INTRODUCTION

2018 was in many ways a landmark year in the Supreme Court of Canada’s Administrative Law jurisprudence. At a time marking the transition from the McLachlin to the Wagner Court, fissures continued to widen among the members of the Court with respect to not only the methodology for selection of the standard of review to be applied in judicial review of administrative decision-making but also the modalities by which predominant reasonableness review is conducted.¹ Even so, most observers were surprised by the Court’s May 10th announcement, in giving leave on a trio of appeals (“the Trilogy”),² directing the parties to devote a significant portion of their submissions to a reevaluation of the “nature and scope of judicial review of administrative action as addressed in Dunsmuir…and subsequent cases.” Obviously, this hearing held on December 4-6, which attracted twenty-seven intervenors as well as the appointing of two amicus curiae, has given rise to the strong possibility that some time in 2019 there will be fundamental recalibration of the principles respecting the conduct of judicial review of administrative action in Canada. Any such recalibration may have a profound impact on the approach developed in Dunsmuir v New Brunswick³ and its progeny and render obsolete much of the standard of review elaboration and disputation contained in the judgments of the past ten years.

None of the recent cases in which the Court has split on standard of review issues has involved energy law and regulation. Even so, it is surprising that energy regulators,⁴ the energy industry, interested public interest groups, or indigenous communities did not feature among those who sought and obtained intervenor status in the Trilogy. I remain unsure as to the explanation for this lack of participation but perhaps it reflects general contentment with the current principles as they have been applied to energy regulators of all stripes or a sense that none of it matters all that much when it comes to review of energy regulatory decision-making in the courts. In any event, I will leave until next year’s review further commentary on the state of the general principles respecting standard of review in Canada and how it affects judicial review of energy regulators.

Of the judgments during the year that implicated directly energy law and regulation, the one with the greatest economic impact was almost certainly the August decision of the Federal Court of Appeal in Tsleil-Waututh Nation v Canada (Attorney General) (“Tsleil-Waututh”).⁵ In holding that the process through which the Trans Mountain pipeline expansion application was approved was both substantively and procedurally flawed, the Federal Court of Appeal at least temporarily and perhaps permanently derailed a project of enormous significance to the province of Alberta and Canada as a whole. While the judgment does not contain any new principles with respect to review of the scope of such processes or even the duty to consult and, where appropriate, accommodate indigenous peoples, it does provide a highly significant example of the application of accepted principles to the legislative changes wrought in 2012 to the process of interprovincial pipeline approvals. It merits comment for that alone.

The Supreme Court of Canada also rendered a judgment on the duty to consult that had major implications for the effectuation of legislative change to energy regulatory processes. In Mikisew Cree First Nation v Canada (Governor in Council),⁶ the core issue was whether the duty to consult and, where appropriate, accommodate indigenous peoples extended to the process of preparing, introducing, and passing legislation which affected or had the potential to affect the rights and claims of indigenous peoples. I will also use my analysis of this judgment as a springboard to a discussion of a Federal Court judgment (not involving energy regulation) in which Kane J. elaborated on the extent, if at all to which the common law duty of procedural fairness and the doctrine of legitimate expectation could be invoked in the context of “legislative” decision-making below the level of primary legislation.

Still focusing on the duty to consult, I will also assess the judgment of Nixon J. in Athabasca Chipewyan First Nation v Alberta (Minister of Aboriginal Relations, Aboriginal Consultation Office).⁷ Among the issues raised in that case was the authority of the Aboriginal Consultation Office to determine whether a duty to consult was triggered, and, assuming that it was, whether the principles of procedural fairness applied to that determination.

Finally, I will return to the subject of participatory rights in energy regulatory proceedings, including applications for judicial review and statutory appeals. Here, I will discuss two judgments, one dealing with intervention on an application for leave to appeal from a decision of the Alberta Utilities Commission (AUC), and the other involving public interest standing and interventions on an application for judicial review from a decision of the Canada-Newfoundland and Labrador Offshore Petroleum Board.

THE CONTENT OF THE DUTY TO CONSULT AND ACCOMMODATE

(A) Introduction

During 2018, the duty to consult continued to feature prominently in litigation in both the Federal Court system and the provincial superior courts. This litigation included some novel issues: a recognition of the obligation to engage in consultation with indigenous groups before taking enforcement action in the form of prosecution of indigenous persons for flaunting, in the name of constitutionally protected rights, federal fisheries legislation;⁸ a rejection of the contention that the Crown was always an appropriate (and necessary) party to proceedings in which a failure to consult indigenous peoples was central to an application for judicial review or other form of challenge;⁹ how to achieve reconciliation within the process of consultation and accommodation of competing indigenous rights, one traditional (though recognized in an agreement with the Crown), and the other the product of a Treaty entered into with the Crown;¹⁰ and the extent to which the duty to consult applies to works related to preserving the integrity of an existing pipeline.¹¹ None of these cases involved the Federal or a provincial or territorial Court of Appeal and it therefore remains to be seen whether the principles adopted and applied will be endorsed at those higher levels.

For present purposes, I will do no more that note them as worthy of consideration. Instead, I will confine my discussion to two energy regulatory cases¹² in which the Federal Court of Appeal applied the consultation and accommodation principles laid down in that Court’s precedential 2016 decision setting aside the Governor in Council’s acceptance of the joint review panel’s recommendation that the Northern Gateway pipeline application be approved: Gitxaala Nation v Canada (“Gitxaala”).¹³ I will also comment on the other substantive ground on which in Tsleil-Waututh,¹⁴ the Federal Court of Appeal quashed the Governor in Council Order directing the National Energy Board to issue a certificate of public convenience and necessity in the context of Trans Mountain’s application for approval of an expansion to its existing pipeline facilities.

(B) Bigstone Cree Nation

The first of the two judgments is Bigstone Cree Nation v Nova Gas Transmission Ltd (“Bigstone Cree Nation”).¹⁵ As in Gitxaala, it involved a challenge to an Order in Council (based on the recommendations in a National Energy Board (“Board”) report) and directing the Board to issue an environmental decision statement and a Certificate of Public Convenience and Necessity. The subject matter was one of five segments of an application to the Board by Nova for approval of a project expanding its existing gas transmission system in northern Alberta. The segment in question was located in the territory of the Bigstone Cree First Nation, and the First Nation’s application for judicial review alleged a violation of the duty to consult under both common law and Section 35(1) of the Constitution Act, 1982.

Following a careful review of the various stages of the approval process¹⁶ and with reference to the principles governing the duty to consult and, where appropriate, accommodate indigenous peoples and particularly the judgment of the Federal Court of Appeal in Gitxaala, de Montigny J.A., delivering the judgment of a panel consisting of himself, Gauthier and Near J.J.A., dismissed the application for judicial review. The Crown had fulfilled its responsibilities.

Perhaps significantly, the judgment of the Federal Court of Appeal in Gitxaala was released on June 23, 2016, just six days after the Governor in Council had extended the statutory time limits for the rendering of a final decision on the Nova Gas application. Consequently, the Governor in Council had an opportunity to evaluate the Federal Court of Appeal’s judgment and, in particular, the critical deficiencies that Dawson and Stratas J.J.A. (delivering the judgment of the majority) identified in the Governor in Council phase of that project. Overall, they found that there had been insufficiently meaningful dialogue at that stage, a failure to address matters of real concern to the First Nation including new evidence and fresh arguments, a failure to consider whether an extension of time was necessary to enable fulfilment of the Crown’s obligations, and the inadequacy of the reasons provided by the Governor in Council for rejecting the arguments of the First Nation and accepting the recommendations of the Joint Board.

In Bigstone Cree Nation, de Montigny J.A. held that the Board had avoided all these pitfalls. While the reasons provided by the Governor in Council were not all that much more detailed than those given in Gitxaala, the preamble to the Order in Council explicitly referred to not only the Board’s report but also the Crown Consultation and Accommodation Report (“CCAR”) prepared by the Major Projects Management Office (“MPMO”) (located within Natural Resources Canada) and a formally recognized part of the overall process. Given that the Governor in Council was entitled to rely on other administrative actors in the fulfilment of its duty to consult and, where appropriate, accommodate, a simple reference in the Order in Council to that reliance was sufficient to incorporate the reports and interactions between the Board and the MPMO into the Governor in Council’s own processes. Moreover, to the extent that the Governor in Council expressed its satisfaction that those processes had adequately fulfilled the Crown’s responsibilities, that was sufficient indication of the Crown’s attention to the issue and an acceptance that the duty to consult and accommodate had been met, a reasonable conclusion in this instance based on the consultations carried on throughout the process. Also, given that the Governor in Council in the Order in Council had specifically addressed one of the First Nation’s critical concerns, protection of the Caribou, and endorsed the accommodating conditions recommended by the Board in furtherance of that objective, it could not be said that the Governor in Council had failed to consider or that the process was not alive to the project’s potential impact on the Caribou.

There was also another critical factor in this case: the conduct of the First Nation. In the final paragraph of his assessment of the Governor in Council’s phase of the process, de Montigny J.A. took the First Nation to task for its lack of engagement at important stages in the process:

On the basis of the foregoing, combined with the fact that Bigstone did not proactively participate in the post-NEB consultation process, did not specifically raise the issue of the Project’s potential impact on the Caribou at either meeting with the MPMO, and did not avail itself of the opportunity to provide comments on the draft CCAR, I am of the view that Bigstone failed to establish that its concerns were not heard and accommodated.¹⁷

Just as the Federal Court of Appeal in Gitxaala had lessons to learn about its responsibilities, so too in Bigstone Cree Nation did the First Nation receive instruction as to the need for engagement in and respect for the process.¹⁸

(C) Tsleil-Waututh¹⁹ and the Trans Mountain Saga: So Near and Yet So Far.²⁰

Following a lengthy and thorough examination of the process followed by the National Energy Board (“the Board”) and the Governor in Council (“Canada”) leading to the approval of Trans Mountain Pipeline ULC’s (“Trans Mountain”) application to expand its existing pipeline system, Dawson J.A., delivering the judgment of a panel of the Federal Court of Appeal that also included de Montigny and Woods J.J.A., held that there were two critical defects.

i. The Scoping Decision

First, the Board had erred in the scoping of the application in determining that project-related, marine shipping was not part of the “designated project”. In terms of Section 2 of the Canadian Environmental Assessment Act, 2012 (“CEAA”),²¹ it was not “any physical activity that is incidental to” the other physical activities that were a component of the project.

The impact of this determination was that the Board was not required to conduct certain assessments under that Act, and, in so far as the marine shipping associated with or generated by the project had the potential to affect adversely the Southern resident killer whale population, assessments under the Species at Risk Act (“SARA”).²² Consequently, the Board’s consideration of those matters was restricted to the general public interest provision in the National Energy Board Act²³ and a cumulative effects provision in the CEAA.

Dawson J.A. rejected the Board’s conception of the meaning of Section 2 and its application to the facts. In part, her concerns were based on the failure of the Board to provide adequate reasons for its interpretation of the relevant term. And, to the extent that the Board had based its position on the proposition that it could not include within the scope of the “designated project” marine shipping because it was regulated elsewhere, the Board had erred. Indeed, it had not “grappled”²⁴ with this important issue but simply asserted. More generally, she was of the opinion that the Board had misinterpreted the critical term in the CEAA. To the extent that the Board had provided a rationale, it was “not supported by the statutory scheme.”²⁵

However, she went on to consider whether the Board had effectively fulfilled its responsibilities under the relevant provisions of both Acts when it turned its attention to the general public interest provision of the National Energy Board Act,²⁶ and the cumulative effects section in the CEAA.²⁷ On careful review, she held that these elements of the Board’s report were not an adequate surrogate for an evaluation under both the CEAA²⁸ and the SARA²⁹ on the basis that the impacts associated with marine shipping, including its effects on the whale population, were part of the designated project.

To the extent that the Governor in Council had based its decision ordering the Board to issue a certificate of public convenience and necessity on the Board’s report and without questioning its position on these matters, that decision was infected by the Board’s errors.³⁰ Putting it another way, the Board by reason of its errors had not provided the Governor in Council with a “report” which was a precondition to the Governor in Council making a decision.³¹ In her conclusions, Dawson J.A. further explained the Court’s conclusion in this way:

The Board’s finding that the Project was not likely to cause significant adverse environmental impacts was central to its report. The unjustified failure to assess the effects of the marine shipping under the Canadian Environmental Assessment Act, 2012 and the resulting flawed conclusion about the effects of the Project was so critical that the Governor in Council could not functionally make the kind of assessment of the Project’s environmental effects and the public interest that the legislation requires.³²

It was therefore “unreasonable for the Governor in Council to rely upon” the report.³³

ii. The Duty to Consult

Dawson J.A.’s analysis of whether the Crown failed in its duty to consult occupies 283 paragraphs of her judgment. She held that the general framework of the process³⁴ communicated to indigenous groups by Canada was adequate to meet the obligations imposed by the duty to consult and, where appropriate, accommodate the rights and claims of indigenous peoples. It established the ground rules for the conduct of Phase III of the process, the Governor in Council stage. These included a commitment by Canada to a Phase III consultative process that would focus on two questions:

a. Are there outstanding concerns with respect to Project-related impacts to potential or established Aboriginal or treaty rights?

and

b. Are there incremental accommodation measures that should be considered by the Crown to address any outstanding concerns?³⁵

It was however in the implementation of Phase III of the process that deficiencies occurred. The Court’s conception of the conduct of Phase III of the process centred in large measure on the centrality of “a meaningful two-way dialogue.”³⁶ There should have been “responsive, considered and meaningful dialogue coming back from Canada in response to the concerns expressed by Indigenous applicants.”³⁷ Instead, the Crown consultation team

…limited their mandate to listening to and recording the concerns of the Indigenous applicants and then communicating those concerns to the decision-makers.³⁸

In short, they acted as “note-takers”³⁹ and not, with a few exceptions, as participants in a dialogue.

Dawson J.A. also identified two other impediments to meaningful consultation:

Canada’s reluctance to consider any departure from the Board’s findings and recommended conditions, and Canada’s erroneous view that it lacked the ability to impose further conditions on Trans Mountain.⁴⁰

In terms of the framework for Phase III, she also faulted the lateness in the process of the Crown’s assessment by way of a Crown Consultation Report of the Project’s impact on the indigenous applicants. To the extent that the second draft of this report was to the effect that the Project would not have “a high level of impact on the exercise of the applicants’ Aboriginal interests”, Canada did not provide those applicants with sufficient time to provide detailed comments.⁴¹

iii. Remedies

The Court’s conclusions on these two critical issues resulted in a quashing of the Order in Council containing the Governor in Council’s decision accepting the Board’s report and directing the issuance of a certificate of public convenience and necessity. As well, the matter was remitted to the Governor in Council for “prompt redetermination.”⁴²

As far as the first defect was concerned, the remission also included a direction to the effect that the Governor in Council in turn remit the scoping issue to the Board for reconsideration by reference to the various matters of concern identified by the Court as reiterated in the remedial order.⁴³ In terms of the failure to consult adequately, the Governor in Council was directed to “re-do its Phase III consultation.”⁴⁴

iv. Commentary

Dawson J.A.’s judgment in Tsleil-Waututh covered much territory. Particularly on the duty to consult, her analysis involved an intensive evaluation of how as a matter of fact the process evolved. Here is not the place for a detailed examination of that critical aspect of the judgment. One should not also overlook the fact that the Court rejected the vast of majority of the challenges to the substantive and procedural aspects of the process. Here too, space constraints do not permit a full examination of the grounds on which the various applicants failed. However, I have selected three Administrative Law dimensions of the judgment for brief comment.

• The Appropriate Target of an Application for Judicial Review

Tsleil-Waututh involved the consolidation of various applications for judicial review, some of which attacked the report of the Board and others of which sought a quashing of the Governor in Council’s decision. As part of her judgment,⁴⁵ Dawson J.A. held that the only appropriate target of a judicial review application was the decision of the Governor in Council. Reaffirming the judgment of the Court (delivered by her and Stratas J.A. in Gitxaala Nation),⁴⁶ she characterized the report of the Board as “not justiciable.”⁴⁷
Judicial review (at least in terms of what constitutes a reviewable “matter” for the purposes of Section 18.1(1) of the Federal Courts Act)⁴⁸ was restricted to “decisions about legal and practical interests.”⁴⁹ The report of the Board did not cross that threshold; it failed “to affect legal rights, impose legal obligations, or cause prejudicial effects.”⁵⁰ The report did not carry any legal consequences.⁵¹ It contained a set of recommendations that did not have any independent legal or practical effect.⁵² Dawson J.A. also reinforced this characterization of the Board’s role by pointing out that any defects in the Board’s report and processes could be rectified by the Governor in Council,⁵³ and, if not corrected (as in this case), the failure to rectify would be subject to an application for judicial review of the Governor in Council’s decision; if the Governor in Council’s decision rested on a “materially deficient” Board report, it was subject to judicial review.⁵⁴ In short, according to Dawson J.A., Gitxaala had not been wrongly decided on this point.

In my review of the relevant case law of 2016,⁵⁵ I expressed concerns about this aspect of Gitxaala, and I remain unconvinced despite Dawson J.A.’s detailed reevaluation of the Gitxaala holding on this point.⁵⁶ While I have no quarrel with the Court’s striking out of the nine applications for judicial review of the Board’s report, I am uncomfortable with the justiciability justification for that course of action. In my opinion, this is not an issue about justiciability in the conventional sense of that term. Clearly, the issues in question in the challenges to the Board’s report are issues that are suitable for resolution by a court; they are the standard fare of judicial review. Also, there is surely no sense in which the Board, either generally or in this particular situation, is immune from the processes of the courts as exemplified by parliamentary privilege. This is a remedial, not a justiciability issue.

The striking out of the applications for judicial review is far more appropriately characterized as an exercise of remedial discretion on the basis that the Governor in Council is or was in a position to correct the defects of the process below. It might, of course, be claimed that this is just a matter of terminology, and the difference between the Gitxaala approach and mine has no practical implications. However, the reality is that it can make a difference. The Gitxaala approach does not admit of exceptions; the Board itself can never under this particular statutory regime be a respondent to an application for judicial review. A finding of a lack of justiciability has that consequence. But there may well be situations in which a pre-emptive attack on the processes of the Board is appropriate as, for example, in the case of a reasonable apprehension of bias on the part of the Board or one of its members or an allegation of an absence of subject matter jurisdiction. Not recognizing those situations creates a remedial gap which could result in a substantial waste of time and resources before the opportunity to raise the issue at the Governor in Council stage of the process.

• The Components of the Reasons of the Governor in Council

The Attorney General of British Columbia sought review on the basis that the Governor in Council had failed to comply with the statutory obligation⁵⁷ to provide reasons for its decision. For these purposes, the Attorney General argued that the reasons had to located within the four corners of the Order in Council and nowhere else.

Dawson J.A. rejected this narrow conception of the reasons of the Governor in Council. Restricting an evaluation of the reasons to the terms of the Order in Council failed to recognize the inappropriateness of treating the Order in Council itself as the exclusive repository of the Governor in Council’s given having regard to the “legislative nature and standard format of an Order in Council.”⁵⁸ It was not a suitable vehicle for the provision of full reasons. Here, the reasons also included the Explanatory Note which was attached to and published in the Canada Gazette with the Order in Council. Also incorporated were the documents referred to in the Explanatory Note and the documents referenced in the Explanatory Note including the Crown Consultation Report and the report of the Board including appendices having regard to the fact that the Order in Council adopted the Board’s public interest recommendations.⁵⁹ Once again applying Gitxaala,⁶⁰ and consistent with the Courts conclusions in Bigstone Cree Nation, Dawson J.A. found that, having regard to all this material, the Governor in Council had met the statutory obligation to “set out the reasons” in its Order. There can be little quarrel with this conclusion.

• Standard of Review for Administrative Law Issues

Not surprisingly, Dawson J.A. held that the appropriate standard of review for the various substantive components of the Governor in Council decision was that of reasonableness.⁶¹ However, her articulation of what was involved in conducting reasonableness review contained one element that suggested a less than total commitment to the deferential approach which underpins reasonableness review. Referring to prior authority (including yet again Gitxaala), Dawson J.A. adopted a version of reasonableness review that included scrutiny of the decision under review for compliance “with the purview and rationale of the legislative scheme.”⁶² The reviewing court had to be sure that the decision of the Governor in Council had been exercised “within the bounds established by the statutory scheme.”⁶³ Further on, Dawson J.A. continues with this theme. Reasonableness required that that “the decision had to be made in accordance with the terms of the statute.”⁶⁴ Under reasonableness review, the decision-maker still remains “constrained in the outcomes that it may reach by the terms of the statute.”⁶⁵

It is relatively easy to see this articulation of the process of reasonableness review as in effect introducing a significant element of correctness at least in the discerning of the meaning of statutory provisions and even in the application to the facts of the relevant statutory provisions.

Indeed, this view of Dawson J.A.’s sense of what reasonableness review involves is confirmed by the way she goes about assessing the Board’s interpretation and application of the statutory provisions respecting environmental and species of risk assessments in the context (discussed earlier) of the impact of marine shipping. Thus, she commences by describing the question as to whether Project-related marine shipping was part of the “designated project” as not one of pure statutory interpretation but rather a “mixed question of fact and law heavily suffused by evidence.”⁶⁶ That categorization would normally mean that, except perhaps when there was a readily extricable pure question of law, a reviewing court would be deferential to the Board’s determination of the relevant issues.

Nonetheless, throughout the discussion of this issue, Dawson JA certainly seems to be engaging on a correctness basis with the Board’s reasoning and law/fact application process. It consists of a detailed consideration of how the Board approached these issues and the factual underpinnings of that discussion on which the Board’s conclusions were based. In a situation where the articulation and application of the reasonableness standard of review may well have been critical, this is troubling.

If justification is to be found, it may, however, rest in the failure of the Board to articulate why precisely, it accepted that, as a matter of statutory interpretation, the Project-related marine shipping was not a component of the “designated project” as defined in Section 2 of the CEAA. Indeed, some warrant for this can be discerned in the terms on which the Court remitted the matter to the Governor in Council with directions for a further remission to the Board. That remission called on the Board “to reconsider on a principled basis whether Project-related shipping is incidental to the Project.”⁶⁷ It did not direct the Board to reconsider on the basis that Project-related shipping was incidental to the Project. In other words, the remission recognized implicitly the primary responsibility of the Board for determining the meaning of legislation as it related to the scoping decision. In terms of the Board’s position on this issue, it downfall came about as a result of a combination of a failure in articulation and, to the extent that there was justification, adoption of a position that did not bear scrutiny on a reasonableness standard. The Board was now being given another chance to consider the question and justify any conclusion to the same effect.

PARLIAMENT AND THE LEGISLATIVE ASSEMBLIES, AND THE DUTY TO CONSULT

It is generally been taken as axiomatic that the Canadian courts will treat as non-justiciable any attempt to impose common law procedural fairness obligations on Parliament and the legislatures in respect of the introduction and passage of legislation.⁶⁸

Thus, in 1991, in Reference re Canada Assistance Plan,⁶⁹ the Court rejected an attempt by British Columbia to invoke the doctrine of legitimate expectation as a basis for challenging the validity of amendments to the Canada Assistance Plan.⁷⁰ Notwithstanding the provisions of the Act and agreements entered into under that Act, the province could not plead on the basis of the doctrine that its consent was necessary before amending legislation could be introduced and passed. The Canadian version of legitimate expectation did not extend to recognition of substantive entitlements. Furthermore, British Columbia had no legally cognizable claim to even be consulted as part of the legislative process.

Subsequently, in 1999, in Wells v Newfoundland,⁷¹ the Court reiterated this latter position in a different context. Wells had argued that the Newfoundland and Labrador House of Assembly owed him a duty of procedural fairness when passing legislation that in effect dismissed him from his position as a “consumer representative” on the Newfoundland Public Utilities Board by abolishing the position as part of a restructuring of that agency. After stating that the government’s actions were not predicated on a personal animus towards Wells,⁷² the Court again refused to subject the Assembly and its processes to an implied common law duty of procedural fairness.

The issue arose yet again in 2003 in Authorson v Canada.⁷³ There, invoking Section 1(a) of the Canadian Bill of Rights,⁷⁴ Authorson, a representative plaintiff, pleaded that Parliament owed a class of disabled veterans procedural fairness before the enactment of legislation withdrawing any claim that the veterans might have had for interest on moneys that the Department of Veterans Affairs held on their behalf. Despite Section 1(a)’s guarantee of “due process of law” when the “right of the individual to…enjoyment of property” was being withdrawn, this did not extend to the legislative process. Major J, delivering the judgment of the Court, expressed the conclusion pithily:

Due process protections cannot interfere with the right of the legislative branch to determines its own procedure. For the Bill of Rights to confer such a power would effectively amend the Canadian constitution, which, in the preamble to the Constitution Act, 1867, enshrines a constitution similar in principle to that of the United Kingdom. In the United Kingdom, no such pre-legislative procedural rights have existed. From that it follows that the Bill of Rights does not authorize such power.⁷⁵

Nonetheless, this did not deter the Mikisew Cree First Nation from launching proceedings in which it asserted that the constitutional duty to consult and, where appropriate, accommodate applied to the development, introduction, and passage of legislation which affected First Nation rights and claims. The context was one with particular resonance in the energy sector: the Harper Government’s 2012 omnibus legislation,⁷⁶ one important component of which was amendments to the federal environmental protection and fisheries legislation. The First Nation alleged that these amendments had the potential for an adverse effect on their indigenous rights, and that they should have been consulted as part of the legislative process and, more particularly, in terms of their application for judicial review, during the development stage of the legislation.

Indeed, the First Nation was successful in the Federal Court⁷⁷ but the Federal Court of Appeal reversed Hughes J. and dismissed the application for judicial review.⁷⁸ On appeal to the Supreme Court of Canada,⁷⁹ the First Nation was again unsuccessful. There were four separate judgments in which differing positions were staked out by the nine members of the Court. Given space limitations, a full examination of each of the four judgments is not feasible. However, the following summary of the salient points should provide an adequate explanation of why the First Nation did not prevail.

First, there was one issue on which all nine judges apparently agreed.⁸⁰ The application for judicial review, whether viewed under Section 17 or 18 and 18.1 of the Federal Courts Act,⁸¹ was misconceived. While Section 17(1) conferred concurrent jurisdiction on the Federal Court “in all cases in which relief is claimed against the Crown” with the Crown defined in Section 2(1) as the Queen “in right of Canada”, it did not extend to members of the executive when exercising “legislative power”. For these purposes, legislative power encompassed the preparation and introduction of legislation as well as the process of its passage from introduction into Parliament through to Royal representative assent. As for an application for judicial review under Sections 18 and 18.1, the Federal Court’s authority was restricted to a “federal board, commission or other tribunal”. Under Section 2(2), “the Senate, the House of Commons, [and] any committee or member of either House” were excluded from the definition of “federal board, commission or other tribunal”. This too resulted in the immunity of members of the executive from the reach of judicial review under Sections 18 and 18.1 when engaged in legislative functions.

In and of itself, this did not mean that the First Nation had no cause of action or grounds for judicial review based on the alleged violation of the Crown’s consultative duties when engaged in decision-making that affected Indigenous rights and outstanding claims. It could have meant that the First Nation was simply in the wrong Court and should have in fact commenced its proceedings in an appropriate provincial superior court.

However, the Court went on to consider the allegation of a breach of the duty to consult on its merits and concluded by a majority of seven to two that the executive acting in its legislative capacity (and embracing the preparation,⁸² introduction and passage of legislation) did not owe any enforceable duty of consultation to affected or potentially affected First Nations. This conclusion was explained variously in the three relevant judgments by reference to parliamentary privilege, separation of powers, parliamentary sovereignty, and the general principles of Canadian common law to the effect that implied procedural fairness protections do not attach to legislative functions.

In contrast to the majority, Abella J. (with whom Martin J. concurred),⁸³ distinguishing Authorson and Reference re Canada Assistance Plan,⁸⁴ held that the duty to consult founded in the honour of the Crown and rooted in Section 35 of the Constitution Act, 1982, trumped the normal immunity of the executive and legislative branches when engaged in the process of primary legislation. It was a transcendent constitutional principle. However, she also held that it would not be appropriate to grant relief until such time as the relevant legislation was in force⁸⁵ and, even then, it would be exceptional for the reviewing court to strike the legislation down as unconstitutional. Rather, the preferred course of action would be to make a declaration to the effect that the duty to consult had not been fulfilled.⁸⁶ Abella J. also expressed the opinion that the nature of the obligation of consultation should reflect the rather different setting at play when the duty was one that attached to the executive in a legislative as opposed to administrative capacity.⁸⁷

In this sense, there was something of a coming together of the judgments of Karakatsanis J. and Abella J. to the extent that Karakatsanis J. speculated as to the possibility of a declaration that the Crown had failed to act honourably in enacting legislation without engaging in appropriate consultation.⁸⁸ Brown J. indicated exasperation with what he saw as an undercutting of the earlier part of her judgment where she (along with Wagner C.J. and Gascon J.) had rejected the application of the duty to consult to the legislative process.⁸⁹ Even Brown J., however, seemed prepared to accept that a failure to engage in consultation could be a factor in any evaluation at the justification stage of a challenge to the substance of legislation under Section 35 of the Constitution Act, 1982.⁹⁰ Rowe J. (with whom Côté and Moldaver J.J. concurred) expressed agreement with the judgment of Brown J.⁹¹ and added with respect to the infringement/justification framework for evaluation Section 35 claims:

Along with other factors, including compensation and minimizing the infringement, any prior consultation is considered in determining whether the infringement is justified.⁹²

In other words, while there is no enforceable duty to consult as part of the legislative process, the actual presence, absence or extent of consultation can be a relevant factor in considering whether legislative infringements of Indigenous rights can be justified. In short, while there is a clear majority for the proposition that the duty to consult cannot be directly enforced as against the executive acting in a legislative capacity, the concept may still intrude indirectly as a component of actions alleging violations of Section 35. How precisely that works awaits further judicial elaboration or clarification.

Also looming is the prospect of the enactment of Bill C-262, An Act to ensure that the laws of Canada are in harmony with the United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”),⁹³ to be named the United Nations Declaration on the Rights of Indigenous Peoples Act. This Bill was passed by the House of Commons on May 30, 2018 and, as of the end of 2018, was at Second Reading stage in the Senate. If passed in its present form, it will recognize UNDRIP as “a universal international human rights instrument with application in Canadian law.”⁹⁴ Most saliently for present purposes, Article 19 of the Declaration states:

States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them [emphasis added].

To what extent will this change the legal landscape against which indigenous peoples’ calls for engagement in legislative processes are made?⁹⁵

THE DUTY TO CONSULT INDIGENOUS PEOPLES – PROCEDURAL FAIRNESS, LEGITIMATE EXPECTATION, AND SUBORDINATE LEGISLATION AND POLICY-MAKING⁹⁶

(A) Background

As noted in the previous section, among the various justifications that the members of the Supreme Court provided for denying procedural fairness to the Mikisew Cree in the context of primary legislation was the general position that common law procedural fairness did not attach to any kind of legislative function. Thus, in Reference re Canada Assistance Plan,⁹⁷ Sopinka J. drew support from two of the then leading Supreme Court of Canada judgments to this effect: Canada (Attorney General) v Inuit Tapirisat of Canada,⁹⁸ and Martineau v Matsqui Institution Disciplinary Board.⁹⁹ In the first, the context was an appeal to the Governor in Council (Cabinet) from the decision of a regulatory agency, and Estey J., delivering the judgment of the Court, held that Cabinet appeals were not subject to any common law obligations of procedural fairness as Cabinet was acting in a legislative capacity. In the second, Dickson J. (as he then was) made his oft-quoted assertion:

A purely ministerial decision, on grounds of public policy, will typically afford the individual no procedural protection, and any attack upon such a decision will have to be founded on abuse discretion. Similarly, public bodies exercising legislative functions may not be amenable to judicial supervision.¹⁰⁰

Indeed, in Canada Assistance Plan, Sopinka J. appeared to accept that this exclusion of all legislative functions from the reach of common law procedural fairness could not be circumvented by reliance on the doctrine of legitimate expectation.

While Inuit Tapirisat has been marginalized to the extent that it held that Cabinet appeals were legislative in character,¹⁰¹ the general proposition that procedural fairness obligations do not attach to purely legislative functions (as found in that case and Reference re Canada Assistance Plan) still appears to be an accepted part of Canadian law. This is reflected in Rowe J.’s judgment in Mikisew Cree where, with reference to both judgments, he states that the “general principles of judicial review”

…do not allow for courts to review decisions of a legislative nature on grounds of procedural fairness…As a general rule, no duty of procedural fairness is owed by the government in the exercise of any legislative function.¹⁰²

Indeed, the excluded zone may extend even more broadly than that in the sense that Dickson J. in Martineau spoke not just of legislative decision-making but also any “purely ministerial decision on broad grounds of public policy.” There are further echoes of this in the judgment of Le Dain J. (for the Court) in 1985 in Cardinal v Director of Kent Institution,¹⁰³ where he described the threshold to the implication of an obligation of common law procedural fairness in the following terms:

The Court has affirmed that there is, as a general common law principle, a duty of procedural fairness lying on every public authority making an administrative decision which is not of a legislative nature which affects the rights, privileges and interests of an individual [emphasis added].¹⁰⁴

This can be read as reinforcing the sense that procedural fairness at common law is focussed on decision-making that implicates the rights, privileges and interests of an individual or a discrete group of individuals. It has no purchase with respect to the exercise of broad policy-making powers (whether formally legislative in character or not) which has an impact on the public generally or segments of the public in an undifferentiated manner.

In this section of the review, I will be focusing on two questions with respect to this aspect of the common law of procedural fairness. First, does it have any direct application to the duty to consult and, where appropriate, accommodate indigenous peoples? Secondly, does it still represent the common law with respect to legislative decision-making in contexts other than the development, introduction and passage of primary legislation? Both questions are highly relevant to the regulation-making and, more generally, policy development functions of those responsible for energy policy and regulation.

(B) The Duty to Consult and Subordinate Legislation and Policy-Making¹⁰⁵

In contrast to the implications that might be read into Rowe J.’s statement above in Mikisew Cree, Karakatsanis J. was, however, quite clear. She emphasised that her judgment did not extend to consultation on subordinate legislation making; that involved executive, not legislative action.¹⁰⁶ Moreover, the fact that Abella J. (with whom Martin J. concurred) would have accepted that the duty attached to the processes of primary legislation, makes it obvious that she would have no quarrel with its application to other legislative and policy-making processes.

It is also worth noteing that de Montigny J.A., delivering the majority judgment of the Federal Court of Appeal in Mikisew Cree, took care to distinguish¹⁰⁷ the judgment of the Alberta Court of Appeal in Tsuu T’ina First Nation v Alberta (Minister of Environment).¹⁰⁸ In that case, O’Brien J.A., delivering the judgment of the Court, had held that the duty to consult attached to the development of a water management plan that was approved and adopted by Order in Council.¹⁰⁹ While de Montigny J.A. did not go so far as to express an opinion as to the correctness of Tsuu T’ina, he clearly saw the fact situation as different from that before the Court in Mikisew Cree. Tsuu T’ina involved the actions of a “delegate [the Governor in Council] pursuant to legislative authority.”¹¹⁰

Earlier, in Rio Tinto Alcan Inc. v Carrier Sekani Tribal Council,¹¹¹ the Supreme Court recognized that the application of the duty to consult in the context of “strategic, higher level decisions” or key points in the policy development process. This sense of the duty to consult applying across the spectrum of government decision-making including legislative action in the form of regulations, Orders in Council, and municipal by-laws also found favour in the judgment of Bruce J. of the British Columbia Supreme Court in Adams Lake Indian Band v British Columbia (Lieutenant Governor in Council).¹¹² There, referencing Tsuu T’ina,¹¹³ she held that the duty to consult could attach to the process of incorporating a municipality by way of Order in Council. While the judgment was reversed on other grounds, that reversal was in no way predicated on the inapplicability of the duty to consult to subordinate legislation.

Given this background, at the very least, the judgment of the Court in Mikisew Cree cannot and should not be read as authority for the proposition that the duty to consult does not extend to “legislative” action of any kind. In other words, there is no necessary connection between the generally accepted threshold to the common law duty of procedural fairness and the existence of a duty to consult. Moreover, the balance of authority to this point seems very much tilted in favour of restricting the reach of Mikisew Cree to the processes of primary legislation, thus creating the potential for the application of the duty to consult in all other legislative and policy-making settings.

The one reservation that I would enter, however, is on the matter of remedies particularly with respect to failures to consult indigenous peoples on Orders in Council. In both Tsuu T’ina¹¹⁴ and Adams Lake Indian Band,¹¹⁵ the Courts expressed concerns about whether quashing was an appropriate remedial response to an Order in Council on which there had been inadequate or no consultation. Without definitively resolving that question, both Courts preferred declaratory relief as an appropriate indication of any failure to consult as part of processes culminating in an Order in Council. For my part, I fail to see why quashing would not be an appropriate remedy in such cases though would concede that, as a matter of remedial discretion, a court might well confine itself to declaratory relief. (I return to this issue below in the context of challenges to subordinate legislation in the name of the common law duty of procedural fairness.)

(C) Procedural Fairness, and Subordinate Legislation and Policy Making

The duty to consult indigenous peoples and the common law principles of procedural fairness, while having much in common and while proceeding at times on parallel tracks, have different foundations. Most importantly, the duty to consult is a constitutional imperative; the common law duty of procedural fairness is just that, a duty that is generally subject to legislative override and without a formal constitutional status.¹¹⁶ Thus, any recognition that the duty to consult extends to both subordinate legislation and policy-making has no necessary ramifications for the threshold to the application of common law principles of procedural fairness. That threshold remains a separate question.

Certainly, the common law threshold has been refined to some degree over the years. Thus, in 1980,¹¹⁷ in the context of review of a municipal by-law, the Supreme Court held that, even though the by-law was legislative in format, its passage nevertheless demanded procedural fairness to the affected developer because it resolved an ongoing legal dispute between the municipality and the developer. While the end product was legislative in form, the substance of the process was a situation of individually targeted decision-making.¹¹⁸ I have also noted already the Supreme Court’s effective change in the categorization of Cabinet appeals from legislative to administrative or quasi-judicial for procedural fairness purposes. Nonetheless, the conventional wisdom has continued to prevail: truly legislative functions (including regulations and Orders in Council) and broadly-targeted policy- or rule-making do not attract common law procedural fairness protections.¹¹⁹

This is exemplified by the 2018 judgment of Kane J. in the Federal Court in Canadian Union of Public Employees v Canada (Attorney General) (”CUPE”).¹²⁰ It also raised the contentious issue as to whether the doctrine of legitimate expectation could be deployed to circumvent the exclusion of legislative functions from the ambit of common law procedural fairness.

At stake in this case was the validity of amendments to regulations specifying the minimum number of flight attendants that had to deployed on commercial flights in proportion to the number of available seats. The Canadian Union of Public Employees (“the Union”) representing flight attendants sought judicial review of this regulation on the basis of failure to adhere to the common law principles of procedural fairness and, more particularly, a failure to meet the Union’s legitimate expectation of consultation.

After an extensive review of the arguments and the authorities, Kane J. summarized her conclusions as follows:

There is no duty of procedural fairness owed, nor is the doctrine of legitimate expectations – whether viewed as a stand-alone doctrine or an element of the duty of procedural fairness – applicable in the regulation-making context. The legislative process, including delegated legislation, is exempt from the requirements of procedural fairness.¹²¹

In arguing against this conventional position, among many arguments, the Union had urged Kane J. to reclassify the passage of subordinate legislation as executive rather than legislative action. It was clear that the Court was not likely to take this step given the weight of authority. More credibly, however, the Union also argued that, even if legislative functions were still excluded generally from the ambit of procedural fairness obligations, that exclusion could be overcome if the normal preconditions for the invocation of a legitimate expectation of participatory rights could be satisfied.

The Canadian¹²² judgment that the Union relied on most heavily to support this proposition was the concurring judgment of Evans J.A. in Apotex v Canada (Attorney General) (“Apotex”)¹²³ in which he had argued for the recognition of the doctrine of legitimate expectation in the context of regulation-making. While accepting that such functions were normally excluded from the ambit of common law procedural fairness, he adopted a version of the legitimate expectation doctrine that created room for it to operate even when the function was legislative in both form and substance. However, the other two members of the Court expressed¹²⁴ considerable skepticism as to Evans J.A.’s position on this issue.

On the path to rejecting the argument based on Evans J.A.’s position, Kane J. did acknowledge that other judges¹²⁵ had not entirely rejected it. However, in treating the strong doubts of Décary and Sexton J.J.A. in Apotex as carrying the day, Kane J. also referred to the judgment of the Federal Court in Association des Pilotes de Lignes Internationales v Urbino.¹²⁶ There, Pinard J. had applied Apotex and stated that it had not changed the law with respect to the non-application of the doctrine of legitimate expectation in a regulation-making setting.¹²⁷ Also, a panel of the Ontario Divisional Court in The Cash Store Financial Services Inc v Ontario (Consumer Services),¹²⁸ while expressly stating that it was not determining the matter, referred to the position espoused by Décary and Sexton J.J.A. in Apotex, “as certainly the dominant one in the case law.”

What is also significant is that, in Apotex, Evans J.A. went on to hold that the doctrine of legitimate expectation was not otherwise triggered on the facts of the case. Moreover, he further ruled that, even if the company’s legitimate expectations had not been met, nonetheless, it would not have been appropriate to quash or set aside the regulation. If Cabinet had approved the regulation in ignorance of undertakings as to procedure given by the Minister, there was no basis for intervention. And, in any event, considerations of Cabinet secrecy would preempt any effective probe into whether any or all the members of Cabinet were privy to the undertakings. In other words, the company should have taken a preemptive strike while the regulation was still being developed and evaluated at the ministerial level. Given these restrictions on the securing of relief, one is forced to ask whether the recognition that legitimate expectations could be triggered in the case of regulation-making would in most instances have been a hollow victory. It also raises the question of whether, even after the approval of the regulation, a ministerial failure to meet an applicant’s legitimate expectation might be attacked, in a sense collaterally, as undermining the validity of the regulation.

What is also left dangling is the extent to which the judgment in this case (and other precedents involving regulations) apply in other contexts such as regulations made by regulatory bodies,¹²⁹ by-law making by municipalities, and the development of policies and guidelines by various government and regulatory bodies.

In the course of her judgment, Kane J. seems to place much store in the fact that the target of this application for judicial review is the Governor in Council (or Cabinet). In particular, she emphasises the reserve nature of review of regulations made by Cabinet. Citing the judgment of the Federal Court of Appeal in Canadian Council for Refugees v Canada,¹³⁰ she notes¹³¹ how in that case the Court¹³² equated the authority of the Governor in Council to make regulations with that of members of Parliament to enact legislation, and then went on to assert that review of regulations is available only for constitutional invalidity or ultra vires, not procedural unfairness.¹³³

In support of his position in Apotex that the doctrine of legitimate expectation could be applied to regulation-making by the Governor in Council, Evans J.A. relied¹³⁴ in part on the Supreme Court majority judgment of Sopinka J. in Old St. Boniface Residents Association Inc v Winnipeg (City).¹³⁵ There, Sopinka J. had declined to apply the doctrine of legitimate expectation on the basis that it was not appropriate to add further consultation obligations to a process that already provided for adequate participatory opportunities.¹³⁶ However, that holding followed a statement in which he had set out the principles of legitimate expectation in such a way as to suggest that they were in an appropriate case applicable to municipal councillors when determining whether to adopt or amend a zoning by-law.¹³⁷ In CUPE, Kane J. noted¹³⁸ this aspect of Evans J.A.’s judgment, though not in such a way as to raise doubts about his analysis of Old St. Boniface Residents Association but rather to rule that it was not applicable to Cabinet regulation-making.

Indeed, beyond the issue of legitimate expectation, Old St. Boniface Residents’ Association is notable for the fact that it applied a modified test for bias to municipal councillors when determining whether to approve a zoning by-law amendment. This sense that procedural fairness can be triggered in cases of land use and zoning by-laws continues to this day as exemplified by the 2018 judgment of Gates J. of the Alberta Court of Queen’s Bench in Gruman v Canmore (Town).¹³⁹ There, he held that the duty of procedural fairness applied to a rezoning by-law with broad community impact. Even though the decision in this instance was more legislative than adjudicative, Gates J.¹⁴⁰ treated this as a factor relevant in determining the level or intensity of procedural fairness and not as precluding the Court from applying the common law principles of procedural fairness. Certainly, it can be argued that the normal rule that procedural fairness does not apply to legislative functions was displaced in this case by the provisions of the relevant Act. Nonetheless, it does provide another indicator of the breaking down of what has been seen as a clear dividing line for procedural fairness threshold purposes between legislative functions, on the one hand, and administrative and adjudicative processes, on the other.¹⁴¹

It is also worth recalling that, in the context of the duty to consult, Phelan J. of the Federal Court (in a judgment endorsed by the Court of Appeal) held that it applied to the procedural rule-making phase of a project (the Mackenzie Valley pipeline project) that adversely affected indigenous peoples.¹⁴²

My sense, therefore, is that there is much to be said for the following observation by Professor Kate Glover:

[I]n light of the jurisprudential movement away from the distinction between administrative, quasi-judicial, and judicial decisions, Wells and Cardinal should not likely be read as a categorical exemption from the duty of fairness for all legislative decisions. Rather, in every instance of decision-making, the nature of the decision being made should be closely examined to determine its true character and whether it is the type of decision that should be immune from the common law duty of fairness.¹⁴³

However, what is also clear is that it will take a case such as the judgment of Kane J. in CUPE to proceed to the Supreme Court of Canada if that somewhat more fluid conception of the procedural fairness threshold is to be adopted. At the very least, what is required is recognition that, even if one accepts that Cabinet appeals are no longer to be regarded as “legislative” in nature, that term covers a wide spectrum of variegated decision-making processes. They range from primary legislation to informal rule-making and policy statements. Given that, it is necessary to reevaluate whether in that realm a one size fits all regime should govern the crossing of the procedural fairness threshold, not to mention the intensity of any procedural fairness obligations should the threshold be crossed. Principled refinement is clearly necessary.

THE DUTY TO CONSULT AND THE ALBERTA ABORIGINAL CONSULTATION OFFICE

The Alberta Aboriginal Consultation Office (“ACO”)¹⁴⁴ was established in 2013 not by primary or subordinate legislation but under The Government of Alberta’s Policy on Consultation with First Nations on Land and Resource Management, 2013.¹⁴⁵ It is administered by and operates within the Ministry of Indigenous Relations. As part of its mandate, under ministerial order, it is responsible for assessing whether, in relation to energy applications, the Crown has a duty to consult an indigenous group, and, if so, whether it has fulfilled that obligation. This includes matters within the jurisdiction of the Alberta Energy Regulator (“AER”), which is explicitly excluded as part of the consideration of matters before it from “assessing the adequacy of Crown consultation associated with the rights of aboriginal peoples as recognized and affirmed under Part II of the Constitution Act, 1982.”¹⁴⁶

In 2014, the ACO had determined that there was no duty to consult a First Nation with respect to a pipeline application before the AER.¹⁴⁷ The AER proceeded with its consideration of the application and it was approved in late 2014. (Interestingly, despite the ACO’s determination that there was no duty to consult the First Nation, the proponent did engage in consultation and the First Nation was accorded standing before the AER.)

At that point, the First Nation applied for judicial review not of the AER’s approval of the project but the ACO’s decision that the duty to consult was not triggered. In that context, while seeking a quashing of that decision, it did not seek an order returning the matter to the ACO but rather various forms of declaratory relief.¹⁴⁸ Not surprisingly, this “novel”¹⁴⁹ judicial review proceeding was challenged on the ground of mootness. Suffice it to say that Nixon J. of the Alberta Court of Queen’s Bench struck out a challenge to the merits of the ACO’s determination that the duty to consult was not triggered. However, she did rule that four of the other issues raised by the First Nation involved “live controversies”¹⁵⁰ and allowed the application to proceed with respect to those matters. Two of those issues have administrative law dimensions:

1. Does the ACO have the authority to determine whether the Crown’s duty to consult is triggered?
2. Is procedural fairness engaged in the determination of whether a duty to consult arises?

The First Nation’s argument on the first question did not turn on an interpretation of the mandate of the ACO as spelled out in the relevant policy and the ministerial order. Rather, it was based on the use of these instruments as the means for conferring that authority on the ACO. The contention was that it should have been done by statute, not policy or ministerial order. Consequently, Nixon J. characterized this as an “issue of true jurisdiction” for which correctness was the appropriate standard of review.¹⁵¹

In advancing this argument, the First Nation relied primarily on Rio Tinto Alcan Inc. v Carrier Sekani Tribal Council¹⁵² and its supposed holding that whether a tribunal had jurisdiction to determine if a duty to consult existed depended on a statutory conferral of power. Irrespective of the accuracy of the First Nation’s characterization of the relevant ruling in Carrier Sekani, Nixon J. held that that ruling was inapplicable in the current context. It applied to statutorily-created tribunals, not to decision-making within the structure of central government.¹⁵³ The Crown was responsible for the fulfilment of the duty to consult and, in this instance, the Crown was entitled to act through ministers and their departments. Operating within that context, the Crown could without legislation set up administrative schemes and policies for the fulfilment of its responsibilities including the designation of where, within the central governmental structure, consultaton would take place. Here, the terms of the creation of the ACO and the relevant ministerial policy and Ministerial order vested that authority, including the power to decide whether the duty to consult was triggered, in the ACO acting within the administrative framework of the Minister of Indigenous Relations. Nothing about this structure was constitutionally suspect.¹⁵⁴ This is little or no room to quarrel with this analysis.

The same applies to Nixon J.’s response to the second question. Whether viewed within the context of the extent of the overall obligations arising out of the duty to consult, or, as in this case, with primary reference to the common law procedural fairness threshold, the ACO owed the First Nation a duty of fairness in determining when the duty to consult was triggered.

In so holding,¹⁵⁵ Nixon J. relied upon two earlier judgments of the Alberta Court of Queen’s Bench¹⁵⁶ and applied the test set out in Baker v Canada (Minister of Citizenship and Immigration).¹⁵⁷ The ACO determination of whether the duty to consult was triggered was administrative in nature and affected the “rights, privileges or interests of an individual.”¹⁵⁸ This was a decision that determined whether the First Nation had a right to consultation under Section 35 of the Constitution Act, 1982, and would be final (subject of course to judicial review) if the ACO determined that there was no duty to consult.

Nixon J. then proceeded to consider the extent of the ACO’s procedural fairness obligations. In so doing, she expressed¹⁵⁹ some concerns about applying the formal Baker five-part procedural fairness intensity analysis. She wanted to avoid imposing a process that was “similar to the trial model of adjudicating rights.” Such an adversarial context would derogate from the reconciliation objectives of the principles governing the duty to consult and, where appropriate, accommodate.

For Nixon J., the duty of procedural fairness for all practical purposes commenced once the ACO became aware that the First Nation would be contesting its tentative view that there was no duty to consult.¹⁶⁰ At that point, the ACO was obliged to give notice of its intention to make a final decision on the issue,¹⁶¹ and to outline the procedure that it proposed to follow and the evidence that would be required to satisfy the test for triggering the duty to consult, along with relevant deadlines.¹⁶² Thereafter, meaningful participation meant that the First Nation would have the opportunity and indeed responsibility to adduce evidence in support of its contention that the duty to consult had arisen.¹⁶³
Nixon J. then moved to the end of the process and recognized that the ACO should provide reasons for its decision, reasons that showed that the ACO had “fully and fairly considered the information and evidence submitted by the First Nation.”¹⁶⁴

Earlier in her judgment,¹⁶⁵ Nixon J. had stated that, because the First Nation was not seeking a remission of the matter to the ACO for further consideration, she would not be considering “whether a duty of procedural fairness had been breached in this case.” However, in what seemed to be a change of mind, after sketching the outline of the procedure that should be followed, she continued to the effect that the ACO had not adhered to these procedural requirements in this case.¹⁶⁶ Given that her ultimate declaration was confined to the proposition that the duty of procedural fairness applied to decisions on the duty to consult, one can assume that all the elaboration of the content of procedural fairness, including the observation that the proposed process should not impose “an overly high burden on the ACO”,¹⁶⁷ was no more that advisory or obiter dicta in nature. Nonetheless, it may indeed serve as useful guidance to the ACO particularly when read along with Nixon J.’s further statement that, as recognized by the judgment of the Court of Queen’s Bench, the ACO had adopted a compliant process on the facts of Fort Chipewyan Metis Nation of Alberta Local #125 v Alberta.¹⁶⁸

PARTICIPATORY RIGHTS

In last year’s Survey,¹⁶⁹ I cheated by including discussion of the second judgment released by the Supreme Court of Canada in 2018: Delta Air Lines Inc v Lukács.¹⁷⁰ It was an important judgment on the principles governing a regulatory agency’s assessment of whether and, if so, under what circumstances someone could assert public interest standing to make a “complaint” about an airline’s policies with respect to the carriage of obese persons.

During 2018, there were other developments¹⁷¹ relevant to energy law and regulation in the law governing participatory rights.¹⁷²

(A) Interventions in Applications for Leave or Permission to Appeal

Balancing Pool v ENMAX Energy Corporation¹⁷³ raised the question of the circumstances, if any under which the Alberta Court of Appeal will allow interventions or the addition of parties in an application for leave or permission to appeal on a question of law or jurisdiction from a decision of the Alberta Utilities Commission (“AUC”).

Three energy companies had applied for permission to appeal to the Alberta Court of Appeal from a decision of the AUC, a decision that followed upon the regulator’s earlier finding that a rule, the “line loss rule”, adopted by the Alberta Electric Systems Operator (“AESO”) respecting the allocation of the costs of “loss” of electricity in the course of transmission was unlawful. As part of the remedial phase of the matter, the AUC directed the AESO to “re-issue invoices for line loss charges or credits to those to those parties that held Supply Transmission [“STS”] contracts when the charges or the credits were first incurred.” This produced both winners and losers. Among the losers were the three companies seeking permission to appeal. The winners included Milner Power Inc., ATCO Power Corporation, Trans Alta Corporation, and the Balancing Pool, “a statutory entity funded by Alberta’s energy consumers.”¹⁷⁴ Milner Power, the original complainant, and ATCO were named respondents in the application for permission to appeal; Trans Alta and the Balancing Pool were not. Both applied to be added as either respondents or, in the alternative, intervenors.

The general principles respecting the addition of parties and recognition of intervenors on an application for permission to appeal had been outlined in the judgment of Hunt J.A. in Carbon Development Partnership v Alberta (Energy and Utilities Board).¹⁷⁵ To be added as a party, it was necessary for an applicant to demonstrate “a legal interest in the outcome of the proceeding.”¹⁷⁶ If that threshold was crossed, the applications judge then had to consider whether it was “just and convenient”¹⁷⁷ to add the applicant and whether the applicant’s interest would be protected adequately only if it were granted party status.¹⁷⁸ Paperny J.A., the applications judge in this matter, again¹⁷⁹ citing Carbon Development,¹⁸⁰ emphasised that this was an inherent power that should be exercised sparingly.

In the absence of permission to appeal being granted, there is no appeal and as such no interest, legal or economic, that can be directly affected by the application (at least immediately).¹⁸¹

She also noted that, given the narrowness of the Court’s inquiry at the application for leave stage, it was rare that the Court would be assisted by representations from “multiple parties”. Moreover, if permission to appeal was granted, it remained open to those claiming an interest to apply for and be granted status at that point.¹⁸²

Nonetheless, Paperny J.A. held that the Balancing Pool had demonstrated that it was appropriate to afford it party status on the application for leave to appeal in the circumstances of this application. With reference to the first hurdle, demonstration of a legal interest, she explained that the Balancing Pool had not been a party at the outset of the proceedings but noted that this was because “its legal and financial interests at that point were either undetermined, unknown or non-existent.”¹⁸³ However, all that changed when, much later in a process that had lasted many years, it acquired a large number of STS contracts and thereby emerged as a possible winner or loser at the remedial stage. At that point, the Balancing Pool became an active participant in the remedial stage of the proceedings. It was therefore a matter of how the proceedings unfolded “than a lack of legal interest or standing”¹⁸⁴ that had led to it not being named as a respondent on the application for permission to appeal from the outset.

As for the other requirements for meeting the severe test for joinder as a party respondent to an application for permission to appeal, the Balancing Pool was differently located than the existing respondents and Trans Alta. It had acquired its STS contracts not by commercial negotiation but by operation of its statutory role with respect to protection of the interests of consumers. It therefore represented “distinct and broad interests compared to the other named parties” and was in a position to provide a “unique perspective” in the context of the determination of the application for permission to appeal and its scope. Paperny J.A. also took account of the willingness of the Balancing Pool to abide by the existing timetable including page constraints.¹⁸⁵

In contrast, while Trans Alta might be affected by the eventual outcome of any appeal, Paperny J.A. held that it had not established that it would offer a unique perspective with respect to the application for permission to appeal or the terms on which any such appeal might subsequently depend.¹⁸⁶ Its interests could be protected adequately by the further opportunity to seek party or intervenor status should the judge of the Court of Appeal grant the application for permission to appeal.¹⁸⁷

Ultimately, the Balancing Pool’s success on its application to be added as a respondent depended on what seems to be a most unusual set of facts. As such, while it provides an interesting and rare example of an exercise of judicial discretion to add a party or intervenor at the application for permission to appeal stage, it is unlikely that it will lead to a spike in success rates on such applications. In short, the overall integrity of the principles identified in Carbon Development is preserved and the exceptional nature of success on such applications underscored.

(B) Judicial Review of the Decisions of Energy Regulators – Public Interest Standing and Applications for Intervenor Status¹⁸⁸

In David Suzuki Foundation v Canada-Newfoundland and Labrador Offshore Petroleum Board (“David Suzuki”),¹⁸⁹ five environmental protection organizations applied relying on public interest standing for judicial review of a decision of the Canada-Newfoundland and Labrador Offshore Petroleum Board (“Board”). By that decision, in December 2016, the Board allowed Corridor Resources (“Corridor”) to surrender an existing oil and gas exploration licence which would have expired in early 2017 and replaced it with a new four-year licence. In effect, this meant that Corridor would have been a licence holder for the same site for a total of almost thirteen years. The environmental groups’ challenge was based on a provision in the relevant legislation that restricted exploration licences to a term of nine years without the possibility of extension or renewal.¹⁹⁰ The critical issue was whether as a matter of law, that provision could be avoided by a surrender of an existing licence and the issuance of a new one.

In a very careful and useful judgment, Chaytor J. of the Newfoundland and Labrador Supreme Court, in the context of an application by the Board (supported by Corridor) for the pre-trial determination of a question of law, held that the five environmental protection groups should be allowed to proceed with their application for judicial review based on public interest standing. In doing so, she applied the current principles for public interest standing elaborated by Cromwell J. delivering the judgment of the Supreme Court of Canada in Downtown Eastside Sex Workers United Against Violence Society v Canada (Attorney General) (“Downtown Eastside”).¹⁹¹

At the outset, she appropriately resisted the argument of the groups that as the matter arose in the context of an application by the Board, the Board bore the onus of establishing that the groups should not have public interest standing. Irrespective of context, it was for the groups “to persuade the Court that standing should be granted.”¹⁹² However, she was ultimately persuaded that the groups had met that burden.

In Downtown Eastside, Cromwell J. had articulated the test for public interest standing in a way that modified or, perhaps more accurately, clarified the Court’s previous approach to determining whether an applicant for judicial review qualified:

1. Whether a serious justiciable issue is raised;
2. Whether the party seeking standing has a real stake or genuine interest in the issue; and
3. Whether, in all circumstances, the proposed action is a reasonable and effective way to bring the issue before the courts.¹⁹³

Previously, in Canadian Council of Churches v Canada (Minister of Employment and Immigration),¹⁹⁴ Cory J., delivering the judgment of the Supreme Court, had phrased the third element of the test somewhat differently. Was

…there another reasonable and effective way to bring the issue before the court?

In the context of what he saw as “the need to approach discretionary standing generously”, Cromwell J. also, as noted by Chaytor J.,¹⁹⁵ dictated that the three elements of the test were not to be taken as a “rigid checklist” but viewed as “interrelated considerations to be weighed cumulatively, not individually, and in light of their purposes.”¹⁹⁶ Both the rearticulation of the third limb and the elaboration of how to approach the three limbs were to prove of significance in what followed in both Downtown Eastside and David Suzuki.

On the first limb, Chaytor J. rejected the Board’s argument that the matter was not appropriate for judicial determination because the groups’ ultimate aim was the cessation of drilling in the Gulf of St. Lawrence and, within that overall objective, a condemning of the adequacy and timing of environmental assessment processes.¹⁹⁷ This mischaracterized the nature of the application for judicial review; it involved review of the Board’s determination of a pure question of law. This description of the groups’ application was also relevant to the second component of the first limb. Even if it was a justiciable issue, was it serious? First, Chaytor J. noted that the statutes in question (federal, and Newfoundland and Labrador) had a constitutional element in that they involved provincial/federal cooperation in the creation of a Board representing both interests but also the retention of jurisdiction over certain matters by each of the governmental parties.¹⁹⁸ Secondly, she distinguished between what was at stake here (an issue of statutory interpretation and whether the Board had acted within its statutory authority) and a challenge to the merits of a decision taken in the exercise of an established statutory authority.¹⁹⁹ Furthermore, this was a question that had not previously come before the courts and one that was not confined to the facts of this particular case; it would resolve for the future whether the Board could exercise its statutory powers in this manner. Moreover, this was all taking place “in the context of [delineating the Board’s] role to manage offshore resources,…an issue that could have broad ramifications and impact on the citizens of this province and potentially beyond.”²⁰⁰

On the second limb, the Board resisted the status of the groups on the basis that a genuine concern for the protection of the Gulf of St. Lawrence did not translate into a real stake or genuine interest in the determination of the issue that was at stake in their application for judicial review. Even if the Board had misinterpreted its empowering legislation as allowing a surrender and novation, the Board could still engage in a new call for bids process in relation to the area covered by Corridor’s licence.²⁰¹  In rejecting this argument, Chaytor J. emphasised the importance of the Board exercising it authority within its “statutorily prescribed limits.”²⁰² As organizations dedicated to protecting and preserving the Gulf, the groups had a greater interest in this matter than “most members of the public.”²⁰³ Chaytor J. then proceeded²⁰⁴ to recount the groups’ extensive involvement in the regulatory process and, in particular, its interventions with respect to this very issue. This established “a sustained and genuine interest.”²⁰⁵

As for the critical in this case third limb of the Downtown Eastside test, Chaytor J. reiterated²⁰⁶ the four non-exhaustive factors identified by Cromwell J.²⁰⁷ as underpinning this limb:

1. The capacity of the applicant to advance the claim;
2. Whether the case is of sufficient public interest to transcend the interests of those most affected by the Board’s decision;
3. Whether there are alternative ways of bringing the matter forward that would involve a more efficient and effective use of judicial resources and that involve a more suitable adversarial context; and
4. The potential and impact of the proceedings on the rights of others who are equally or more directly affected.²⁰⁸

The Board did not contest on the first of these considerations. The significance of the public interest had already been recognized as part of the Court’s conclusion on the first limb. It was the third consideration that was the most contentious, but which tipped in the groups’ favour under the Cromwell J. articulation of this limb. Other industry players, including Corridor’s competitors may well have had a more direct interest in the proceeding than the First Nation communities. However, for whatever reason, though perhaps because they stood to benefit in the future from the Board’s ruling in the conduct of their own businesses, they had chosen not to launch a challenge. Moreover,²⁰⁹ the Supreme Court, had, early on in the evolution of the principles of public interest standing (albeit in a constitutional context), accepted that, where those most directly affected had not launched a challenge, it was appropriate for the Court to recognize the status of those less directly affected or representing the public interest.²¹⁰ As for the efficient use of judicial resources, this would settle the matter once and for all in an appropriate adjudicative context.²¹¹ Indeed, some of these same factors formed part of the Court’s elaboration of the fourth consideration – prejudice to those more directly affected. After reiterating that there were reasons why those more directly affected might not be interested in challenging the Board’s ruling,²¹² Chaytor J. recognized that the interests of some or all of those more directly affected in sustaining the Board’s ruling would in fact be represented appropriately on the hearing of the application for judicial review by the appearance of Corridor which had been accorded intervenor status.²¹³

Not surprisingly, Chaytor J., on the basis of her evaluation of the Downtown Eastside test, determined that the groups should be recognized as having public interest standing to bring the application for judicial review. However, in doing so,²¹⁴ she reiterated that their challenge must be confined to the specific issue of whether the Board could as a matter of interpretation or authority, to use the words of Nigel Bankes, “effect an end-run around the maximum terms provisions.”²¹⁵

This sense of the confines of the groups’ judicial review application was critical with respect to the second part of the Chaytor judgment in which she evaluated the separate application of various First Nation communities for intervenor status.

While the indigenous groups had an interest in the matter as reflected by their participation in the regulatory process,²¹⁶ Chaytor J.²¹⁷ ruled that their interest was not sufficient to warrant an exercise of the Court’s discretion in their favour. To the extent that they wanted to call into question the merits of the Board’s decision and insinuate issues respecting the duty to consult, they were raising matters that were not germane to the litigation as it had been framed by the environmental protection groups. This expansion of the issues, despite the assurances of the indigenous groups to the contrary, had the potential for creating undue delay and prejudice to the efficient dispatch of the case and detracted from the entitlement of the actual parties to frame the scope of the litigation.²¹⁸ Chaytor J. also questioned whether the matters that the indigenous groups wanted to raise could be dealt with satisfactorily on the record that was currently before the Court despite the willingness of the groups to proceed on the basis of that record.²¹⁹ Moreover, in terms of the actual issue in the judicial review application, this was not one

…that the Intended Intervenors seek to address. They acknowledge that they could not bring anything to the discussion on the issue of statutory interpretation that would be any different than the submissions of the Applicants. In this respect, the Intended Intervenors are missing the nexus justifying the sufficiency of their interest to the core issue before the Court.²²⁰

In short, in so far as the indigenous groups sought to expand the scope of the litigation, they did not meet the test for intervenor status. Moreover, given their concession that they had nothing different to add to the arguments of the public interest applicants on the precise issue before the Court, they had no claim to participatory rights even confined to that issue.

* Emeritus Professor, Faculty of Law, Queen’s University. The discussion in this annual review of the application of the duty to consult to legislative decision-making is a revised version of a section of a paper that I delivered at the 2018 BC CLE Annual Administrative Law Conference on November 26, 2018.

1.  See Delta Airlines Inc v Lukács, 2018 SCC 2; Williams Lake Indian Band v Canada (Aboriginal Affairs and Northern Development), 2018 SCC 4; West Fraser Mills Ltd v British Columbia (Workers’ Compensation Appeal Tribunal), 2018 SCC 22; Groia v Law Society of Upper Canada, 2018 SCC 27; Canada (Canadian Human Rights Commission) v Canada (Attorney General), 2018 SCC 31; Law Society of British Columbia v Trinity Western University, 2018 SCC 32; Trinity Western University v Law Society of Upper Canada, 2018 SCC 33; and Chagnon v Syndicat de la fonction publique et parapublique du Québec, 2018 SCC 39.
2.  In reality, there are only two since Bell Canada v Canada (Attorney General) and National Football League v Canada (Attorney General), 2017 FCA 249 were consolidated as one proceeding in the Federal Court of Appeal. The other appeal is from the judgment of the Federal Court of Appeal in Canada (Citizenship and Immigration) v Vavilov, 2017 FCA 132.
3.  2008 SCC 9, [2008] 1 SCR 190.
4.  In the case of energy regulators, this may have reflected a considerable degree of sanguinity with the current state of the law as it affected their operations. Increasingly, in the domain of energy regulation, deference is dominant as reflected in both the selection and restrained application of the reasonableness standard of review, and an unwillingness to be seduced into classifying questions as ones of “true” jurisdiction requiring correctness review. During 2018, there were several examples of this posture of restraint: see eg Tribute Resources Inc v Ontario (Energy Board), 2018 ONSC 265 (Div Ct); Colchester (County) Tatamagouche Water Utility v Wall, 2018 NSCA 67; Antigonish (Town) v Nova Scotia (Utility and Review Board), 2018 NSCA 8; and Fort Hills Energy Corp v Alberta (Ministry of Energy), 2018 ABQB 905 (even though there was a partial quashing). It is also evidenced in the Alberta Court of Appeal’s decisions on applications for leave to appeal from the Alberta Utilities Commission and the Alberta Energy Regulator. Indeed, it is in this context that one finds the most articulate defence in a long time of the centrality of the role of energy regulators and the exceptional nature of judicial intervention. This is the judgment of O’Ferrall J.A. in Capital Power Corp v Alberta (Utilities Commission), 2018 ABCA 437. This important judgment is the subject of a separate comment in this issue of the Quarterly. It also bears upon my previous commentary on standard of review and its relevance to applications for leave to appeal: David J. Mullan, “2016 Developments in Administrative Law Relevant to Energy Law and Regulation” (2017) 5 ERQ 15 at 29-30.
5.  2018 FCA 153.
6.  2018 SCC 40.
7.  2018 ABQB 262.
8.  R v Martin, 2018 NSSC 141. The prosecution was launched under the umbrella of an agreement between the Crown and the relevant First Nation. However, Gogan J., in the context of the Crown’s claim of constitutional justification for any infringement on the accuseds’ rights, accepted the argument that the First Nation should have been consulted before the prosecution was launched.
9.  Xeni Gwet’in First Nations v British Columbia (Chief Inspector of Mines), 2018 BCSC 1425. Branch J. held (at paras 35-63) that just because the duty to consult involved the honour of the Crown, the Crown was not an appropriate party, substituting the Attorney General as defender of the actions of the official who made the relevant decision. See, however, Adams Lake Indian Band v British Columbia (Lieutenant Governor in Council), 2011 BCSC 266 (rev’d on other grounds: 2012 BCCA 333), accepting the Lieutenant Governor in Council was the appropriate respondent to an application to review and quash a decision taken by Order in Council.
10.  Gamlaxyeltxw v British Columbia (Minister of Forests, Lands & Natural Resource Operations), 2018 BCSC 440.
11.  Aroland First Nation v Transcanada Pipelines Ltd., 2018 ONSC 4469, in which Matheson J. held that it was not appropriate to determine this issue in the context of a partial summary judgment process.
12.  Bigstone Cree Nation v Nova Gas Transmission Ltd, supra note 7, and Tsleil-Waututh Nation v Canada (Attorney General) 2018 FCA 153. These were part of the continuing flow of litigation in which courts have been called upon to interpret, develop and apply to the facts before them the duty to consult principles laid down in what is now a very extensive body of Supreme Court of Canada jurisprudence. Prominent among the 2018 examples are Mi’kmaq of Prince Edward Island v Prince Edward Island, 2018 PEISC 20, and Eabametoong First Nation v Ontario (Minister of Northern Development and Mines), 2018 ONSC 4316 (Div Ct).
13.  2016 FCA 187. (I commented on this judgment in my 2016 survey: supra note 5 at 19-26.).
14.  Supra note 6.
15.  Supra note 13. (For other commentary, see David V. Wright, “Duty to Consult in the Bigstone Pipeline Case: A Northern Gateway Sequel and TMX Prequel?” (6 June 2018), online: Ablawg, <http://ablawg.ca/wp-content/uploads/2018/06/Blog_DVW_Bigstone_FCA.pdf>).
16.  The early engagement process, the Board hearing phase, the Board recommendation phase, and the post-Board report phase.
17.  Supra note 13 at para 76. See also paras 39-43.
18.  For fuller elaboration of other aspects of the judgment, including the rejected claim that Bigstone Cree Nation should have received more funding, see David V. Wright’s blog, supra note 16.
19.  Supra note 6. For other commentary, see Martin Olszynski, “Federal Court of Appeal Quashes Trans Mountain Pipeline Approval: The Good, the Bad, and the Ugly” (6 September 2018), online: Ablawg, <https://ablawg.ca/wp-content/uploads/2018/09/Blog_MO_TMX_Sept2018.pdf>; Robert Hamilton, “Uncertainty and Indigenous Consent: What the Trans-mountain decision tells us about the current state of the Duty to Consult” (10 September 2018), online: Ablawg, <http://ablawg.ca/wp-content/uploads/2018/09/Blog_RH_TMX_Sept2018.pdf>; and David V. Wright, Tsleil-Waututh Nation v Canada: A case of easier said than done” (11 September 2018), online: Ablawg, <https://ablawg.ca/wp-content/uploads/2018/09/Blog_DVW_TMX_Sept2018.pdf>.
20.  Cole Porter, 1941, for the movie “You’ll Never Get Rich”, performed by Fred Astaire.
21.  SC 2012, c 19.
22.  SC 2012, c 29.
23.  National Energy Board Act, RSC 1985, c N-7.
24.  Supra note 22 at para 399.
25.  Ibid at para 409.
26.  Supra note 23, s 52 (2) (e).
27.  Section 19(1)(a).
28.  As provided for in Section 52.
29.  As provided for in in Section 79.
30.  Ibid at para 439.
31.  Ibid at para 409.
32.  Ibid at para 470.
33.  Ibid at para 473.
34.  Set out ibid at paras 74-75.
35.  Ibid at para 75.
36.  Ibid at para 558.
37.  Ibid at para 559.
38.  Ibid at para 558.
39.  Ibid at para 562.
40.  Ibid.
41.  Ibid at paras 562 and 761.
42.  Ibid at para 769.
43.  Ibid at paras 769-70.
44.  Ibid at para 771.
45.  Ibid at paras 170-202.
46.  Supra note 6.
47.  Ibid at para 202.
48.  RSC 1985, c F-7.
49.  Supra note 5 at paras 175-178.
50.  Ibid at para 175, citing Air Canada v Toronto Port Authority, 2011 FCA 347, [2013] 3 SCR 605 at para 29.
51.  Ibid at para 179.
52.  Ibid at para 180.
53.  Ibid at para 82.
54.  Ibid at para 201.
55.  Supra note 4 at 21-23.
56.  Martin Olszynski in his Blog on the judgment (supra note 19) is scathingly critical of this aspect noting that, as early as 1998, the Federal Court of Appeal had allowed a challenge to a report under a similar legislative scheme within the context of an application for judicial review in the nature of prohibition to prevent the final decision-maker (a Minister) from acting on a report: Alberta Wilderness Assn v Canada (Minister of Fisheries and Oceans), [1999] 1 FC 483 (FCA).
57.  Supra note 23.
58.  Supra note 5 at para 478.
59.  Ibid at paras 478-479.
60.  Ibid at para 479.
61.  Ibid at paras 204-23.
62.  Ibid at para 214.
63.  Ibid, citing Council of the Innu of Ekuanitshit v Canada (Attorney General), 2015 FCA 189 at para 44.
64.  Ibid at para 217.
65.  Ibid.
66.  Ibid at para 391.
67.  Ibid at para 769.
68. Kate Glover, « The Principles and Practices of Procedural Fairness » in Colleen M. Flood and Lorne Sossin, Administrative Law in Context, Toronto, EMP Ltd., 2018 at 183-219.
69.  [1991] 2 SCR 525.
70.  RSC 1970, c C-1.
71.  [1999] 3 SCR 199.
72.  Ibid at para 58.
73.  2003 SCC 39, [2003] 2 SCR 40.
74.  SC 1960, c 44; RSC 1985, App III.
75.  Ibid at para 41.
76.  Jobs, Growth and Long-term Prosperity Act, SC 2012, c 19.
77.  2014 FC 1244, 470 FTR 243. I discussed this judgment in “2014 Developments in Administrative Law Relevant to Energy Law and Regulation” (2015) 3 ERQ 17 at 29-30.
78.  2016 FCA 311, [2017] 3 FCR 298. I summarized this judgment in my review of 2016: supra note 5 at 16 n6.
79.  Supra note 7.
80.  See eg the judgment of Karakatsanis J., with which Wagner C.J. and Gascon J. concurred, ibid at paras 13-18.
81.  Supra note 48.
82.  In other words, the normal principles of non-justiciability and the inapplicability of common law procedural fairness obligations to the introduction and passage of primary legislation could not be circumvented by targeting the preparatory stages prior to a Bill’s introduction.
83.  Supra note 7 at paras 55-98.
84.  Ibid at paras 89-90. Neither of these cases implicated formal constitutional rights. With specific reference to Authorson, Abella J. stated (at para 89) that, unlike the Constitution Act, 1982, the Bill of Rights “applies only to enacted legislation.”
85.  Ibid at para 93.
86.  Ibid at paras 96-97.
87.  Ibid at para 92.
88.  Ibid at paras 48 and 82.
89.  Ibid at paras 103-104.
90.  Ibid at para 145.
91.  Ibid at para 148.
92.  Ibid at para 154.
93.  Bill C-262, An Act to ensure that the laws of Canada are in harmony with the United Nations Declaration on the Rights of Indigenous People Act, 1st Sess, 42th Parl, 2015-2016-2017-2018. For more detailed commentary, see Nigel Bankes, “Implementing UNDRIP: some reflections on Bill C-262” (22 November 2018), online: Ablawg, <http://ablawg.ca/wp-content/uploads/2018/11/Blog_NB_Bill_C-262_Legislative_Implementation_of_UNDRIP_November2018.pdf>.
94.  Ibid, s 1.
95.  For fuller discussion, see Sarah Morales, “Supreme Court of Canada should have recognized UNDRIP in Mikisew Cree Nation v Canada”, Canadian Lawyer Magazine, (29 October 2018), online: <http://www.canadianlawyermag.com/author/sarah-morales/supreme-court-of-canada-should-have-recognized-undrip-in-mikisew-cree-nation-v-canada-16410>.
96.  It is, of course, important to keep in mind that there are a whole range of situations in which legislated, and government or agency adopted rule-making procedures are in place and which ensure that much legislative and policy-making activity is preceded by involvement on the part of affected constituencies. See Gus Van Harten, Gerald Heckman, David J. Mullan, and Janna Promislow, Administrative Law: Cases, Text, and Materials (Toronto: EMP, 7th ed., 2015) (“Van Harten, Heckman, Mullan, and Promislow”) Chapter 7 for a sample of such provisions. Indeed, this extends to engagement with indigenous groups as exemplified by the March 2011 Aboriginal Consultation and Accommodation, updated Guidelines for Federal Officials to Fulfill the Duty to Consult, referenced by de Montigny J.A., delivering the judgment of the majority of the Federal Court of Appeal in Mikisew Cree, supra note 78 at para 61. However, see Zachary Davis, “The Duty to Consult and Legislative Action” (2016) 79 Sask L Rev 17, for a description of the patchwork of provincial policies on indigenous peoples consultation with respect to contemplated legislative action.
97.  Supra note 69.
98.  [1980] 2 SCR 735.
99.  [1980] 1 SCR 602.
100.  Ibid at 628.
101.  See the judgment of Rothstein J. in Canadian National Railway Co. v Canada (Attorney General), [2014] 2 SCR 135 at para 39, stating that the Estey position on natural justice and Cabinet appeals “may not represent the current law.” Given a Court that is extremely reluctant to ever say that one of its own previous decisions is no longer good law or was incorrectly decided, this is probably as good as it generally gets!
102.  Supra note 7 at para 168.
103.  [1985] 2 SCR 643.
104.  Ibid at 653.
105.  For further and more detailed discussion of this issue, see Zachary Davis, “The Duty to Consult and Legislative Action” (2016), 79 Sask L Rev 17; Andrew Green, “Delegation and Consultation: How the Administrative State Functions and the Importance of Rules”, Chapter 8, in Flood and Sossin, supra note 68, 307 at 328-30; and Van Harten, Heckman, Mullan, and Promislow, supra note 96 at 609-11.
106.  Supra note 7 at para 51.
107.  Supra note 78 at para 33.
108.  2010 ABCA 137.
109.  Ibid at paras 48-57.
110.  Supra note 78 at para 33.
111.  2010 SCC 43 at para 44.
112.  Supra note 10 at paras 119-29.
113.  Ibid at para 124.
114.  Supra note 108 at paras 52-56.
115.  Supra note 10 at paras 198-211.
116.  Unless, of course, an assertion of the right to procedural fairness can be located within a specific constitutional norm such as Section 7 of the Canadian Charter of Rights and Freedoms and its guarantee of the right to the principles of fundamental justice when decision-making affects the right to life, liberty and security of the person.
117.  Homex Realty and Development Co v Wyoming (Village), [1980] 2 SCR 1011.
118.  Indeed, this kind of analysis has also been applied to Orders in Council that are specific to particular individuals. See eg Desjardins v Bouchard, [1983] 2 FC 641 (CA) (Order in Council revoking pardon) and, more recently, Oberlander v Canada (Attorney General), 2004 FCA 2013, [2005] 1 FCR 3 (Order in Council revoking Canadian citizenship).
119.  See eg Canadian Association of Regulated Importers v Canada (Attorney General), [1994] 2 FCR 247 (CA) (Ministerial decision effecting change to quota policy) and Canadian Doctors for Refugee Care v Canada (Attorney General), 2014 FC 651 at paras 421-440 (Order-in-Council altering health care entitlements of refugee claimants). In the latter case, at paras 421-424, McTavish J. appears to have rejected a legitimate expectation argument on the facts as opposed to a principle that it could not apply to “legislative” action at least in the form of an Order in Council.
120.  2018 FC 518.
121.  Ibid at para 157.
122.  The Union also invoked United Kingdom case law.
123.  [2000] 4 FC 264 (CA).
124.  Ibid at paras 20-22.
125.  Supra note 120 at paras 150-151 (and including Binnie J. in Mount Sinai Hospital Centre v Quebec (Minister of Health and Social Services), 2001 SCC 41, [2001] 2 SCR 281, where at para 34, he referenced the Evans judgment but stated that “that issue remains open for another day.”).
126.  2004 FC 1387.
127.  Ibid at para 21.
128.  2013 ONSC 6440, 117 OR (3d) 786 (Div Ct) at paras 24-25.
129.  See for context, Bell Canada v Canada (Attorney General), 2016 FCA 217.
130.  2008 FCA 229, [2009] 3 FCR 136.
131.  Supra note 120 at para 121.
132.  Supra note 130 at para 53.
133.  Supra note 120 at para 123.
134.  Supra note 123 at paras 104-105.
135.  [1990] 3 SCR 1170.
136.  Ibid at 1204.
137.  Ibid.
138.  Supra note 120 at para 138.
139.  2018 ABQB 507.
140.  Ibid at paras 97-98.
141.  For a comment criticizing this aspect of Gates J.’s judgment on the basis that it erred in not rejecting the arguments for common law procedural fairness with respect to a legislative decision and according procedural protection to an objector, see Shaun Fluker, “Peaks of Grassi Development in Canmore: Procedural Fairness and Municipal Bylaws?” (15 August 2018), online: Ablawg, <http://ablawg.ca/wp-content/uploads/2018/08/Blog_SF_Gruman_August2018.pdf>.
142.  Dene Tha’ First Nation v Canada (Minister of the Environment), 2006 FC 1354, 303 FTR 106, affd 2008 FCA 20.
143.  Supra note 68 at 219.
144.  See “About Us”, online: <www.indigenous.alberta.ca/573.cfm>.
145.  Extended to Metis on April 4, 2016 by The Government of Alberta’s Policy on Consultation with Metis Settlements on Land and Natural Resource Management, 2015.
146.  Responsible Energy Development Act, SA 2012, c R-71.3, s 21.
147.  For a summary of the relevant protocols respecting the interaction between the AER and the ACO when the issue of consultation is relevant to an AER proceeding, see “Alberta Energy Regulator (AER) and the Aboriginal Consultation Office”, online: <www.indigenous.alberta.ca/ACO-AER.cfm>.
148.  Athabasca Chipewyan First Nation v Alberta (Minister of Aboriginal Relations, Aboriginal Consultation Office), supra note 8.
149.  Ibid at para 4.
150.  Ibid at para 52.
151.  Ibid at para 61.
152.  2010 SCC 43, [2010] 2 SCR 650 at para 60. In fact, in para 60, McLachlin C.J. was concerned with distinguishing between whether a tribunal had the authority to engage in consultation, a capacity that depended on express or implicit statutory authorization, and the determination of whether a duty to consult existed, an authority which arises presumptively out of a tribunal’s capacity to determine questions of law.
153.  Supra note 8 at para 66.
154.  Ibid at paras 60-69.
155.  Ibid at paras 102-109.
156.  Fort Chipewyan Metis Nation of Alberta Local #125 v Alberta, 2016 ABQB 713 and Metis Nation of Alberta Association Fort McMurray Local 1935 v Alberta, 2016 ABQB 712.
157.  [1999] 2 SCR 817.
158.  Ibid at para 20.
159.  Supra note 8 at para 110. This point was also reiterated at para 120.
160.  Ibid at paras 113-115.
161.  Ibid at para 115.
162.  Ibid at para 116.
163.  Ibid.
164.  Ibid at para 117.
165.  Ibid at para 101.
166.  Ibid at para 118.
167.  Ibid at para 119.
168.  Ibid.
169.  David J. Mullan, “2017 Developments in Administrative Law Relevant to Energy Law and Regulation” (2018) 6 ERQ 19 at 19-24.
170.  Supra note 2.
171.  I have omitted from this survey consideration of the participatory provisions in Bill C-69, An Act to enact the Impact Assessment Act and the Canada Energy Regulator Act, to amend the Navigation Protection Act and to make consequential amendments. As of December 12, the Bill had received Second Reading in the Senate and been referred to Committee. For the details and commentary, see Kristen van de Biezenbos, “Your Concerns Have Been Noted: Citizen Participation in Pipeline Regulatory Processes Under the Proposed Impact Assessment Act” (28 February 2018), online: Ablawg, <http://ablawg.ca/wp-content/uploads/2018/02/Blog_KvdB_BillC69.pdf>.
172.  For an energy related decision distinguishing Lukács, see Normtek Radiation Services v Alberta (Environmental Appeal Board), 2018 ABQB 911. Ashcroft J. held that a statutory restriction (Environmental Protection and Enhancement Act, RSA 2000, c E-12, s 91(1)(a)(i)) on the right to appeal a decision of the Appeal Board to those “directly affected” prevented someone asserting an entitlement to appeal based on public interest standing.
173.  2018 ABCA 143. (For a more detailed commentary on this judgment, see Nigel Bankes, “Applications for Party Status in a Permission to Appeal Application” (24 April 2018), online: Ablawg, <https://ablawg.ca/2018/04/24/applications-for-party-status-in-a-permission-to-appeal-application>) Ultimately, the application for permission to appeal was denied: Capital Power Corporation v Alberta (Utilities Commission), supra note 5. Interestingly, the Balancing Pool is not listed as party to the application and presumably did not participate.
174.  Ibid at para 25.
175.  2007 ABCA 231.
176.  Ibid at para 9.
177.  Ibid.
178.  Ibid.
179.  Supra note 173 at para 22.
180.  Supra note 175 at para 6.
181.  Supra note 173 at para 21.
182.  Ibid.
183.  Ibid at para 24.
184.  Ibid.
185.  Ibid at para 25.
186.  Ibid at para 26.
187.  Ibid at para 27.
188.  For further commentary, see Nigel Bankes, “Public Interest Standing for NGOs to Test Whether CNLOPD can Effect an End-Run Around Maximum Term Provisions” (17 July 2018), online: Ablawg, <http://ablawg.ca/wp-content/uploads/2018/07/Blog_NB_DavidSuzuki_July2018.pdf>.
189.  2018 NLSC 146.
190.  Canada-Newfoundland and Labrador Atlantic Accord Implementation Act, SC 1987 c 3, s 69(2).
191.  2012 SCC 45, [2012] 2 SCR 524.
192.  Supra note 189 at para 15.
193.  Supra note 191 at para 37.
194.  [1992] 1 SCR 236 at 253.
195.  Supra note 189 at para 19.
196.  Supra note 191 at para 36.
197.  Supra note 189 at paras 21-22.
198.  Ibid at para 24. I would suggest, however, that the mere fact that a decision involves a discretionary exercise of authority reviewable on a deferential reasonableness standard does not mean that an issue cannot be serious for the purpose of the Downtown Eastside test. Moreover, to the extent that Chaytor J. might be seen as adopting that position, the two authorities cited (at paras 25-27) do not appear to go that far.
199.  Ibid at paras 25-27.
200.  Ibid at para 28.
201.  Ibid at para 30.
202.  Ibid at para 31.
203.  Ibid.
204.  Ibid at paras 32-34.
205.  Ibid at para 34.
206.  Ibid at para 37.
207.  Supra note 191 at para 51.
208.  This is my paraphrasing of Chaytor J.’s paraphrasing of the relevant extract of the Cromwell J. judgment.
209.  Ibid at para 45.
210.  McNeil v Nova Scotia (Board of Censors), [1976] 2 SCR 265.
211.  Supra note 189 at 46.
212.  Ibid at paras 47-50.
213.  Ibid at para 51.
214.  Ibid at para 54.
215.  Supra note 215.
216.  Supra note 189 at para 65.
217.  Ibid at paras 66-68.
218.  Ibid at paras 70-72.
219.  Ibid at paras 73-76.
220.  Ibid at para 67.