adoption of a standing threshold that public interest litigants cannot pass. Rather, her focus is on rejecting the contention that “any person” in section 67.2(1) should be read literally and underscoring the entitlement of the Agency to adopt and apply “its own standing rules [which] can be similar to those applied by the courts [emphasis added]”.²² However, this does not contradict or undercut the majority’s position. Indeed, she goes on to apparently acknowledge that, even under recognized principles of deference and reasonableness, the Agency could not adopt a standing regime that effectively precluded all public interest complainants:

[63] The test applied by the Agency effectively foreclosed Mr Lukács’ ability to make out a case for public interest standing in this case. But, in my respectful view, that does not end the matter.

It is at this point that the real difference between the majority and the minority emerges. Abella J identifies a range of other bases (some standing related²³) on which the Agency could have rejected or refused to entertain this complaint. Consequently, irrespective of the reasons actually relied upon by the Agency for denying standing, the outcome was reasonable. This raises the very thorny question of the extent to which a reviewing court can refuse judicial review or reject an appeal on the basis of an outcome that is reasonable even if the reasons of the decision-maker are not. Such a possibility finds its genesis in a statement by David Dyzenhaus in a book chapter²⁴ endorsed in the seminal authority of Dunsmuir v. New Brunswick.²⁵ In particular, there is the admonition that, in conducting reasonableness review, the court is to be attentive to the reasons actually provided and the outcome,²⁶ as well as the reasons that “could be offered in support of a decision”.²⁷ In her judgment, McLachlin CJ recognizes the Court’s prior endorsement of at least sometimes moving beyond the reasons contained in the tribunal or agency’s decision.²⁸ However, she was concerned with when, if ever that would justify a court excusing palpably unreasonable reasons and allowing the decision to stand.

McLachlin CJ’s response to Abella J was that such supplementation is not permissible where it amounts to a supplanting of the reasons of the decision-maker.²⁹ It was not for the Court to replace the reasons provided by the decision-maker with its own reasons. Ignoring the specific reasons given in favour of review based on the Court’s own construct of the reasonableness of the outcome would ignore Dunsmuir’s directive to have regard to both the reasons and the outcome. More generally, it would amount to the Court taking over the role of the decision-maker in a manner that ignores the decision-maker’s primary responsibility for the development of the bases on which its discretionary powers are exercised. Even where the decision-maker makes an unreasonable determination, there is still a role for that decision-maker, not the Court as surrogate, to exercise its mandate and decide whether the same result can be justified by different reasons. Indeed, to justify the outcome in a case such as this on court-developed standards of what should be the relevant criteria for standing would be to deprive the Agency of its discretion to formulate an appropriate and reasonable standing test. Therefore, remission was the appropriate disposition.

In so ruling, McLachlin CJ was careful to note that it did not amount to a blanket condemnation of the practice of reviewing courts supplementing the reasons provided by the agency for the purposes of conducting more informed judicial review or even endorsing a decision on the basis that it was reasonable notwithstanding the complete absence of reasons. However, it can perhaps be taken from the judgment that, even where there would be no supplanting of the agency’s actual reasons, the occasions for such supplementation should be rare and depend on exceptional circumstances. More particularly, Paul Daly, in his blog on Lukács,³⁰ argues that courts should be very cautious in straining to construct or supplement reasons and thereby justify denying judicial review or refusing to remit in the name of “efficiency and cost-effective administration”.³¹ Such exercises always court the risk of undercutting the principles of judicial deference at their root, a root that has as its core premise that the agency, not the court is the statutorily assigned decision-maker.

What then can be taken from Lukács by other regulatory agencies and energy regulators in particular?

1. Where an administrative agency has a discretion with respect to not only accepting complaints but also defining participatory rights more generally, the exercise of such discretionary power is entitled to deference in the form of reasonableness as opposed to intrusive correctness judicial review.
2. Unless precluded by the terms of the relevant statutory provision (such as one that restricts access to persons “directly affected”), regulators are generally empowered to develop gatekeeping, standing and participatory opportunity rules by reference to their own requirements and statutory objectives and structures.
3. In developing standing rules and participatory principles, agencies can look to the court-developed rules respecting both private and public interest standing and adopt and adapt them as best seems appropriate to their individual mandates.
4. Only where the rules and principles adopted fail to meet a somewhat forgiving reasonableness test will there be exposure to judicial review or reversal on appeal.
5. However, unless authorized legislatively, a regulatory body is likely to be exposed to judicial review where, in the exercise of a discretionary gatekeeping power, it adopts a rule that, on its face or in effect, excludes any possibility of a complaint or other forms of participation on the basis of public interest standing.
6. It remains important where an agency’s access decisions are based on already existing rules, prior agency precedents, or principles developed in the context of the particular case for the agency to provide reasons for outcomes that meet the Dunsmuir justification, transparency and intelligibility standards.
7. Even though Courts are sometimes forgiving of a failure to provide reasons or the inadequacy of reasons and will construct their own justification of the agency’s “outcome”, to rely on this form of judicial sympathy as a way resisting a remission of the matter for reconsideration is a highly risky strategy. It is also one that will almost certainly not work where the reconstruction exercise is one that runs counter to or amounts to a supplanting of the reasons actually provided.

I would, however, enter one note of caution to the extent that the decision has been hailed as a precedent that will lead to expanded public interest standing in regulatory matters.³² It is certainly true that the majority judgment takes issue with the Agency’s treatment of the second limb of the public interest standing test in court proceedings. It did so not only because, if applied literally, this second limb could never be met in the particular setting of Lukács but also because the Agency treated this second limb as a game-stopper. As the majority stated, this was out of line with the current conception at least in the context of court proceedings of public interest standing as involving a “flexible, discretionary approach”³³ in which all three elements of the standard test had to be evaluated and balanced not only against one another but also with reference to other competing values. However, it should be recognized that this emphasis on a “flexible, discretionary approach” was part of the majority’s rationale for rejecting the Agency’s conclusions on public interest standing on the basis that the Agency had purported to apply a standard that involved a legally erroneous view of the law respecting public interest standing. When it came to the second limb of the majority’s rejection of the Agency’s approach, McLachlin CJ simply said that it would be wrong for an agency such as this to have a rule that prevented a public interest group from ever having standing to bring a complaint.³⁴ That is somewhat short of saying that the agency must adopt a regime that is generous or liberal in its rules respecting public interest standing. In other words, this leaves open the possibility that an agency may adopt public interest standing rules that are less generous than a “flexible, discretionary approach” might require in the case of a court in the context of judicial review or statutory appeal proceedings.

The Duty to Consult and, Where Appropriate, Accommodate Indigenous Peoples³⁵

a. Introduction

In the three previous survey articles for the Energy Regulation Quarterly, I discussed at some length the involvement of energy regulators in the constitutionally guaranteed process of consulting and, where appropriate, accommodating indigenous peoples when their rights and claims are implicated in governmental decision-making.³⁶ In that discussion, I paid attention to two cases which at the beginning of the current survey period were under reserve in the Supreme Court of Canada. On July 26, 2017, the Supreme Court of Canada rendered judgment in both matters: Clyde River (Hamlet) v. Petroleum Geo-Services³⁷ and Chippewas of the Thames First Nation v. Enbridge Pipelines Inc.³⁸ In combination, they provide welcome clarity and closure to various contested aspects of the role of energy regulators as both active participants in the actual processes of consultation and accommodation and assessors of the consultation and accommodation efforts of others. For that reason, these are almost certainly for energy regulators the most important administrative law decisions rendered by the Supreme Court, or any other court for that matter, during the period under review.

Both have already been the subject of extensive analysis, including an important article³⁹ in this journal by Dwight Newman as well as an equally insightful blog posting by Nigel Bankes,⁴⁰ a frequent contributor to the ERQ. Considering the coverage provided by these and other commentary, I will not attempt to deal with every significant dimension of these two judgments. Rather, I will set out what, in my view, are the major holdings of the two decisions and then comment briefly on some of the important questions respecting the engagement of regulatory agencies in this domain that remain to be dealt with authoritatively or with sufficient clarity.

b. Crown Downloading of Responsibility for Conducting Consultation

In Clyde River (Hamlet), the initial point of departure in the Court’s recital of the relevant legal principles was to affirm the capacity of the Crown to act through a regulatory agency or tribunal in fulfilling any duty to consult indigenous peoples. However, downloading this initial responsibility to a regulator did not absolve the Crown from its overall obligation. Either of its own initiative or in response to complaints, the Crown has an obligation to act in the face of inadequate consultation in the regulatory forum. Moreover, there is an obligation on the Crown to make it clear to affected indigenous groups that it is relying initially on the regulatory body to “fulfill its duty in whole or in part.”⁴¹ (What precisely this obligation requires is an issue to which I will return.)

c. The Requirement of “Contemplated Crown Conduct”

One of the threshold requirements for the assertion of a right to consultation is that there be “contemplated Crown conduct.”⁴² This raised the question of where, if anywhere to locate “contemplated Crown conduct” in the context of a private sector application to a regulator with the potential to affect detrimentally the rights or claims of indigenous peoples. How is the Crown engaged in such a process? The dilemma is encapsulated very well in the assertion that, for these purposes, an independent regulatory body exercising statutory authority in a judicial or quasi-judicial capacity could not be equated with the Crown albeit that the outcome of its proceedings might result in an adverse impact on indigenous rights and claims.⁴³ However, the Supreme Court was not seduced by this “Crown conduct” argument. While the National Energy Board was, in one sense, neither the Crown nor an agent of the Crown, Karakatsanis and Brown JJ (delivering the judgment of the Court in Clyde River (Hamlet)) held that:

… as a statutory body holding responsibility under [an Act of Parliament], the NEB acts on behalf of the Crown when making a final decision on a project application. Put plainly, once it is accepted that a regulatory agency exists to exercise executive power as authorized by legislatures, any distinction between its actions and Crown action quickly falls away. In this context, the NEB is the vehicle through which the Crown acts.⁴⁴

In Chippewas of the Thames, Karakatsanis and Brown JJ elaborated further and, in so doing, dealt specifically with the argument that to treat the NEB as the locus of “contemplated Crown conduct” would compromise its independence:

A tribunal is not compromised when it carries out functions Parliament has assigned to it under its Act and issues decisions that conform to the law and the Constitution. Regulatory agencies frequently carry out different, overlapping functions without giving rise to a reasonable apprehension of bias.⁴⁵

In this context, it is worth noting that the Court relies on a rather different conception of the Crown than it did in spelling out the extent to which the Crown can rely on a regulatory agency to meet the Crown’s obligations. For those purposes the Crown and the regulator are to be treated as separate entities with the Crown having continuing responsibilities over the adequacy for the regulator’s consultation and, presumably, accommodation efforts.

d. What Justifies Crown Reliance on the Processes of a Regulator?

Thereafter, the Court returns to the question of the circumstances under which the Crown can rely on the processes of a regulatory agency as fulfilling its duty to consult. Here, the primary emphasis of the judgment is on the extent of the NEB’s procedural and remedial powers under the applicable statutory regime, powers that give it ample capacity to both engage in consultation and effectuate any entitlements arising out of indigenous rights and claims. The Court also referred to the NEB’s “institutional expertise”⁴⁶ in both conducting consultations and assessing the environmental impacts of proposals. To the extent that the emphasis here is rather different from the kind of inquiry that the Court required in Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council,⁴⁷ questions arise as to whether that earlier precedent now carries any weight on this issue and I will discuss that question later in this survey.

e. Regulator Assessment of Adequacy of Consultation and Accommodation

In Clyde River (Hamlet), the final element in the Court’s assessment of the role of regulatory agencies in the consultation/accommodation process focussed on the circumstances under which regulators were entitled and, indeed, had the obligation to assess the Crown’s own efforts at consultation. In 2010 in Carrier Sekani, the Court had held that this capacity arose out of the conferring on agencies and tribunals of the authority to deal with questions of law arising during their proceedings. However, the Federal Court of Appeal had earlier ruled in 2009 in Standing Buffalo Dakota First Nation v. Enbridge Pipelines Inc.,⁴⁸ that this applied only when, as in a situation such as obtained in Carrier Sekani, the Crown (in the form there of BC Hydro) was before the regulatory body as a proponent or a party. Moreover, as Dwight Newman points out,⁴⁹ after the release of the judgment in Carrier Sekani, the Supreme Court of Canada denied an application for leave to appeal from that Federal Court of Appeal judgment,⁵⁰ this perhaps suggesting that Standing Buffalo and Carrier Sekani could be read as not being inconsistent. Subsequently, in Chippewas of the Thames,⁵¹ the Federal Court of Appeal by a majority in a judgment delivered by the same judge⁵² reaffirmed that position, and, subsequently, the Alberta Utilities Commission,⁵³ following the Federal Court of Appeal, held that it was similarly incapacitated from evaluating the Crown’s efforts at consultation in a matter in which the Crown was not before it as a party.

In what is one of the most significant parts of the judgment for regulatory agencies, the Supreme Court held that in Chippewas of the Thames, the majority⁵⁴ of the Federal Court of Appeal had erred in distinguishing Carrier Sekani on this ground. Carrier Sekani had overtaken the earlier Federal Court of Appeal judgment in Standing Buffalo.⁵⁵ Given that the final decision-making role of the NEB in this matter was itself “Crown conduct”, the NEB could not ignore assertions that the Crown had not met its duty to consult presumably through external processes, the proceedings before the NEB, or a combination of both. As a matter of jurisdiction or authority, when the duty to consult remained unfulfilled, the NEB was obliged to “withhold project approval”.⁵⁶

The judgment went on to prescribe how the NEB should respond when there was a challenge for lack of consultation. At least, where “deep consultation” was required, the NEB had to address the concerns of indigenous peoples in written reasons which demonstrated that the complaints of inadequate consultation were taken seriously and evaluated. In such instances, it was for the NEB to “explain how it considered and addressed these concerns.”⁵⁷

f. The Content of Consultation and Accommodation

Beyond setting the threshold terms for engagement in the consultation and accommodation process by regulatory agencies or at least those engaged in final decision-making, the two judgments are of significance on the question of what is involved in consultation. While in Clyde River (Hamlet), the Supreme Court of Canada affirmed the judgment of the Federal Court of Appeal⁵⁸ in its recognition that the NEB was an appropriate vehicle for performing in whole or in part the Crown’s consultation responsibilities, the Court went on to hold that the NEB had not engaged in adequate consultation. Conversely, in Chippewas of the Thames, the Supreme Court of Canada reversed the Federal Court of Appeal’s rejection of the NEB’s capacity to engage in consultation and to assess the adequacy of consultation but nonetheless held that the NEB had consulted adequately. What led to the difference in terms of final outcome?

In Clyde River (Hamlet), the Court focussed initially on the Crown’s failure to make it explicit to the participants that it was relying on the NEB to meet its consultation responsibilities. As for the proceedings before the NEB in a matter where it was conceded that there was an obligation of “deep consultation”, the Court held that there were many respects in which there was a failure to do what the duty to consult required. There was no oral hearing, no participant funding, an inaccessible response to the indigenous concerns about the impact of seismic testing on their rights (in the form of an only partially translated document of almost 4000 pages), and reasons for the approval of the application that failed to focus specifically on the impact of the proposal on the precise indigenous treaty rights that were alleged to be under threat.

In contrast, in Chippewas of the Thames, the Court held that there was sufficient notice of the Crown’s intention to rely on the NEB’s processes as meeting its obligation to consult with affected indigenous groups. In response to the claim that the Crown (in the person of the Minister of Natural Resources) had given explicit notice of such an intention only after the NEB hearing had concluded, the Court retorted that it should have been clear to the affected indigenous groups that this was the Crown’s chosen venue for consultation and, where appropriate, accommodation. The bases for this assumed awareness were prior correspondence with government officials, the fact that no other consultation was taking place or contemplated, their participation in the NEB’s processes, and their awareness that the NEB was the final decision-maker. This places a significant gloss on what, in terms of Clyde River (Hamlet), constitutes “mak[ing] clear” to indigenous groups that the Crown is relying on the processes of a regulatory agency to fulfill its consultation obligations. It does not necessarily require specific notice but rather is a conclusion that can arise out of a consideration of all the relevant facts; it is something that indigenous groups should at least on occasion infer from those facts.

On the question as to whether the NEB’s processes satisfied the Crown’s obligations of consultation and accommodation, Karakatsanis and Brown JJ found, even assuming an obligation of “deep consultation”, that there were sufficient differences between the level of engagement here and that in Clyde River (Hamlet). Among those differences were the scope of the NEB’s hearing processes⁵⁹ and the according to indigenous groups of expansive participatory rights within those processes, the provision of participant funding, and the detailed reasons that the NEB provided, reasons that were attentive to the relevance of the indigenous rights affected potentially by the reversal of Line 9 and that also included discussion of whether there had been sufficient consultation. As for accommodation, the Court pointed to “a number of accommodation measures that were designed to minimize risks and respond directly to the concerns expressed by Indigenous groups”⁶⁰ as was as the decision’s directive for ongoing consultation as the project moved forward.

g. Residual Questions

(i) The Role of Legislative Intent in Determining the Capacity of a Regulator to Engage in Consultation

As discussed earlier, McLachlin CJ, delivering the judgment of the Court in Carrier Sekani, took the position that whether an administrative tribunal had the capacity to engage in consultation depended on legislative intent. It was an authority that must be conferred expressly or implicitly but was not to be inferred from a provision giving power to determine all questions of fact and law relevant to the decision-maker’s exercise of jurisdiction. That left open the question of what would be sufficient indicators of an implicit grant of this authority.

In the Federal Court of Appeal in Clyde River (Hamlet), Dawson JA relied upon a range of considerations pointing to the existence of a “mandate”⁶¹ to engage in consultation. Included in those factors were legislative provisions requiring or authorizing the NEB to take account of the interests of indigenous peoples in the exercise of the particular power that was in issue. Basing a conclusion as to an implicit conferral of power on such provisions is not problematic. Indeed, it is also acceptable to link these considerations with the provisions respecting the procedural powers and remedial capacities of the regulator. What is, however, problematic in terms of establishing an implicit legislative conferral of a power to consult is the actual consultation practices of that regulator.

Indeed, it is significant that, in Clyde River (Hamlet), the Court, in recognizing the capacity of the NEB to act on behalf of the Crown in fulfilling the duty to consult, does not express its conclusion in terms of an implicit legislative intention. Rather, the Court asks whether, given its statutory powers and discretions and remedial authority, the NEB has the capacity to engage in consultation in compliance with the requirements and within the expectations of this court-developed, constitutionally-based duty. In other words, the inquiry has ceased to be one that focusses on whether the legislature addressed its collective mind to the question of the capacity of the regulator to engage in consultation but instead becomes an inquiry into whether engagement in consultation is an appropriate match given the procedural and remedial environment within which the regulator operates. To the extent that this is about legislative intention, it is in the much more generalized sense of the legislature intending to provide a regulator with whatever powers are necessary for the effectuation of its mandate as it evolves and is affected by constitutional imperatives.

From my perspective, I have no problem with this mode of analysis. Where the effectuation of constitutional rights is at stake, establishing a specific if implied legislative intention that a tribunal have the power to be part of that effectuation process is an artificial inquiry. Rather, the inquiry should proceed on the basis of a judicial disposition to provide the best possible ways of upholding the rights in question and an inquiry into whether, given the normal incidents of its statutory powers, the relevant regulator can legitimately fulfill that role. Indeed, this may well have been a necessary transformation given, as the Court recognized,⁶² that “the NEB and [the Canada Oil and Gas Operations Act⁶³] each predate judicial recognition of the duty to consult.” Thus, while a mere power to consider all questions of fact and law that arise during the regulator’s proceedings may not be enough, a setting in which the regulator has the necessary procedural and remedial capacities to adapt the exercise of its mandate to include consultation and, where appropriate, accommodation will be.

(ii) What is Involved in Giving Notice of an Intent to Rely on the Regulator’s Processes?

There is, however, a question about the relationship between the criteria for assessing a regulator’s capacity to engage in consultation and the requirement that, where the Crown wishes to rely on a regulator’s processes to fulfill in whole or in part its duty to consult, “it should be made clear to affected Indigenous groups that the Crown is so relying.”⁶⁴ We have seen already that, while Clyde River (Hamlet) read alone might suggest that this requires that the Crown make that intention clear in every case, in Chippewas of the Thames,⁶⁵ the Court accepted that intention could be established from all the relevant circumstances. In particular, such an intention was inferred in that case from a combination of the prior interactions between the Crown and affected indigenous groups in relation to the approval process and the way in which the regulator went about exercising its powers in the particular matter and especially in the extent of its engagement with affected indigenous groups. For me, this raises questions as to how much further this willingness to infer awareness on the part of indigenous groups will extend. Are there circumstances in which it will be appropriate simply on a reading of the procedural and remedial powers of the regulator? What about appropriate procedural and remedial powers and a past practice of the Crown of accepting consultation and accommodation efforts in the exercise of those powers as adequate for the Crown’s purposes? In other words, if the entitlement and obligation of a regulator to engage in consultation is something that can be inferred from the regulator’s powers, capacities and practices, might those same considerations also justify an inference that the Crown is “consenting” to the regulator’s fulfilment of its duty to consult and, where appropriate, accommodate?

In a somewhat different vein, can the Crown meet the notice obligation by a general statement to the effect that, henceforth, it will be relying on the regulator either in whole or in part to meet the Crown’s consultation obligations whenever the context triggers such an obligation? Or, should the Crown out of an abundance of caution give notice every time that the issue arises? Another possibility is a statement from the regulator itself on notice to the Crown (in the form of the responsible Minister) and the parties to the effect that the regulator will be acting under the assumption that, given its procedural and remedial powers, it has initial responsibility for consultation and, where appropriate, accommodation. This notice might either be general or issued for every relevant proceeding.

(iii) To What Extent Do a Regulator’s Capacities with Respect to Consultation Depend on it being the Final Decision-Maker?

In both Clyde River (Hamlet) and Chippewas of the Thames, the NEB was the final decision-maker. This was emphasised in both decisions. In Clyde River (Hamlet), Karakatsanis and Brown JJ did so in reference to both the question of whether the NEB’s functions amounted to Crown conduct and the role of the NEB in fulfilling in whole or in part the duty to consult and, where appropriate, accommodate.⁶⁶ In Chippewas of the Thames, the finality of the NEB’s decision also featured prominently in the Court’s holding that the NEB had both the capacity and the obligation to consider whether there was adequate Crown consultation. This reliance on the finality of the NEB’s decision-making processes obviously begs the question: And, what about when it is the Governor in Council or Cabinet that is the final decision-maker? How does this play out for the role of the regulator in itself consulting and assessing the extent of any independent consultation by the Crown?

In his ERQ article on the two judgments,⁶⁷ Dwight Newman argues convincingly that there is no reason why the Crown, in the form of the Governor in Council, should not be able to rely on the processes of the NEB as fulfilling in whole or in part its consultation responsibilities even where the NEB does not decide but merely reports or makes recommendations. Indeed, in practical terms, there are various reasons why all or the bulk of the required consultation should take place in a setting which increasingly is otherwise the venue for the Crown’s consultation responsibilities in the federal energy regulatory arena.

Indeed, Newman goes on to argue⁶⁸ that, in the light of Clyde River (Hamlet) and Chippewas of the Thames, the majority judgment of the Federal Court of Appeal in Gitxaala Nation v Canada⁶⁹ should no longer be regarded as good law. In short, he asserts that the majority, in finding that the Governor in Council had failed in its duty to consult with respect to the Northern Gateway proposal, had not sufficiently recognized the high level of consultation that had taken place at the NEB level in the context of preparing a report for the Governor in Council on the proposal. He then concludes that the two more recent Supreme Court judgments:

… might well imply that the Gitxaala case was wrongly decided in fundamental ways when it resulted in the quashing of a massive energy infrastructure project by two judges focussing on certain imperfections in consultation at a stage that may not have been necessary anyway. The present decisions may well imply that there was actually a legal entitlement to build Northern Gateway that was effectively snatched away in acts of what was effectively lawlessness.⁷⁰

In the face of what is very harsh criticism of the Federal Court of Appeal majority judgment in Gitxaala Nation and the legal and factual bases on which it proceeded, it is important to keep in mind that, among the premises behind the majority’s reasoning, were:

1. That the Joint Review Panel’s Report dealt with only some of the subjects on which consultation was required; its mandate or range of relevant considerations was narrower than that of the Governor in Council⁷¹;
2. That both recent judgments recognized the entitlement of the indigenous peoples to contest the adequacy of consultation and accommodation provided by regulatory bodies on which the Crown was relying in fulfilling its constitutional obligations. While that contestation may in many instances have to take place in the context of an application for judicial review or other court proceedings, where the Crown, in the form of the Governor in Council, must decide whether to accept a regulator’s report or recommendation, the Governor in Council must surely respond to any such concerns or complaints coming from indigenous peoples; and
3. More generally, where, under the relevant legislation, the Crown (through the Governor in Council) specifically reserves an entitlement to make up its own mind on a particular project albeit against the background of a regulator’s report, there is room for a claim that indigenous peoples have a right to adequate consultation at that level⁷² particularly where the Governor in Council reaches out to others in determining whether to approve such a report.⁷³

In summary, I accept the argument that, even when the regulator is not a final decision-maker, the regulator will commonly be an appropriate vehicle for fulfilling at least some of the Crown’s responsibility for consultation and, where appropriate, accommodation. However, in many instances, the regulator’s processes may not exhaust the requirements of the duty to consult particularly where the final decision-maker has a broader mandate or range of evaluative tasks than that of the regulator. Irrespective of the extent of consultation by the regulator, further engagement with indigenous groups at the approval stage will be necessary in such a situation. The final decision-maker will also provide an appropriate forum for the initial determination of any challenges to the adequacy of consultation and accommodation undertaken by the regulator as well as an appropriate venue for remedying any deficiencies.

(iv) The Role of Proponents

In the foundation judgment of Haida Nation v. British Columbia (Minister of Forests),⁷⁴ McLachlin CJ, delivering the judgment of the Supreme Court of Canada, held that, while the Crown “may delegate to industry proponents”⁷⁵ at least some of its consultation and accommodation responsibilities, proponents do not owe a duty to indigenous peoples to consult and accommodate.⁷⁶ Since then, regulators have routinely imposed on proponents extensive consultation requirements. Indeed, one can see this exemplified in the recitation of the facts in Gitxaala Nation⁷⁷ as well as Clyde River (Hamlet).⁷⁸ In the latter, the NEB evaluated the proponent’s consultation activities as involving “sufficient efforts to consult with potentially-impacted Aboriginal groups and to address concerns raised.”⁷⁹ Nonetheless, the Supreme Court of Canada held that some of the responsibility for the failure to consult rested with the proponent:

To put it mildly, furnishing answers to questions that went to the heart of the treaty rights at stake in the form of a practically inaccessible document dump months after the questions were initially asked in person is not true consultation.⁸⁰

While there are still many outstanding questions as to nature of proponents’ engagement in the consultation process, at the very least this aspect of Clyde River (Hamlet) recognizes implicitly that, when a regulator is fulfilling in whole or in part the Crown’s obligation to consult, that capacity includes an entitlement to deploy proponents as part of the consultation process; it is not confined to situations where the Crown itself is directly engaged in consultation. What flows from this however is that, where indigenous groups raise issues with regulator-directed proponent-conducted consultation as a component of the Crown’s obligations, the regulator and ultimately the court on review have responsibilities to deal with complaints about both the adequacy and accuracy of those consultations. Accepting at face value proponent assertions of both adequate and accurate consultation and reportage would open the door to an excess of reliance on the good faith of self-interested participants.

Applications for Leave to Appeal – the Relevance of Standard of Review

On applications for leave to appeal to the Federal Court of Appeal and the Supreme Court of Canada, those courts seldom provide reasons for the ruling on the application. In contrast, in British Columbia and Alberta, reasons are frequently provided, and there is a body of jurisprudence around the issue of what are the appropriate criteria to be taken into account in the disposition of applications for leave. In last year’s survey,⁸¹ I spent some time discussing in this context the extent, if any of the relevance of the standard of review by reference to which the appellate court will determine the merits of the appeal. This discussion was prompted by an apparent divergence among judges of the Alberta Court of Appeal, and, in particular, a statement by McDonald JA in FortisAlberta v. Alberta (Utilities Commission) to the effect that any decision on the standard of review was for the Court of Appeal in the context of hearing an appeal in which leave had been granted and not for the leave judge.⁸²

Subsequently, the matter has moved much closer to resolution at least in the Alberta context with respect to appeals on law and jurisdiction from the Alberta Utilities Commission. First, In Morin v. Alberta (Utilities Commission),⁸³ Rowbotham JA seemed to clearly reaffirm earlier authority to the effect that the relevant standard of review was a factor to be considered in the leave judge’s application of the overall test of whether the application for leave to appeal raised a “serious, arguable case”. In a case in which one of the grounds of appeal was a failure to give notice of an application for leave to extend time limits provided for in the relevant legislation, Rowbotham JA placed considerable store in the discretionary nature of this determination and the entitlement of the AUC to deference in relation to any such discretionary rulings. Indeed, she went on to hold that the ruling would clearly survive deferential review. Secondly, McDonald JA himself apparently clarified his own position when in ATCO Electric Ltd. v. Alberta (Utilities Commission),⁸⁴ he included in a list of five factors relevant to the determination of whether the application for leave to appeal raised “a serious, arguable point”, the “standard of review that will be applied should leave to appeal be granted.”⁸⁵

Nonetheless, there is a possibility that the matter has still not been resolved definitively to the extent that, in Bokenfohr v. Pembina Pipeline Corp.,⁸⁶ decided in early 2017 before both Morin and ATCO, Slatter JA seemed to adopt a compromise test. The question to be asked for Slatter JA was: What standard of review “is likely to be applied”⁸⁷ by the Court of Appeal if leave is granted? However, it is questionable whether this in reality is for practical and pleading purposes all that different from the stance endorsed in the two subsequent judgments. This is underscored by Slatter JA’s discussion later in his judgment of a procedural fairness challenge based on a failure to grant an adjournment. There, he appeared to pronounce definitively on the standard of review for such discretionary, procedural rulings:

The standard of review for denial of an adjournment is very high.⁸⁸

Of more general significance in this context is the question of what qualifies as a question of “law and jurisdiction” for these purposes. This raises several questions such as the amenability to an appeal of a question that looks like one of mixed law and fact.⁸⁹ There is also the question whether, given the marginalization, if not elimination of “jurisdiction”⁹⁰ as a controlling concept or category in the overall theory of Canadian judicial review law, it has ceased to be of any relevance as a threshold entry point into an appeal on a “question of law or jurisdiction.”

For appellants, in both the seeking of leave to appeal on a question of law and jurisdiction and, indeed, ultimately, in the determination of any appeal, the concept of jurisdiction still presents a beguiling possibility. Under conventional wisdom, review for jurisdiction is conducted on a correctness, not a deferential, reasonableness basis. In the context of appeals limited to questions of law and jurisdiction, the classification of an issue as jurisdictional, as exemplified by the traditional but now seldom invoked “jurisdictional fact” category of review, opens the door to review of both questions of fact and inextricably mixed law and fact, generally excluded from review or appeal on questions of law.

I do not pretend to have a definitive answer as to how these issues may ultimately be resolved in an environment of disenchantment with the terminology of jurisdiction. However, before we throw the baby out with the bath water, it is worth keeping in mind that jurisdiction has not disappeared completely from the rubric of Canadian judicial review law since Dunsmuir v. New Brunswick.⁹¹ One need to look no further than Carrier Sekani referenced in another context earlier in this survey.⁹² There, McLachlin CJ, delivering the judgment of the Court, unequivocally held that the issue of the Commission’s role in consultation was a question of jurisdiction subject to correctness review.⁹³ And, indeed, there is no sense in either Carrier Sekani or the more recent authorities discussed in this survey that the issues of the regulator’s capacity to fulfill in whole or in part the Crown’s consultation and accommodation responsibilities or to assess the Crown’s own fulfilment of that role were dealt with on other than a correctness basis.

In early 2017, Stratas JA, delivering the judgment of the Federal Court of Appeal in Canadian National Railway Co. v. Emerson Milling Inc.,⁹⁴ confronted this dilemma within the very context of an appeal on a question of law and jurisdiction from decisions of the Canadian Transportation Agency. In that setting, he held that the legislative perpetuation of the concept of a question of jurisdiction must be read as involving a category of issue that was not otherwise subsumed within questions of law. It adds “something above and beyond the phrase ‘question of law’.”⁹⁵ However, what is the content of that “something”?

Stratas JA’s response to this conundrum is found in the domain of procedural fairness and his sense that questions of procedural fairness had been characterized historically as questions of jurisdiction rather than questions of law. Therefore, he contends that, on an appeal on questions of jurisdiction, there is access to the courts for all manner of questions of procedural fairness even if they involve “a factually suffused”⁹⁶ ruling by a tribunal or agency.⁹⁷

It remains to be seen whether this lifeline for the concept of jurisdiction will be adopted by other courts and, more generally, whether the Supreme Court will, despite Carrier Sekani, continue down the path of consigning the concept of “jurisdiction” to the garbage bin of history.

Standard of Review of Decisions Affecting the Rights and Claims of Indigenous Peoples

In the previous section, I noted that, in Carrier Sekani, the Supreme Court held that correctness was the applicable standard to questions respecting the role of tribunals in the consultation and accommodation process. However, even in the foundation judgment in Haida Nation,⁹⁸ McLachlin CJ had recognized that just because constitutional rights were under consideration, this did not mean that there was no room for deference to components of that decision-making. While the existence or scope of the duty to consult was a question of law normally reviewable on a correctness standard, to the extent that these inquiries were factually suffused, a reviewing court should apply a reasonableness standard of review except with respect to determinations of pure law or mixed questions of fact and law from which a pure legal question was readily extricable.⁹⁹As for issues involving the process of consultation, perfection was not required; rather the question was whether the responsible state actor had made reasonable procedural choices.¹⁰⁰ Similarly, provided the state actor had properly identified the legal principles by which it should evaluate the seriousness of the claim on which a right to consultation was based or the seriousness of the impact on the rights asserted, the court should evaluate the application of those legal principles to the facts on a reasonableness standard.¹⁰¹

In the aftermath of Dunsmuir but even prior to Doré v. Barreau du Québec¹⁰² and its recognition of the application of administrative law standard of review principles in a setting where a Charter right was implicated, the Court in Carrier Sekani reaffirmed¹⁰³ and applied¹⁰⁴ the standard of review analysis set out in Haida Nation. However, during 2017, there were two judgments in which questions arose concerning the universality of the principles of judicial review (and conventional standard of review analysis in particular) to government decision-making and action affecting indigenous rights, claims and interests. Chronologically, they are the Federal Court of Appeal judgment in Coldwater Indian Band v. Canada (Aboriginal Affairs and Northern Development)¹⁰⁵ and the Supreme Court of Canada judgment in First Nation of Nacho Nyak Dun v. Yukon,¹⁰⁶ both of which have been the subject of blogs by Nigel Bankes.

Coldwater Indian Band involved Ministerial approval of the assignment of a pipeline right of way easement over portions of ten First Nations reserves in British Columbia. The Federal Court of Appeal, in a majority decision reversing a judgment of the Federal Court,¹⁰⁷ held that the approval should be set aside and remitted for reconsideration by the Minister. The basis for that holding was a breach of fiduciary duty that the Crown owed to the affected First Nations Band which had brought the application for judicial review. In assessing whether there had been a breach of fiduciary duty, Dawson JA, delivering the judgment of the majority, outlined the framework within which the case had to be decided.¹⁰⁸ As no question of jurisdiction was raised on the facts and as the decision involved a largely fact dependent exercise of discretion which did not come within any of the Dunsmuir categories where correctness was required, the Minister’s decision was entitled to deference in the form of reasonableness review. Dawson JA did, however, recognize that reasonableness review in this setting had to take into account that what was at stake was a situation in which the decision-maker had a fiduciary relationship with the affected Bands:

[I]t is important to observe that Coldwater, as a beneficiary of a fiduciary duty, cannot be deprived of that benefit because the fiduciary is a decision-maker whose decisions are to be reviewed under the principles articulated in Dunsmuir …. Thus, the fiduciary obligations imposed on the Minister serve to constrain the Minister’s discretion, narrowing the range of reasonable outcomes.¹⁰⁹

This caused Nigel Bankes¹¹⁰ to wonder why, in the context of an application for judicial review, the Minister’s exercise of discretion should have the benefit of deferential, reasonableness scrutiny when, if the matter had been brought as an action, there would have been no such judicial deference but rather a correctness determination as to whether there had been a breach of fiduciary duty. Leaving aside the accuracy of the premise on which this concern is based, it does raise starkly the question of whether it is appropriate to stretch conventional judicial review analysis to fit all manner of statutory decision-making. Certainly, Dawson JA recognized the essential dilemma, but one might ask rhetorically whether the compromise or blending that she adopted goes far enough.

First Nation of Nacho Nyak Dun provides an apparent contrast in approach. The facts are complicated but for the purposes of the points that I want to make are concisely summarized by Nigel Bankes in his blog on the case:

The Court concluded that the land use planning process established by the Yukon Final Agreements permitted the Yukon to modify a Recommended Final Plan (in this case the Peel Watershed Regional Land Use Plan), but that the power to modify did not include the power to change the Plan “so significantly as to effectively reject it” (at para. 39). More specifically, Yukon’s power to modify was confined by the scope of the issues that it had raised during the planning process; it could not raise significant new issues although it could respond to changing circumstances. As a result, Yukon’s purported approval of the Plan was invalid (at para. 35).¹¹¹

This case started out as an action for declaratory relief. However, it was treated throughout as an application for judicial review. Thus, in the Yukon Court of Appeal,¹¹² Dunsmuir was invoked in support of the proposition that, as the allegations “concern[ed]”¹¹³ the proper construction of a constitutional document (the Umbrella Final Agreement incorporated into the Final Agreement, a treaty to which the parties were Canada, the Yukon, and Yukon First Nations), the standard of review was that of correctness.

Delivering the judgment of the Supreme Court of Canada, Karakatsanis J accepted that the “proceeding was best characterized as a judicial review of Yukon’s decision to approve its land use plan.”¹¹⁴ This again provoked critical comment from Bankes who then advanced several reasons why disputes over the implementation of treaties such as this should not be resolved on the basis of “an over emphasis on judicial review”.¹¹⁵ In particular, he states:

I am not sure that a judicial review approach is consistent with the idea of building a consent-based relationship between Indigenous communities and the state. The purpose of judicial review is to ensure the proper exercise of statutory power rather than the good faith fulfilment of consent-based relationships.¹¹⁶

However, it is instructive that, within the framework of judicial review and in contrast to the Yukon Court of Appeal, the judgment abstains from any direct assessment by reference to Dunsmuir as to whether the standard of review should be that of correctness or that of unreasonableness. Rather, the Court adopted a prescription for judicial review in such contexts which was specifically located within the setting of the implementation of modern treaties between Canadian governments and indigenous peoples:

In judicial review concerning the implementation of modern treaties, a court should simply assess whether the challenged decision is legal, rather than closely supervise the conduct of the parties at each stage of the treaty relationship.¹¹⁷

In one sense, of course, this might be seen as no more than another way of stating that the standard of review is correctness on pure questions of law and reasonableness with respect to observance of the procedural requirements of the treaty’s implementation provisions. However, in the section on “The Appropriate Role of the Court in These Proceedings”,¹¹⁸ the Court works at developing a framework for the review role which is detailed and tailored specifically to the very specialized domain of dispute resolution relating to the implementation and ongoing life of modern treaties such as the one in this case. While this is not meant to dismiss Bankes’ arguments that judicial review may warp what is truly required for the appropriate resolution of such disputes, it at least amounts to a movement away from a sense of the application to all government decision-making of the Dunsmuir framework for discerning and applying either reasonableness or correctness review. Moreover, in framing the role of the courts, the judgment seems acutely conscious of the considerations that Bankes believes might get overlooked in a judicial review conception of dispute resolution in this context:

Modern treaties are intended to renew the relationship between Indigenous peoples and the Crown to one of equal partnership …. In resolving disputes under modern treaties, court should generally leave space for the parties to govern together and work out their differences. Indeed, reconciliation often demands judicial forbearance.¹¹⁹

All of this, however, leaves open for further consideration the question of the extent to which the normal principles of Canadian judicial review law can be adapted to the particular context out of which disputes emerge. I would, however, suggest that there is some reason for optimism to be found in the path followed by the Supreme Court in the domain of the duty to consult and, where appropriate, accommodate indigenous rights and claims.

* Professor Emeritus, Faculty of Law, Queen’s University. This paper owes much to interactions with Keith Bergner, Chris Sanderson, Nigel Bankes, Justice David Stratas, and former Justice John Evans, but responsibility for the contents remains entirely the author’s.

1. In this regard, the “last minute” application by the newly elected government of British Columbia for intervenor status in the applications for judicial review of various elements of the Trans Mountain Pipeline decision gave rise to the most interesting judgment on intervention rendered in an energy regulatory setting in 2017. See Tsleil-Waututh Nation v Canada, 2017 FCA 174.
2. David Mullan, “2014 Developments in Administrative Law Relevant to Energy Law and Regulation” (2015) 3:1 ERQ 17, at 17-24.
3. Electric Utilities Act, SA 2003, c E-51, s 26.
4. Delta Air Lines Inc v Lukács, 2018 SCC 2.
5. Air Transportation Regulations, SOR/88-58, s 111.
6. Canada Transportation Act, SC 1996, c 10, s 37, 67.1(2), providing for appeals on a question of law or jurisdiction with leave of a judge of the Federal Court of Appeal. (I return to the scope of this provision in the section of this survey on applications for leave to appeal.)
7. Gábor Lukács v Delta Air Lines (25 November 2014), 425-C-A-2014, at para 2.
8. Ibid at para 64.
9. Ibid at para 68.
10. Note that this was an expansion of the test as set out initially in the Agency’s ruling. The initial characterization of the second criterion did not include the constitutional invalidity of administrative action or decisions. Indeed, even as restated, the terms of the second category fail to reflect the 1986 extension of public interest standing to challenges to the validity of administrative action on administrative law as well as constitutional grounds: Finlay v Canada (Minister of Finance), [1986] 2 SCR 607. However, at paras 70-71, the Agency did indicate that it was aware of this extension.
11. Supra note 6, s 41.
12. Lukács v Canada (Transportation Agency), 2016 FCA 220, 408 DLR (4^th) 760.
13. Ibid at para 32.
14. Ibid at para 31.
15. The three Ontario judges on the Court all dissented: Abella J delivered a judgment in which Moldaver and Karakatsanis JJ concurred.
16. Supra note 4 at para 30.
17. Ibid at para 12.
18. Ibid.
19. Ibid at para 13. I have some problem seeing this as a fettering of discretion though, as a practical matter, it is probably of no moment in this context. The Agency appeared to be determining what legal test it thought it was bound to observe. It did not see itself as having a discretion as to the test to be applied and making a choice as to how to formulate that test, this being the traditional domain of fettering of discretion.
20. See e.g. the Agency’s decision, supra note 8 at para 49.
21. Supra note 4 at para 31.
22. Ibid at para 43.
23. Ibid at paras 63-64.
24. David Dyzenhaus, “The Politics of Deference: Judicial Review and Democracy” in Michael Taggart, ed, The Province of Administrative Law (Oxford: Hart Publishing, 1997) 279 at p 286.
25. Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190.
26. Ibid at para 47.
27. Ibid.
28. Supra note 4 at paras 22-28, with particular reference to Alberta (Information and Privacy Commissioner) v Alberta Teachers Association, 2011 SCC 61, [2011] 3 SCR 654, and Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 SCR 708.
29. Ibid at para 24.
30. Paul Daly, “Reasons and Reasonableness: Delta Air Lines Inc. v. Lukács, 2018 SCC 2” (22 January 2018), Administrative Law Matters (blog), online: <www.administrativelawmatters.com/blog/2018/01/22/reasons-and-reasonableness-in-administrative-law-delta-air-lines-inc-v-lukacs-2018-scc–2/>.
31. Ibid. Daly is particularly concerned with the prospect that McLachlin CJ’s judgment might encourage tribunals and agencies to offer no more than scant reasons and then argue for supplementation (as opposed to supplanting) in response to an application for judicial review or a statutory appeal. For further judicial exploration of this troubled area of judicial review law, see the dissenting judgment of Stratas JA in Shakov v Canada (Attorney General), 2017 FCA 250 at paras 103-06.
32. See Gabrielle Giroday, “SCC decision helps those who want public interest standing at tribunals” (22 January 2018) Canadian Legal Newswire, online: <www.canadianlawyermag.com/legalfeeds/>.
33. Supra note 4 at para 18, citing Canada (Attorney General) v Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45, [2012] 2 SCR 525, at para 1.
34. Ibid at paras 19-20.
35. While the two judgments that I discuss in this survey do a lot to clarify the role of regulatory agencies in the process of consultation and accommodation, it would be folly to believe that, as a result, litigation over issues of consultation will necessarily lessen in quantity. The Federal Court of Appeal has under reserve the judicial review applications arising out of the Trans Mountain Pipeline decision in which there are significant issues as to the content of the duty to consult and accommodate. On January 15, 2018, the Supreme Court heard an appeal from the Federal Court of Appeal in Mikisew Cree First Nation v Canada (Minister of Aboriginal Affairs and Northern Development), 2016 FCA 311, 405 DLR (4^th) 721, in which the issue is the extent to which the duty to consult extends to legislative action including the introduction and passage of primary legislation: see [2017] SCCA No 50 (QL). Indeed, the two judgments under review in this survey were not the only encounters that the Supreme Court had with the duty to consult in 2017. In Ktunaxa Nation v British Columbia (Forests, Lands and Natural Resources Operations), 2017 SCC 54, the Court’s primary focus was on whether the First Nation could make a claim under section 2(a) of the Charter and it guarantee of freedom of religion in relation to governmental approval of the construction of a ski resort in an area that was of significance to the religious beliefs of the Nation’s members. The Court rejected that claim and a further claim that the Minister’s decision breached the Crown’s duty of consultation and accommodation. During its consideration of the duty to consult and accommodate, the Court framed the issue in terms of judicial review of the Minister’s decision that there had been ample consultation and accommodation and that approval of the project could therefore proceed. In so doing, the Court (at para 77) adopted a deferential standard with respect to the Minister’s decision on the adequacy of consultation. The test is “whether the decision of the Minister, on the whole, was reasonable.” Litigation also continues apace in the lower courts as exemplified by the judgment of the Ontario Divisional Court in Saugeen First Nation v Ontario (Minister of Natural Resources and Forestry), 2017 ONSC 3456, sustaining a challenge based on a lack of consultation and accommodation to the granting of a licence to develop a quarry on the First Nation’s traditional lands.
36. Supra note 2 at 27-30; David Mullan, “2015 Developments in Administrative Law Relevant to Energy Law and Regulation” (2016) 4:1 ERQ 19 at 30-34; David Mullan, “2016 Developments in Administrative Law Relevant to Energy Law and Regulation” (2017) 5:1 ERQ 15 at 16-21.
37. Clyde River (Hamlet) v Petroleum Geo-Services, 2017 SCC 40.
38. Chippewas of the Thames First Nation v Enbridge Pipelines Inc, 2017 SCC 41.
39. Dwight Newman, “Changing Duty to Consult Expectations for Energy Regulators: Broader Implications from the Supreme Court of Canada’s Decisions in Chippewas of the Thames and Clyde River” (2017) 5:4 ERQ 21 at 21.
40. Nigel Bankes, “Clyde River and Chippewas of the Thames: Some Clarifications Provided but Some Challenges Remain” (4 August 2017), ABlawg (blog), online: <http://ablawg.ca/wp-content/uploads/2017/08/Blog_NB_Clyde_River_CTFN.pdf>.
41. Supra note 37 at para 23.
42. As accepted in the foundational judgments in Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 SCR 511 at para 35, and Rio Tinto Alcan Inc v Carrier Sekani Tribal Council, 2010 SCC 43, [2010] 2 SCR 560 at para 41.
43. In this context, the authority customarily relied upon was the judgment of Iacobucci J for the Court in Quebec (Attorney General) v Canada (National Energy Board), [1994] 1 SCR 159. For a variant on this argument, see Chris W. Sanderson, Q.C. and Michelle S. Jones, “The Intersection of Aboriginal and Administrative Law: When does a Regulatory Decision Constitute “Contemplated Crown Conduct?” (2017) 5:1 ERQ 37.
44. Supra note 37 at para 29.
45. Supra note 38 at para 34.
46. Supra note 37 at para 33.
47. Supra note 42.
48. Standing Buffalo Dakota First Nation v Enbridge Pipelines Inc, 2009 FCA 308, [2010] 4 FCR 500.
49. Supra note 39 at 23-24.
50. [2009] SCCA No 499 (QL).
51. Chippewas of the Thames First Nation v Enbridge Pipelines Inc, 2015 FCA 222, [2016] 3 FCR 96.
52. Ryer JA.
53. Fort McMurray West 500-kV Transmission Project, Ruling on jurisdiction to determine the Notices of Questions of Constitutional Law, AUC Proceeding 21030.
54. In so doing, it preferred the position of Rennie JA, who dissented on this point.
55. Supra note 38 at paras 35-37.
56. Supra note 37 at para 39.
57. Supra note 38 at para 63, citing Clyde River (Hamlet), supra note 37 at para 41.
58. Hamlet of Clyde River v TGS-NOPEC Geophysical Company ASA (TGS), 2015 FCA 179, [2016] 3 FCR 167.
59. According to the Court in Clyde River (Hamlet), supra note 37 at para 47, and Chippewas of the Thames itself, supra note 38 at para 52, there was an oral hearing in Chippewas of the Thames, though see the Bankes blog on the case (supra note 40) in which a correspondent (Response dated September 7, 2017) contests this characterization of the process.
60. Supra note 38 at para 57.
61. Supra note 37 at para 65.
62. Supra note 37 at para 31.
63. Canada Oil and Gas Operations Act, RSC 1985, c O-7.
64. Supra note 37 at para 23.
65. Supra note 38 at paras 45-46.
66. Supra note 37 at para 39.
67. Supra note 39 at 27.
68. Ibid at 28.
69. Gitxaala Nation v Canada, 2016 FCA 187, [2016] 4 FCR 418.
70. Supra note 39 at 28.
71. Supra note 69 at para 240.
72. Though, for a rather different view of the institutional capacities of the Governor in Council albeit operating in a different context, see Prophet River First Nation v Canada (Attorney General), 2017 FCA 17, and, in relation to a ministerial review process, the parallel proceeding in Prophet River First Nation v British Columbia (Minister of the Environment), 2017 BCCA 58, 94 BCLR (5^th) 232, the former of which I discussed in last year’s survey: supra note 36 at 20-21.
73. In Gitxaala Nation, the Crown claimed executive privilege under section 39 of the Canada Evidence Act, RSC 1985, c C-5, with respect to certain information as to the process that the Governor in Council followed and, in particular, any exchanges with others during review of the Joint Review Panel’s report. See para 319.
74. Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 SCR 511.
75. Ibid at para 53.
76. Though they may be subject to civil liability on some other basis: ibid at paras 52-56.
77. Supra note 69 at paras 57-58.
78. Supra note 37 at para 15
79. Ibid.
80. Ibid at para 49.
81. Supra note 36 at 29-30.
82. FortisAlberta Inc v Alberta (Utilities Commission), 2014 ABCA 264, at para 26.
83. Morin v Alberta Utilities Commission, 2017 ABCA 20.
84. ATCO Electric Ltd v Alberta (Utilities Commission), 2017 ABCA 331, at para 11.
85. See also the citations in last year’s survey to other judgments of McDonald JA seemingly accepting the standard approach: supra note 36 at 30, n 122.
86. Bokenfohr v Pembina Pipeline Corporation, 2017 ABCA 40.
87. Ibid at para 2.
88. Ibid at para 30.
89. In such instances, the standard response tends to be that the threshold is crossed if there is a readily extricable question of law. See the detailed discussion by Stratas JA in Canadian National Railway v Emerson Milling Inc, 2017 FCA 79, at paras 20-28.
90. See the discussion by Rothstein J in Alberta Teachers, supra note 28 at paras 33-43, though, considering Carrier Sekani, supra note 42, the statement, at para 33, that “[s]ince Dunsmuir, this Court has not identified a single true question of jurisdiction” is perhaps subject to qualification.
91. Supra note 25.
92. Supra notes 42, 47.
93. Ibid at paras 30, 67.
94. Supra note 89.
95. Ibid at para 17.
96. Ibid at para 19, this being a category of procedural fairness review that might not come within the term “question of law”.
97. Ibid at paras 18-19.
98. Supra note 42 at paras 61-63.
99. Ibid at para 61.
100. Ibid at para 62.
101. Ibid at para 63.
102. Doré v Barreau du Québec, 2012 SCC 12, [2012] 1 SCR 395.
103. Supra note 42 at para 64. (And, now see also Ktunaxa Nation, supra note 35, applying a deferential standard of review to a Ministerial decision that there had been ample consultation to justify proceeding to approve the construction of a year-round ski resort in an area of religious significance to the members of a First Nation.)
104. Ibid at paras 88-90.
105. Coldwater Indian Band v Canada (Indian and Northern Affairs), 2017 FCA 199.
106. First Nation of Nacho Nyak Dun v Yukon, 2017 SCC 58.
107. Coldwater Indian Band v Canada (Indian and Northern Affairs), 2016 FC 595.
108. Supra note 105 at paras 42-47.
109. Ibid at para 47.
110. Nigel Bankes, “The Intersection of Discretionary Powers, Fiduciary Duties, the Public Interest and the Standard of Review” (3 October, 2017) at 3, ABlawg (blog), online: <http://ablawg.ca/wp-content/uploads/2017/10/Blog_NB_Coldwater.pdf>.
111. Nigel Bankes, “Court Confirms that Good Faith Fulfilment of Modern Treaties is Essential to the Project of Reconciliation” (14 December, 2017), at 1, ABlawg (blog), online: <http://ca.wp-content/uploads/2017/12/Blog_NB_NachoNyak.pdf>.
112. The First Nation of Nacho Nyak Dun v Yukon, 2015 YKCA 18.
113. Ibid at para 112.
114. Supra note 106 at para 4. See also para 32.
115. Supra note 112 at 2.
116. Ibid.
117. Supra note 106 at para 4. See also para 32.
118. Ibid at paras 32-37.
119. Ibid at para 33.