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<original signed by>
FINAL SUBMISSIONS OF DENE THA’ FIRST NATION TO THE
JOINT REVIEW PANEL
ENVIRONMENTAL ASSESSMENT OF THE PROPOSED SITE C PROJECT
Janes Freedman Kyle Law Corporation
TABLE OF CONTENTS
A.
INTRODUCTION .................................................................................................................1
B.
FACTORS TO BE CONSIDERED IN JOINT REVIEW PANEL PROCESS ...............2
1.
Factors for Assessing a Project under CEAA, 2012.........................................................................................3
2.
Factors for Assessing a Project under the BC Environmental Assessment Act ..............................................7
3.
Environmental Impact Statement Guidelines .................................................................................................8
4.
JRP Agreement ................................................................................................................................................ 14
5.
Environmental Assessment Guides and Policies ........................................................................................... 16
(a)
CEAA Reference Guide ................................................................................................................................ 17
(b)
Cumulative Effects Guide ............................................................................................................................. 19
(c)
Cumulative Effects Policy ............................................................................................................................. 25
6.
Consideration of Constitutional Principles .................................................................................................... 26
C.
DTFN’S TREATY RIGHTS ...............................................................................................28
1.
The Nature of DTFN’s Treaty 8 Rights.......................................................................................................... 28
2.
DTFN’s Current Uses in the Project Area ..................................................................................................... 36
(a)
Hunting .......................................................................................................................................................... 38
(b)
Fishing ........................................................................................................................................................... 40
(c)
Gathering ....................................................................................................................................................... 40
(d)
Camping and Cabins ..................................................................................................................................... 40
D.
SITE C EFFECTS ON DTFN ............................................................................................41
1.
DTFN will be Adversely Affected by Site C ................................................................................................... 41
(a)
BC Hydro’s Findings on Project Effects to Biophysical Elements ............................................................... 45
(b)
BC Hydro’s Findings on Project Effects to DTFN’s Current Uses ............................................................... 49
(c)
BC Hydro’s Findings on Project Effects to DTFN’s Treaty Rights .............................................................. 51
2.
BC Hydro’s Spatial Scoping is Not Appropriate to Assess Impacts to DTFN ............................................ 52
3.
BC Hydro’s “Significance” Determinations – The Fallacy of the “Go Elsewhere” Assumption .............. 54
4.
BC Hydro’s Inadequate Cumulative Effects Assessment ............................................................................. 60
5.
BC Hydro’s Inadequate Approach to Treaty Rights .................................................................................... 66
E.
MITIGATION MEASURES PROPOSED BY BC HYDRO...........................................69
F.
CONCLUSION ....................................................................................................................71
A.
INTRODUCTION
1.
Dene Tha’ First Nation (“DTFN” or “Dene Tha’”) is a signatory to Treaty 8, and makes
these submissions to communicate its concerns to the Joint Review Panel (“Panel”) about
potential impacts of the proposed Site C dam (“Site C” or “Project”) on its rights and
interests.
2.
DTFN is concerned that a proper assessment of potential impacts to its current uses and
Treaty rights cannot be undertaken in this environmental assessment process due to
significant gaps in information and analysis in the Environmental Impact Statement
(“EIS”) filed by the British Columbia Hydro and Power Authority (“BC Hydro”).
3.
Throughout the environmental assessment process, DTFN communicated its concerns
about the level of development in its Traditional Territory and how it is adversely
affecting its members’ ability to exercise their Treaty rights. DTFN is experiencing
“death by a thousand cuts” to its traditional harvesting practices through the cumulative
impacts of development, including from intensive oil and gas and forestry activities in its
territory. The proposed Project will create additional incremental impacts that will
contribute cumulatively to all of these effects that DTFN is already experiencing.
4.
Although the existing development pressures in DTFN’s territory were recognized by BC
Hydro’s traditional land use consultant, BC Hydro completely disregarded this in its
assessments of impacts to DTFN’s current uses and Treaty rights. Instead, BC Hydro
concluded that the adverse residual effects it identified to DTFN’s traditional harvesting
practices would be insignificant, based on an assumption that DTFN could “go
elsewhere” to harvest. In reaching this conclusion, BC Hydro undertook no analysis to
understand the level of development within DTFN’s territory that is increasingly
reducing the number of “elsewheres” that DTFN can use.
5.
BC Hydro also failed to include a number of relevant development projects in the Project
Inclusion List for its cumulative effects assessment. By using the status quo at the time of
filing its EIS as the baseline for the cumulative effects assessment, BC Hydro failed to
take into account the pressures and impacts that exist within the assessment areas from
2
existing development, including oil and gas and forestry activities as well as BC Hydro’s
existing dams.
6.
There are also problems in the EIS because BC Hydro’s spatial scoping for its
assessments areas does not reflect ecological boundaries, which means that some Project
effects have been left unassessed.
7.
As will be explained in detail in these submissions, BC Hydro’s approach does not
accord with standard environmental assessment methodologies in relation to spatial
scoping, significance determinations or cumulative effects assessments. As a result of
those deficiencies, the EIS does not contain the assessments of impacts to DTFN’s
traditional uses and Treaty rights that are mandated by the legislation and guidance
documents governing this process.
8.
DTFN asks the Panel to refuse to recommend approval of the Project due to these gaps.
This is necessary to ensure that Project impacts to DTFN’s traditional uses and
constitutionally-protected Treaty rights are not sanctioned in the absence of knowledge
and information about what those impacts might be, and how significant they could be in
the context of the cumulative impacts that are being brought to bear on DTFN within its
Traditional Territory.
B.
FACTORS TO BE CONSIDERED IN JOINT REVIEW PANEL PROCESS
9.
In this environmental assessment process, the JRP is tasked with the obligation to carry
out an assessment of the potential impacts of the proposed Site C project so that
government decision makers can make rational and properly informed decisions,
understanding the consequences of their decisions. These consequences ultimately are
borne by the environment and the people and communities who rely upon that
environment.
10.
As a practical matter, it is BC Hydro that is best positioned in terms of knowledge and
financial resources to properly gather information, commission studies and ensure that
the necessary data and analysis is done to put the JRP in a position where it can assess the
potential impacts of the proposed Project.
3
11.
In this process, the onus was on the proponent, BC Hydro to: (1) gather necessary
information; (2) analyze the relevant information; and (3) present this analysis in a
coherent and comprehensive manner to allow the JRP to carry out its functions. It failed
to do that in relation to potential effects to DTFN’s current uses and Treaty rights.
12.
It is not the role of DTFN or other interested parties to do BC Hydro’s work of
addressing the issues that need to be considered in this process pursuant to applicable
legislation and guidelines.
While interested parties may be able to supplement the
information or analysis provided by BC Hydro, test that evidence or analysis, or highlight
deficiencies, there should not be a burden placed upon interested parties to address
requirements that BC Hydro failed to meet. In the end, if there are requirements in the
applicable statutes or guidelines that BC Hydro failed to address adequately, the
consequences of that failure should fall upon BC Hydro and not upon the interested
parties, or the environment.
13.
This section of the submissions provides an overview and discussion of the applicable
statutory requirements and guidelines governing what BC Hydro was required to do in
this environmental assessment process. The following sections discuss the issues of
concern to DTFN and explain, more specifically, how these various requirements and
guidelines have not been met in the EIS.
1.
Factors for Assessing a Project under CEAA, 2012
14.
The Canadian Environmental Assessment Act, 2012 (“CEAA, 2012”) provides that its
purposes are:
(a) to protect the components of the environment that are within the legislative authority
of Parliament from significant adverse environmental effects caused by a designated
project;
(b) to ensure that designated projects that require the exercise of a power or performance
of a duty or function by a federal authority under any Act of Parliament other than this
Act to be carried out, are considered in a careful and precautionary manner to avoid
significant adverse environmental effects;
(c) to promote cooperation and coordinated action between federal and provincial
governments with respect to environmental assessments;
(d) to promote communication and cooperation with aboriginal peoples with respect to
environmental assessments;
4
(e) to ensure that opportunities are provided for meaningful public participation during an
environmental assessment;
(f) to ensure that an environmental assessment is completed in a timely manner;
(g) to ensure that projects, as defined in section 66, that are to be carried out on federal
lands, or those that are outside Canada and that are to be carried out or financially
supported by a federal authority, are considered in a careful and precautionary manner to
avoid significant adverse environmental effects;
(h) to encourage federal authorities to take actions that promote sustainable development
in order to achieve or maintain a healthy environment and a healthy economy; and
(i) to encourage the study of the cumulative effects of physical activities in a region and
the consideration of those study results in environmental assessments. 1
15.
CEAA 2012 sets out, in section 19, the following factors that must be considered in an
environmental assessment of a designated project:
(a) the environmental effects of the designated project, including the environmental effects of
malfunctions or accidents that may occur in connection with the designated project and any
cumulative environmental effects that are likely to result from the designated project in
combination with other physical activities that have been or will be carried out;
(b) the significance of the effects referred to in paragraph (a);
(c) comments from the public — or, with respect to a designated project that requires that a
certificate be issued in accordance with an order made under section 54 of the National Energy
Board Act, any interested party — that are received in accordance with this Act;
(d) mitigation measures that are technically and economically feasible and that would mitigate any
significant adverse environmental effects of the designated project;
(e) the requirements of the follow-up program in respect of the designated project;
(f) the purpose of the designated project;
(g) alternative means of carrying out the designated project that are technically and economically
feasible and the environmental effects of any such alternative means;
(h) any change to the designated project that may be caused by the environment;
(i) the results of any relevant study conducted by a committee established under section 73 or 74;
and
(j) any other matter relevant to the environmental assessment that the responsible authority, or —
if the environmental assessment is referred to a review panel — the Minister, requires to be taken
2
into account.
1
2
Canadian Environmental Assessment Act, 2012, SC 2012, c 19 (“CEAA, 2012”), s 4(1).
Ibid, s 19.
5
16.
CEAA, 2012 also sets out the type of environmental effects to be taken into account in an
assessment:
5. (1) For the purposes of this Act, the environmental effects that are to be taken into account in
relation to an act or thing, a physical activity, a designated project or a project are
(a) a change that may be caused to the following components of the environment that are
within the legislative authority of Parliament:
(i) fish and fish habitat as defined in subsection 2(1) of the Fisheries Act,
(ii) aquatic species as defined in subsection 2(1) of the Species at Risk Act,
(iii) migratory birds as defined in subsection 2(1) of the Migratory Birds
Convention Act, 1994, and
(iv) any other component of the environment that is set out in Schedule 2;
(b) a change that may be caused to the environment that would occur
(i) on federal lands,
(ii) in a province other than the one in which the act or thing is done or where
the physical activity, the designated project or the project is being carried out, or
(iii) outside Canada; and
(c) with respect to aboriginal peoples, an effect occurring in Canada of any change that
may be caused to the environment on
(i) health and socio-economic conditions,
(ii) physical and cultural heritage,
(iii) the current use of lands and resources for traditional purposes, or
(iv) any structure, site or thing that is of historical, archaeological,
paleontological or architectural significance.
(2) However, if the carrying out of the physical activity, the designated project or the project
requires a federal authority to exercise a power or perform a duty or function conferred on it under
any Act of Parliament other than this Act, the following environmental effects are also to be taken
into account:
(a) a change, other than those referred to in paragraphs (1)(a) and (b), that may be caused
to the environment and that is directly linked or necessarily incidental to a federal
authority’s exercise of a power or performance of a duty or function that would permit
the carrying out, in whole or in part, of the physical activity, the designated project or the
project; and
(b) an effect, other than those referred to in paragraph (1)(c), of any change referred to in
paragraph (a) on
6
(ii) physical and cultural heritage, or
(iii) any structure, site or thing that is of historical, archaeological,
3
paleontological or architectural significance.
17.
CEAA, 2012 provides that, when an assessment is referred to a review panel, the scope of
the factors to be taken into account under subsection 19 (2) (a), (b), (d), (e), (g), (h) and
(j), referenced above, is determined by the Minister of Environment.4
18.
The JRP Agreement for Site C, referenced below, refers to the scope of the factors as
being contained within the Environmental Impact Statement Guidelines, also discussed
below.5 However, the scope of the factors was never appended to the Terms of
Reference, as contemplated in Appendix 1 of the JRP Agreement.
19.
CEAA, 2012 also provides that:
The Government of Canada, the Minister, the Agency, federal authorities and responsible
authorities, in the administration of this Act, must exercise their powers in a manner that
6
protects the environment and human health and applies the precautionary principle.
20.
CEAA, 2012 also provides that the environmental assessment of a designated project may
take into account community knowledge and Aboriginal traditional knowledge.7
21.
CEAA, 2012 provides that if the review panel is of the opinion that there is not sufficient
information available for the purpose of conducting the environmental assessment or
preparing the report with respect to the environmental assessment of the designated
project, it may require the collection of any information or the undertaking of any study
that, in the opinion of the review panel, is necessary for that purpose, including requiring
the proponent to collect that information or undertake that study.8
3
Ibid, s 5.
Ibid, ss 16(2)-(3).
5
Site C Clean Energy Project, Amended Agreement to Conduct a Cooperative Environmental Assessment, Including
the Establishment of a Joint Review Panel, of the Site C Clean Energy Project, Pursuant to the British Columbia
Environmental Assessment Act and the Canadian Environmental Assessment Act (August 3, 2012), September 24,
2012, CEAR 405, [the “JRP Agreement”] s 3.9, Appendix 1 [the “Terms of Reference”], s 2.8.
6
Ibid, s 4(2).
7
Ibid, s 19(3).
8
Ibid, s 44(2).
4
7
22.
When an environmental assessment has been referred to a review panel, the review panel
must prepare, in accordance with its terms of reference, a report that set outs:
(a)
the review panel’s rationale, conclusions and recommendations, including any
mitigation measures and follow-up program, and
(b)
a summary of any comments received from the public, including interested
parties.9
23.
The Terms of Reference for the Site C process are attached as Appendix 1 to the JRP
Agreement. The JRP Agreement provides that the scope of the factors in the EIS
Guidelines form part of the Terms of Reference.10
24.
In making her decisions under s. 52(1) of CEAA, 2012, the Minister must decide whether
the proposed project will likely cause significant adverse environmental effects:
52. (1) For the purposes of sections 27, 36, 47 and 51, the decision maker referred to in those
sections must decide if, taking into account the implementation of any mitigation measures that
the decision maker considers appropriate, the designated project
(a) is likely to cause significant adverse environmental effects referred to in subsection
5(1); and
(b) is likely to cause significant adverse environmental effects referred to in subsection
5(2).
(2) If the decision maker decides that the designated project is likely to cause significant adverse
environmental effects referred to in subsection 5(1) or (2), the decision maker must refer to the
Governor in Council the matter of whether those effects are justified in the circumstances.
2.
Factors for Assessing a Project under the BC Environmental Assessment Act
25.
The BC Environmental Assessment Act (“EAA”) does not provide factors to consider
when a project is assessed. 11 However, where an environmental assessment is conducted
with another jurisdiction, the agreement in relation to the environmental assessment can
provide for joint processes to be used for the environmental assessment process.12
9
Ibid, s 43(1)(d).
JRP Agreement, supra note 5, s 3.9, Terms of Reference, supra note 5, s 2.8.
11
British Columbia Environmental Assessment Act, SBC 2002, c 43 [“BCEAA”].
12
Ibid, s 27.
10
8
26.
Thus, the Terms of Reference set out in the JRP Agreement apply to the EAA
considerations as well. The JRP Agreement is discussed in detail below.
3.
Environmental Impact Statement Guidelines
27.
The EIS Guidelines13 for the proposed Site C project set out the requirements for BC
Hydro’s EIS. The EIS Guidelines requirements include:
Community knowledge and Aboriginal traditional knowledge
Subsection 19(3) of CEAA states that “community knowledge and Aboriginal traditional knowledge
may be considered in conducting an EA”. For the purposes of these guidelines, community knowledge
and Aboriginal traditional knowledge should be understood to refer to knowledge acquired and
accumulated by a community or an Aboriginal community, through generations of living in close
contact with nature.
The proponent shall incorporate into the EIS the community and Aboriginal traditional knowledge to
which it has access or that is acquired through Aboriginal engagement activities, in keeping with
appropriate ethical standards and without breaking obligations of confidentiality, if any. Agreement
should be obtained from Aboriginal groups regarding the use, management and protection of their
existing traditional knowledge information during and after the EA. 14
28.
The EIS Guidelines set out the following requirements for BC Hydro’s spatial scoping
for the assessment of potential Project effects to the Valued Components:

Describe the spatial boundaries within which each of the potential adverse effects
of the Project will be assessed and provide a rationale for each boundary.

Define spatial boundaries taking into account, as applicable, the appropriate scale
and spatial extent of potential effects, and as available, community and Aboriginal
traditional knowledge, current land and resource use by Aboriginal groups,
ecological, technical and social considerations – these must be presented in
“sufficient detail to address the relevant effects of the project”.

13
Include a scientific justification for the selection of relevant spatial boundaries.
Site C Clean Energy Project, Environmental Impact Statement Guidelines, Pursuant to the British Columbia
Environmental Assessment Act and the Canadian Environmental Assessment Act (September 5, 2012), September
7, 2012, CEAR 404 [the “EIS Guidelines”].
14
Ibid p. 4 (at Adobe 24).
9

29.
Define spatial boundaries based on applicable discipline guidance documents.15
The EIS Guidelines provide that the Local Assessment Area (“LAA”) is the area within
which the potential adverse effects of the Project will be assessed. The EIS Guidelines
describe the Regional Assessment Area (“RAA”) as the area within which projects and
activities, the residual effects of which may combine with residual effects of the Project,
will be identified and taken into account in the cumulative effects assessment.16
30.
The EIS Guidelines set out the requirements for the assessment of residual effects. BC
Hydro was required to summarize residual effects in relation to:

Changes to components of the environment within federal jurisdiction;

Changes to the environment that would occur on federal or transboundary lands;

Changes to the environment that are directly linked or necessarily incidental to federal
decisions;

Effects of changes to the environment on Aboriginal peoples; and

31.
Effects of changes to the environment that are directly linked or necessarily incidental to
17
federal decisions.
The EIS Guidelines also set out the following requirement:
A cumulative effects assessment of the Project on a VC will be conducted if the potential residual
adverse effect of the Project on that VC has a spatial and temporal overlap with a residual effect of
18
another project or activity.
32.
With respect to the cumulative effects assessment, the EIS Guidelines also provide that:
The EIS will provide an assessment of the cumulative effects that are likely to result from the
Project in combination with other projects or activities that have been or will be carried out.
Federal and provincial guidance will be consulted (e.g., Agency 2007c, BCEAO 2010, Hegmann
et al. 1999[the Cumulative Effects Assessment Practitioners Guide]).
...
Information contained in Section 9.1 Previous Developments may contribute to the cumulative
effects assessment.
15
Ibid, p. 28-29 (at Adobe 48-49).
17
18
16
10
The EIS will describe the cumulative effects assessment methodology.
The Proponent has proposed a cumulative effects assessment methodology, which would follow
the method outlined above for the project-specific VC effects assessment, and proposes the
following steps:
33.

Determination of spatial and temporal boundaries;

Consideration of other projects and activities and identification of project interactions;

Description of cumulative effects;

Identification of mitigation measures;

Characterization of cumulative residual effects; and

Determination of significance of cumulative residual effects.
19
Section 9.1 of the EIS Guidelines require the Proponent to include information in the EIS
on Previous Developments, as follows:

The EIS will include a narrative discussion of existing hydro-electric generation
projects on the Peace River (W.A.C. Bennett Dam and the Peace Canyon Dam).

The narrative will include the description of any existing studies of changes to the
environment resulting from those projects that are similar to potential changes
resulting from the project, including any mitigation measures that were
implemented, and any long term monitoring or follow up program that were
conducted. The effectiveness of those mitigation measures and key results of
monitoring or follow-up programs would be described.

This narrative discussion should include historical data, where available and
applicable, to assist interested parties to understand the potential effects of the
Project and how they may be addressed.20
34.
The information included in relation to Previous Developments was to be used to inform
the cumulative effects assessment.21
19
Ibid.
21
20
11
35.
The EIS Guidelines contain the following directions in relation to the cumulative effects
assessment:
Spatial and Temporal Boundaries
The EIS will describe the spatial boundaries within which each cumulative effect of the Project
will be assessed and provide a rationale for each boundary.
The Proponent proposes to assess the cumulative effects within the proposed RAA defined for
each VC. The spatial boundaries of the RAA will be based on:

Where possible interactions with other projects or activities overlap; and

For ecological boundaries, they will be ecologically defensible (e.g. wildlife range
boundaries).
The adequacy of data will be assessed in terms of relevance to the purpose of the cumulative
effects assessment.22
36.
The EIS Guidelines also provide:
Identification of Cumulative Effects Mitigations Measures
If cumulative effects are identified, the EIS will recommend possible regional approaches to
mitigation.
Characterizing Residual Cumulative Effects
The EIS will characterize the residual cumulative effects using the approach outlined for the
Project-specific effects assessment described in Section 8.5.2 and the criteria provided in Table
8.3.
Significance of Residual Cumulative Effects
In the EIS, the Proponent will provide its assessment of the significance of any residual adverse
cumulative effect that may result from the Project, in combination with other projects, and the
23
rationale for its assessment.
37.
The EIS Guidelines contain specific directions in relation to the assessment of potential
effects to traditional lands and resources and Aboriginal and Treaty rights.
38.
With respect to traditional lands and resources use, the EIS Guidelines set out the
following requirements:
The EIS will describe the temporal boundaries defined for the assessment of the potential adverse
effects of the Project on current use of lands and resources for traditional purposes in accordance with
the methodology set out in Section 8 of these EIS Guidelines.
22
23
Ibid p. 34-35 (at Adobe 54-55).
12
The EIS will describe the current use of lands and resources for traditional purposes by Aboriginal
groups within the Proponent’s proposed LAA and RAA using the following key indicators:
o
Current use of lands and resources for hunting, fishing and trapping activities, including the
location of the activity, the species targeted, and the traditional uses of the harvested animals;
and
o
Current use of lands and resources for activities other than hunting, fishing and trapping by
Aboriginal groups, including the nature, location and traditional use purpose.
Information sources may include publicly available information and information as made available
to the Proponent, including traditional land use studies, traditional knowledge, consultations
between Aboriginal groups and the Proponent, consultations between Aboriginal groups and the
24
provincial and federal governments.
39.
The EIS Guidelines also set out that BC Hydro was to assess the potential of the Project
to adversely affect current use of lands and resources by Aboriginal persons for
traditional purposes by taking into account the potential for the Project to result in
changes to key aspects:
40.

Use of and access to lands used for traditional purposes;

Availability of harvested species based on the results of the assessment of the potential
effects of the Project on fish and fish habitat, vegetation and ecological communities, and
wildlife resources; and

Other relevant considerations raised by Aboriginal groups. 25
With respect to Aboriginal and Treaty rights and Aboriginal interests, the EIS Guidelines
required that:
The EIS will contain an assessment of potential adverse impacts of the Project on the exercise of
asserted or established Aboriginal rights and treaty rights.
The EIS will provide the Proponent’s understanding of:
o
How the environment is valued by each potentially affected Aboriginal group for current use
of lands and resources for traditional purposes, including activities conducted in the exercise
of asserted or established Aboriginal rights and treaty rights, and how that current use may be
affected by the project to the extent that this information does not duplicate the information
provided pursuant to Section 15 of the EIS Guidelines; and
o The asserted or established Aboriginal rights and treaty rights held by each potentially
affected Aboriginal group.
41.
24
The EIS Guidelines also required BC Hydro to:
26
25
26
13

identify past, current and reasonably anticipated future use of lands and resources
by Aboriginal groups for traditional purposes that may be adversely affected by
the proposed Project;

identify any asserted or established Aboriginal and Treaty rights of Aboriginal
groups who may be adversely impacted by the Project; and

assess potential adverse impacts of the Project on the exercise of those asserted or
established Aboriginal and Treaty rights. 27
42.
BC Hydro also was required to describe the measures identified to mitigate or
accommodate the potential adverse impacts of the Project on asserted or established
Aboriginal or Treaty rights. Accommodation measures were to be written as specific
commitments that clearly described how BC Hydro intends to implement them.28
43.
The EIS Guidelines required BC Hydro to describe potential adverse impacts on potential
or established Aboriginal and Treaty rights that have not been mitigated/accommodated,
including both residual and cumulative environmental effects.29
44.
In addition, BC Hydro was required to identify interests that Aboriginal groups may have
with respect to potential social, economic, health, and physical and cultural heritage
effects of the Project, and how those potential effects were considered in the assessment
of the potential effects on VCs.30
45.
The EIS Guidelines set out requirements that were required to be met in the EIS in
relation to CEAA, 2012 considerations. These include:
Changes to the environment
Section 5 of CEAA describes specific categories of direct and indirect environmental effects that
must be considered in the EA. However, to be able to assess these categories of environmental
effects, a complete understanding of the changes the project will cause to the environment is
required, including changes that are directly linked or necessarily incidental to any federal
decisions that would permit the project to be carried out.
27
Ibid.
29
Ibid p. 106-107 (at Adobe 126-127).
30
28
14
Changes to components of the environment within federal jurisdiction
The EIS will include a section that summarizes those changes that may be caused by the project on
the components of the environment listed in paragraph 5(1)(a) of CEAA, namely fish and fish
habitat, aquatic species and migratory birds.
Changes to the environment that would occur on federal or transboundary lands
The EIS will include a section that summarises any change the project may cause to the
environment that may occur on federal lands or lands outside the province in which the project is
to be located (including outside of Canada).
Changes to the environment that are directly linked or necessarily incidental to federal
decisions
In situations where the project requires one or more federal decisions the EIS will also include a
section that describes any change that may be caused by the project on the environment that is
directly linked or necessarily incidental to these decisions.
Effects of changes to the environment on Aboriginal peoples
The EIS will describe the effects of any changes the project may cause to the environment, with
respect to Aboriginal peoples, on health and socio-economic conditions, physical and cultural
heritage, the current use of lands and resources for traditional purposes, or any structure, site or
thing that is of historical, archaeological, paleontological or architectural significance.
Effects of changes to the environment that are directly linked or necessarily incidental to
federal decisions
In situations where the EIS has identified changes to the environment that are directly linked or
necessarily incidental to federal decisions identified the EIS will also include a section that
describes the effects of these changes on health and socio-economic conditions, physical and
cultural heritage, or any structure, site or thing that is of historical, archaeological, paleontological
or architectural significance, other than as they pertain to Aboriginal peoples (who are considered
31
in the previous section).
4.
JRP Agreement
46.
The JRP Agreement provides that the JRP was established for the purpose of conducting
an environmental assessment pursuant to CEAA 2012 and EAA.32
47.
The JRP must conduct its review in accordance with its Terms of Reference.33 The part of
the final EIS Guidelines respecting the scope of factors to be considered in the
environmental assessment is deemed to be incorporated into the Terms of Reference.34
31
JRP Agreement, supra note 5, s 4.1 (at Adobe 7).
33
Ibid, s 4.16 (at Adobe 8).
34
Ibid, s 3.9 (at Adobe 6); Terms of Reference, supra note 5, s 2.8 (at Adobe 18).
32
15
48.
The Terms of Reference in the JRP Agreement provide that the JRP’s environmental
assessment of the Project must consider a number of factors, including:
49.
50.
51.

the environmental, economic, social, health and heritage effects of the Project, including
the cumulative effects that are likely to result from the Project in combination with other
projects or activities that have been or will be carried out;

any change that the Project may cause in the environment on the current use of lands and
resources for traditional purposes by aboriginal persons;

the significance of the environmental, economic, social, health and heritage effects;

measures that are technically and economically feasible and that would mitigate any
significant adverse environmental, economic, social, health or heritage effects of the
Project;

comments from the public and Aboriginal persons and groups that are received during the
assessment; and

community knowledge and Aboriginal traditional knowledge. 35
The JRP must also receive:

information regarding the manner in which the Project may adversely affect asserted or
established Aboriginal rights and Treaty rights;

information provided by Aboriginal persons or groups regarding the location, extent and
exercise of asserted or established Aboriginal and Treaty rights that may be affected by
the Project; and

information regarding any measures to avoid or mitigate potential adverse effects of the
Project on asserted or established Aboriginal and Treaty rights. 36
The JRP must use the information described in the above two paragraphs to:

make recommendations which, if implemented, would avoid or minimize potential
adverse effects of the Project on asserted or established Aboriginal rights and treaty
rights; and

inform its assessment of the potential environmental, economic, social, health or heritage
effects of the Project.37
The JRP Agreement provides that, in its report, the JRP must describe any asserted or
established Aboriginal rights and Treaty rights that are raised during the Joint Review
35
Terms of Reference, supra note 5, s 2.2 (at Adobe 16).
37
36
16
Panel Stage and any impacts on those rights as articulated by the claimant Aboriginal
Group.38
52.
53.
The JRP Report must contain a number of other components, including:

the rationale, conclusions and recommendations of the Joint Review Panel relating to the
environmental assessment of the Project, including any recommended mitigation
measures and follow-up programs;

an identification of those conclusions that relate to the environmental effects to be taken
into account under Section 5 of the CEAA 2012;

an identification of recommended mitigation measures that relate to the environmental
effects to be taken into account under Section 5 of the CEAA 2012;

a summary of any comments received, including those from the public and Aboriginal
Groups; and

recommendations with respect to conditions to be attached to the Environmental
Assessment Certificate.39
If the JRP concludes that the Project is likely to cause significant adverse environmental,
economic, health, heritage or social effects, taking into account the implementation of
any mitigation measures, it must include in the JRP Report information it has received
with respect to the justifiability of any significant adverse effects.40
5.
Environmental Assessment Guides and Policies
54.
The Canadian Environmental Assessment Agency (“Agency”) has issued various guides
and policies to provide direction in relation to cumulative effects assessments, including:
A Reference Guide for the Canadian Environmental Assessment Act – Determining
Whether A Project is Likely to Cause Significant Adverse Environmental Effects (“CEAA
Reference Guide”),41
the Cumulative Effects
Assessment
Practitioners
Guide
(“Cumulative Effects Guide”)42 and the Operational Policy Statement Assessing
38
Ibid, s 3.13 (at Adobe 20-21).
40
41
Canada, Federal Environmental Assessment Review Office, A Reference Guide for the Canadian Environmental
Assessment Act – Determining Whether A Project is Likely to Cause Significant Adverse Environmental Effects
(November 1994) [the “CEAA Reference Guide”].
42
Canada, G Hegmann G, C Cocklin, R Creasey, S Dupuis, A Kennedy, L Kingsley, W Ross, H Spaling and D
Stalker, Cumulative Effects Assessment Practitioners Guide (Hull: AXYS Environmental Consulting Ltd and the
CEA Working Group, 1999) [the “Cumulative Effects Guide”].
39
17
Cumulative Environmental Effects under the Canadian Environmental Assessment Act,
2012 (“Cumulative Effects Policy” or the “Policy”).43
55.
As noted earlier in these submissions, the EIS Guidelines directed BC Hydro to take into
account these types of guides and policies in conducting its CEA in the EIS.44
(a)
CEAA Reference Guide
56.
The Federal Environmental Assessment Review Office (now the Agency) issued the
CEAA Reference Guide in 1994, to describe an approach for deciding whether a project
is likely to cause significant environmental effects. The CEAA Reference Guide is still
in effect – CEAA’s Cumulative Effects Policy, issued in 2013, states that significance
predictions need to be done in accordance with this Reference Guide.45
57.
The CEAA Reference Guide notes that the determination of whether a project is likely to
cause significant adverse environmental effects is an objective test: “…all decisions
about whether proposed projects are likely to cause adverse environmental effects must
be supported by findings based on the requirements set out in the Act.”46
58.
The Reference Guide sets out three steps that must be followed in determining whether
project effects are likely to cause significant adverse environmental effects:
Deciding whether the environmental effects are adverse
Deciding whether the adverse environmental effects are significant
Deciding whether the significant adverse environmental effects are likely 47
59.
With respect to determining whether an effect is adverse, the CEAA Reference Guide
lists, at Table 1, the major factors to be considered. Those factors include:
Negative effects on the health of biota, including plants, animals and fish;
43
Canada, Canadian Environmental Assessment Agency, Operational Policy Statement Assessing Cumulative
Environmental Effects under the Canadian Environmental Assessment Act, 2012 (May 2013) [the “Cumulative
Effects Policy”].
44
EIS Guidelines, supra note 13 p. 34 (at Adobe 54).
45
Cumulative Effects Policy, supra note 43 p. 6.
46
CEAA Reference Guide, supra note 41 p. 183 (at Adobe 3).
47
18
Reductions in species diversity or disruption of food webs;
Loss of, or damage to, habitats, including habitat fragmentation;
Transformation of natural landscapes;
Obstruction of migration or passage of wildlife;
Negative effects on the quality and/or quantity of the biophysical environment;
Detrimental change in the current use of lands and resources for traditional purposes by aboriginal
persons;
Foreclosure of future resource use or production. 48
60.
To determine whether adverse environmental effects are significant, the CEAA
Reference Guide refers to five criteria that should be taken into account:
Magnitude of the adverse environmental effects;
Geographic extent of the adverse environmental effects;
Duration and frequency of the adverse environmental effects;
Degree to which the adverse environmental effects are reversible/irreversible; and
Ecological context.49
61.
With respect to magnitude of effects, the CEAA Reference Guide states that “it is
important to consider the extent to which the project could trigger or contribute to any
cumulative environmental effects.”50
62.
For the geographic extent criterion, the Guide states that localized adverse environmental
effects may not be significant, whereas widespread effects may be significant.51
63.
With respect to duration and frequency, long term and/or frequent adverse effects may be
significant, according to the Guide.52
48
Ibid p. 188, 190 (at Adobe 8, 10).
50
51
52
Ibid.
49
19
64.
The CEAA Reference Guide states that reversible adverse environmental effects may be
less significant than effects that are irreversible, although it notes that it may be difficult,
in practice, to know whether effects will be irreversible.53
65.
With respect to ecological context, the CEAA Reference Guide provides that:
The adverse environmental effects of projects may be significant if they occur in areas or regions
that:

have already been adversely affected by human activities; and/or

are ecologically fragile and have little resilience to imposed stresses.
To assist the RA and the Minister in deciding significance, proponents should always be required
to submit information on these criteria.54
66.
For step 3 (determining whether the significant adverse environmental effects are likely),
the CEAA Reference Guide states when deciding the likelihood of significant adverse
environmental effects, there are two criteria to consider: probability of occurrence and
scientific uncertainty.55
67.
With respect to scientific uncertainty, the CEAA Reference Guide states the following:
There will always be some scientific uncertainty associated with the information and methods
used in EAs. This is often termed “confidence limits”. If the confidence limits are high, there is a
low degree of uncertainty that the conclusions are accurate and that the significant adverse
environmental effects are likely or not. If the confidence limits are low, there is a high degree of
uncertainty about the accuracy of the conclusion. In this case, it will be difficult to decide whether
the significant adverse environmental effects are likely or not….high uncertainty cannot be a basis
for a clear conclusion about likelihood. In this case, only the probability of occurrence criterion
56
should be used to determine likelihood.
(b)
Cumulative Effects Guide
68.
The Cumulative Effects Guide is a guide to practitioners (i.e. consultants, government
agencies and proponents) who are responsible for preparing Cumulative Effects
Assessment (“CEAs”) as part of a submission to appropriate regulatory bodies for project
review.
53
Ibid.
Ibid.
55
56
Ibid.
54
20
69.
The Cumulative Effects Guide defines “cumulative effects” changes to the environment
that are caused by an action in combination with other past, present and future human
actions.57
70.
71.
The Guide provides that CEAs are typically expected to:

assess effects over a larger (i.e. “regional”) area that may cross jurisdictional boundaries;

assess effects during a longer period of time into the past and future;

consider effects on Valued Ecosystem Components (VECs) due to interactions with other
actions, and not just the effects of the single action under review;

include other past, existing and future (e.g. reasonably foreseeable) actions; and

evaluate significance in consideration of other than just local, direct effects. 58
The Cumulative Effects Guide provides that the scoping for a CEA must assess a broader
range of environmental concerns due to its larger study area. Issues can be identified by
soliciting comments from First Nations, directly affected parties and specialists.59
72.
The Cumulative Effects Guide also refers to the need for appropriate regional VCs for the
CEA. The focus should be on larger scale VCs, such as within entire ecosystems, river
basins or watersheds, as well as broad social and economic VCs.60
73.
According to the Guide, the spatial boundaries chosen for a CEA should be appropriate to
the project, and based on “the time-honoured basics of [Environmental Impact
Assessment] practice” of:
57

making conservative assumptions about the magnitude and probability of the effect in the
face of uncertainty (i.e., assume that effects will be greater rather than smaller);

relying on professional judgement;

practicing risk management; and

using an adaptive approach.
61
Cumulative Effects Guide, supra note 42 p. 3 (at Adobe 17).
Ibid.
59
60
61
58
21
74.
The Cumulative Effects Guide explains that the spatial boundaries for the CEA should
take into account the following considerations:

Establish a regional study area that includes the areas where there could be possible
interactions with other actions. Consider the interests of other stakeholders.

Consider the use of several boundaries, one for each environmental component as this is
often preferable to one boundary.

For terrestrial VECs such as vegetation and wildlife, ensure boundaries are ecologically
defensible wherever possible (e.g., winter range boundaries for assessing effects on
critical wildlife habitat).

Expand boundaries sufficiently to address the cause-effect relationships between actions
and VECs.

Characterize the abundance and distribution of VECs at a local, regional, or larger scale if
necessary (e.g., for very rare species), and ensure that the boundaries take this into
account.

Characterize the nature of pathways that describe the cause-effect relationships to
establish a “line-of inquiry” (e.g., effluent from a pulp mill to contaminants in a river to
tainting of fish flesh and finally to human and wildlife consumption).

Set boundaries at the point at which cumulative effects become insignificant.

75.
Be prepared to adjust the boundaries during the assessment process if new information
62
suggests this is warranted, and defend any such changes.
With respect to temporal boundaries for the CEA, the Cumulative Effects Guide provides
the following guidance:

Meaning: “How far back in time” and “how far ahead in the future” to consider in
an assessment depends on what the assessment is trying to accomplish.
o Comparison of incremental changes over time requires the use of historical
records for establishing an environmental baseline.
o The possibility of new actions requires the need to look ahead into the future.

Establishing Temporal Boundaries: (1) organize time-dependant changes in
discrete units of time; (2) be prepared to adjust the boundaries during the
assessment process, and defend any such changes.
62
Ibid.
22

Options for establishing the past boundary:
o when impacts associated with the proposed action first occurred;
o existing conditions;
o the time at which a certain land use designation was made (e.g., lease of
crown land for the action, establishment of a park);
o the point in time at which effects similar to those of concern first occurred; or
o a past point in time representative of desired regional land use conditions or
pre-disturbance conditions (i.e., the “historical baseline”), especially if the
assessment includes determining to what degree later actions have affected the
environment.

Options for establishing future boundary:
o end of operational life of a project;
o after project abandonment and reclamation; or
o after recovery of VECs to pre-disturbance conditions (this should also
consider the variability of natural cycles of change in ecosystems).63
76.
The Cumulative Effects Guide notes that “[r]igid adherence to minimum regulatory
requirements is increasingly becoming unacceptable to many stakeholders if there is
reason to believe that at least some reasonably foreseeable projects could have a
significant cumulative effect with the project under review.”64
77.
63
64
The following questions need to be considered in a CEA:

What are the VECs that may be affected?

What parameters are best used to measure the effects on the VECs?
Ibid p. 15-16 (at Adobe 29-30).
23

What determines their present condition?

How will the proposed action in combination with existing and approved actions affect
their condition?

What are the probabilities of occurrence, probable magnitudes and probable durations of
such effects?

How much further effect could VECs sustain before changes in condition can not be
reversed?

78.
What degree of certainty can be attached to the estimates of occurrence and magnitudes
65
of these predicted effects?
With respect to the potential for spatial or temporal overlap, the Cumulative Effects
Guide sets out the following considerations:

Do actions rarely or never occur at the same time, and do actions originating in one
location rarely or never continue on to other locations? If yes, cumulative effects
interaction is weak.

Do actions in each location sometimes occur at the same time, and do actions originating
in one location sometimes continue on to other locations? If yes, interaction is moderate.

79.
Do actions in each location often occur at the same time, and do actions originating in
66
one location often continue on to other locations? If yes, interaction is strong.
The Cumulative Effects Guide also provides guidance on mitigation and monitoring:

Mitigating a local effect as much as possible is the best way to reduce cumulative
effects; however, to be most effective, mitigation and monitoring must be long
term and regionally based.

Effective CEAs often imply the need for regional stakeholder involvement to
solve regional concerns. 67
80.
In the event that other actions contribute more to cumulative effects than the project
under review, the Cumulative Effects Guide states:
…the reviewing agency or Board (if within its legislative authority) may consider mitigation of
68
effects from existing actions as a condition of approval for the action under review.
65
67
66
24
81.
With respect to significance determinations in relation to cumulative effects, the
Cumulative Effects Guide states that a determination needs to be made in relation to
“how much further effects can be sustained by a VEC before suffering changes in
condition or state that cannot be reversed.”69
82.
Additional considerations for the significance determination of cumulative effects
include:
83.

Is there an increase in the action’s direct effect in combination with effects of other
actions?

Is the resulting effect unacceptable?

Is the effect permanent?

If not permanent, how long before recovery from the effect?
70
On the question of thresholds, the Cumulative Effects Guide explains that:
Thresholds are limits beyond which cumulative change becomes a concern …
Tthresholds may be expressed in terms of goals or targets, standards and
guidelines, carrying capacity, or limits of acceptable change, each term reflecting
different combinations of scientific data and societal values.
…
When an actual capacity level cannot be determined, analysis of trends can assist
in determining whether goals are likely to be achieved or patterns of degradation
are likely to persist.71
84.
The Cumulative Effects Guide also refers to the need to adhere to the precautionary
principle in the face of uncertainty, and to justify all conclusions reached:



68
Make conservative conclusions (i.e., assume that an effect is more rather than less
adverse). This is referred to as the Precautionary Principle.
Provide a record or audit trail of all assumptions, data gaps, and confidence in data
quality and analysis to justify conclusions.
Recommend mitigation measures to reduce adverse effects and monitoring, followed by
evaluation and management of effects, to ensure effectiveness of these measures.
Ibid p. 42 (atAdobe 56).
70
Ibid.
71
69
25

Implement mechanisms to evaluate the results of the monitoring and provide for
72
subsequent mitigation or project modification, as necessary.
(c)
Cumulative Effects Policy
85.
The Cumulative Effects Policy sets out the general requirements and approach to
consider cumulative environmental effects of designated projects under CEAA, 2012. It
provides guidance to proponents, replacing the Agency’s 2007 Operational Policy
Statement on cumulative effects.73
86.
The Policy states that “CEAA 2012 aims to protect components of the environment that
are within federal legislative authority from significant adverse environmental effects
caused by a designated project, including cumulative effects.”74
87.
The Policy also notes that environmental effects of accidents and malfunctions must also
be considered in the assessment of environmental effects.75
88.
It also states that the following factors are to be taken into account in devising an
approach for the cumulative effects assessment:

the characteristic of the project;

the risks associated with the potential cumulative environmental effects;

the health or status of valued components (VCs) that may be impacted by the cumulative
environmental effects;

the potential for mitigation and the extent to which mitigation measures may address
potential environmental effects; and

89.
the level of concern expressed by Aboriginal groups or the public.
76
The Policy describes scoping for cumulative environmental effects assessments as an
“iterative process” that needs to be adapted “in light of information and comments
provided by Aboriginal groups or the public.”77
72
Cumulative Effects Policy, supra note 43 p. 2.
74
Ibid.
75
Ibid.
76
Ibid p. 3.
77
Ibid.
73
26
90.
The Cumulative Effects Policy notes that a “description of past environmental conditions
can at times improve the understanding of cumulative environmental effects for a specific
VC.”78 It goes on to note that information on the environmental effects of past or existing
physical activities may also be helpful:

if the effects of past or existing physical activities on a specific VC will help predict the
environmental effects of a designated project;

if information on past or existing physical activities will assist in the identification of
appropriate mitigation measures for the designated project; or

91.
if an existing physical activity will be decommissioned in the future and this
79
decommissioning would affect the future condition of a specific VC.
The Policy also states that community knowledge and Aboriginal traditional knowledge
available to the proponent should be incorporated into the cumulative effects
assessment.80
92.
With respect to mitigation, the Cumulative Effects Policy provides that “technically and
economically feasible measures must be identified that would mitigate any significant
adverse cumulative environmental effects.”81
6.
Consideration of Constitutional Principles
93.
Section 35 of the Constitution Act, 1982 provides that:
The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized
82
and affirmed.
94.
In formulating its recommendations, the Panel must be mindful of the fact that all
administrative decision makers are bound to act in a manner that is consistent with the
Constitution, irrespective of whether the decision maker has the power to decide
constitutional questions.83
78
Ibid p. 4.
Ibid.
80
Ibid p. 5.
81
Ibid.
82
Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, s 35(1).
83
Slaight Communications Inc v Davidson, [1989] 1 SCR 1038 [“Slaight”] at 1077-78.
79
27
95.
The Federal Court has held that the obligation of an administrative body to act
constitutionally also arises when the body is making recommendations only, as opposed
to final and binding decisions, in fulfilling its statutory mandate.84
96.
In considering whether the Project may have the potential to directly and adversely affect
the Treaty rights of DTFN, the JRP should take the following legal principles into account:
a.
Section 35(1) of the Constitution Act, 1982 is to be construed in a purposive way. A
generous, liberal interpretation is demanded given that the provision is to affirm
aboriginal rights.85
b.
The determination of whether a decision or action may impact a Treaty right must
similarly be guided by a generous purposive approach because “actions affecting
unproven Aboriginal title or rights or treaty rights can have irreversible effects that
are not in keeping with the honour of the Crown.”86
c.
The assessment of whether a decision or action may impact a Treaty right must be
approached in a manner which maintains the integrity of the Crown because the
honour of the Crown is always at stake in its dealing with Aboriginal peoples.87
d.
When considering the direct and adverse environmental impacts of a project on a
First Nation’s Treaty rights, the term "environment" must be construed broadly and
includes the cumulative impacts of a project and other facilities to be developed in
the future on those rights.88
e.
When considering the direct and adverse impacts on a First Nation’s rights, the
historical context of developments in the First Nation’s Territory must be taken into
account.89
84
Canada (Attorney General) v Al Telbani 2012 FC 474 [“Al Telbani”].
R v Sparrow, [1990] 1 SCR 1075 at 1106-07.
86
Rio Tinto Alcan Inc v Carrier Sekani Tribal Council 2010 SCC 43 [“Rio Tinto”] at para 46.
87
R v Badger, [1996] 1 SCR 771 [“Badger”] at para 41.
88
Dene Tha’ First Nation v Canada (Minister of Environment) et al 2006 FC 1354 [“Dene Tha’”] at para 34.
89
West Moberly First Nations v British Columbia (Chief Inspector of Mines) 2011 BCCA 247 [“West Moberly”] at
paras 117 (per Finch CJA), 181 (per Hinkson JA), 239 (per Garson JA), leave to appeal denied 2012 CanLII 8361
(SCC).
85
28
f.
When considering the direct and adverse impacts on a First Nation’s rights,
consideration must be given to adverse impacts to the First Nations’ rights that may
not be physical in nature.90
g.
It is inappropriate to assume that the rights of a First Nation are not directly and
adversely affected if the First Nation can “go elsewhere” to harvest.91
C.
DTFN’s TREATY RIGHTS
1.
The Nature of DTFN’s Treaty 8 Rights
97.
Dene Tha’ people have used and occupied their Traditional Territory for hunting,
trapping, fishing and gathering as well as for cultural and spiritual purposes for countless
generations.
98.
Their ancestors lived a nomadic lifestyle and for many generations, small groups of Dene
families used large tracts of lands throughout their Traditional Territory. When fur traders
began to establish trading posts in and around their Traditional Territory, around the late
1800s and early 1900s, more Dene Tha’ families began to establish semi-permanent
communities while still spending a great deal of the year out on the land.
99.
DTFN adhered to Treaty No. 8 (the “Treaty”) in 1900. The Treaty guaranteed
signatories’ hunting, fishing and trapping rights in support of sustaining their traditional
livelihood, in return for which DTFN promised to share the land and resources with the
Crown. When DTFN entered into Treaty 8, it was promised that by signing the Treaty
they were not giving up its way of life.
100.
Treaty 8 guarantees the following rights to DTFN:
And Her Majesty the Queen hereby agrees with the said Indians that they shall have right to
pursue their usual vocations of hunting, trapping and fishing throughout the tract surrendered as
heretofore described, subject to such regulations as may from time to time be made by the
Government of the country, acting under the authority of Her Majesty, and saving and excepting
90
91
Haida Nation v British Columbia (Minister of Forests) 2004 SCC 73 [“Haida Nation”] at paras 72-73.
Mikisew Cree First Nation v Canada (Minister of Canadian Heritage) 2005 SCC 69 [“Mikisew”] at paras 45-47.
29
such tracts as may be required or taken up from time to time for settlement, mining, lumbering,
92
trading or other purposes. [emphasis added]
101.
The rights secured under the Treaty were elevated to constitutional status with the enactment
of s. 35 of the Constitution Act, 1982.
102.
While the use of land would change after the Treaty, signatories understood that their
harvesting practices would be protected and not limited or interfered with to such an
extent as to render them meaningless as constitutionally protected Treaty rights. In
essence, the Treaty provided that there would be a balanced sharing of land – the Crown
and Euro-Canadian society would be able to use the land to carry out certain practices
and to develop resources while the beneficiaries of Treaty 8 would be guaranteed the
continuation of their way of life, the Crown’s protection and certain material benefits
(such as the annual $5.00 annuity payment).
103.
As Patricia McCormack described in her report on Treaty 8: “From the Aboriginal point
of view, Treaty No. 8 established a formal alliance between the Aboriginal people and the
Queen, articulated in kinship terms.”93 The Treaty Commissioners had assured the
signatories “…that only such laws as to hunting and fishing as were in the interest of the
Indians and were found to be necessary in order to protect that fish and fur-bearing
animals would be made, and that they would be as free to hunt and fish after the treaty as
they would be if they never entered into it.”94
104.
The oral promises made when the Treaty was agreed to are as much a part of the Treaty
as the written words.95
105.
As the Northwest Territories Supreme Court found in Paulette v Canada (Registrar of
Titles) (No 2):
Throughout the hearings before me there was a common thread in the testimony – that the
Indians were repeatedly assured they were not to be deprived of their hunting, fishing and
92
See e.g. ibid, at para 2, quoting from the Report of Commissioners for Treaty No. 8 (1899), p. 12 [emphasis
added].
93
Patricia A. McCormack, Research Report: Treaty No. 8 and the Aboriginal Signatories of Northern Alberta
(October 29, 2013) [“Research Report”] CEAR 1814, p. 14 (at Adobe 17).
94
Ibid p. 46-47 (at Adobe 49-50), quoting from the Report of Commissioners for Treaty No. 8 (1899) p. 6.
95
R v Morris 2006 SCC 59 at para 24; Badger, supra note 87 at paras 52, 55; Mikisew¸supra note 91 at para 29.
30
trapping rights. To me, hearing the witnesses at first hand as I did, many of whom were there at
the signing, some of them having been directly involved in the treaty making, it is almost
unbelievable that the Government party could have ever returned from their efforts with any
impression but that they had given an assurance in perpetuity to the Indians in the territories
96
that their traditional use of the lands was not affected.
106.
In a number of decisions, the Supreme Court of Canada (“SCC”) has quoted from the
Commissioners’ reports of the Treaty negotiations, and has relied on the following excerpts
(among others) as capturing the oral promises made to Treaty signatories:
There was expressed at every point the fear that the making of the treaty would be followed
by the curtailment of the hunting and fishing privileges. We pointed out…that the same
means of earning a livelihood would continue after the Treaty as existed before it, and that
the Indians would be expected to make use of them.
…
Our chief difficulty was the apprehension that the hunting and fishing privileges were to be
curtailed … [W]e had to solemnly assure them that only such laws as to hunting and fishing
as were in the interest of the Indians and were found necessary in order to protect the fish
and fur-bearing animals would be made, and that they would be as free to hunt and fish after
the treaty as they would be if they never entered into it.
…
Indians have been told that if they make a treaty they will not be allowed to hunt and fish as
they do now. This is not true. Indians who take treaty will be just as free to hunt and fish all
over as they now are now.97
We assured them that the treaty would not lead to any forced interference with their mode
98
of life.
We pointed out that the Government could not undertake to maintain Indians in idleness; that the
same means of earning a livelihood would continue after the treaty as existed before it, and that
the Indians would be expected to make use of them. 99
107.
The oral promises made by the Treaty Commissioners leave no doubt that “the guarantee
that hunting, fishing and trapping rights would continue was the essential element which
led to their signing the treaties.”100
108.
Similarly, based on its comprehensive research into the history of First Nations’ treaties
in Canada, the Royal Commission on Aboriginal Peoples concluded that:
96
(1973) 42 DLR (3d) 8 (NWTSC) at para 86; rev’d (1975) 63 DLR (3d) 1 (NWTCA); [1976] SCJ No 89 [emphasis
added].
97
Badger, supra note 87 at paras 39, 55 [emphasis added].
98
West Moberly, supra 89 at para 54.
99
Mikisew, supra note 91 para 26.
100
Badger, supra note 87 at para 39.
31
First Nations would not consider making a treaty unless their way of life was protected and
preserved. This meant the continuing use of their lands and natural resources. In most, if not
all the treaties, the Crown promised not to interfere with their way of life, including their
hunting ... practices ... First Nations [shared their lands] on the condition that they would
101
retain adequate land and resources to ensure the well-being of their nations.
109.
The Supreme Court of Canada has confirmed on many occasions that the principal
emphasis of Treaty 8 was on the preservation of the Indians’ traditional way of life. 102
110.
Further, it has been explicitly recognized that fundamentally altering the environment
upon which the exercise of Treaty rights is based would be a breach of Treaty 8 rights:
In our view, no reasonable interpretation of Treaty 8 could allow either the Government
of Canada or a provincial government to destroy the ability of a First Nation to exercise
its treaty harvesting rights or to alter fundamentally the environment upon which those
103
activities were based.
111.
The promise in the text of Treaty 8 that the Indians could continue their “usual vocations of
hunting, trapping, and fishing” further reinforces the conclusion that the aboriginal
signatories would be able to continue carrying out these activities as freely as before.
“Vocation” connotes an activity to which one is seriously dedicated. A hunting and trapping
vocation is only possible if there are adequate, accessible hunting and trapping grounds
populated by sufficient wildlife.
112.
In balancing the Crown’s “taking up” powers with Treaty rights, it is important to
recognize the expectations of the Crown and Aboriginal signatories to the Treaty. As
described by the Supreme Court of Canada in R v Badger:
Since the Treaty No. 8 lands were not well suited to agriculture, the government expected
little settlement in the area. The Commissioners, cited in Daniel, at p. 81, indicated that
"it is safe to say that so long as the fur-bearing animals remain, the great bulk of the
Indians will continue to hunt and to trap." The promise that this livelihood would not be
affected was repeated to all the bands who signed the Treaty. Although it was expected
that some white prospectors might stake claims in the north, this was not expected to
have an impact on the Indians' hunting rights. For example, one commissioner, cited in
René Fumoleau, O.M.I., As Long As This Land Shall Last, at p. 90, stated:
101
Royal Commission on Aboriginal Peoples, Report of the Royal Commission on Aboriginal Peoples: Looking
Forward, Looking Back, Vol 1. (Ottawa: Supply and Services Canada, 1996) p. 161 [emphasis added].
102
R v Horseman, [1990] 1 SCR 901 [“Horseman”] at 911-12 (per Wilson J, dissenting on other points), 928-29
(per Cory J); Badger, supra note 96 at para 39.
103
Indian Claims Commission, Athabasca Chipewyan First Nation Inquiry: WAC Bennett Dam and Damage to
Indian Reserve 201 (March 1998) [“Indian Claims Commission”] p. 77.
32
We are just making peace between Whites and Indians - for them to treat
each other well. And we do not want to change your hunting. If Whites
should prospect, stake claims, that will not harm anyone.
Commissioner Laird told the Indians that the promises made to them were to be similar to those
made with other Indians who had agreed to a treaty. Accordingly, it is significant that the earlier
104
promises also contemplated a limited interference with Indians' hunting and fishing practices.
113.
An additional historical factor of importance was the recognized need for government
action to protect traditional resources. As described by the Supreme Court of Canada in
Horseman:
… it must be remembered that Treaty No. 8 itself did not grant an unfettered right to
hunt. That right was to be exercised "subject to such regulations as may from time to
time be made by the Government of the country". This provision is clearly in line with
the original position of the Commissioners who were bargaining with the Indians. The
Commissioners specifically observed that the right of the Indians to hunt, trap and fish as
they always had done would continue with the proviso that these rights would have to be
exercised subject to such laws as were necessary to protect the fish and fur bearing
animals on which the Indians depended for their sustenance and livelihood.
Before the turn of the century the federal game laws of the Unorganized Territories
provided for a total ban on hunting certain species (bison and musk oxen) in order to
preserve both the species and the supply of game for Indians in the future .... Even then
the advances in firearms and the more efficient techniques of hunting and trapping,
coupled with the habitat loss and the over-exploitation of game, (undoubtedly by
Europeans more than by Indians), had made it essential to impose conservation measures
105
to preserve species and to provide for hunting for future generations.
114.
The Crown’s right and duty to implement laws for the protection of wildlife species and
habitat that First Nations rely on for the exercise of their rights were part of an important
context for the Treaty, and are reflected in its written and oral terms.106
115.
Fundamentally, the Treaty guarantees to DTFN the continued meaningful ability to carry
out its traditional activities, on its traditional lands, in perpetuity. In the words of the
Supreme Court of Canada, “a large element of the Treaty 8 negotiations were the
assurances of continuity in traditional patterns of economic activity. Continuity respects
traditional patterns of activity and occupation”.107
104
Badger, supra note 87 at paras 55-56 [emphasis added].
Horseman, supra note 102 at 934-35 [emphasis added].
106
See e.g. Mikisew supra note 91 at para 2, quoting from the Report of Commissioners for Treaty No. 8 (1899), p.
12 and West Moberly, supra note 89 at para 54, quoting from the Report of Commissioners for Treaty No. 8 (1899),
p. 6.
107
Mikisew, supra note 91 at para 47 [emphasis in original].
105
33
116.
In this light, the Treaty cannot be interpreted as simply providing a general right to hunt
for food. Rather, the Treaty more specifically protects DTFN members in their ability to
hunt the same species that have traditionally sustained their people and their culture for
generations, according to traditional DTFN patterns of land use and occupation.
117.
The B.C. Supreme Court directly considered this issue in West Moberly First Nations.
…[T]he Court is required to take into account West Moberly’s treaty protected right to
hunt, including the traditional seasonal round, and the impact of these decisions upon that
right. Here, I conclude that treaty protected right is the right is to hunt caribou in the
traditional seasonal round in the territory effected [sic] by the First Coal Operation.
118.
108
On appeal, the majority of the B.C. Court of Appeal affirmed the chambers judge on this
point:
… [W]hile specific species and locations of hunting are not enumerated in Treaty 8, it
guarantees a “continuity in traditional patterns of economic activity” and respect for
“traditional patterns of activity and occupation”. The focus of the analysis then is those
traditional patterns.
…
The chambers judge did not err in considering the specific location and species of the
109
petitioners’ hunting practices.
119.
The same reasoning applies with equal force to DTFN’s rights under Treaty 8. The
Treaty guarantees DTFN the right to hunt preferred species such as moose, beaver, ducks
and geese in their preferred areas, in perpetuity, as part of their traditional patterns of
activity and occupation.
120.
Although the Crown has authority under the Treaty to “take up” lands for certain
purposes, this power is subject to important constitutional limits.
121.
In Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), the Supreme
Court of Canada held that the Treaty, at core, protects the right to meaningfully exercise
traditional hunting practices. The unanimous Court stated:
108
109
West Moberly First Nations v British Columbia (Chief Inspector of Mines), 2010 BCSC 359 at para 63 [emphasis added].
West Moberly, supra note 89 at paras 137, 140 (per Finch CJA), 169 (per Hinkson JA).
34
Badger recorded that a large element of the Treaty 8 negotiations were the assurances of
continuity in traditional patterns of economic activity. Continuity respects traditional
patterns of activity and occupation. The Crown promised that the Indians’ rights to hunt,
fish and trap would continue “after the treaty as existed before it” (p. 5). This promise is
not honoured by dispatching the Mikisew to territories far from their traditional hunting
grounds and traplines ...
…
The "meaningful right to hunt" is not ascertained on a treaty-wide basis (all 840,000
square kilometres of it) but in relation to the territories over which a First Nation
traditionally hunted, fished and trapped, and continues to do so today. If the time comes
that in the case of a particular Treaty 8 First Nation "no meaningful right to hunt" remains
over its traditional territories, the significance of the oral promise that "the same means of
earning a livelihood would continue after the treaty as existed before it" would clearly be
in question, and a potential action for treaty infringement, including the demand for a
110
Sparrow justification, would be a legitimate First Nation response.
122.
In Mikisew, the Supreme Court of Canada also held that in assessing the effects of
development on treaty rights, one must look not only at the impact where the
development is physically located (i.e. the “footprint” of the Project), but also the broader
landscape and resources that may be “injuriously affected”. As the Court made clear:
The modified road alignment traversed the traplines of approximately 14 Mikisew
families who reside in the area near the proposed road, and others who may trap in that
area although they do not live there, and the hunting grounds of as many as 100 Mikisew
people whose hunt (mainly of moose), the Mikisew say, would be adversely
affected. The fact the proposed winter road directly affects only about 14 Mikisew
trappers and perhaps 100 hunters may not seem very dramatic (unless you happen to be
one of the trappers or hunters in question) but, in the context of a remote northern
community of relatively few families, it is significant.
…
The Mikisew objection goes beyond the direct impact of closure of the area covered by
the winter road to hunting and trapping. The surrounding area would be, the trial judge
found, injuriously affected. Maintaining a traditional lifestyle, which the Mikisew say is
central to their culture, depends on keeping the land around the Peace Point reserve in its
natural condition and this, they contend, is essential to allow them to pass their culture
and skills on to the next generation of Mikisew. The detrimental impact of the road on
hunting and trapping, they argue, may simply prove to be one more incentive for their
young people to abandon a traditional lifestyle and turn to other modes of living in the
south.111
123.
As discussed above, the “meaningful right to hunt” necessarily includes the right to hunt
traditional resources on traditional lands according to traditional patterns of activity and
occupation.
110
111
Mikisew, supra note 91 at paras 47-48 [emphasis added].
Ibid at paras 3, 15.
35
124.
In addition to the protection of the vocations of hunting, trapping and fishing, the Treaty
also guarantees rights incidental to those activities, such as the right to access unoccupied
lands, the right to build cabins and trails for harvesting purposes, the right to teach
harvesting to younger generations on the land, the right to come together in groups to
hold ceremonies and other events, and the right to use various means of travel to assist
with hunting, trapping, fishing and gathering.
125.
As the Supreme Court of Canada stated:
That which is reasonably incidental is something which allows the claimant to exercise
the right in the manner that his or her ancestors did, taking into account acceptable
modern developments or unforeseen alterations in the right … The inquiry is largely a
factual and historical one. Its focus is not upon the abstract question of whether a
particular activity is “essential” in order for hunting to be possible but rather upon the
concrete question of whether the activity was understood in the past and is understood
today as significantly connected to hunting. Incidental activities are not only those which
are essential, or integral, but include, more broadly, activities which are meaningfully
related or linked.
126.
112
As a result, in addition to harvesting rights, DTFN has incidental Treaty 8 rights – such as
the right to access areas for harvesting and the right to use habitation areas – that are
critical to DTFN and which must be considered in the context of potential Project
impacts.
127.
In order to ensure continuation of these incidental rights “to hunt and trap over an area …
wildlife and habitat must be managed” once the existence of the right has been
established.113 DTFN’s Treaty rights in its Traditional Territory are well established, and
therefore consideration as to the management of wildlife and habitat in the area is a
necessary condition to the continued existence of those rights.
128.
Finally, the Supreme Court of Canada in Haida stated that “[t]he controlling question in
all situations is what is required to maintain the honour of the Crown and to effect
reconciliation between the Crown and the Aboriginal peoples with respect to the interests at
stake.”114 Later, in Mikisew, the Court again reminded us that a “fundamental objective of
112
R v Sundown, [1999] 1 SCR 393 at para 30.
Tsilhqot’in Nation v British Columbia 2007 BCSC 1700 at para 1291.
114
Haida Nation, supra note 90 at para 45.
113
36
the modern law of aboriginal and treaty rights is the reconciliation of aboriginal peoples
and non-aboriginal peoples and their respective claims, interests and ambitions.”115
129.
The exercise of DTFN’s Treaty rights is more than simply the activities of hunting,
trapping and fishing. As DTFN member Matt Munson stated at the JRP hearings, the
exercise of Treaty rights is:
…much more than picking up a rifle and going out and walking around with it. You
know, if there’s nothing there to hunt, there’s nothing there to harvest. Then it’s really
not a meaningful activity. It’s just walking around the bush with a gun basically. And
116
it’s not the same thing.
130.
The right is also not just simply the ability to harvest and access resources for sustenance
or economic reasons. Exercising these rights allows for a continued connection to the
land where “oral traditions, personal identities, and spiritual beliefs and practices were
implicated in the landscape.”117
131.
These landscapes, such as the Peace River Valley “become places where Dene Tha’ can
transfer knowledge to future generations. These essentially become classrooms.”118 It is
through these connections to the land that aboriginal peoples have “constructed the
landscape they inhabited by their conceptions of the land and by their active process of
land management.”119
2.
DTFN’s Current Uses in the Project Area
132.
Although Canada established DTFN’s reserves in Alberta following Treaty adhesion,
DTFN’s Traditional Territory encompasses areas in northeastern British Columbia,
including the area of the proposed Site C dam and portions of the assessment areas
chosen by BC Hydro in its EIS.
133.
The ability to use their Traditional Territory and resources continues to have great
cultural, social and economic significance to Dene Tha’ people. Harvesting traditional
115
Mikisew, supra note 91 at para 1.
Transcript Vol. 23 (January 17, 2014) CEAR 2530, p. 141, L 7-13.
117
Research Report, supra note 93, p. 60 (at Adobe 63).
118
Evidence of Matt Munson, Transcript Vol. 23 (January 17, 2014) CEAR 2530, p. 141, L 17-19.
119
Research Report, supra note 93, p. 60 (at Adobe 63).
116
37
resources still provides a significant source of food both for hunters and other members
of the Dene Tha’ community.
134.
For instance, Dene Tha’ knowledge holders have estimated that about half of the
nutritional intake for about 80% of the DTFN population comes from moose and other
traditional foods.120
135.
Harvesting practices still have cultural and spiritual significance to DTFN members.
They continue to harvest, and see harvesting as an important part of maintaining the
connection between their community, their lands and their spirituality, and an important
part of passing down their distinct culture to future generations. For example, Elder Josh
Kolay expressed why he continues to hunt in the Peace Valley:
My grandfather came from one of the Reserves here. …and that's how I have the
connections here.
And he hunted up in that area in his youth. And that's what we're continuing today.
Because his blood flows in my blood today and into the future, not just to the way
past as well as into the future as well.
And the food that's there, like they call it a supermarket. That's what kept us alive all
those centuries. And we're still here today. And we plan to be here for another 100
121
years, if not more.
136.
As the Traditional Land Use Reports authored by Dr. Marc Stevenson explain, Dene Tha’
members exercise their Treaty rights over much of their Traditional Territory.122
However, due to the immense industrialization of Dene Tha’ lands over the last number
of decades, “hunters have been forced to range farther afield in search of moose and other
game.”123
137.
For example, despite the fact that it is a five hour drive from the DTFN reserve
communities, the Sulphur Lake-Boundary Lake hunting corridor is intensively used by
120
Marc Stevenson, Dene Tha' Traditional Land Use with Respect to BC Hydro's Proposed Site C Dam, Northeast
British Columbia (October 22, 2012), November 25, 2013, CEAR 1814, [“Traditional Land Use Report”] p. 10.
121
122
Traditional Land Use Report, supra note 120; Marc Stevenson, Dene Tha' First Nation Supplemental
Traditional Land Use Report for BC Hydro's Proposed Site C Dam (July 6, 2013), November 25, 2013, CEAR
1814 [“Supplemental Traditional Land Use Report”].
123
Traditional Land Use Report, supra note 120, p. 10 (at Adobe 13).
38
DTFN year-round to hunt moose and other game.124 The Peace River Valley is also an
area of regular use year-round. Dene Tha’ people continue to use the LAA for Current
Use of Lands and Resources for Traditional Purposes (Wildlife Resources) (the “Current
Use (Wildlife) LAA”) for hunting moose. They also use the Current Use (Wildlife) RAA
to hunt geese and ducks.125
(a)
Hunting
138.
Sulphur Lake is known by Dene Tha’ as the “gift area”, “where the living is easy,” and
the area is heavily used for hunting, and is also an area where youth are taught Dene Tha’
land values and skills.126 Boundary Lake, further west and in the Current Use (Wildlife)
RAA, is a second option, and many hunters choose to go there instead as it is less busy.127
139.
Other important hunting areas include the area between the Mackenzie Highway and Fort
Nelson/Fort Liard to the east and west and between Notikewin River/Doig River
headwaters and the Peace River to the north and south.128This area overlaps with both the
Current Use (Wildlife) LAA and Current Use (Wildlife) RAA for current use of wildlife
resources. The base, slopes and plateau of the Clear Hills, parts of which fall within the
Current Use (Wildlife) RAA, are also frequented by hunters at different times of the
year.129 Finally, hunters also use the area between Doig River Indian Reserve and
Boundary Lake, North of Fort St. John and east of Charlie Lake, along the Alaska
Highway to Deadwood and the area between Deadwood and Peace River.130 This area
falls within the Current Use (Wildlife) RAA.
140.
Moose is a staple resource for DTFN, and is hunted by many land users in all seasons.
During the summer months, moose account for at least 90% of the Dene Tha’s meat
intake.131
124
Ibid p. 12 (Adobe 15).
Ibid, Appendix A (at Adobe 40).
126
127
128
129
Ibid p. 2, 11, 18 (at Adobe 5, 14, 21).
130
131
125
39
141.
The Sulphur Lake-Boundary Lake hunting corridor, on the eastern boundary of the
Current Use (Wildlife) RAA, is known as “the best place to go moose hunting” and it is
considered rare not to get a moose there.132 In fact, it has been estimated that 25% of all
the moose consumed by DTFN members comes from the area. 133 However, moose are
also hunted along the Peace River, including along the north side of the Peace River
between Fort St. John and the Williston reservoir. The area between the proposed Site C
Dam and the Peace Canyon Dam falls within the Current Use (Wildlife) LAA. This
stretch would be affected by flooding, as Site C is expected to cause water to back up as
far as the Peace Canyon Dam tailrace.134 DTFN members also hunt moose downstream
of Fort St. John, an area falling within the Current Use (Wildlife) LAA.135 Additionally,
moose are also hunted within about 10 kilometres of either side of the Alaska Highway,
north of Fort St. John and east of Charlie Lake, areas overlapping with the Current Use
(Wildlife) LAA and Current Use (Wildlife) RAA.136
142.
While fall is the most intensive time of year for hunting moose in an effort to stockpile
supplies for the winter, 137 the hunting season generally begins after calving in June138 and
continues throughout the winter for some harvesters139.
143.
Deer, elk and buffalo are not generally preferred meats, although elk are increasingly
being hunted.140 Other species hunted incidentally to moose include rabbits, chickens
(grouse), geese/ducks, grouse, and bear.141
144.
Geese and ducks are not always taken incidentally to moose, and are hunted east of
Manning on the Peace River, around Cardinal Lake northwest of Grimshaw, near the
base of Clear Hills (including the Current Use (Wildlife) RAA), west of Boundary Lake
132
Ibid p. 12-13 (at Adobe 15-16).
134
EIS, Vol. 1, s. 4, p. 19.
135
Supplemental Traditional Land Use Report, supra note 122, p. 3.
136
137
138
139
140
141
Ibid; Supplemental Traditional Land Use Report, supra note 122.
133
40
(in the Current Use (Wildlife) RAA) and around Sulphur Lake.142 Most of the traplines
for beaver are closer to DTFN communities further north, although some hunters hunt
beaver within the Sulphur Lake-Boundary Lake hunting corridor during the spring143
while others hunt them along the north bank of the Peace River between Fort St. John and
Williston Lake (in both the Current Use (Wildlife) LAA and Current Use (Wildlife)
RAA) during the same season.144
(b)
Fishing
145.
Fishing activities occur all the way down the Peace River to east of the Alberta border. 145
If hunters are camping at Sulphur Lake during a moose hunting trip, some Dene Tha’ will
fish there as well.146 Bull trout are among the fish species harvested by Dene Tha’
members.147
(c)
Gathering
146.
Dene Tha’ also gather various berries while out on the land. In the summer, the base and
slope of Clear Hills are preferred locations to gather cranberries, blueberries and
raspberries.148 This area is near the RAA for Vegetation and Ecological Communities,
which BC Hydro uses as the spatial boundary for cultural and traditional uses of the land
other than hunting, trapping or fishing. Huckleberries and saskatoon berries are gathered
along the Peace River downstream of Fort St. John, and especially at Flatrock Creek.149
This area falls within the LAA for Vegetation and Ecological Communities.
(d)
Camping and Cabins
147.
The length of DTFN hunting trips varies depending on the season and the land user. For
example, fall moose hunting trips tend to occur more often, and for longer duration.150
142
Traditional Land Use Report, supra note 120, p. 19, 24 (at Adobe 22, 27).
144
145
Ibid p. 3.
146
147
148
149
150
Traditional Land Use Report, supra note 120, p. 18-19 (at Adobe 21-22).
143
41
Some hunting groups will “engage in an highly organized system of food production and
distribution, and a division of labour involving hunters, transporters, camp attendants,
food producers (women), that provide meat for much of the Dene Tha’ community.”151
148.
While there are some repeatedly occupied camp sites at Sulphur Lake and Boundary
Lake,152 in and around Pink Mountain and west of the Blueberry River Indian Reserve,153
the most common type of campsite used by Dene Tha’ is the single-use campsite.154
These sites are used either as a short term resting spot for tea or a meal (Ko’ se deh koh)
while others are single-use overnight camp spots (nda’tsn nde thet ‘keh).
149.
As Dr. Stevenson noted in his reports: “Dene Tha’ consider themselves to be ‘stewards
of the land’ and leave few, if any, traces of their use and occupation behind.”155
150.
This view is echoed by land user Edward Akazay who stated that Dene Tha’ campsites
are usually distinguishable from those of other aboriginal and non-aboriginal hunters
because the “garbage is cleaned up and the pointed sticks [used in making drying racks,
lean-tos and tepees] are carefully put away.”156 It is perhaps because of this mindset that
there are not a large number of cabins in the area. There are some Dene Tha’ cabins,
however, and they are located in the Sulphur Lake-Boundary Lake hunting corridor, as
well as south of Sulphur Lake near Whitemud Creek and also west of Worsley.157
D.
SITE C EFFECTS ON DTFN
1.
DTFN will be Adversely Affected by Site C
151.
The Supreme Court of Canada’s comments in the Mikisew case bear repeating in the
context of considering potential effects to DTFN’s Treaty rights from the proposed Project:
The Federal Court of Appeal purported to follow Badger in holding that the hunting,
fishing and trapping rights would be infringed only “where the Crown has taken up land in
bad faith or has taken up so much land that no meaningful right to hunt remains” (para.
151
153
154
155
156
157
Ibid, p. 24 (at Adobe 27).
152
42
18). With respect, I cannot agree with this implied rejection of the Mikisew procedural
rights. At this stage the winter road is no more than a contemplated change of use. The
proposed use would, if carried into execution, reduce the territory over which the Mikisew
would be entitled to exercise their Treaty 8 rights. Apart from everything else, there
would be no hunting at all within the 200-metre road corridor. More broadly, as found by
the trial judge, the road would injuriously affect the exercise of these rights in the
surrounding bush. As the Parks Canada witness, Josie Weninger, acknowledged in crossexamination:
Q: But roads, in effect, change the pattern of moose and other wildlife within
the Park and that’s been what Parks Canada observed in the past with regards to
other roads, correct?
A: It is documented that roads do impact. I would be foolish if I said they
didn’t.
The Draft Environmental Assessment Report acknowledged the road could potentially
result in a diminution in quantity of the Mikisew harvest of wildlife, as fewer furbearers
(including fisher, muskrat, marten, wolverine and lynx) will be caught in their traps.
Second, in qualitative terms, the more lucrative or rare species of furbearers may decline in
population. Other potential impacts include fragmentation of wildlife habitat, disruption
of migration patterns, loss of vegetation, increased poaching because of easier motor
vehicle access to the area and increased wildlife mortality due to motor vehicle
158
collisions….
152.
DTFN’s concerns in relation to the Project are highly analogous to the concerns of
Mikisew Cree in the Mikisew case. Instead of a road being built through their Territory, a
river will be dammed and an area flooded, leading to significant adverse impacts to the
plants and wildlife relying on that area, which in turn will affect how DTFN members are
able to exercise their Treaty rights in the Peace Valley and surrounding areas.
153.
In the EIS, BC Hydro assessed the environmental effects of the Project and the
significance of those residual effects after taking into account the implementation of
mitigation measures.
154.
BC Hydro also considered cumulative effects for some Valued Components (VCs).
Sections 12 through 15, 24 and 27 dealt with effects generally, while Sections 19 and 34
examined effects as they relate to Aboriginal groups and asserted or established
Aboriginal or Treaty rights.
155.
BC Hydro used the following LAAs for the VCs that are relevant to assessing potential
effects to DTFN:
158
Mikisew, supra note 91 at para 44.
43
156.
157.

Fish and Fish Habitat — The Peace River in the proposed reservoir area; tributaries
entering the proposed reservoir; the Peace River downstream of the proposed Site C dam
to Many Islands, Alberta; watercourses and waterbodies within the transmission line and
roadway rights-of-way; watercourses and waterbodies within the Project activity zone
(construction materials); riparian areas adjacent to identified watercourses and
waterbodies.

Vegetation and Ecological Communities— The Project activity zone, buffered by an
additional 1,000 m, including new roads, roads requiring sizable upgrades, quarries, the
dam site, and the transmission line. For the proposed reservoir the Erosion Impact Line
has a 1,000 m buffer. The LAA also extends downstream from the dam to the Alberta
border, and includes a 1,000 m buffer on both the south and north banks of the Peace
River.

Wildlife Resource— Vegetation and Ecological Communities LAA, as described above.

Current Use of Lands and Resources for Traditional Purposes— Fish and Fish
159
Habitat LAA and Wildlife Resources LAA, as described above.
BC Hydro used the following RAAs for VCs relevant to effects to DTFN:

Fish and Fish Habitat — Peace River from Peace Canyon Dam, B.C. to Vermilion
Chutes, Alberta, which is a distance of approximately 865 km.

Vegetation and Ecological Communities— The proposed dam, reservoir, transmission
line, Highway 29 realignment, temporary access roads, and quarries occur within five
Wildlife Management Units - designated 7-31, 7-32, 7-33, 7-34, and 7-35, which includes
most of the Peace Lowlands ecosection.

Wildlife Resource—Vegetation and Ecological Communities RAA, as described above.

Current Use of Lands and Resources for Traditional Purposes—Fish and Fish
160
Habitat RAA and Wildlife Resources RAA, as described above.
BC Hydro completed a cumulative effects assessment for each VC where “a potential
adverse effect of the Project on that VC has a spatial and temporal overlap with a residual
effect of another project or activity.”161 The RAAs (set out above) provided the spatial
boundaries for each assessed VC,162 and the temporal boundaries included the baseline
case (set at September 5, 2012), the future case without the Project (the baseline case plus
projects and activities that are at least as foreseeable as the Project) and the Project case
(the future case plus the Project).163
159
EIS, Vol. 2, s. 10, p. 5.
EIS, Vol. 2, s. 10, p. 11.
161
Ibid.
162
EIS, Vol. 2, s. 10, p. 11.
163
EIS, Vol. 2, s. 10, p. 12-13.
160
44
158.
As a base case, BC Hydro chose the date of September 5, 2012 because “1) the EIS
Guidelines are dated September 5, 2012 (they were issued by the federal Minister of
Environment and the Executive Director of the BCEAO on September 7, 2012), and 2)
by September 5, 2012 BC Hydro had already substantially developed the assessment of
potential effects and cumulative effects of the Project.”164
159.
BC Hydro determined the other projects and activities to be included in the cumulative
effects assessment by reviewing seven information sources (various industry websites
including the BC Environmental Assessment Office (“EAO”), the Agency, BC Oil and
Gas Commission, National Energy Board, and Ministry of Environment Water
Stewardship Division; land tenure information; current harvest plans for forestry tenure
operations and timber sales; Official Community Plans and parks and recreation plans;
and large waste discharges into the Peace River from Peace Canyon Dam to Vermillion
Chutes, Alberta.)165
160.
From the list of projects and activities identified from the identified sources, BC Hydro
then applied a screening process with spatial and temporal criteria to “develop a
conservative list of candidate projects and activities found within the largest RAA” for
consideration of inclusion in the cumulative effects assessments for the VCs.166
161.
In each cumulative effects assessment, BC Hydro considered the following information:

Other project(s) or activity(ies) found with [sic] the RAA for each VC, the residual
effects of which may interact cumulatively with the residual effects of the Project;
162.

Status of the other project(s) or activity(ies);

The potential residual effects of the other project(s) or activity(ies). 167
Following the cumulative effects assessment, BC Hydro then identified potential
cumulative effects mitigation measures, characterized those cumulative effects, and
determined the significance of those cumulative effects for each VC.168
164
EIS, Vol. 2, s. 10, p. 13.
EIS, Vol. 2, s. 10, p. 13.
166
EIS, Vol. 2, s. 10, p. 14.
167
EIS, Vol. 2, s. 10, p. 21-22.
165
45
(a)
BC Hydro’s Findings on Project Effects to Biophysical Elements
163.
Of the 50 potential residual effects considered by BC Hydro relating to Fish and Fish
Habitat, Vegetation and Ecological Communities, Wildlife Resources, Greenhouse Gases
(Sections 12-15) and Harvest of Fish and Wildlife Resources (Section 24), 17 were
considered to be significant, with varying types of habitat alteration and fragmentation as
the most common residual effect:
Fish and Fish Habitat

Loss of fish habitat during construction (construction; headpond and reservoir filling);

Reduced fish health and survival due to sediment inputs during construction
(construction; headpond and reservoir filling);

Hindered fish movement due to obstruction to fish passage during construction
(construction of the dam and generation station);

Hindered fish movement due to obstruction to fish passage during operations (operation
of the dam and generation station);
Vegetation and Ecological Communities

Habitat alteration and fragmentation: old growth, grasslands and wetlands during
construction (clearing, grubbing, site preparation, diversion and reservoir filling; construction of
the dam and generating station, Highway 29, access roads, transmission line, quarries; diversion
and reservoir filling);

Habitat alteration and fragmentation: Tufa seeps, wetlands and rare plants during
construction (clearing, grubbing, site preparation; construction of the dam and generating station,
Highway 29, access roads, transmission line, quarries; diversion and reservoir filling);

Habitat alteration and fragmentation: old growth, grasslands, wetlands, and rare plants
during construction (construction of the dam and generation stateion, Highway 29, access roads,
transmission line, quarries; diversion and reservoir filling);

Habitat alteration and fragmentation: wetlands and rare plants during construction
(clearing and grubbing, site preparation; construction of the dam and generating station, Highway
29, access roads, transmission line, quarries; diversion and reservoir filling);

Habitat alteration and fragmentation: wetlands during construction and operations
(construction of the dam and generation station, Highway 29, access roads, transmission line,
quarries; operation of the dam and generation station);

Habitat alteration and fragmentation: wetlands during construction (clearing, grubbing,
site preparation; construction of the dam and generation station, Highway 29, access roads,
transmission line, quarries);
168
EIS, Vol. 2, s. 10, p. 22.
46

Habitat alteration and fragmentation: old growth, rare plants during construction
(clearing, grubbing, site preparation; construction of the dam and generation station, Highway 29,
access roads, transmission line, quarries);

Habitat alteration and fragmentation: rare plants during construction (clearing, grubbing,
site preparation; construction of the dam and generating station, Highway 29, access roads,
transmission line, quarries);

Habitat alteration and fragmentation: grasslands, wetlands and rare plants during
construction and operations (clearing, grubbing, site preparation; construction of the dam and
generation station, Highway 29, access roads, transmission line, quarries; operation of the dam and
generation station);

Habitat alteration and fragmentation: wetlands and rare plants during construction
(construction of the project);

Habitat alteration and fragmentation: rare plants during construction (construction of the
project);
Wildlife Resources

Habitat alteration and fragmentation: wetlands and wetland-associated key indicators –
amphibians and reptiles, butterflies and dragonflies, migratory birds, raptors, bat during both
construction and operations (construction of the dam and generating station, Highway 29, access
roads, transmission line; reservoir filling; quarrying and excavation of construction materials;
operation of the dam and generation station);

Habitat alteration and fragmentation: loss of nesting habitat – migratory birds during
169
construction (construction of the project)….
164.
Bull trout is a provincially blue-listed species.170 BC Hydro determined that there will be
some adverse effects to bull trout. Specifically, the group of bull trout that spawn in the
Halfway River was identified as a distinct group of fish that may be lost because they are
not capable of adapting to the new ecosystem created once the reservoir fills.171
165.
Two other distinct groups of fish may also be lost, leading BC Hydro to conclude that the
Project “may result in a significant adverse effect on fish and fish habitat.”172 However,
with specific regard to what the bull trout will do when the “significant fraction of the
169
EIS, Vol. 5, s. 38, Table 38.1, p.3-50. Note that the list provides the significant potential residual effects together
with the Project phase during which the effect is expected to occur. The contributing Project activity or physical
works related to the residual effect follows in brackets.
170
Transcript Vol. 21 (January 15, 2014) CEAR 2477, p. 141, L 7.
171
172
47
bull trout population [that] migrates past the site of Site C to places downstream”
encounters the new dam and reservoir, BC Hydro is unable to predict the outcome.173
166.
This finding is concerning to DTFN, in part because bull trout is a species harvested by
DTFN, as reflected by the TLUS data referenced earlier in these submissions.174
167.
In its assessment of the public harvest of fish and wildlife resources, BC Hydro
determined that there would be adverse effects during both construction and operations
on many of the various assessed activities, and that decreases to both public fishing and
hunting opportunities during construction would be residual effects but would not be
significant.175 BC Hydro found no other residual effects related to the public harvest of
fish and wildlife resources.
168.
BC Hydro determined that the effects of the Project on visual resources within the Visual
Resources LAA during both construction and operations would be residual, but not
significant. This is explained by BC Hydro as being due to the fact that “they are not
rated a high magnitude, and are not predicted to exceed the general (historical) level of
existing visible anthropogenic disturbances (including industrial developments) in the
LAA … [and] the social context illustrates an environment that has been previously
disturbed by human development (as opposed to a pristine environment).”176 Likewise,
the cumulative residual effects within the LAA on visual resources were rated as not
significant.177
169.
Consideration of the cumulative effects of the Project and other projects in the Wildlife
Resources RAA on ungulates (moose, elk and mule deer) and furbearers (beaver and
fisher) revealed that the effects of several other various projects may each combine with
those of the Project and result in a cumulative effect.178
173
Transcript Vol. 19 (January 13, 2014) CEAR 2438, p. 240, L 14-25, p. 241 to L 1-8.
Supplemental Traditional Land Use Report, supra note 122 at 3.
175
EIS, Vol. 3, s. 24, Table 24.21, p. 46, Table 24.24, p. 54.
176
EIS, Vol. 3, s. 27, p. 22.
177
EIS, Vol. 3, s. 27, p. 27.
178
BC Hydro’s Response to Undertaking 73 (UT-73): Provide an overview of the Cumulative effects of Site C in
combination with other projects in the RAA on ungulates and furbearers, January 21, 2014, CEAR 2667.
174
48
170.
However, despite this finding of potential cumulative effects, BC Hydro concluded that
the “combined residual effects to ungulates and beaver from the projects and activities
listed above would not be considered significant, whether the Project is constructed or
not.”179 BC Hydro based its conclusion on the following:

the moose population in the RAA appears stable;

elk populations are increasing;

mule deer population appears to fluctuate based on winter severity rather than habitat
alteration; and

beaver appear to be resilient to trapping and are capable of recolonizing areas
provided food is available.
171.
It is important to note that it is likely that there will be more significant effects to
biophysical elements than identified by BC Hydro. BC Hydro did not follow accepted
provincial standards in baseline habitat mapping. The Ministry of Forests, Lands and
Natural Resource Operations commented that:
The basis for determining impacts to wildlife and terrestrial values was baseline
habitat mapping which was not done according to accepted provincial standards. The
quality of the baseline mapping product and supporting data informs a variety of
analyses including the accuracy of the wildlife habitat maps and quantification of
180
effects.
172.
The Ministry concluded that the approach to determining significance of impacts to
wildlife resources and ecosystems should be “broader in scope given that these are
wildlife resources with an existing conservation concern.”181
173.
The Ministry’s position on this issue is consistent with the Cumulative Effects Guide that
states that spatial scoping should take into account the “abundance and distribution of
179
Ibid at 13.
181
180
49
VECs at a local, regional, or larger scale if necessary (e.g., for very rare species), and
ensure that the boundaries take this into account.”182
(b)
BC Hydro’s Findings on Project Effects to DTFN’s Current Uses
174.
In its assessment of the residual effects to DTFN, BC Hydro concluded that DTFN’s
current use of lands and resources for hunting and trapping would be adversely affected
by the Project. For example, BC Hydro found that there may be adverse effects to
DTFN’s current use of lands and resources for hunting due to reductions in moose
populations in the LAA.183
175.
Nonetheless, BC Hydro determined that the effect on DTFN harvesting would be of low
magnitude because “hunting practices of Aboriginal people are adaptable, spatially and
temporally, and the affected areas are at the periphery of their current use hunting areas,
as indicated in traditional use studies.”184
176.
However, BC Hydro indicated that the confidence level of this assessment was low, “as
the assessment is restricted by limited TLUs data, uncertainty regarding the relationship
between biophysical effects of the Project, reactions of the environment, and responses to
change by Aboriginal people.”185 Despite this, BC Hydro determined that the Project
effect on current use of lands and resources for hunting and non-tenured trapping would
not be significant.186
177.
Similarly, BC Hydro found that the Project would have a residual adverse effect on the
current use of lands and resources for DTFN’s fishing activities during both construction
and operation phases due to reduced access to fishing areas, and potentially reduced
success in harvest of targeted species.187
178.
However, BC Hydro concluded that the magnitude of these adverse effects to DTFN
fishing would be low, as “the Peace River section within the [Cultural Use of Lands and
182
Cumulative Effects Guide, supra note 41, p. 14 (at Adobe 28).
EIS, Vol. 3, s. 19, p. 82.
184
EIS, Vol. 3, s. 19, p. 102.
185
Ibid.
186
EIS, Vol. 3, s. 19, p. 105.
187
EIS, Vol. 5, App. C, s. 1.7.1, p. 4.
183
50
Resources for Traditional Purposes (Fishing)] LAA is at the periphery of their use of fish
resources.”188 This conclusion was based on BC Hydro’s determination that “fishing
practices of Aboriginal people are adaptable, spatially and temporally, and [that] the
traditional purpose of the activity would not be undermined … although an increase in
cold water species downstream of the dam would pose and adaptive challenge and
opportunity for harvesters.”189
179.
BC Hydro also determined that “the traditional purpose of the activity [fishing] would not
be undermined” but offered no explanation of what BC Hydro considered that to mean.190
180.
Because the Project was found to likely result in residual adverse effects on DTFN’s
current use of lands and resources for traditional purposes for fishing191 and hunting and
trapping,192 BC Hydro considered the cumulative effects of the Project on these uses. BC
Hydro determined that the Project would be unlikely to result in cumulative effects on
DTFN’s current use of lands and resources for traditional purposes within the Current
Use of Lands and Resources for Traditional Purposes RAAs.193
181.
In assessing the various other projects and activities (Alliance Pipeline Sunrise Meter
Station Relocation, Carbon Creek Coal Mine, Dokie Wind Energy Project, Groundbirch
Mainline, Provident Beatton River Replacement Project, Wildmare Wind Energy Project,
and Warenbe Wind Energy Project) for cumulative impacts, BC Hydro determined that
either: the project or activity is located on private lands and so doesn’t affect traditional
uses, or the project or activity doesn’t generally lead to measurable reductions to regional
populations of certain species.
182.
Based on those assumptions, BC Hydro concluded that the residual effects of the project
or activity will not combine with those of the Project; or the project or activity doesn’t
result in adverse impacts to current traditional land use; or the significance of the effects
188
EIS, Vol. 5, App. C, s. 1.7.1, p. 5.
EIS, Vol. 5, App. C, s. 1.7.14, p. 5.
190
EIS, Vol. 5, App. C, s. 1.7.1, p. 5.
191
EIS, Vol. 5, App. C, s. 1.7.1, p. 4.
192
EIS, Vol. 5, App. A04, Part 4, p. 8 (at Adobe 66).
193
Ibid.
189
51
are of low magnitude and significance.194 Therefore, BC Hydro determined that the
projects and activities combined with Site C are unlikely to lead to a cumulative effect to
hunting and trapping for traditional purposes.
183.
However, BC Hydro did determine that general oil and gas and forestry activities and the
Project combined “will likely result in a decrease in the regional populations of
furbearers and ungulates (notably moose and mule deer)” although they “are likely to
continue to persist on the landscape to the point where hunting and trapping is still
permissible.195
184.
Despite the fact that BC Hydro determined that oil and gas activities and forestry
combined with Site C are likely to result in adverse effects (a decrease in furbearer and
ungulate populations), it made an overall determination that there would be no
cumulative adverse effect on the current use of lands and resources for traditional
purposes. This determination is difficult to rationalize with the findings regarding oil and
gas activities and forestry.
(c)
BC Hydro’s Findings on Project Effects to DTFN’s Treaty Rights
185.
As a result of the Project’s potential for adverse impacts to DTFN’s current use of lands
and resources for traditional purposes, BC Hydro determined that there is also potential
for impact to DTFN’s exercise of its Treaty rights to fish, hunt, and trap in Treaty 8
territory.196
186.
While BC Hydro acknowledged that DTFN’s ability to hunt and trap in the Wildlife
Resources LAA would be reduced, BC Hydro determined that the impacts would be
temporary and that there were other areas available to DTFN “both within the LAA and
within the wider Treaty 8 territory that will not be affected by the Project.”197
194
EIS, Vol. 3, s. 19, p. 109-112.
EIS, Vol. 3, s. 19, p. 114.
196
EIS, Vol. 5, s. 34, p. 13.
197
EIS, Vol. 5, s. 34, p. 14.
195
52
187.
Based on this assumption, BC Hydro concluded that “DTFN will continue to have the
opportunity to exercise their rights to hunt and trap, within the LAA, within their
Traditional Territory, and within the wider Treaty 8 territory.”198
188.
BC Hydro did not provide any analysis of what it meant by the term “temporary”, or any
analysis in relation to the availability or suitability of other areas within DTFN’s
Traditional Territory to exercise Treaty rights.
2.
BC Hydro’s Spatial Scoping is Not Appropriate to Assess Impacts to DTFN
189.
DTFN repeatedly expressed concerns regarding BC Hydro’s spatial scoping for its
assessment of effects to VCs.
190.
DTFN communicated its concerns regarding the selection of VCs by BC Hydro early in
the process in comments regarding the draft EIS Guidelines, stating that the list of values
to consider in the identification of the VCs should include cultural values.199
Additionally, DTFN expressed concern that the proposed VCs were too broad and had
been determined without consultation or impact pathway analysis.
191.
DTFN’s concerns about the spatial scoping and VCs were brought to the attention of BC
Hydro and the regulators throughout the pre-Panel process, including by way of letter
dated April 14, 2013 whereby DTFN raised concerns about BC Hydro’s narrow scoping
of several of the LAAs and the RAAs without scientific justification.200
192.
For example, DTFN expressed concern regarding the lack of scientific justification for
the LAAs for Fish and Fish Habitat, Vegetation and Ecological Communities, Wildlife
Resources, and for Current Use of Lands for Traditional Purposes.
193.
DTFN also pointed out that BC Hydro’s approach to spatial scoping completely ignored
the potential cumulative effects to the exercise of Treaty and Aboriginal rights in their
true context.
198
EIS, Vol. 5, s. 34, p. 14.
DTFN Index of Correspondence [“DTFN IOC”], CEAR 1814, Tab 38 (at Adobe 615).
200
DTFN IOC, CEAR 1814, Tab 60 (at Adobe 877-881).
199
53
194.
Some of DTFN’s concerns are explained by Matt Hammond of Pottinger Gaherty
Environmental Consultants Ltd. in his report filed with the JRP.201 In his report, Mr.
Hammond noted that BC Hydro’s scoping methods used to determine study area
boundaries are inconsistent with standard environmental assessment scoping practices.
195.
He noted: “Decisions about the scope of an EIA and application of best practice EIA
methodologies are critical to appropriate consideration of potential serious effects.” 202
196.
Mr. Hammond listed the following best practices to scoping study areas:

Considering ecological and human systems to fully capture the possible effects on
interconnected ecosystems and the people that use those ecosystems.

Using a precautionary approach when scoping from a broad perspective … so that
areas of potential adverse effects are not excluded from consideration due to lack of
detail….The chosen study area is enlarged where there is a risk of neglecting effects for a
variety of reasons, including the uncertainty in complex systems and the need to consider
highly sensitive locations.

Sensitivity and vulnerability of ecological and social receptors need to be considered,
particularly when dealing with complex cause and effect pathways. A highly sensitive
receptor could suffer great harm from seemingly negligible physical change if it occurs.at
certain times and places….

197.
Explaining scoping decisions and rationales early in the process to stakeholders and
decision makers to allow for transparent and thorough discussions to take place with the
203
aim of identifying well-justified study areas….
Mr. Hammond pointed to the use of the Alberta-BC border for the vegetation and wildlife
VCs as an example of an inappropriate study area in the EIS. He noted that the EIS
Guidelines, as referenced earlier in these submissions, require ecological boundaries to be
ecologically defensible. However, the use of the Alberta-BC border is arbitrary and does
not take into account the fact that physical changes to the river are predicted to occur
201
M Hammond, Review of Specific EIA Methodologies Related to the Proposed Site C EIS and Implications for
Issues Raised by Athabasca Chipewyan First Nation, Dene Tha’ First Nation and Mikisew Cree First Nation,
(November 22, 2013, November 25, 2013, CEAR 1814) [“EIA Methodologies Review”].
202
Ibid p. 1.
203
Ibid at 2.
54
much further downstream, and the fact that the Peace Lowlands Ecosystem identified in
the EIS Guidelines extends into Alberta.204
198.
Mr. Hammond concluded that:
With the uncertainty in scientific predictions and the flaws in EIA scoping practices
presented by the Site C EIS, there is reasonable likelihood that biological and social
effect predictions have not been conducted to a level of rigour and comprehensiveness to
205
provide a complete understanding of effects on the VCs in the EIS.
199.
BC Hydro’s spatial scoping is inconsistent with the EIS Guidelines’ requirement that BC
Hydro provide a scientific justification for the selection of spatial boundaries. 206 As Mr.
Hammond noted, BC Hydro has not provided a scientific justification for excluding areas
of the Peace Lowlands Ecosystem from the wildlife, vegetation and current use VCs.
200.
BC Hydro’s spatial scoping also fails to take into account current land and resource use
by Aboriginal groups, as required by the EIS Guidelines.207 DTFN’s uses extend past the
spatial boundaries chosen at the B.C.-Alberta border, for example.
3.
BC Hydro’s “Significance” Determinations – The Fallacy of the “Go Elsewhere”
Assumption
201.
In a letter dated September 5, 2013, DTFN raised concerns about BC Hydro’s
inappropriate characterization of the significance of the potential effects of Site C on their
members’ land use.208 In this letter, it was noted that DTFN had also raised these same
concerns at a July 17, 2013 meeting. These concerns dealt with the fact that some of the
significance determinations were unsupported by any evidence that DTFN’s traditional
practices are adaptable spatially or that “the effected areas are at the periphery of their
current use hunting areas.”209
204
Ibid at 5.
Ibid at 6.
206
Ibid at 28.
207
EIS Guidelines, supra note 13, p. 28-29 (at Adobe 48-49).
208
DTFN IOC, CEAR 1814, Tab 34 (at Adobe 563).
209
EIS, Vol. 3, s. 19, p. 102.
205
55
202.
DTFN noted that it found BC Hydro’s conclusion especially concerning considering that
BC Hydro’s own consultant, Traditions Consulting, made the following statement in the
EIS:210
In the past DTFN would hunt and trap in their traditional territory close to their
communities and within their registered trap-line territories. Increase industrial activity
(oil, gas and forestry developments) in the region around their communities in North
Western Alberta has forced DTFN hunters to range further a field in search of game,
including to the farthest areas of their traditional territory and beyond in order to obtain
211
enough game for food.
203.
DTFN repeatedly raised concerns about BC Hydro’s determination that effects to
DTFN’s uses and rights would not be significant based on its assumption that Dene Tha’
could “go elsewhere.”212
204.
DTFN’s Traditional Territory is already heavily impacted by a significant amount of
development, and BC Hydro’s proposed Site C dam would add further developmental
pressures to areas currently under significant stress.
205.
Human land use and development in DTFN’s Traditional Territory includes resource
development and agricultural activities, forestry, oil and gas infrastructure, and rights of
ways related all of these activities. These various uses are widespread and often
multilayered in the same area.213
206.
Disturbance maps submitted to the JRP by DTFN reflect some of those activities
throughout the broader Traditional Territory, as well as in the portions of DTFN’s
Traditional Territory located within BC, and more specifically within and around the
Current Use (Wildlife) RAA.214
207.
The maps submitted by DTFN show where the Project RAA, north of the Peace River,
intersects with DTFN’s Traditional Territory and clearly illustrate the “extraordinary
210
DTFN IOC, CEAR 1814, supra note 200; DTFN ICO, supra note 208 (at Adobe 936, 563).
EIS, Vol. 5, App A04, Part 3, p. 4-5 (at Adobe 48-49).
212
DTFN IOC, CEAR 1814, Tab 65 (at Adobe 1140-1142); DTFN IOC, CEAR 1814, supra note 200; and DTFN
ICO, CEAR 1814, supra note 208 (at Adobe 928, 564).
213
Written Submission received from Dr. Faisal Moola, PhD, on behalf of the David Suzuki Foundation, November
25, 2013, CEAR 1928 [“Moola Submission”] at Adobe 2.
214
Bill Tkachuk, Dene Tha’ First Nation Disturbance Maps, November 25, 2013, CEAR 1814 [“Dene Tha’
Distrubance Maps”].
211
56
amount of development in the RAA”215 from wells, pipelines, roads and seismic lines.
The maps do not reflect the true level of development, however, because disturbances
related to forestry, mining and agriculture are not depicted on the maps, due to limited
access to data.
208.
One set of maps submitted by DTFN shows disturbance levels based not just on
infrastructure footprints, but also based on “zones of influence” or “buffer zones” around
each development, which shows the areas around development in which wildlife and
harvesting activities are affected. The distance used in DTFN’s maps is only 250 metres
for wells, pipelines and roads and only 25 metres for seismic lines.216 In contrast, other
disturbance reports have applied a scientifically assessed buffer twice as wide, at 500
metres.217
209.
As a result, given DTFN’s use of smaller buffer zones and the limited types of industrial
activity depicted, DTFN’s disturbance maps under-represent the actual disturbance levels
in DTFN’s Traditional Territory resulting from industrial and agricultural development.
210.
Even with this under-representation of development, the maps provide a clear visual
representation of the intensity of development throughout DTFN’s Traditional Territory,
and more specifically within the Current Use (Wildife) RAA.
211.
Maps 1 and 2 reflect the wells, roads and seismic lines within and surrounding the RAA,
with Map 2 showing the buffer areas.218 These maps highlight the intensity of industrial
use in several specific areas within the RAA, especially to the north of the proposed Site
C dam and to the east, near the BC-Alberta border.
215
Transcript Vol. 23 (January 17, 2014) CEAR 2530, p. 147, L25 to p. 148, L1.
Dene Tha’ Disturbance Maps, supra note 214 at 5, 9, 13.
217
P Lee and M Hanneman, Atlas of Land Cover, Industrial Land Uses and Industrial-Caused Land Change in the
Peace Region of British Columbia (2012) Global Forest Watch Canada Report #4 [“Atlas of Land Cover”]
submitted within Moola Submission, supra note 213, citing Environment Canada, 2011. Scientific Assessment to
Inform the Identification of Critical Habitat for Woodland Caribou (Rangifer tarandus caribou), Boreal Population,
in Canada: Update. Ottawa, Ontario, Canada at Adobe 93.
218
Dene Tha’ Disturbance Maps, supra note 214, p. 3, 5.
216
57
212.
This density is again apparent on Maps 3 and 4 which depict a broader portion of the
Traditional Territory within BC.219
213.
Finally, Maps 5 and 6 encompass the entirety of DTFN Traditional Territory, and display
the wide-ranging industrial development as well as the pockets of high density
development throughout DTFN’s Territory.220
214.
These visual representations show where the footprint of the disturbances are, but it is
important to note that indirect impacts of industrial developments and installations can
often extend far beyond this footprint, and even beyond the footprint identified by
proponents and regulators and assumed “zones of influence”.221
215.
In addition to the wells, pipelines and seismic lines depicted in these maps, DTFN’s
Traditional Territory is affected by forestry and mining tenures among other
developments.
216.
A report commissioned by the David Suzuki Foundation examined the Peace Region, and
described the “current major industrial land use changes (forestry, oil and gas, roads,
hydro, etc.) to natural capital in the region.”222
217.
The study area examined in that report overlaps with the VC RAAs, including the RAAs
for Cultural Use of Lands and Resources for Traditional Purposes. It also overlaps with
DTFN’s Traditional Territory. While the study area in the Atlas is not geographically
identical to the regions portrayed in DTFN’s disturbance maps, similar findings are
reflected in the various maps provided in the report which highlight the density of oil and
gas wells and pipelines.
218.
The maps in the Atlas of Land Cover also illustrate other activities such as forestry and
mining. Map 31 in the Atlas depicts the amount of recent anthropogenic change (19902010) within the region, much of which is located along the northern edge of the study
219
Ibid p. 7, 9.
Ibid p. 11, 13.
221
Traditional Land Use Report, supra note 120, p. 2, footnote 1.
222
Atlas of Land Cover, supra note 217, at Adobe 12.
220
58
area and within the RAA.223 This area is also within the southern portion of DTFN’s
Traditional Territory. Similarly, Map 32 clearly shows the significant influx of petroleum
and natural gas wells within this area of DTFN’s Traditional Territory since 1950.224
219.
These maps, when viewed together, provide a visual narrative of the level of
development and disturbance already present within DTFN’s Traditional Territory. This
pervasive development is deeply concerning for DTFN, and the impacts are being felt by
the harvesters and land users who rely on the resources within their Traditional Territory
not just for sustenance, but also for their deep cultural importance.
220.
In light of this reality in DTFN’s Traditional Territory, BC Hydro’s determination that,
despite significant effects to some biophysical elements, the residual and cumulative
impacts from the Project to DTFN’s current uses for traditional purposes are not
significant because “fishing practices of Aboriginal people are adaptable, spatially and
temporally” and “the traditional purpose of the [hunting and trapping] would not be
undermined” is not warranted.225
221.
BC Hydro’s summary dismissal of impacts to DTFN’s harvesting rights is based on an
erroneous assumption that there are myriad “elsewheres” where DTFN members can go
to exercise their Treaty rights.
In reality, with each passing day, there are fewer
“elsewheres” for DTFN members to harvest in their Traditional Territory due to the
significant amount of disturbances within the Traditional Territory.
222.
For instance, DTFN member Matt Munson explained to the Panel that, due to the fact
that development from shale gas is “becoming the nature of the land bases” related to the
“massive extent geologic formations … the Cordova, the Horn River, the Montney”, it is
“reasonable to expect that we’ll be seeing quite a large amount of developments” in the
area.226
223
Ibid at Adobe 68.
Ibid at Adobe 69.
225
See EIS, Vol. 3, s. 19, p. 105.
226
Transcript Vol. 23 (January 17, 2014) CEAR 2530, p.151, L3-5.
224
59
223.
As noted earlier in these submissions, the fact that DTFN is being forced out of many
areas of its Traditional Territory because of the level of development was noted and
acknowledged by BC Hydro’s consultant, Traditions Consulting.227 However, this fact
was not translated into, or even acknowledged, by BC Hydro when it assumed Project
effects to DTFN would not be significant because its members could exercise their rights
elsewhere in the Territory.
224.
The CEAA Reference Guide, summarized earlier in these submissions, discusses the
analysis required to make a significance determination. To determine whether adverse
environmental effects are significant, the CEAA Reference Guide refers to five criteria
that should be taken into account:
225.

Magnitude of the adverse environmental effects;

Geographic extent of the adverse environmental effects;

Duration and frequency of the adverse environmental effects;

Degree to which the adverse environmental effects are reversible/irreversible; and

Ecological context.228
The CEAA Reference Guide states that, in considering magnitude of effects, “it is
important to consider the extent to which the project could trigger or contribute to any
cumulative environmental effects.”229
226.
With respect to ecological context, the CEAA Reference Guide provides that the adverse
environmental effects of projects may be significant if they occur in areas or regions that
have already been adversely affected by human activities. For that reason, the Guide
states that proponents are required to submit information in their EIS on this
consideration.230
227
DTFN IOC, CEAR 1814, supra note 200.
CEAA Reference Guide, supra note 41, p. 188, 190 (at Adobe 8, 10).
229
Ibid at 188 (at Adobe 8).
230
Ibid at 190 (at Adobe 10).
228
60
227.
Thus, it was inappropriate for BC Hydro to summarily conclude Project effects to
DTFN’s current uses would not be significant, based on a bare assumption that DTFN
could go “elsewhere” to exercise its rights.
228.
BC Hydro was required to collect and consider the relevant information about the level of
existing disturbance affecting DTFN’s harvesting practices before reaching a significance
determination. This included giving consideration to the number of new projects that
have been proposed in DTFN’s territory over the last few years, as reflected in part in the
various project-specific Traditional Land Use reports undertaken by DTFN and
referenced by BC Hydro. These projects have removed accessible lands from DTFN’s
Territory.
229.
In addition, BC Hydro’s approach was inconsistent with the dictates of the Supreme
Court of Canada. In the Mikisew case, the Court found that it is inappropriate to assume
that the rights of a First Nation are not directly and adversely affected even if the First
Nation can “go elsewhere” to harvest.231
230.
For these reasons, BC Hydro’s significance determinations in relation to effects to
DTFN’s uses and rights are not reliable, as they were not reached in accordance with
standard methodologies for determining significance.
In the absence of a proper
significance determination in relation to the adverse residual effects identified to DTFN’s
current uses, the EIS does not comply with the EIS Guidelines’ requirement for BC
Hydro to consider residual and cumulative effects to current use of land for traditional
purposes.232
4.
BC Hydro’s Inadequate Cumulative Effects Assessment
231.
In letters to CEAA and the BC EAO dated May 29, 2013 and April 14, 2013, DTFN
expressed concerns regarding BC Hydro’s inadequate cumulative effects assessment,
stating that it was improper for a number of reasons, including because it failed to
231
232
Mikisew, supra note 91 at paras 45-47.
EIS Guidelines, supra note 13, p. 74 (at Adobe 94).
61
consider a pre-Bennett baseline, and instead used the ‘status quo’, or current conditions,
as the baseline.233
232.
DTFN commented that BC Hydro’s approach effectively rendered the cumulative effects
assessment (“CEA”) meaningless in its key goal to understand how multiple changes to
the condition of a valuable resource over time can be avoided or managed. Additionally,
DTFN expressed concern that BC Hydro’s Northeast Transmission Line was not included
in the CEA.
233.
In his review of EA methodologies report, Mr. Hammond critiqued the EIS for its
treatment of potential cumulative effects from the Project and, more specifically, BC
Hydro’s failure to include a detailed, meaningful analysis of past effects from the Bennett
and Peace Canyon Dams and their ongoing operations.234
234.
He quoted from the Cumulative Effects Guide, referenced earlier in these submissions:
Cumulative Effects Assessment (CEA) is done to ensure the incremental effects resulting
from the combined influences of various actions are assessed. These incremental effects
may be significant even though the effects of each action, when independently assessed,
235
are considered insignificant.
235.
Mr. Hammond noted that the examination of past effects is a fundamental part of a CEA
and management of cumulative effects, as reflected in all the key regulatory guidance and
academic work on the subject.236
236.
Without a proper cumulative effects methodologies, “death by 1000 cuts” can occur:
Some cumulative effects are of the type best described as the death by 1000 cuts; each
individual effect is insignificant but the accumulation of the many insignificant effects
causes a significant adverse effect. Two ways of dealing with these many small effects
are: (1) to prevent proposed human activities for which the assessments have been done,
even though their effects are (individually) insignificant, or, (2) for those proposed
projects, to make the cuts (effects) smaller, i.e. to mitigate the seemingly insignificant
effects. This approach is much easier to apply to future human activities than to existing
233
DTFN IOC, CEAR 1814, supra note 212 (at Adobe 995); DTFN IOC, CEAR 1814, supra note 200 (at Adobe
871, 875, 888, 899).
234
EIA Methodologies Review, supra note 201, p. 8-9.
235
Ibid p. 6.
236
Ibid p. 7.
62
ones that already have (explicit or implicit) authorization. Assessment of the cumulative
237
effects must thus be done at a scale that will allow identification of such opportunities.
237.
Mr. Hammond noted some of the key questions about past effects that need to be
examined in a CEA:
238.

What activities have affected the VC in the past?

How did the activity exert the effect on the VC?

How did the VC react to the VC?

How effective were any management actions that were applied and monitored?

Has a significant, unacceptable state of the VC already been reached by prior effects?
238
To answer these questions, Mr. Hammond explained, the best available information
needs to be collected and presented for each VC. By doing this, an understanding can be
gained about what impacts the VC has already endured, how the impacts occurred,
whether future impacts might cumulate with the past and ongoing impacts, and how
management measures might be able to address the impacts.239
239.
Mr. Hammond noted that where there is existing information about past effects from
previous projects, those projects should be included in the scope of the CEA. He stated
that “[i]t is not sufficient to omit all previous projects from the scope and assume that the
present state of the environment will provide enough context to complete a meaningful
CEA for each VC.”240
240.
Given the available information about impacts from the Bennett and Peace Canyon
Dams, Mr. Hammond concluded that good CEA practice would require these two
projects, and the ongoing operational effects of those projects, in the scope of the CEA
for each VC. He found that BC Hydro’s approach fails to meet the standard of practice
for CEAs.241
237
Ibid, quoting R Thrieval and B Ross. 2007. Cumulative Effects Assessment: Does Scale Matter? Environmental
Impact Assessment Review 27 (2007) 365-385 p. 7.
238
Ibid p. 7.
239
Ibid p. 8.
240
Ibid.
241
Ibid p. 9.
63
241.
Mr. Hammond gave the example of BC Hydro’s CEA for Fish and Fish Habitat as an
example of the implications of BC Hydro’s flawed CEA methodology.
BC Hydro
concluded in the EIS that there are no cumulative effects to fish habitat because there is
no spatial or temporal overlap of the Project’s residual effects with other projects in BC
Hydro’s Project Inclusion List. Mr. Hammond noted:
This conclusion depends on the exclusion of current operating BC Hydro projects from
the scope. In reality, it is very obvious that there is overlap of effects to fish habitat (and
likely other VCs) over time from the existing hydro projects and Site C, and therefore the
242
flawed methodology has led to flawed CEA conclusions.
242.
Mr. Hammond also referred to the CEAs for other VCs, including Current Use of Lands
and Resources for Traditional Purposes, and noted a similar flawed approach and
incomplete consideration of past projects and effects. In each case, BC Hydro did not
consider how the VCs have been, and continue to be, affected by the Bennett and Peace
Canyon Dams.243
243.
In addition, Mr. Hammond noted BC Hydro’s failure to integrate the narrative provided
in s. 9.1 (Previous Developments) of the EIS into the CEA, which he said undermines the
intent of the EIS Guidelines and does not follow good CEA practice.244
244.
Mr. Hammond concluded that the CEA for the proposed Project needs to understand the
source, pathways of effects and results of past activities because, without the knowledge
of past effects on VCs, the reliability of the CEA conclusions is questionable.245
245.
The CEA is incomplete because the effects of past projects, which are continuing into the
future and overlapping with Site C effects, are not included or addressed in the EIS.
Without the context of past effects, the CEA has limited value in recognizing and
appropriately assessing and mitigating the risk of further significant harm.246
246.
Not only did BC Hydro fail to consider impacts from the Bennett and Peace Canyon
Dams in its CEA in relation to potential effects to DTFN’s uses and rights, it did not
242
Ibid p. 8.
Ibid.
244
Ibid p. 8-9.
245
Ibid p. 9.
246
Ibid p. 8.
243
64
consider impacts from all the other existing development in the portions of the RAAs that
are within DTFN’s Traditional Territory.
247.
For example, the impacts from the myriad oil and gas developments that are disclosed in
the disturbance maps filed by DTFN and the David Suzuki Foundation were not
considered by BC Hydro because BC Hydro undertook its CEA by comparing the current
situation with the situation post-Site C, which effectively discounts the impacts that have
already occurred in the RAAs.
248.
Other parties have also raised concerns about BC Hydro’s failure to include the Bennett
and Peace Canyon Dams in its Project Inclusion List, including Treaty 8 Tribal
Association and the Yellowstone to Yukon Conservation Initiative.
249.
BC Hydro took the position in its rebuttal to reports filed by the Yellowstone to Yukon
Conservation Initiative and Treaty 8 Tribal Association that it had considered the effects
of existing hydroelectric projects by using existing baseline conditions in its assessments.
It explained:
The assessment of Project effects examined the changes the Project will cause in the
existing baseline conditions of the VCs, and so inherently considered how the Project will
combine with the residual effects to date of other past and existing projects and activities
that have been carried out. Thus, in essence, residual Project effects are cumulative
effects and the residual effect predictions for each VC form a part of the overall
247
cumulative effects assessment.
250.
This statement highlights the problem in BC Hydro’s approach: it only considered
changes that will occur to the current conditions if Site C is built. In other words, it did
not take into account what the overall, or cumulative, changes would be compared to
what the situation was like prior to the construction of the Bennett Dam. Despite BC
Hydro’s suggestion to the contrary, there is a difference between residual effects from a
proposed Project and cumulative effects from that proposed Project combined with other
247
Response to Panel Requests and to Submissions Regarding the Assessment of Cumulative Effects, BC Hydro,
December 2013, CEAR 2245, p, 3 (at Adobe 7) [emphasis added]. In this response, BC Hydro also critiqued Atlas
of Land Cover, supra note 217, p. 32-33 (at Adobe 36-37) for not providing “an assessment of the effects of the
“industrial-caused landscape changes”, and for not “examining the cumulative interaction between the effects of the
different projects and activities identified in the report”. BC Hydro’s response suggests that it is of the view that the
interested parties have the onus of conducting the cumulative effects assessment when, in fact, it is BC Hydro that
bears that onus.
65
development stressors that are operating on the environment from past and future
activities. If there was no difference, there would be no point in including the effects of
“past activities” in the definition of cumulative effects.
251.
In addition, BC Hydro’s approach did not take into account the fact that its own projects
(the Bennett and Peace Canyon Dams) continue to affect the Peace River and
downstream environments and, therefore, continue to contribute to the cumulative effects
on the environment, current uses for traditional purposes, and Treaty rights. These
continuing effects will combine with the additional incremental effects of Site C, but they
are not considered in BC Hydro’s cumulative effects assessment because the Bennett and
Peace Canyon Dams are not included in the Project Inclusion List.
252.
BC Hydro’s chosen approach of using current conditions as the baseline is problematic
because it fails to take into account the ongoing impacts to DTFN’s Treaty rights from
the Bennett and Peace Canyon dams, extensive oil and gas development and forestry
activities, and other types of development, all of which have interfered with DTFN
members’ ability to exercise the hunting, fishing, and trapping rights protected by Treaty
8.
253.
BC Hydro’s cumulative effects assessment is also inconsistent with the requirements of
CEAA, 2012, the EAA, the EIS Guidelines, the JRP Agreement, the various guidance
documents on cumulative effects assessments, and the case law, including:

requirements in CEAA, 2012 and EIS Guidelines to consider cumulative
environmental effects that are likely to result from the proposed Project, in
combination with other activities that have been or will be carried out;248

the Cumulative Effects Guide reference to including past, existing and future
actions, and to consider historical records for establishing an environmental
baseline;249
248
249
CEAA, 2012, supra note 1, s 19 and EIS Guidelines, supra note 13, p. 34 (at Adobe 54).
Cumulative Effects Guide, supra note 42, p. 3, 15 (at Adobe 17, 29).
66

the Cumulative Effects Policy reference to including information on past or
existing physical activities to help predict environmental effects of a proposed
Project and ways to mitigate those effects, community knowledge and Aboriginal
traditional knowledge;250 and

the common law requirement to include cumulative impacts to rights when
construing the term “environment”, to consider the historical context of
developments, and to consider the broader landscape and resources that might be
“injuriously affected” by a project.251
5.
BC Hydro’s Inadequate Approach to Treaty Rights
254.
BC Hydro also failed to properly assess impacts to DTFN’s Treaty 8 rights in the EIS. In
essence, BC Hydro used current use as a VC for the assessment of impacts to Treaty
rights, and did not consider all of the other elements of Treaty rights, including cultural
and spiritual aspects of those rights.
255.
While BC Hydro recognized that “the right to fish, hunt and trap does not overlap
precisely in time and space with the current use of lands and resources for traditional
purposes”, it asserted that there is a “close linkage” between Treaty rights and current
uses of land by Aboriginal groups and confined its assessment of the Project impacts on
Treaty rights to impacts on current uses of land.252
256.
DTFN has been raising concerns with BC Hydro’s approach to assessing impacts to
Treaty rights throughout the Pre-Panel and Panel processes.
257.
For example, in a letter dated April 14, 2013 DTFN made clear its concerns regarding BC
Hydro’s wholly inadequate consideration of the potential effects to Treaty and Aboriginal
rights.253
250
Cumulative Effects Policy, supra note 43, p. 4.
Dene Tha’, supra note 88 at para 34; West Moberly, supra note 89 at paras 117 (per Finch CJA), 181 (per Hinkson
JA), 239 (per Garson JA).
252
EIS, Vol. 5, s. 34, p. 11.
253
DTFN IOC, CEAR 1814, supra note 200 (at Adobe 871, 931, 936).
251
67
258.
The EIS Guidelines required BC Hydro to consider effects not just to use of lands for
traditional purposes. The Guidelines specifically required BC Hydro to assess “potential
adverse impacts of the Project on the exercise of asserted or established Aboriginal rights
and treaty rights”.254 If impacts to current uses could be used as a proxy for impacts to
Treaty rights, there would be no reason for the Treaty rights assessment to be referenced
in the EIS Guidelines.
259.
By only looking at current uses, BC Hydro’s assessment did not consider effects to
cultural aspects of DTFN’s Treaty rights, such as the right to maintain cultural
connections to important locations such as the ones DTFN Elder Josh Kolay described to
the Panel255, or the right to pass on cultural knowledge of particular places to younger
generations. BC Hydro’s approach is inconsistent with the requirements of CEAA, 2012
to consider cultural heritage in addition to current use of lands and resources for
traditional purposes.256 It is also inconsistent with the EIS Guidelines, which required the
consideration of cultural heritage effects of the Project.257
260.
Further, a reliance on an assessment of the Project’s impact on current uses of lands and
resources for traditional purposes is insufficient to assess the impact of the Project on
Treaty rights that are not currently being exercised within the LAAs and RAAs described
for the VCs chosen by BC Hydro. The EIS Guidelines required BC Hydro to identify
“past, current and reasonably anticipated future use of lands and resources by Aboriginal
groups for traditional purposes that may be adversely affected by the Project.” 258 The EIS
is insufficient in this regard, as impacts to Treaty rights are only assessed insofar as
impacts to current uses are concerned.
261.
The EIS is incomplete without a consideration of the past curtailment of DTFN’s Treaty
rights and a forward looking assessment of other pressures on the exercise of Treaty
rights posed by other uses of lands within DTFN’s Traditional Territory.
254
256
CEAA, 2012, supra note 1, s 5(1)(c).
257
258
255
68
262.
Moreover, the EIS contained no analysis of the effects of the Project on activities and
factors that are necessarily incidental to the exercise and maintenance of Treaty rights,
such as use of campsite areas and cabins, as described in the case law cited earlier in
these submissions. BC Hydro paid lip service in the EIS to the inclusion of navigational
and access elements, as well as other elements such as the ability to exercise rights in
preferred locations and the ability to transmit culture, as there is no assessment of the
potential impacts of the Project on these factors.
263.
Notably, the assessment of the impacts to DTFN’s Treaty rights is confined to two
paragraphs, both consisting exclusively of references to Section 19, the Current Use of
Lands and Resources for Traditional Purposes section.259 BC Hydro did not provide an
assessment or analysis of the effects of the Project on anything except biophysical
elements, such as the availability of hunting and fishing opportunities or harvesting
activities themselves.
264.
Additionally, BC Hydro mischaracterized and misinterpreted Treaty 8 rights in the EIS.
Specifically, DTFN takes issue with the following statements made by BC Hydro in
Section 34 of the EIS:

that Treaty 8 “involved the surrender of land” by First Nations;260 and

that BC Hydro has “endeavored throughout the EIS to take the First Nation’s
perspective on the scope of treaty rights into account when assessing and measuring
the potential effects of the Project.”261
265.
DTFN’s concerns regarding the insufficient assessment of impacts to its Treaty rights
were repeated in letters dated May 29, 2013, August 23, 2013 and September 5, 2013.262
259
EIS, Vol. 5, s. 34, p. 14.
EIS, Vol. 5, s. 34, p. 4. DTFN interprets Treaty 8 as a “sharing agreement” with the Crown.
261
EIS, Vol. 5, s. 34, p. 7. DTFN observes that BC Hydro has not incorporated its perspective on treaty rights – BC
Hydro has focused the assessment of the impact to treaty rights purely on an assessment of biophysical impacts of
the Project.
262
DTFN IOC, CEAR 1814, supra note 212 (at Adobe 995-996); DTFN IOC, CEAR 1814, Tab 72 (at Adobe 11391140); and DTFN IOC, CEAR 1814, supra note 208 (at Adobe 564-566).
260
69
266.
The courts have been clear that the determination of whether a Treaty right may be
impacted must be guided by a general purposive approach that recognizes that actions
can have irreversible effects.263
267.
In its EIS, BC Hydro failed to take into account a number of considerations relating to the
assessment of impacts to Treaty rights, including:

the historical context of developments in DTFN’s Traditional Territory;264

the injurious affection that the Project might cause on the exercise of Treaty rights in
the vicinity of that project;265
268.

potential negative derivative impacts of the Project;266

non-direct impacts to DTFN’s Treaty rights.267
For all of these reasons, the EIS is completely deficient with respect to assessing potential
impacts to DTFN’s Treaty rights.
E.
MITIGATION MEASURES PROPOSED BY BC HYDRO
269.
Table 39.1 of the EIS set out all of the mitigation measures that BC Hydro intends to
apply.268 The proposed mitigation measures are completely deficient to address potential
Project impacts to DTFN’s current uses and Treaty rights.
270.
With respect to impacts to current uses, BC Hydro’s proposed mitigation measures are
the following:
Project effect: Changes in fishing opportunities and practices during construction and operations

263
Implement measures supporting the development of 3 boat launches along the Site C
reservoir accessible via Highway 29 to support navigability and navigable use, and the re-
Rio Tinto, supra note 86 at para 46.
West Moberly, supra note 89 at paras 117 (per Finch CJA), 181 (per Hinkson JA), 239 (per Garson JA).
265
Mikisew, supra note 91 at paras 44, 47.
266
Taku River Tlingit First Nation v. British Columbia (Project Assessment Director) 2004 SCC 74 at para 32.
267
Haida Nation, supra note 90 at paras 72-73.
268
EIS, Vol. 5, s. 39, Table 39.1, p. 71.
264
70
establishment of recreational sites on the Site C reservoir and downstream, and to reestablish and create new use patterns and access, as set out in Volume 3 Section 26
Navigation269
….
Project effect: Changes to other cultural and traditional uses of land during construction and
operations

271.
Work with Aboriginal groups to identify potential sites for relocation of medicinal and
food plants to compensate for areas that will be inundated.270
These are not effective measures to deal with the potential Project effects to DTFN’s
current uses and Treaty rights. In fact, the proposed mitigation measure of constructing
more boat launches may actually create more impacts to DTFN, as it will increase access
for recreational fishers, creating more pressure on fishing resources and fishing areas. BC
Hydro gave no consideration to the potential effects of these proposed mitigation
measures on current uses and Treaty rights in the EIS.
272.
Similarly, BC Hydro gave no consideration to the impacts on current uses and Treaty
rights from proposed mitigation measures to deal with the loss of agricultural land that
BC Hydro proposed to mitigate through the inclusion of additional lands in the
Agricultural Land Reserve.271 The EIS contained no consideration of the fact that the
designation of additional lands to the Agricultural Land Reserve will take up even more
lands from the exercise of DTFN’s Treaty rights, thereby adversely impacting its current
uses and Treaty rights.
273.
In fact, it appears that BC Hydro did not even recognize the potential for impacts to First
Nations from this mitigation measure, given that it only included the ALR, government
and private landowners in the list of groups it would consult before it provided
replacement lands.
274.
DTFN raised its concerns about the potential impacts to its uses and rights from proposed
mitigation measures with BC Hydro, but BC Hydro never addressed the concerns.272
269
EIS, Vol. 5, s. 39, Table 39.1, p. 35.
EIS, Vol. 5, s. 39, Table 39.1, p. 35-36.
271
EIS, Vol. 5, s. 39, Table 39.1, p. 38.
272
DTFN IOC, CEAR 1814, supra note 208 (at Adobe 562).
270
71
275.
Due to the deficiencies in BC Hydro’s assessment of potential Project impacts to DTFN’s
uses and rights, it is impossible to devise appropriate mitigation strategies. Effects need
to be identified and understood first, before mitigation measures can be identified. DTFN
does not have the capacity to undertake the requisite work necessary to understand
Project impacts and to identify appropriate mitigation measures.
F.
CONCLUSION
276.
In light of the significant gaps in BC Hydro’s assessment of potential impacts to DTFN’s
current uses and Treaty rights, DTFN submits that the Panel should not recommend
approval of Site C.
277.
BC Hydro did not meet the requirements of the EIS Guidelines and other applicable
guidance documents in that it:

Failed to justify its spatial scoping for effects to wildlife, vegetation and current uses;

Failed to consider appropriate criteria in its significance determination, in particular
the level of disturbance already impacting DTFN members’ ability to exercise their
Treaty rights;

Failed to undertake a methodologically-sound cumulative effects assessment that
considers past and existing developments within the RAAs;

Failed to assess impacts to DTFN’s Treaty rights, having only considered impacts to
current uses.
278.
These deficiencies are of great concern. DTFN and the other participants in the process
had a reasonable expectation that BC Hydro would complete its EIS in accordance with
the requirements set by the Agency and the B.C. EAO. BC Hydro has not met those
requirements.
72
279.
In light of the EIS deficiencies, the Panel is not in a position to know how significant the
adverse impacts of this Project to DTFN’s current uses for traditional purposes would be
if the Project is approved. As a result, the requirements of s. 5(1)(c) of CEAA, 2012 and
the JRP’s Term of Reference cannot be met in that there in an inadequate assessment of
impacts to current use of lands and resources for traditional purposes and to cultural
heritage.273
280.
For the same reasons, the Panel cannot know what the potential impacts would be to
DTFN’s Treaty rights. As set out earlier in these submissions, the Panel is required to
consider impacts to DTFN’s Treaty rights from this proposed Project before making a
recommendation.274 Given the inadequacies in BC Hydro’s assessment approach to
current uses and Treaty rights, the Panel is not in a position to do that.
281.
If the Panel were to recommend approval of this proposed Project in the face of these
deficiencies, it would be tantamount to concluding that the impacts to DTFN’s uses and
Treaty rights, no matter how significant, do not matter. Such an approach is not in
keeping with the goal of reconciliation that the Courts have mandated. DTFN urges the
Panel not to reach that conclusion and to recommend against approval of this Project.
RESPECTFULLY SUBMITTED THIS 3RD DAY OF FEBRUARY, 2014
Dene Tha’ First Nation
273
274
CEAA, 2012, s 5(1)(c); Terms of Reference, supra note 5, s. 2.2 (at Adobe 16).
Terms of Reference, supra note 5, s. 2.3 (at Adobe 17); Slaight, supra note 83; Al Telbani, supra note 84.
INDEX - MATERIALS FILED WITH DENE THA’ FIRST NATION’S WRITTEN
SUBMISSIONS
TAB
DOCUMENT
Secondary Sources
1.
Canada, Canadian Environmental Assessment Agency. Operational Policy
Statement: Assessing Cumulative Environmental Effects under the Canadian
Environmental Assessment Act, 2012 (May 2013).
2.
Canada, Federal Environmental Assessment Review Office. A Reference Guide for
the Canadian Environmental Assessment Act – Determining Whether A Project is
Likely to Cause Significant Adverse Environmental Effects (November 1994).
3.
Canada, Hegmann G, C Cocklin, R Creasey, S Dupuis, A Kennedy, L Kingsley, W
Ross, H Spaling and D Stalker. Cumulative Effects Assessment Practitioners Guide
(Hull: AXYS Environmental Consulting Ltd and the CEA Working Group, 1999).
Case Law
1.
Dene Tha’ First Nation v Canada (Minister of Environment) 2006 FC 1354.
2.
Haida Nation v British Columbia (Minister of Forests) 2004 SCC 73.
3.
Mikisew Cree First Nation v Canada (Minister of Canadian Heritage) 2005 SCC 69.
4.
Paulette v Canada (Registrar of Titles) (No 2), (1973) 42 DLR (3d) 8 (NWTSC) at
para 86; rev’d (1975) 63 DLR (3d) 1 (NWTCA); [1976] SCJ No 89.
5.
R v Badger, [1996] 1 SCR 771.
6.
R v Horseman, [1990] 1 SCR 901.
7.
R v Morris 2006 SCC 59.
8.
R v Sparrow, [1990] 1 SCR 1075.
9.
R v Sundown, [1999] 1 SCR 393.
10.
Rio Tinto Alcan Inc Carrier Sekani Tribal Council 2010 SCC 43.
11.
Taku River Tlingit First Nation v. British Columbia (Project Assessment Director)
2004 SCC 74.
12.
Tsilhqot’in Nation v British Columbia 2007 BCSC 1700.
13.
West Moberly First Nations v British Columbia (Chief Inspector of Mines) 2011
BCCA 247, leave to appeal denied 2012 CanLII 8361 (SCC).
Operational Policy Statement
Assessing Cumulative Environmental Effects under the
Canadian Environmental Assessment Act, 2012
May 2013
Disclaimer
This Operational Policy Statement (OPS) is for information purposes only. It is not a substitute
for the Canadian Environmental Assessment Act, 2012 (CEAA 2012) or its regulations. In the
event of an inconsistency between this OPS and CEAA 2012 or its regulations, CEAA 2012 or
its regulations, as the case may be, would prevail.
Purpose
This OPS sets out the general requirements and approach to consider cumulative
environmental effects of designated projects under CEAA 2012, when the Canadian
Environmental Assessment Agency (the Agency), the National Energy Board (NEB) or the
Canadian Nuclear Safety Commission (CNSC) is the responsible authority.
The OPS informs the preparation of directives by the responsible authorities, such as the
Environmental Impact Statement (EIS) Guidelines. The OPS also serves as core guidance to
project proponents. It is referenced in the NEB filing manual and may be reflected in the CNSC
regulatory framework.
It also provides direction to Agency employees in their interactions with those engaged in
federal environmental assessment (EA), such as proponents, federal authorities, other
jurisdictions, Aboriginal groups and the public, throughout the EA of a designated project.
In combination with EIS Guidelines, the OPS aims to ensure that the CEAA 2012 requirements
on cumulative environmental effects are met in all project EAs.
Application
In the OPS, “project EA” means the EA of a designated project under CEAA 2012. Throughout
the OPS, the term “environmental effects” refers to environmental effects as described in
section 5 of CEAA 2012.
The OPS should be used to inform the preparation of the EIS Guidelines and EIS for a
designated project. It should be used in conjunction with other Agency policy and guidance
instruments. Additional technical guidance, currently in development, will present methodologies
that may be useful in implementing the OPS in the context of CEAA 2012.
For application under CEAA 2012, this OPS replaces the Canadian Environmental Assessment
Agency’s 2007 OPS entitled, Addressing Cumulative Environmental Effects under the Canadian
Environmental Assessment Act. The 2007 OPS will continue to apply for project EAs initiated
under the former Canadian Environmental Assessment Act that are still being conducted as
comprehensive studies.
Relevant Provisions of CEAA 2012 for Assessing Cumulative Environmental
Effects
CEAA 2012 aims to protect components of the environment that are within federal legislative
authority from significant adverse environmental effects caused by a designated project,
including cumulative environmental effects. In addition, CEAA 2012 ensures that a designated
project is considered in a careful and precautionary manner to avoid significant adverse
environmental effects, when the exercise of a power or performance of a duty or function by a
federal authority under any Act of Parliament is required for the designated project to be carried
out. Sections of CEAA 2012 that are most relevant to a cumulative environmental effects
assessment can be found in the Appendix.
Section 5 of CEAA 2012 describes the environmental effects that must be considered in the
implementation of the legislation, including changes to the environment and effects of changes
to the environment.
Paragraph 19(1)(a) of CEAA 2012 specifies that a project EA must take into account
environmental effects, including cumulative environmental effects that are likely to result from
the designated project in combination with other physical activities that have been or will be
carried out.
Paragraph 19(1)(a) also requires the assessment of the environmental effects of accidents and
malfunctions that may occur in relation to the designated project. Accordingly, the
environmental effects of accidents and malfunctions must be considered in the assessment of
cumulative environmental effects if they are likely to result from the designated project in
combination with other physical activities that have been or will be carried out.
Cumulative environmental effects are assessed in relation to the other factors listed in
subsection 19(1). For example, significance of environmental effects is determined taking into
account cumulative environmental effects. In addition, the project EA must take into account
mitigation measures and requirements of the follow-up program that would relate to cumulative
environmental effects. Also mentioned as a factor in subsection 19(1), the environmental
assessment of a designated project must take into account the results of any relevant regional
study conducted by a committee established under CEAA 2012.
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Consideration of Cumulative Environmental Effects under CEAA 2012
CEAA 2012 requires that each EA of a designated project take into account any cumulative
environmental effects that are likely to result from the designated project in combination with the
environmental effects of other physical activities that have been or will be carried out.
The practice of project EA calls for examining potential environmental effects of the project on
valued components and considering mitigation measures. A cumulative environmental effects
assessment allows for the consideration of additional mitigation measures. This is done prior to
determining the significance of adverse environmental effects for the EA decisions and for the
implementation of the follow-up program.
The approach and level of effort applied to assessing cumulative environmental effects in a
project EA is established on a case-by-case basis taking into consideration:
•
the characteristics of the project;
•
the risks associated with the potential cumulative environmental effects;
•
the health or status of valued components (VCs) that may be impacted by the
cumulative environmental effects;
•
the potential for mitigation and the extent to which mitigation measures may address
potential environmental effects; and,
•
the level of concern expressed by Aboriginal groups or the public.
All cumulative environmental effects assessments should include the five steps described below
– initial scoping, analysis, identification of mitigation measures, determination of significance,
and follow-up.
EA documentation must clearly explain and justify the methodologies that have been used to
assess cumulative environmental effects.
Step 1: Initial scoping
Scoping for cumulative environmental effects assessment includes: identifying VCs for which
residual environmental effects are predicted, determining spatial and temporal boundaries to
capture potential cumulative environmental effects on these VCs, and examining the
relationship of the residual environmental effects of the designated project with those of other
physical activities.
Scoping for cumulative environmental effects assessment is an iterative process. Initial scoping
addresses the direction provided by the responsible authority. As the project EA advances,
information is gained, for example on valued components, potential environmental effects,
environmental conditions and the environmental effects of other physical activities, that may
help clarify what needs to be considered in the cumulative environmental effects assessment
and to what extent. The initial scope is also adapted in light of information and comments
provided by Aboriginal groups or the public.
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Identifying Valued Components
Identification of VCs for the project EA is made in relation to section 5 of CEAA 2012 and takes
into account direction provided by the responsible authority. Analysis is then undertaken to
identify which of these VCs will be considered for the cumulative environmental effects
assessment.
The cumulative environmental effects assessment should consider those VCs for which residual
environmental effects are predicted after consideration of mitigation measures, regardless of
whether those residual environmental effects are predicted to be significant.
The cumulative environmental effects assessment must consider other physical activities that
have been carried out up to the time of the analysis or will be carried out in the future, provided
that these physical activities are likely to impact the same VCs that would be affected by
residual environmental effects of the designated project.
Determining Spatial and Temporal Boundaries
Spatial and temporal boundaries should be identified and justified clearly, and be set taking into
account direction provided by the responsible authority.
To consider the environmental effects of current and future physical activities, the spatial
boundaries need to encompass the potential environmental effects on the selected VC of the
designated project in combination with other physical activities that have been or will be carried
out.
Temporal boundaries for assessing a selected VC should take into account future physical
activities that are certain and reasonably foreseeable, and the degree to which the
environmental effects of these physical activities will overlap those predicted from the
designated project.
Examining Physical Activities That Have Been Carried Out
Present-day environmental conditions reflect the cumulative environmental effects of many past
and ongoing physical activities. A description of past environmental conditions can at times
improve the understanding of cumulative environmental effects for a specific VC.
Information on the environmental effects of past or existing physical activities may be helpful:
•
if the effects of past or existing physical activities on a specific VC will help predict
the environmental effects of a designated project;
•
if information on past or existing physical activities will assist in the identification of
appropriate mitigation measures for the designated project; or
•
if an existing physical activity will be decommissioned in the future and this
decommissioning would affect the future condition of a specific VC.
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Examining Physical Activities That Will Be Carried Out
A cumulative environmental effects assessment of a designated project must include future
physical activities that are certain and should generally include physical activities that are
reasonably foreseeable.
These concepts are defined as follows:
•
Certain: the physical activity will proceed or there is a high probability that the
physical activity will proceed, e.g. proponent has received the necessary
authorizations or is in the process of obtaining those authorizations.
•
Reasonably Foreseeable: the physical activity is expected to proceed, e.g. the
proponent has publicly disclosed its intention to seek the necessary EA or other
authorizations to proceed.
Step 2: Analysis
The methodologies used to predict cumulative environmental effects must be clearly described.
With this information, reviewers of the EIS will be able to examine how the analysis was
conducted and what rationale supports the conclusions reached. Any assumptions or
conclusions based on professional judgement should be clearly identified and described.
Data collection and/or generation are important components of a cumulative environmental
effects assessment. At times, it may be challenging to obtain or generate data to support the
analysis. Potential cumulative environmental effects should be considered, as appropriate, in
the analysis even when there is little supporting data or there is predictive uncertainty.
Reviewers of the EIS should be presented with a complete picture of the potential types and
scale of cumulative environmental effects. In all cases, uncertainties and assumptions
underpinning an analysis should be described and information sources clearly documented.
Scientific data supporting a cumulative environmental effects assessment can often be
supplemented in various ways, including the use of computer models or data from other areas
with comparable conditions.
Community knowledge and Aboriginal traditional knowledge available to the proponent should
be incorporated into the cumulative environmental effects assessment, in keeping with
appropriate ethical standards and without breaking obligations of confidentiality, if any.
Step 3: Identification of Mitigation Measures
Taking into account direction from the responsible authority, technically and economically
feasible measures must be identified that would mitigate any significant adverse cumulative
environmental effects.
5
Mitigation of cumulative environmental effects can take two forms:
•
Elimination, reduction or control of a designated project’s environmental effects is
preferred.
•
Where this is not possible, restitution for any damage to the environment caused by
the residual environmental effect should be considered, e.g., replacement,
restoration, compensation.
Restitution can include activities such as restoring habitat or purchasing land to protect the
habitat of a bird.
Both forms of mitigation can be considered in the decisions on whether a designated project is
likely to cause significant adverse environmental effects.
Step 4: Determination of Significance
An EA must consider the significance of any cumulative environmental effects that are likely to
result from a designated project in combination with other physical activities, taking into account
the implementation of mitigation measures.
Significance predictions in relation to cumulative environmental effects should be clearly
presented and rationalized against defined criteria consistent with the Canadian Environmental
Assessment Agency’s reference guide Determining Whether a Project is Likely to Cause
Significant Adverse Environmental Effects (November 1994), or any future updates to this
document.
Step 5: Follow-Up
Follow-up programs should address project-specific environmental effects and cumulative
environmental effects.
Additional guidance is available through the Operational Policy Statement published by the
Agency on Follow up Programs under the Canadian Environmental Assessment Act (December
2011), or any future updates to this document.
Publication Information
Catalogue No. En106-116/2013E-PDF
ISBN: 978-1-100-22263-9
This document has been issued in French under the title: Évaluation des effets
environnementaux cumulatifs en vertu de la Loi canadienne sur l’évaluation environnementale
(2012)
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Appendix: Relevant Provisions of CEAA 2012
ENVIRONMENTAL EFFECTS
Environmental effects
5. (1) For the purposes of this Act, the environmental effects that are to be taken into account
in relation to an act or thing, a physical activity, a designated project or a project are
(a) a change that may be caused to the following components of the environment that are within
the legislative authority of Parliament:
(i) fish as defined in section 2 of the Fisheries Act and fish habitat as defined in subsection
34(1) of that Act,
(ii) aquatic species as defined in subsection 2(1) of the Species at Risk Act,
(iii) migratory birds as defined in subsection 2(1) of the Migratory Birds Convention Act, 1994,
and
(iv) any other component of the environment that is set out in Schedule 2;
(b) a change that may be caused to the environment that would occur
(i) on federal lands,
(ii) in a province other than the one in which the act or thing is done or where the physical
activity, the designated project or the project is being carried out, or
(iii) outside Canada; and
(c) with respect to aboriginal peoples, an effect occurring in Canada of any change that may be
caused to the environment on
(ii) physical and cultural heritage,
(iii) the current use of lands and resources for traditional purposes, or
(iv) any structure, site or thing that is of historical, archaeological, paleontological or
architectural significance.
Exercise of power or performance of duty or function by federal authority
(2) However, if the carrying out of the physical activity, the designated project or the project
requires a federal authority to exercise a power or perform a duty or function conferred on it under
any Act of Parliament other than this Act, the following environmental effects are also to be taken into
account:
(a) a change, other than those referred to in paragraphs (1)(a) and (b), that may be caused to
the environment and that is directly linked or necessarily incidental to a federal authority’s
exercise of a power or performance of a duty or function that would permit the carrying out, in
whole or in part, of the physical activity, the designated project or the project; and
7
(b) an effect, other than those referred to in paragraph (1)(c), of any change referred to in
paragraph (a) on
(ii) physical and cultural heritage, or
(iii) any structure, site or thing that is of historical, archaeological, paleontological or
architectural significance.
Schedule 2
(3) The Governor in Council may, by order, amend Schedule 2 to add or remove a component of
the environment.
FACTORS TO BE CONSIDERED
Factors
19. (1) The environmental assessment of a designated project must take into account the
following factors:
(a) the environmental effects of the designated project, including the environmental effects of
malfunctions or accidents that may occur in connection with the designated project and any
cumulative environmental effects that are likely to result from the designated project in
combination with other physical activities that have been or will be carried out;
(b) the significance of the effects referred to in paragraph (a);
(c) comments from the public — or, with respect to a designated project that requires that a
certificate be issued in accordance with an order made under section 54 of the National Energy
Board Act, any interested party — that are received in accordance with this Act;
(d) mitigation measures that are technically and economically feasible and that would mitigate any
significant adverse environmental effects of the designated project;
(e) the requirements of the follow-up program in respect of the designated project;
(f) the purpose of the designated project;
(g) alternative means of carrying out the designated project that are technically and economically
feasible and the environmental effects of any such alternative means;
(h) any change to the designated project that may be caused by the environment;
(i) the results of any relevant study conducted by a committee established under section 73 or 74;
and
(j) any other matter relevant to the environmental assessment that the responsible authority, or
— if the environmental assessment is referred to a review panel — the Minister, requires to be
taken into account.
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Scope of factors
(2) The scope of the factors to be taken into account under paragraphs (1)(a), (b), (d), (e), (g),
(h) and (j) is determined by
(a) the responsible authority; or
(b) the Minister, if the environmental assessment is referred to a review panel.
Community knowledge and Aboriginal traditional knowledge
(3) The environmental assessment of a designated project may take into account community
knowledge and Aboriginal traditional knowledge.
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Reference Guide: Determining Whether A Project is Likely to
Cause Significant Adverse Environmental Effects
1. Introduction
This reference guide describes an approach for deciding whether a project is likely to
cause significant environmental effects under the Canad/‘an Environmental
Assessment Act (Act). It is one of several reference guides intended to provide the
supporting documentation for the Responsible Authority’s Guide to the Canadian
Environmen tat Assessment Act prepared by the Federal Environmental Assessment
Review Office (FEARO). All of the reference guides are complimentary to the
Responsible Authority’s Guide to the Canadian Environmental Assessment Act but
go into more detail on individual issues. Specifically, this reference guide:
a
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reviews the concept of significance;
discusses the relevant requirements of the Act;
proposes an approach for deciding whether a project is likely to cause
significant adverse environmental effects under the Act;
provides a list of key references on the subject.
As the practice of environmental assessment evolves, it will be necessary to update
and revise both the Responsible Authority’s Guide to the Canadian Environmental
Assessment Act and the individual reference guides. These guides should be seen
as evolving documents rather than as static textual materials. Any suggestions for
updates or revisions should be directed to:
Director
Process Development
Policy and Regulatory Affairs
Federal Environmental Assessment Review Off ice
14th Floor, Fontaine Building
200 Sacre-Coeur Boulevard
Hull, Quebec
KIA OH3
This guide is intended primarily for responsible authorities (RAs) and the Minister of
the Environment (the Minister), since under the Act, they are responsible for
determining when a project is likely to cause significant adverse environmental effects.
2. The Concept of Significance
Deciding whether a project is likely to cause significant adverse environmental effects
is central to the concept and practice of environmental assessment. Whatever
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adverse environmental effects are addressed and whatever methods are used, the
focus of environmental assessment always narrows down to a decision about whether
the project is likely to cause significant adverse environmental effects.
The concept of significance cannot be separated from the concepts of “adverse” and
“likely.” Environmental effects that are adverse, and significant adverse environmental
effects that are Me/y, are referred to for convenience in this guide as “the related
matters.”
Deciding when a project is likely to cause significant adverse environmental effects is
not new to environmental assessment (EA). This concept was included in the
Environmental Assessment and Review Process (EARP) Guidelines Order and can be
found in most EA legislation, procedural manuals, documents and the research
literature. But there is little guidance available on what to consider when determining
significance and the related matters and how this should be done.
3. The Requirements of the Canadian Environmenta/ Assessment Act
The concept of significance is extremely important in the Act. One of the stated
purposes of the Act is:
to ensure that projects that are to be carried out in Canada or on
federal lands do not cause significant adverse environmental effects
outside the jurisdictions in which the projects are carried out ” (set tion
4 (cI
The central test in the Act is whether a project is like/y to cause significant adverse
environmental effects. This determination is an objective test from a legal standpoint,
which means that all decisions about whether or not projects are likely to cause
adverse environmental effects must be supported by findings based on the
requirements set out in the Act.
The definitions of “environment” and “environmental effect” are the starting point for
this test . The Act defines the environment as:
the components of the Earth, and includes
(al
16)
(cl
land, water and air, including all layers of the atmosphere,
all organic and inorganic matter and living organisms, and
the interacting natural systems that include components
referred to in paragraphs (a) and (b) (section 2/7)).
Environmental effect means, in respect of a project,
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(al
any change that the project may cause in the environment,
including any effect of any such change on health and socioeconomic conditions, on physical and cultural heritage, on the
current use of lands and resources for traditional purposes by
aboriginal persons, or on any structure, site or thing that is of
historical, archaeological, paleon tological or architectural
significance, and
Ibl
any change to the project that may be caused by the
environment,
whether any such change occurs within or outside Canada (section 2 (7)).
Only environmental effects as defined in the Act can be considered in determinations
of significance and the related matters. It follows that the determination of significance
and the related matters can consider only:
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direct changes in the environment caused by the project;
the effects of these environmental changes on:
health and socio-economic conditions,
.
.
physical and cultural heritage,
.
current use of lands and resources for traditional purposes
by aboriginal persons,
.
any structure, site or thing that is of historical,
archaeological, paleontological or architectural significance;
or
changes to the project caused by the environment.
For example, the socio-economic effects of a project may or may not be factors in
determining significance and the related matters. If a socio-economic effect (such as
job losses) is caused by a change in the environment (such as loss of fish habitat),
which is in turn caused by the project, then the socio-economic effect & an
environmental effect within the meaning of the Act and must be considered when
determining significance and the related matters. If the socio-economic effect is not
caused by a change in the environment, however, but by something else related to the
project (for example, reallocation of funding as a result of the project), then the socioeconomic effect is not an environmental effect within the meaning of the Act and
cannot be considered in the determination of significance and the related matters.
Determinations of significance and the related matters must be made:
0
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following a screening;
after a comprehensive study report has been completed;
after a mediation or review panel report has been submitted.
184
Following a screening, the RA must decide whether or not the project is likely to cause
significant adverse environmental effects, taking into account the implementation of
mitigation measures (section 20(l)). If the RA decides that the project is not likely to
cause significant adverse environmental effects, it may allow the project to proceed,
while ensuring that any appropriate mitigation measures are implemented. If the RA
decides that the project is likely to cause significant adverse environmental effects
(taking into account the implementation of mitigation measures) and these effects
cannot be justified in the circumstances, it must not do anything that would permit the
project to proceed.
The RA must refer the project to the Minister for referral to a mediator or a review
panel when:
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it is uncertain whether the project is likely to cause significant adverse
environmental effects (taking into account the implementation of mitigation
measures);
it decides that the project is likely to cause significant adverse environmental
effects that may be justifiable in the circumstances; or
public concerns warrant a referral.
When a comprehensive study report is sent to the Minister and the Canadian
Environmental Assessment Agency (the Agency) by an RA, the Minister is required to
make a process decision about whether or not further review of the project is
necessary, or whether a final decision can be made by the RA (section 23). This
decision must be based on the comprehensive study report. If the Minister decides
that the project, taking into account the implementation of mitigation measures, is not
likely to cause significant adverse environmental effects or that it is likely to cause
significant adverse environmental effects that cannot be justified in the circumstances,
the Minister must refer the project back to the RA for appropriate action. If it is
uncertain, however, whether the project is likely to cause any significant adverse
environmental effects or that the project will cause significant adverse environmental
effects that may be justified in the circumstances, the project must be referred to a
mediator or a review panel. Public concerns may also warrant referring the project to
a mediator or a review panel.
After a panel review or a mediation is completed, or when a comprehensive study
report of a project is referred back to the RA by the Minister, the RA must make the
final determination and decide whether the project is likely to cause significant adverse
environmental effects (section 37(l)). If the project is not likely to cause significant
adverse environmental effects, or if it is likely to cause significant adverse
environmental effects (taking into account the implementation of mitigation measures)
that can be justified in the circumstances, the RA is free to provide federal support to
or participate in the project. If, on the other hand, the RA considers that the project is
likely to cause significant adverse environmental effects that cannot be justified in the
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circumstances, it must not do anything to permit the project to proceed.
Four points merit special attention. First, with the exception of transboundary
boundary reviews, the RA makes the determination about whether the project is likely
to cause significant adverse environmental effects. The Minister, however, does make
a process determination of significance and the related matters following receipt of a
comprehensive study report from an RA. After considering whether the project is likely
to cause significant adverse environmental effects, as described in the comprehensive
study report, the Minister must make a decision whether further study, through a panel
review or mediation, is warranted.
Second, in a// cases, significance and the related matters are determined only after
taking into account any mitigation measures the RA considers appropriate. In other
words, no final determination can be made about the significance of the likely adverse
environmental effects or the related matters unless the implementation of any
appropriate mitigation measures has been considered.
Third, public input into the determination of significant adverse environmental effects
must limit itself to questions related to scientific analysis and interpretation. The public,
for example, could provide new evidence, offer a different interpretation of the facts, or
question the credibility of the conclusions. Issues that are not directly linked to the
scientific (including traditional ecological knowledge) analysis of environmental effects,
such as long-term unemployment in a community or fundamental personal values,
cannot be introduced into the determination at this step. Such public concerns and
values are given prominence elsewhere in the EA process. Under the Act, serious
public concerns can warrant referral of the project to a public review through either
mediation or a public panel review. That is, public concerns -- that may or may not
have to do with scientific issues -- can prompt the EA process to take a closer look at
the project.
Fourth, if there is a determination that the project, taking into account the
implementation of appropriate mitigation measures, is likely to cause significant
adverse environmental effects, then the RA must also determine whether or not such
effects can be justified under the circumstances. The Act is clear that the project may
be allowed to proceed if any likely significant adverse environmental effects can be
justified in the circumstances. This is the final “test” in the Act. The RA can decide
that likely significant adverse environmental effects are not justified after a screening,
comprehensive study report, or a public review. It can decide that they are justified,
however, only after a public review in the form of mediation or a panel review.
The central question for the RA or the Minister in the process decision following
submission of a comprehensive study report, remains: “Is the project likely to cause
any significant adverse environmental effects?” Thus, only environmental effects that
are both likely and adverse can be considered in determinations of significance.
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11”.
Environmental effects that are unlikely or are not adverse cannot be considered in
significance decisions. It is important to note that the test is not of “significantly
adverse” effects, but of adverse effects that are significant. The “likely” applies to the
environmental effects of the project that are both adverse and significant.
4. A Framework
This section provides a framework for guiding RAs in determining whether
environmental effects are adverse, significant, and likely within the context of the Act.
The framework consists of three general steps:
Step 1:
Step 2:
Step 3:
Deciding Whether the Environmental Effects are Adverse
Deciding Whether the Adverse Environmental Effects are Significant
Deciding Whether the Significant Adverse Environmental Effects are
Likely
Each step consists of a set of criteria that RAs and the Minister should use to address
these three questions, as well as examples of methods and approaches that can be
applied. To apply the criteria, the RA and the Minister must rely on information
provided by the proponent. Thus, the RA or the Minister should ensure that the
proponent provides the necessary information (section 18(2)), by specifying the types
of information required to determine significance and the related matters when the
scope of the project is defined by the RA or the Minister.
4.1 Step 1: Deciding Whether the Environmental Effects are Adverse
In making this decision, it may be helpful to separate the effects on people from the
effects on the environment, recognizing of course that people are integral to most
ecosystems. It is important to remember that only “environmental effects” as defined
in the Act can be considered.
Table 1 lists the major factors that should be used to determine whether environmental
effects are adverse. Obviously, the importance of individual characteristics will be
different in different EAs. To assist the RA and the Minister in deciding whether the
environmental effects are adverse, the proponent should be required to submit
information on these factors.
The most common way of determining whether a project’s environmental effects are
adverse is to compare the quality of the existing environment with the predicted quality
of the environment once the project is in place, using some or all of the criteria shown
in Table 1 as variables. This method implies a need for environmental monitoring
information collected over time and/or distance before the project is in place. It also
assumes normal baseline environmental conditions, although this may not always be
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the case (e.g., fluctuating water levels in a river). It is the proponent’s responsibility to
ensure that such information is put before the RA. In most cases, the proponent
should be expected to collect and synthesize the available information on baseline
environmental quality. In some cases where there are gaps in information, the
proponent can be requested to collect new information, depending on the size and
nature of the project and the proponent’s resources.
Occasionally, information from other situations may be helpful in determining whether
the environmental effects are adverse. For example, if there are similar or identical
projects already in place in similar ecosystems, it may be helpful for the proponent to
provide information on their environmental effects.
4.2 Step 2: Deciding Whether the Adverse Environmental Effects are Significant
There are several criteria that should be taken into account in deciding whether the
adverse environmental effects are significant. These are briefly discussed below:
Magnitude of the adverse environmental effect
Magnitude refers to the severity of the adverse environmental effects. Minor or
inconsequential effects may not be significant. On the other hand, if the effects are
major or catastrophic, the adverse environmental effects will be significant. When
using this criterion, it is important to consider the extent to which the project could
trigger or contribute to any cumulative environmental effects.
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Table 1:
Factors in determining adverse environmental effects
Effects on People Resulting from
Environmental Changes
Changes in the Environment
Negative effects on the health of biota,
including plants, animals, and fish;
Negatlve effects on human health, wellbeing, or quality of Me;
Threat to rare or endangered species;
Increase in unemployment or shrinkage in
the economy;
Reductions in species diversity or
disruption of food webs;
Reduction of the quality or quantity of
recreational opportunities or amenities;
Loss of or damage to habitats, including
habitat fragmentation;
Discharges or release of persistent
and/or toxic chemicals, microbiological
agents, nutrients (e.g., nitrogen,
phosphorus), radiation, or thermal energy
(e.g., cooling wastewater);
Detrimental change in the current use
of lands and resources for traditional
purposes by aboriginal persons;
Negative effects on historical,
archaeological, paleontological, or
architectural resources;
Population declines, particularly in top
predator, large, or long-lived species;
Decreased aesthetic appeal or changes in
visual amenities (e.g., views);
The removal of resource materials (e.g.,
peat, coal) from the environment;
Loss of or damage to commercial species
or resources;
Transformation of natural
landscapes;
Foreclosure of future resource use or
production;
Obstruction of migration or passage of
wildlife;
Negative effects on the quality and/or
quantity of the biophysical environment
(e.g., surface water, groundwater, soil,
land, and air).
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Geographic extent of the adverse environmental effects
Localized adverse environmental effects may not be significant. Alternatively,
widespread effects may be significant. When considering this criterion, it will be
important to take into account the extent to which adverse environmental effects
caused by the project may occur in areas far removed from it (e.g., acid rain and the
long-range transportation of atmospheric pollutants), as well as contribute to any
cumulative environmental effects.
Duration and frequency of the adverse environmental effects
Long term and/or frequent adverse environmental effects may be significant. Future
adverse environmental effects should also be taken into account. For example, many
human cancers associated with exposure to ionizing radiation have long latency
periods of up to 30 years. Obviously, when considering future adverse environmental
effects, the question of their likelihood becomes very important.
Degree to which the adverse environmental effects are reversible or irreversible
Reversible adverse environmental effects may be less significant than adverse
environmental effects that are irreversible. In practice, it can be difficult to know
whether the adverse environmental effects of a project will be irreversible or not. It will
be important to consider any planned decommissioning activities that may influence
the degree to which the adverse environmental effects are reversible or irreversible.
Ecological con text
The adverse environmental effects of projects may be significant if they occur in areas
or regions that:
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have already been adversely affected by human activities; and/or
are ecologically fragile and have little resilience to imposed stresses.
To assist the RA and the Minister in deciding significance, proponents should always
be required to submit information on these criteria. All of them should be considered
in deciding whether the adverse environmental effects are significant or not. Different
criteria will be important in different EAs and the extent to which an individual criterion
will influence the overall determination of significance will vary between assessments.
The most common method of determining whether the adverse environmental effects
of a project are significant is to use environmental standards, guidelines, or objectives.
If the level of an adverse environmental effect is less than the standard, guideline, or
objective, it may be insignificant. If, on the other hand, it exceeds the standard,
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guideline, or objective, it may be significant.
Environmental standards, guidelines and objectives have been established by federal,
provincial, and in some cases municipal departments, ministries, and agencies. They
often define either maximum levels of emissions or discharges of specific hazardous
agents into the environment or maximum acceptable levels of specific hazardous
agents in the environment. They are usually based on the results of studies in the
field and with laboratory animals, available technology, and/or prevailing attitudes and
values.
However, environmental standards, guidelines and objectives have been established
only for a relatively small number of hazardous agents, such as some chemicals,
radiation, and physical parameters including acidity and acceptable levels of
particulates or suspended solids. Since there are no standards, guidelines, or
objectives for most environmental effects, they cannot be used to determine the
significance of many adverse environmental effects, nor do they necessarily protect
ecological health. In addition, standards, guidelines, or objectives are set on the basis
of individual hazardous agents and do not allow for any interactions that may occur
(i.e., cumulative environmental effects).
Another method of determining significance is quantitative risk assessment, which is
often used to determine the significance of the risks to human health from ionizing
radiation and carcinogenic chemicals. Its use is restricted to agents that have
predictable dose-response (or exposure-effect) relationships. Often derived from
experiments using laboratory animals, these relationships usually approximate straight
lines (see below).
dose /
exposure
response / effect/ risk
The response, effect, or risk is often measured in terms of increased cancer incidence
per million people exposed. In quantitative risk assessment, an “acceptable” level of
risk is determined. Conventional levels for “acceptable risk” to the public are an
increased incidence of between one in IO thousand to 1 in IO million. By using the
dose-response relationship, it can be determined whether or not the dose/exposure
191
would result in an unacceptable level of risk. In other words, significance is
determined on the basis of an “acceptable level” of a specified risk, often cancer
incidence.
This approach assumes that there is an “acceptable” level of risk. In practice,
occupational health and safety standards allow for a greater degree of risk than public
exposure standards. The Delaney Clause in the U.S. Food and Drugs Act establishes
zero as the acceptable or significant increased cancer risk associated with food
additives. It is important to be clear on who determines acceptable risk levels as well
as how they are determined when quantitative risk assessments are included in EAs.
As well as determining significance, quantitative risk assessment can also be used to
determine the probability of occurrence of significant environmental effects, i.e.,
likelihood.
If there are no relevant environmental standards, guidelines, or objectives and
quantitative risk assessment is not possible, other methods and approaches must be
used. In larger EAs, such as panel reviews, it may be possible to develop methods
and approaches for determining significance for individual projects. In others, it will be
necessary for the RA or the Minister to use a qualitative approach based on their best
professional judgement.
When a project’s adverse environmental effects are being compared to the adverse
environmental effects of an alternative means of carrying out the project, weighting and
ranking methods can assist in deciding whether the adverse environmental effects are
significant. Generally, quantitative methods are used to weight or rank the individual
adverse environmental effects of different alternatives which are then added to
produce a total effect “score.” These methods can be helpful in summarizing and
comparing the effects of alternatives, but they can also hide the assumptions inherent
in the weighting or ranking system. As well, weighting and ranking methods compare
total effects, so that a locally significant individual effect may appear unimportant in the
overall scheme. In other words, there is a loss of specificity. These problems can be
at least partially resolved by ensuring that weighting and ranking exercises are
conducted by those with a wide variety of experience and expertise.
Whatever methods are used to determine significance, they should be based on the
criteria outlined above.
Cost-benefit analysis cannot be used to determine significance in federal EAs, because
it compares the estimated environmental costs and benefits of a project, whereas the
Act clearly states that only adverse environmental effects are to be considered in
determining significance and likelihood. Although cost-benefit analysis could be used
to justify proceeding with a project that is likely to cause significance adverse
environmental effects, this justification can take place only after the likelihood of the
significant adverse environmental effects has been determined.
192
4.3 Step 3: Deciding Whether the Significant Adverse Environmental Effects
Are Likely
When deciding the likelihood of significant adverse environmental effects, there are two
criteria to consider:
Probability of occurrence
If there is a high probability that the identified significant adverse environmental effects
will occur, obviously they are likely. Conversely, if there is a low probability of
occurrence, the significant adverse environmental effects are unlikely.
Scientific uncertainty
There will always be some scientific uncertainty associated with the information and
methods used in EAs. This is often termed the “confidence limits”. If the confidence
limits are high, there is a low degree of uncertainty that the conclusions are accurate
and that the significant adverse environmental effects are likely or not. If the
confidence limits are low, there is a high degree of uncertainty about the accuracy of
the conclusion. In this case, it will be difficult to decide whether the significant adverse
environmental effects are likely or not. If low scientific uncertainty can lead to an
unambiguous conclusion of likelihood or unlikelihood, conversely high uncertainty
cannot be a basis for a clear conclusion about likelihood. In this case, only the
probability of occurrence criterion should be used to determine likelihood.
To assist the RA or the Minister in deciding likelihood, proponents should be required
to submit information on these criteria.
The use of confidence limits has already been mentioned as a method of determining
likelihood based on scientific certainty or uncertainty. Others include a range of
statistical methods that are used to determine “statistical significance,” which is usually
defined as the low probability of error. Although statistical methods themselves are
not discussed in this paper, it is useful to note the two commonly encountered types
of statistical errors. Type 1 is a false positive, that is, a false conclusion that there will
be a significant adverse environmental effect. Type 2 is a false negative, that is, a
false conclusion that there will not be a significant adverse environmental effect.
Statistical results provided by proponents should always be required to state the
probabilities of making both types of errors.
Another method used to determine the probability of occurrence is quantitative risk
assessment. (See section 4.2 above.)
193
RAs and the Minister should require proponents to use statistical methods to
determine statistical significance, whenever possible. These methods will facilitate a
determination of likelihood by the RA or the Minister. In EAs where numerical
methods cannot be used or are not feasible, the RA or the Minister must use a
qualitative approach to determining likelihood, based on their best professional
judgement.
194
5. Further Reading
Allelt, E.J. 1986. EIA and Decision Analysis. Journal of the Operational Research
Society 37: 901-I 0.
Ames, G. 1978. An Approach to the Determination of Significance in the Preparation
of Environmental Assessments In: Environmental Assessment: Approaching
Maturity, edited by Bendix and Graham, 25-33. Ann Arbor Science Publishers Inc.
Ann Arbor, Michigan.
Bacow, L.S. 1980. The Technical and Judgemental Dimensions of Impact
Assessment. Environmental Impact Assessment Review l(2): 109-24.
Bakus, G., W. Stillwell, S. Latter and M. Wallerstein. 1982. Decision Making: With
Applications for Environmental Management. 6(6): 493504.
Caldwell, L.K. 1987. The Contextual Basis for Environmental Decisionmaking:
Assumptions are Predeterminants of Choice. The Environmental Professional 9: 30208.
Duinker, P.N., and G.E. Beanlands. 1986. The Significance of Environmental Impacts:
An Exploration of the Concept. Environmental Management IO(l): I-10.
Economic Commission for Europe. 1989. Criteria for Determining the
En vironmen tal Significance of Projects. Meetings of Experts on Environmental
Impact Assessment, The Hague, Netherlands, November 27-28. United Nations
Economic Commission for Europe. Netherlands.
Haug, P.T., R.W. Burwell, A. Stein, and B.L. Bandurski. 1984. Determining the
Significance of Environmental Issues Under NEPA. Journal of Environmental
Management 18: 15-24.
Hollick, M. 1981. The Role of Qualitative Decision Making Methods in EIA. Journal
of Environmental Management 12(l): 65-78.
Hundloe, T., G.T. McDonald, J. Ware, and L. Wilks. 1990. Cost Benefit Analysis and
Environmental Impact Assessment. Environmental Impact Assessment Review
10(1/2): 55-68.
Matthews, W.H. 1975. Objective and Subjective Judgements in Environmental Impact
Analysis. Environmental Conservation 2(2): 121-31.
Rodericks, J.V., S.M. Brett, and G.C. Wrenn. 1987. Significant Risk Decisions in
195
Federal Regulatory Agencies. Regulatory Toxicology and Pharmacology 7(3): 30720.
Rucklehaus, W.D. 1983. Risk and Public Policy. Science 221: 1026-28.
Sharma, R.K., J.D. Buffington, and J.T. McFadden. 1976. The Biological Significance
of Environmental Impacts. Proceedings of a Conference on June 4-6, 1975 at the
University of Michigan. NR-Conf 002. U.S. Nuclear Regulatory Commission.
Washington, D.C.
Slavic, P. 1987. Perceptions of Risk. Science 236: 280-85.
Thompson, M.A. 1990. Determining Impact Significance in Environmental Impact
Assessments. A Review of 24 Methodologies. Journal of Environmental
Management 30: 235-50.
Travis, C.C., and H.A. Hattemer-Frey. 1988. Determining an Acceptable Level of Risk.
Environmental Science and Technology 22(8): 873-76.
U.S. Army Corps of Engineers, Seattle District. 1983. A Guide to the Analysis of
U.S. Army Corps of Engineers. Seattle, Washington.
Significance.
Wolf, P.G. 1982. User’s Guide to Defining Significant Impacts under the Federal
EARP. Federal Environmental Assessment Review Office. Hull, Quebec.
196
Cumulative Effects Assessment
Practitioners Guide
Prepared for:
Canadian Environmental Assessment Agency
Prepared by:
The Cumulative Effects Assessment Working Group
(Hegmann, G., C. Cocklin, R. Creasey, S. Dupuis, A. Kennedy,
L. Kingsley, W. Ross, H. Spaling and D. Stalker)
and
AXYS Environmental Consulting Ltd.
February 1999
DISCLAIMER
This Guide was developed by an independent Working Group supported by the Canadian Environmental
Assessment Agency (the Agency). The Guide provides insightful information and advocates good cumulative
effects assessment practices. It is to be used as guidance material only. Users of the Guide should consult
with the appropriate decision-making authority for which the environmental assessment is undertaken for
further information on assessment requirements specific to applicable statutory requirements and expected
best practice.
RELATIONSHIP TO FIRST CEAA GUIDE ON CUMULATIVE EFFECTS
In 1994, the Agency published A Reference Guide for the Canadian Environmental Assessment Act:
Addressing Cumulative Environmental Effects. This publication was available as part of the Agency’s The
Canadian Environmental Assessment Act Training Compendium or under separate cover. That Reference
Guide formed the basis of the Agency’s response to questions about conducting Cumulative Effects
Assessments, and has been widely used and referenced. The Agency has updated the 1994 Reference
Guide on Cumulative Environmental Effects to reflect evolving processes and methods to meet requirements
under the Canadian Environmental Assessment Act.
The Practitioners Guide you are now reading represents a CEAA initiative to provide further information on
cumulative effects. This Guide is focussed on practical solutions for practitioners conducting Cumulative
Effects Assessments and should be considered a supplement, not a replacement, to the Reference Guide.
RELATIONSHIP TO THE CANADIAN ENVIRONMENTAL ASSESSMENT ACT
The Canadian Environmental Assessment Agency has developed a four page policy paper on the Agency’s
position regarding CEAs under the Canadian Environmental Assessment Act. This Operational Policy
Statement is entitled Addressing Cumulative Effects under the Canadian Environmental Assessment Act.
The policy document does not recount what is contained in the Practitioners Guide but provides the
Agency’s view on CEA under the Act and the use of this Guide by federal authorities.
COMMENTS ABOUT THIS GUIDE
This document is an evolving product and is not the “final word” on CEA. It will be updated and revised as
the practice of CEA evolves. The CEA Working Group and the Canadian Environmental Assessment Agency
welcome comments and suggestions regarding this Guide. These should be addressed to: Senior Guidance
and Training Officer, Canadian Environmental Assessment Agency, 13th Floor, Fontaine Building, 200
Sacré-Coeur Boulevard, Hull, Quebec, K1A 0H3; or Fax to (819)-997-4931; or E-mail to
training/[email protected].
CITATION
Hegmann, G., C. Cocklin, R. Creasey, S. Dupuis, A. Kennedy, L. Kingsley, W. Ross, H. Spaling and
D. Stalker. 1999. Cumulative Effects Assessment Practitioners Guide. Prepared by AXYS Environmental
Consulting Ltd. and the CEA Working Group for the Canadian Environmental Assessment Agency, Hull,
Quebec.
TO OBTAIN COPIES OF THIS GUIDE
Go to the CEAA website (www.ceaa.gc.ca) and go to “Publications”; or contact: Canadian Environmental
Assessment Agency, 200 Sacre Coeur Blvd., Hull, Quebec, Canada, K1A 0H or Phone (819)-994-2578 or
Fax (819)-994-1469.
Ce rapport est aussi disponsible en français.
© Minister of Public Works and Government Services, 1999
Cat. No. En106-44/1999E
ISBN: 0-660-17709-9
The material in this document may be reproduced, in whole or in part and by any means, without further permission from
the Canadian Environmental Assessment Agency. No such reproduction shall indicate that the Canadian Environmental
Assessment Agency is in any way responsible for the accuracy or reliability of the reproduction; nor shall any such
reproduction indicate that it was made with the endorsement of, or in affiliation with, the Canadian Environmental
Assessment Agency. This document has been produced by the Canadian Environmental Assessment Agency in English
and in French only.
PREFACE
In late 1996, the Canadian Environmental Assessment Agency assembled an independent
Working Group1 of specialists on Environmental Impact Assessment and Cumulative Effects
Assessment to provide further practical direction and information to practitioners on assessing
cumulative effects. Based on direction, editorial comment and material provided by the Working
Group, the Agency contracted AXYS Environmental Consulting Ltd. to prepare this Guide
The Guide represents the result of a collaborative effort between the Agency and the Working
Group. Public consultation sessions were also held by the Agency in the winter of 1998 to solicit
comment on a Discussion Draft released in December 1997 for public review. Due to the breadth
of comments, not all could be addressed.
Thanks go to Patricia Vonk and Jeffrey Green of AXYS Environmental Consulting Ltd. for
technical review and edit of early drafts. Special thanks to Sylvie Dupuis for her ongoing interest
and support in initiating and facilitating the Working Group in the first year as a member of the
Canadian Environmental Assessment Agency, to Catherine Badke of the Agency for chairing the
Working Group in the second year, and to Robyn Virtue and Brad Parker of the Agency for
overseeing final production of the Guide.
Also thanks to the many members of the Canadian public who provided comments about the
Guide during the public consultation sessions. The extensive oral and written comments
contributed to considerable improvements in later versions of the Guide.
1
The CEA Working Group consists of the following individuals:
George Hegmann .. Impact Assessment Specialist, AXYS Environmental Consulting Ltd., Calgary, Alberta (principal
author of the Guide)
Dr. Chris Cocklin .. Professor, Department of Geography & Environmental Science, Monash University, Clayton,
Victoria, Australia
Roger Creasey....... Advisor, Alberta Energy and Utilities Board, Calgary, Alberta
Sylvie Dupuis........ Analyst, Strategic Operations Branch, Environmental Protection Services, Environment Canada,
Hull, Quebec
Dr. Alan Kennedy . Environmental Specialist, Imperial Oil Resources Limited, Calgary, Alberta
Louise Kingsley .... Environmental Consultant, Wakefield, Quebec
Dr. William Ross .. Professor, Environmental Science Program, Faculty of Environmental Design, University of
Calgary, Calgary, Alberta
Dr. Harry Spaling.. Professor, Environmental Studies and Geography, King's University College, Edmonton, Alberta
Don Stalker ........... Environmental Assessment Officer, Environmental Assessment Branch, Environment Canada,
Hull, Quebec
i
ii
FINDING YOUR WAY IN THE GUIDE
The following illustrates the major chapters and sub-sections within this Guide. Use this to find
material of interest to you.
About
Aboutthis
thisGuide
Guide
Contents
Contents
1.1.Introduction
Introduction
2.2.Assessment
Assessment
Fundamentals
Fundamentals
CEA Defined
3.3.Key
KeyTasks
Tasksinin
Completing
Completing
CEAs
CEAs
Assessment Framework
Basic Concepts
Step 1: Scoping
Step 2: Analysis of Effects
Step 3: Identification of Mitigation
Step 4: Evaluation of Significance
Step 5: Follow-up
4.4.Different
Different
Applications
Applicationsofofthe
the
Assessment
Assessment
Framework
Framework
Small Actions (Screenings)
Regional Planning
5.5.Preparing
Preparingand
and
Completing
CompletingaaCEA
CEA
6.6.Bibliography
Bibliography
Appendices
Appendices
Glossary
CEA Case Studies
CEA History in Canada
Suggested CEA References
iii
iv
ABOUT THIS GUIDE
ABOUT THIS GUIDE
WHO IS THIS GUIDE INTENDED FOR?
This Guide is intended primarily for practitioners who are responsible for preparing Cumulative
Effects Assessments (CEAs) as part of a submission to appropriate regulatory bodies for project
review. “Practitioners” include consultants, government agencies and proponents. The Guide may
also be useful to regulatory bodies and review panels in recognizing what constitutes acceptable
and reasonable practice regarding CEAs and in developing appropriate Terms of Reference for
the assessments.
WHAT IS THE PURPOSE OF THIS GUIDE?
The purpose of this Guide is to provide practitioners with:
•
•
•
an overview and clarification of current understanding about the practice of CEA;
suggestions on practical approaches to complete CEAs that meet statutory requirements and
best professional practice; and
case studies of approaches used by project proponents for their CEAs.
IS WHAT IS SAID IN THIS GUIDE MANDATORY?
The Guide does not describe mandatory requirements for completion of CEAs. The only few
exceptions relate to requirements specifically under the Canadian Environmental Assessment Act.
This Guide is meant to be generic to any legislated assessment process and to assist practitioners
through the provision of background information on CEAs, suggestions for possible approaches
and examples through the use of case studies. Case studies are a central component of this Guide,
and reflects the CEA Working Group’s belief that case studies, where one learns from what others
have done, are one of the most instructive ways of learning about CEA. Appearance of a case
study does not in any way imply an endorsement by the Working Group or the Canadian
Environmental Assessment Agency or mandatory requirement of the approaches used or
decisions made.
WHAT DOES THIS GUIDE NOT COVER?
The Guide assumes the user has a basic knowledge of Environmental Impact Assessment (EIA)
fundamentals. This includes such topics as issues scoping, identification and use of Valued
Ecosystem Components (VECs), use of indicators, analytical techniques, determining
significance and identifying mitigation. This knowledge is important, as many attributes of CEAs
are based on those originally developed for EIAs over the past years.
In the interest of keeping the Guide focussed on the practical needs of the practitioner, the Guide
does not attempt to cover all aspects of CEA. The scope of this Guide is, therefore, subject to the
following limitations:
• Canadian federal versus provincial environmental assessment legislation: The Guide does
not restrict itself to CEA requirements as specified under any particular legislation. The extent
to which principles described in this Guide apply may vary among jurisdictions depending on
the particular legislation in force. In this way, the Guide is largely generic, and provides
information that is useful for CEAs performed under any jurisdiction. However, in some
instances specific reference to the Canadian Environmental Assessment Act is made regarding
statutory requirements and interpretations. The Canadian Environmental Assessment Agency's
v
ABOUT THIS GUIDE
•
•
•
•
2
Reference Guide on Cumulative Environmental Effects provides specific details on mandatory
and recommended requirements under the Act.
Biophysical versus socio-economic effects: This Guide focusses on the assessment of
biophysical as opposed to socio-economic effects (the latter includes heritage resources and
resource use). Although considerable progress has been made in the development of
assessment tools for socio-economic impact assessment, most available information on
approaches and examples of CEAs focus on biophysical effects. Cumulative socio-economic
effects are often included within a separate Socio-economic Impact Assessment using
conventional techniques of assessment. In some ways, Socio-economic Impact Assessments
often include cumulative effects issues because of their typically broad regional view of
effects, and the use of standardized Valued Social Components (VSCs) or indicators
representative of regional changes (e.g., monetary value, workforce size). The advancement of
CEA practice should include more frequent recognition of social consequences and the
connections between those consequences and the environment because environmental effects
often lead to socio-economic effects (e.g., for resource use such as timber harvesting).
Project-specific assessments versus regional planning: The assessment of cumulative effects
may be approached for two distinct purposes: project-specific assessments, and regional
planning (or land use) studies.2 The Guide addresses only project-specific assessments in
detail; however, Section 4.2 briefly discusses regional studies and provides some examples.
Project specific assessments are more common and are completed for single project
applications for submission to an administrative agency. Regional planning studies examine
effects that may occur as a result of many future human activities within a large region, often
before actions commence in the region (i.e., they are proactive as opposed to reactive).
However, these studies may be triggered by a single project (often the first project in the
region) contributing to a concern about the long-term effects of further developments.
Assessing the few large projects versus the many small projects: Under the Canadian
Environmental Assessment Act, a project may be reviewed at a simple “screening” level or at a
more detailed level in a comprehensive study, mediation or panel review. For many regulatory
agencies, the vast majority of project applications never proceed beyond a screening level
review. Relatively few projects are assessed in more detail because of their small size and
limited potential to cause significant effects or public concern.3 Despite the greater number of
screenings that are conducted, most of the existing information on CEA issues and approaches
is intended for or is most applicable to larger projects where more resources (i.e., time, budget,
staff) are available. Regarding assessment fundamentals, however, much of what is true for
comprehensive studies (and mediation and panel reviews) is also true for screenings. Although
the Guide focusses on CEA approaches and issues related to assessing the effects of large
projects, the Guide does address cumulative effects assessment of smaller projects.
Use of case studies: The use of case studies reflects an adaptive and evolutionary approach
whereby the practitioner can build on lessons learned from earlier assessments. Their use is
based on the belief that one of the best ways to learn about CEA is to observe and improve on
what others have done. While the case studies serve as examples of CEA practice so far, their
inclusion in this Guide does not imply that these assessments represent “state-of-the-art”. CEA
Of a similar broad scope to regional studies is Strategic Environmental Assessment which provides an assessment of
the environmental effects of policy decisions by administrators. This Guide does not examine such assessments.
3
“Small” and “large” are imprecise terms. “Small” is generally understood to represent projects of quite limited
geographic extent, with very localized effects that often can be fully mitigated by standard mitigation measures.
“Large” projects do not share these restrictions, although it does occur on occasion that relatively large projects are
completely assessed at a screening level.
vi
ABOUT THIS GUIDE
practice (and theory) is continually evolving. In the meantime, however, projects are being
proposed and assessments must be done. In recognition of this, the Guide indicates what can
practically be accomplished now, and points the way ahead to better professional practice in
the assessment of cumulative effects.
• Discussion of assessment theory: In recognition of the extensive amount of information
currently available on the subject, the Guide provides literature references (Appendix D) for
further information instead of providing extensive background theory or a detailed review of
assessment methodologies.4
• Canadian versus international experience: The Guide is limited to discussing issues from a
Canadian perspective as much as possible and, therefore, largely reflects current Canadian
practice.
USING THE INFORMATION BOXES
“Information Boxes” are used throughout the Guide to assist the reader in finding information on
specific CEA issues, approaches and examples. A “List of Information Boxes” is also provided
after the Table of Contents so that the reader may search for a specific topic. The boxes provide
three different types of information:
•
•
•
Explicit step-by-step instructions that describe a certain task.
More detailed information on a subject.
“Real-world” examples or “Case Studies” of assessments from which specific lessons can be
learned (detailed descriptions of some of these are provided in Appendix B).
UNDERSTANDING THE REFERENCING
This symbol indicates that literature references on a specific subject covered in the
text are provided in Appendix D (which is categorized by the referenced subject).
Bibliographic references for citations in the Guide, however, are found in the
Bibliography (Chapter 6).
·
4
This symbol identifies another Section in the Guide that provides further
information on the subject.
While much of the literature defines CEA and proposes methods, many goals suggested therein are not always
attainable due to lack of data and poor knowledge of complex ecosystem process.
vii
ABOUT THIS GUIDE
viii
CONTENTS
CONTENTS
PREFACE .......................................................................................................................... I
FINDING YOUR WAY IN THE GUIDE............................................................................. III
ABOUT THIS GUIDE ........................................................................................................V
WHO IS THIS GUIDE INTENDED FOR? ................................................................................V
WHAT IS THE PURPOSE OF THIS GUIDE? .........................................................................V
IS WHAT IS SAID IN THIS GUIDE MANDATORY?................................................................V
WHAT DOES THIS GUIDE NOT COVER? .............................................................................V
USING THE INFORMATION BOXES....................................................................................VII
UNDERSTANDING THE REFERENCING............................................................................VII
CONTENTS .....................................................................................................................IX
1.0 INTRODUCTION ....................................................................................................... 1
1.1 THE BASICS OF DOING A CEA ...................................................................................... 2
2.0 ASSESSMENT FUNDAMENTALS ........................................................................... 3
2.1 CUMULATIVE EFFECTS DEFINED................................................................................. 3
2.2 AN OVERVIEW OF BASIC CONCEPTS .......................................................................... 6
2.2.1 Effects Pathways ..................................................................................................... 6
2.2.2 How Cumulative Effects Occur................................................................................ 6
2.2.3 Improvements in the Evolving Practice of CEA....................................................... 7
3.0 KEY TASKS IN COMPLETING CEAS ...................................................................... 9
3.1 THE ASSESSMENT FRAMEWORK................................................................................. 9
3.2 STEP 1: SCOPING ......................................................................................................... 11
3.2.1 Identify Regional Issues of Concern...................................................................... 11
3.2.2 Select Appropriate Regional Valued Ecosystem Components ............................. 12
3.2.3 Identify Spatial and Temporal Boundaries ............................................................ 13
3.2.3.1 Spatial Boundaries ........................................................................................ 13
3.2.3.2 Temporal Boundaries .................................................................................... 15
3.2.4 Identify Other Actions ............................................................................................ 18
3.2.4.1 Action Selection Criteria ................................................................................ 18
3.2.4.2 Action Description Criteria............................................................................. 21
3.2.5 Identify Potential Impacts ...................................................................................... 23
3.2.5.1 Using Interaction Matrices.............................................................................. 23
3.3 STEP 2: ANALYSIS OF EFFECTS ................................................................................. 27
3.3.1 Collect Regional Baseline Data............................................................................. 27
3.3.2 Assess Effects on VECs........................................................................................ 27
3.3.2.1 Impact Models ............................................................................................... 31
3.3.2.2 Spatial Analysis using GIS ............................................................................ 33
3.3.2.3 Indicators ....................................................................................................... 35
3.3.2.4 Numerical Models.......................................................................................... 36
3.4 STEP 3: IDENTIFICATION OF MITIGATION ................................................................. 38
3.5 STEP 4: EVALUATION OF SIGNIFICANCE .................................................................. 42
3.5.1 Approaches to Determining Significance .............................................................. 42
3.5.2 Factors that Influence Interpretation of Significance ............................................. 43
3.5.3 Using Thresholds................................................................................................... 46
3.5.4 Handling Uncertainty ............................................................................................. 48
3.6 STEP 5: FOLLOW-UP..................................................................................................... 49
ix
CONTENTS
4.0 DIFFERENT APPLICATIONS OF THE ASSESSMENT FRAMEWORK................ 51
4.1 ASSESSING SMALL ACTIONS...................................................................................... 51
4.1.1 Elements of a Practical Design for a Screening Process...................................... 52
4.2 REGIONAL PLANNING AND LAND USE STUDIES...................................................... 57
5.0 PREPARING AND COMPLETING A CEA ............................................................. 61
5.1 EFFECTIVELY COMMUNICATING RESULTS TO DECISION MAKERS ..................... 63
5.2 KEY CRITERIA FOR CEA .............................................................................................. 64
5.3 CEA CHECKLIST ............................................................................................................ 65
6.0 BIBLIOGRAPHY ..................................................................................................... 68
A
B
GLOSSARY.............................................................................................................A1
CEA CASE STUDIES..............................................................................................B1
ALBERTA-PACIFIC PULP MILL............................................................................................B3
NORTHERN SASKATCHEWAN URANIUM MINES.............................................................B5
COLD LAKE OIL SANDS PROJECT.....................................................................................B7
CHEVIOT COAL MINE ........................................................................................................B10
HUCKLEBERRY COPPER MINE........................................................................................B13
TERRA NOVA OFF-SHORE PETROLEUM PROJECT......................................................B15
EAGLE TERRACE SUB-DIVISION .....................................................................................B17
TRANS-CANADA HIGHWAY TWINNING PHASE IIIA .......................................................B20
TRANSPORTATION CORRIDORS IN GLACIER AND BANFF NATIONAL PARKS .........B23
KEENLEYSIDE POWER PROJECT ...................................................................................B25
LA MAURICIE NATIONAL PARK HIKING TRAIL ...............................................................B27
MINERAL EXPLORATION IN THE NORTHWEST TERRITORIES....................................B29
C
CUMULATIVE EFFECTS HISTORY IN CANADA..................................................C1
D
SUGGESTED CEA REFERENCES ........................................................................D1
x
CONTENTS
LIST OF INFORMATION BOXES
Conditions for Potential Cumulative Effects..................................................................................... 3
Key Terms Defined .......................................................................................................................... 4
“Actions” Include Projects and Activities.......................................................................................... 4
Examples of Cumulative Effects ...................................................................................................... 5
CASE STUDY Cold Lake Oil Sands Project: Effects at a Regional Scale ...................................... 5
CASE STUDY Determining if there are Cumulative Effects: Joint Panel for the Express Pipeline
Proposal ................................................................................................................................... 5
CASE STUDY Saskatchewan Uranium Mines: Pathways of Radionuclides................................... 6
Can Project-Specific CEAs Adequately Address Regional “Nibbling” Effects?............................... 7
Careful Use of Terms....................................................................................................................... 7
Assessment Framework .................................................................................................................. 9
What a Project-Specific Cumulative Effects Assessment Fundamentally Needs to Do................ 10
What is Done First in Scoping?...................................................................................................... 11
Should a CEA Consider Contribution to Trans-Boundary and Global-Scale Effects? ................. 12
CASE STUDY Cold Lake Oil Sands Project: Issues, Valued Ecosystem Components and
Indicators................................................................................................................................ 12
Establishing Spatial Boundaries .................................................................................................... 14
Spatial Boundaries Should be Flexible .......................................................................................... 15
CASE STUDY Examples of Establishing Boundaries ................................................................... 15
Establishing Temporal Boundaries ................................................................................................ 16
CASE STUDY Eagle Terrace Sub-division: Temporal Scenarios ................................................. 17
CASE STUDY Natural Gas Field Development: Regional Development Scenarios..................... 17
CASE STUDY Oil and Gas Developments in Alberta’s Eastern Slopes: Consideration of Full
Project Build-out..................................................................................................................... 17
Identifying Other Actions................................................................................................................ 18
Example Action List........................................................................................................................ 21
What if Information about an Action is Not Available?................................................................... 22
CASE STUDY Placer Mines in the Yukon: Grouping Project Types ............................................. 23
Ranking Mechanisms for Matrices................................................................................................. 24
CASE STUDY Cold Lake Oil Sands Project: Interaction Matrix for Various Project Components 25
CASE STUDY Trans Canada Highway: Interaction Matrix for Various Actions ............................ 25
CASE STUDY Kluane National Park: Effect’s Interaction Matrix .................................................. 26
Who has the Most Information to Collect?..................................................................................... 27
Questions to Ask When Assessing Effects.................................................................................... 29
Assessing Individual Interactions: Hydroelectric Projects in a Watershed .................................... 30
Checking for Spatial and Temporal Overlap.................................................................................. 30
CASE STUDY Saskatchewan Uranium Mines: Presenting Complex Relationships Using Pathway
Diagrams................................................................................................................................ 31
CASE STUDY Cold Lake Oil Sands Project: Applying Impact Models ......................................... 32
Regional Landscape Spatial Analysis: Using GIS to Identify Wildlife Habitat Suitability............... 34
CASE STUDY Eagle Terrace Sub-division: Using a Variety of Wildlife Indicators........................ 35
CASE STUDY Alliance Pipeline: Landscape Indicators ................................................................ 35
Using Road Density to Indicate Regional Landscape Change...................................................... 36
CASE STUDY Steepbank Mine: Regional Air Emissions Modelling ............................................. 36
CASE STUDY Combining Numerical Models and GIS: Coastal Temperate Rainforest in
Clayoquot Sound.................................................................................................................... 37
“No Net Loss” as a Mitigation Measure ......................................................................................... 38
xi
CONTENTS
When Other Actions Contribute More to Cumulative Effects......................................................... 39
CASE STUDY Huckleberry Copper Mine: Implications of Mandatory Mitigation .......................... 39
CASE STUDY Trans Canada Highway Twinning: Wildlife Crossing Structures ........................... 39
CASE STUDY Express Pipeline: Reclamation of Native Prairie as Mitigation.............................. 39
CASE STUDY Energy Projects in Alberta’s Eastern Slopes: Responses to Development
Pressures ............................................................................................................................... 40
CASE STUDY Cheviot Coal Mine: Carnivore Compensation Package ........................................ 40
CASE STUDY West Castle Valley Resort: Wildland Recreation Area .......................................... 41
CASE STUDY Northern River Basins Study: Watershed Monitoring ............................................ 41
Deciding Whether Effects are Likely .............................................................................................. 42
Query for Evaluating Significance.................................................................................................. 42
CASE STUDY Cold Lake Oil Sands Project: Significance Attributes ............................................ 43
CASE STUDY Eagle Terrace Sub-division: Comparing Incremental Effects of a Project ............ 44
Carrying Capacity and Limits of Acceptable Change .................................................................... 47
CASE STUDY Placer Mining in the Yukon: Stream Sedimentation Thresholds ........................... 47
CASE STUDY Highwood River: Instream Flow Needs ................................................................. 47
CASE STUDY Banff National Park: Human Use and Grizzly Bear Thresholds ............................ 48
Considerations when Handling Uncertainty................................................................................... 48
Query for Assessing Small Actions................................................................................................ 53
CASE STUDY Parks Canada: A “Short-Cut” Approach ................................................................ 53
CASE STUDY National Capital Commission: Stormwater Management Policy ........................... 54
CASE STUDY Parks Canada: Trent-Severn Waterway................................................................ 54
CASE STUDY Natural Resources Canada: Matrix-Based Screening........................................... 55
CASE STUDY Yukon DIAND: A Multi-Form-Based Approach to Screening ................................ 55
Examples of Regional Planning and Land Use Studies ................................................................ 58
CASE STUDY Oil Sands Projects in Northern Alberta: A Regional Study Approach ................... 58
CASE STUDY Kluane National Park Reserve: Management Plan Update .................................. 59
CASE STUDY Express Pipeline: Who is Responsible for Regional Planning? ............................ 59
CASE STUDY New Zealand: CEA and Sustainable Development ............................................... 60
Preparing and Completing a CEA.................................................................................................. 61
Where is the CEA Placed in the Submission?............................................................................... 62
Lessons Learned from the Case Studies....................................................................................... 62
Key Criteria for an Acceptable CEA............................................................................................... 64
xii
INTRODUCTION
1.0 INTRODUCTION
Concerns are often raised about the long-term changes that may occur not only as a result of a
single action but the combined effects of each successive action on the environment. Cumulative
Effects Assessment (CEA) is done to ensure the incremental effects resulting from the combined
influences of various actions are assessed. These incremental effects may be significant even
though the effects of each action, when independently assessed, are considered insignificant.
Assessment of cumulative effects is increasingly seen as representing best practice in conducting
environmental assessments. Furthermore, in Canada, assessment of cumulative effects is now
required in federal legislation when an action is subject to a federal environmental assessment
under the Canadian Environmental Assessment Act. The Alberta Environmental Protection and
Enhancement Act and the British Columbia Environment Assessment Act also include provisions
for the assessment of cumulative effects.
A major concern of proponents is how to respond to increasing expectations by regulators and the
public of what must be considered in a CEA and how a CEA is to be performed. When faced with
determining an appropriate level of response, the proponent may ask the following questions, all
of which are addressed in this Guide:
•
•
•
•
•
•
•
How do we avoid assessing everything?
How do we identify what is important to assess?
How large an area around the action under review do we have to assess?
What other actions should we consider?
Over what duration of time must effects be assessed?
How do we determine significance of these cumulative effects?
What do we need to do about these cumulative effects?
The challenges in implementing CEAs are very similar to long-standing issues in Environmental
Impact Assessment (EIA) practice. CEAs typically build upon existing methods and approaches
to EIA. In recognition that there is not one single prescriptive method to conduct a CEA, this
Guide demonstrates various approaches by way of example. It shows why and how certain
methods or approaches have been used by practitioners to deal with cumulative environmental
effects associated with selected actions and discusses what lessons can be learned. Practitioners
may then choose an approach appropriate to meet their unique assessment requirements. These
lessons can also provide the practitioner with tools for innovative thinking to further the evolving
science and practice of CEA.
CEA Primers
1
INTRODUCTION
1.1 THE BASICS OF DOING A CEA
The following summarizes some key points discussed in this Guide regarding implementation of
a CEA, and serves as a summary to the approach suggested:5
;
;
;
;
;
;
;
;
5
The study area is large enough to allow the assessment of Valued Ecosystem Components
(VECs) that may be affected by the action being assessed. This may result in an area that is
considerably larger than the action’s “footprint”. Each VEC may have a different study area.
Other actions that have occurred, exist, or may yet occur which may also affect those same
VECs are identified. Future actions that are approved within the study area must be
considered; officially announced and reasonably foreseeable actions should be considered if
they may affect those VECs and there is enough information about them to assess their effects.
Some of these actions may be outside the study area if their influence extends for considerable
distances and length of time.
The incremental additive effects of the proposed action on the VECs are assessed. If the
nature of the effects interaction is more complex (e.g., synergistic), then the effect is assessed
on that basis, or why that is not reasonable or possible is explained.
The total effect of the proposed action and other actions on the VECs are assessed.
These total effects are compared to thresholds or policies, if available, and the implications to
the VECs are assessed.
The analysis of these effects use quantitative techniques, if available, based on best available
data. This should be enhanced by qualitative discussion based on best professional judgement.
Mitigation, monitoring and effects management are recommended (e.g., as part of an
Environmental Protection Plan). These measures may be required at a regional scale (possibly
requiring the involvement of other stakeholders) to address broader concerns regarding effects
on VECs.
The significance of residual effects are clearly stated and defended.
This list is also shown in Chapter 5 as the “Key Criteria for an Acceptable CEA”.
2
FUNDAMENTALS
2.0 ASSESSMENT FUNDAMENTALS
2.1 CUMULATIVE EFFECTS DEFINED
Cumulative effects are changes to the environment that are caused by an action in combination
with other past, present and future human actions.6 A CEA is an assessment of those effects (·
“Actions” Include Projects and Activities).
CEA is environmental assessment as it should always have been: an Environmental Impact
Assessment (EIA) done well. In practice, the assessment of cumulative effects requires
consideration of some concepts that are not always found in conventional approaches followed in
EIAs. Specifically, CEAs are typically expected to:
• assess effects over a larger (i.e., “regional”) area that may cross jurisdictional boundaries;7
• assess effects during a longer period of time into the past and future;
• consider effects on Valued Ecosystem Components (VECs) due to interactions with other
actions, and not just the effects of the single action under review;
• include other past, existing and future (e.g., reasonably foreseeable) actions; and
• evaluate significance in consideration of other than just local, direct effects.
Cumulative effects are not necessarily that much different from effects examined in an EIA; in
fact, they may be the same. Many EIAs have focussed on a local scale in which only the
“footprint” or area covered by each action’s component is considered. Some EIAs also consider
the combined effects of various components together (e.g., a pulp mill and its access road). A
CEA further enlarges the scale of the assessment to a regional level. For the practitioner, the
challenge is determining how large an area around the action should be assessed, how long in
time, and how to practically assess the often complex interactions among the actions. In all other
ways, CEA is fundamentally the same as EIA and, therefore, often relies on established EIA
practice.
Definitions and Concepts
Conditions for Potential Cumulative Effects
Cumulative effects may occur if:
•
local effects on VECs occur as a result of the action under review; and
•
those VECs are affected by other actions.
6
Numerous definitions of CEAs exist in the literature. Many of these are quite complicated and refer to technical
aspects of cumulative effect’s interactions. The Working Group prefers a simple definition based on an important
additional requirement of CEA as compared to EIA: the specific consideration of effects due to other projects. This
definition is intended specifically for single-project assessments as opposed to regional planning (in which case there
is not necessarily a single project that serves as the starting point and focus of the assessment), and borrows the
broad definition of “environment” as used in the Canadian Environmental Assessment Act.
7
Includes effects due to natural perturbations affecting environmental components and human actions.
3
FUNDAMENTALS
Key Terms Defined
Action: Any project or activity of human origin.
Assessment Framework: A description of a process that organizes actions and ideas, usually in a step-bystep fashion. Frameworks help to guide practitioners in carrying out an assessment.
8
Effect: Any response by an environmental or social component to an action’s impact .
Environmental Components: Fundamental elements of the natural environment. Components usually
include air, water (surface and groundwater), soils, terrain, vegetation, wildlife, aquatics and resource use.
Region: Any area in which it is suspected or known that effects due to the action under review may interact
with effects from other actions. This area typically extends beyond the local study area; however, as to how
far will vary greatly depending on the nature of the cause-effect relationships involved.
Scoping: A consultative process for identifying and possibly reducing the number of items (e.g., issues,
VECs) to be examined until only the most important items remain for detailed assessment. Focussing
ensures that assessment effort will not be expended in the examination of trivial effects.
Threshold: A limit of tolerance of a VEC to an effect, that if exceeded, results in an adverse response by
that VEC.
Valued Ecosystem Component (VEC): Any part of the environment that is considered important by the
proponent, public, scientists and government involved in the assessment process. Importance may be
determined on the basis of cultural values or scientific concern.
“Actions” Include Projects and Activities
Human actions often cause a disturbance to the environment. These actions include projects and activities.
Projects are typically some form of physical work that is planned, constructed and operated. Projects are
usually identified by a specific name. Activities may be part of a project, or not associated with any particular
project but arise over time due to ongoing human presence in an area. A mine development, a resource
access road, or both together are examples of a project. Public traffic, hiking and hunting along that road are
examples of activities.
For the purposes of a CEA, the effects on the environment of other projects and activities also have to be
considered. For convenience, in this Guide, the term “Actions” is used when appropriate to represent both
projects and activities. The term “project” is used only in reference to the project being proposed under
assessment or under regulatory review.
In the Canadian Environmental Assessment Act, a project means “(a) in relation to a physical work, any
proposed construction, operation, modification, decommissioning, abandonment, or other undertaking in
relation to that physical work; or (b) any proposed physical activity not relating to a physical work that is
prescribed or is within a class of physical activities that is prescribed pursuant to regulations made under
paragraph 59(b) in the Act.” The Act does not provide a definition for “activity”; however, it is commonly
understood not to include a physical work. It is, therefore, considered in this Guide as any action that
requires the presence, often temporary, of humans concentrated in a local area or dispersed over a large
area.
8
4
Under the Canadian Environmental Assessment Act, “environmental effect” means, in respect of a project, “(a) any
change that the project may cause in the environment, including any effect of any such change on health and socioeconomic conditions, on physical and cultural heritage, on the current use of lands and resources for traditional
purposes by aboriginal persons, or on any structure, site or thing that is of historical, archaeological, paleontological
or architectural significance and (b) any change to the project that may be caused by the environment, whether any
such change occurs within or outside of Canada”.
FUNDAMENTALS
Examples of Cumulative Effects
•
Air: combined SO2 emissions within a regional airshed from three operating natural-gas processing plants
•
Water: combined reductions in flow volumes within a particular river resulting from irrigation, municipal
and industrial water withdrawals
•
Wildlife: combined black bear mortalities within a given wildlife management unit from hunter harvest,
road kills and destruction of nuisance animals
•
Vegetation: clearing of land resulting in the removal of a patch of regionally rare plant species
•
Resource Use: continual removal of merchantable timber from a timber management area
CASE STUDY
Cold Lake Oil Sands Project: Effects at a Regional Scale
Imperial Oil Resources proposed the expansion of an in-situ heavy oil facility in northern Alberta (IORL 1997a,
· Appendix B). The following provides examples of some effects identified during early scoping exercises.
Environmental
Component
Air Systems
Surface Water
Aquatic Resources
Soils and Terrain
Vegetation
Wildlife
Resource Use
Examples of Potential Regional Effects
Plumes from stack emissions combining with the plumes from nearby burns
Reductions of river water volumes due to use by the project, other energy projects
and nearby communities
Decrease in productivity of spawning habitat due to combined sedimentation from
the project and regional forestry operations and activities
Continued loss of soils
Less representation of certain plant species on a regional scale
Increased road access and changes to habitat resulting in further regional changes
to numbers and distribution of certain wildlife species
Forestry activities, land use by the project, and increased road access changes the
harvest potential for furbearer species
CASE STUDY
Determining if there are Cumulative Effects:
Joint Panel for the Express Pipeline Proposal
To assist in its deliberations on cumulative effects during the public hearings for a proposed pipeline in
Alberta (NEB 1996), the Review Panel identified three requirements that must be met before they would
consider as relevant any evidence related to cumulative effects:
1.
There must be an environmental effect of the project being assessed.
2.
That environmental effect must be demonstrated to operate cumulatively with the environmental effects
from other projects or activities.
3.
It must be known that the other projects or activities have been, or will be, carried out are not
hypothetical.
In the Panel’s subsequent Decision Report (Priddle et al. 1996), the Panel noted that a further requirement
was that the “cumulative environmental effect is likely to result”.
5
FUNDAMENTALS
2.2 AN OVERVIEW OF BASIC CONCEPTS
2.2.1 Effects Pathways
Cumulative effects occur as interactions between actions, between actions and the environment,
and between components of the environment. These “pathways” between a cause (or source) and
an effect are often the focus of an assessment of cumulative effects. The magnitude of the
combined effects along a pathway can be equal to the sum of the individual effects (additive
effect) or can be an increased effect (synergistic effect).9
CASE STUDY
Saskatchewan Uranium Mines: Pathways of Radionuclides
A study of the effects of various proposed uranium mine developments in northern Saskatchewan (·
Appendix B) used pathways to define the various means by which radionuclides could disperse in the
environment (Ecologistics 1992). Pathways were used to illustrate the linkages between a source (i.e., a
mine), a dose on an environmental receptor (e.g., VECs such as moose, fish and benthic invertebrates), and
the contribution of all pathways to a total dose on the environment. Generally, radionuclides could be
dispersed in the atmosphere, groundwater or surface water. Dispersal may continue through vegetation and
soils, forage crops, wildlife, aquatic plants and animals and sediment. An example of one pathway amongst
these possible interactions is: Mine Æ Surface Water Æ Aquatic Plants Æ Total Dose.
2.2.2 How Cumulative Effects Occur
Cumulative effects can occur in various ways:
• Physical-chemical transport: a physical or chemical constituent is transported away from the
action under review where it then interacts with another action (e.g., air emissions, waste
water effluent, sediment).
• Nibbling loss: the gradual disturbance and loss of land and habitat (e.g., clearing of land for a
new sub-division and roads into a forested area).10
• Spatial and temporal crowding: Cumulative effects can occur when too much is happening
within too small an area and in too brief a period of time. A threshold may be exceeded and
the environment may not be able to recover to pre-disturbance conditions. This can occur
quickly or gradually over a long period of time before the effects become apparent. Spatial
crowding results in an overlap of effects among actions (e.g., noise from a highway adjacent
to an industrial site, confluence of stack emission plumes, close proximity of timber
harvesting, wildlife habitat and recreational use in a park). Temporal crowding may occur if
effects from different actions overlap or occur before the VEC has had time to recover.
• Growth-inducing potential: Each new action can induce further actions to occur. The effects
of these “spin-off” actions (e.g., increased vehicle access into a previously unroaded
hinterland area) may add to the cumulative effects already occurring in the vicinity of the
proposed action, creating a “feedback” effect. Such actions may be considered as “reasonablyforeseeable actions” (· Section 3.2.4).
9
There are numerous other types of interactions defined in the literature by such terms as linear, multiplicative,
compounding, structural surprise, space cycling, and space lags, etc. Although of interest in understanding the
complexity of cumulative effects, determining which type is actually occurring (aside from additive effects) and
measuring the interaction is often difficult in practice.
10
This can include alienation of wildlife habitat due to sensory disturbances.
6
FUNDAMENTALS
Can Project-Specific CEAs Adequately
Address Regional “Nibbling” Effects?
Regional “nibbling” effects usually cannot be adequately dealt with on a project-by-project review basis.
Although broad changes in a landscape can often be quantified (e.g., total cleared land, fragmentation of
wildlife habitat), it is more difficult to determine a significance to this change that is only attributable to the
specific action under review. To properly address this type of cumulative effect, regional plans are required
that clearly establish regional thresholds of change against which the specific actions may be compared (·
Section 4.2). Project applications can at least be compared to restrictions or requirements under any
applicable land use plans or policies (e.g., Alberta’s Integrated Resource Plans).
Careful Use of Terms
Ideally, cumulative effects should be assessed relative to a goal in which the effects are managed on a
regional basis. Terms such as ecological carrying capacity, ecosystem integrity, long-term population viability
and sustainable development are often cited as goals to be accomplished by CEAs. What these terms
represent are important and their successful implementation would substantially improve the value of an
assessment. They often appear in CEAs because they relate to relatively large landscape-level changes in a
regional study area, and their broad application appears amenable to the objectives of future regional-based
planning efforts.
However, expectations of what should be accomplished in CEA often exceed what is reasonably possible
given our knowledge of natural ecosystems, available information, level of effort required to obtain more
information, and the limits of analytical techniques in predicting the effects of actions on the environment.
These terms should not be used in a CEA unless they are carefully defined; otherwise, the uncertainty
associated with their meaning will later bring into question the usefulness of the CEA during its interpretation
by regulatory reviewers.
2.2.3 Improvements in the Evolving Practice of CEA
The growing body of CEA literature, the increasing number of assessments completed, and
direction from reviewing agencies and Boards (or Panels) has raised expectations of what should
be accomplished in CEAs. Each assessment creates a precedent for what can and should be done.
The following identifies some aspects of CEA that require improvement:
•
•
•
•
•
•
•
•
•
Better identification of and focus on those project-specific effects with the greatest potential
to act in a cumulative fashion with other actions.
Application of regional coordinated land use planning and practical measures of limits to
growth.
Results that compare the incremental contribution of an action to regional thresholds for
various VECs and indicate to what degree a threshold is approached or exceeded.
Conclusions relying on more quantitative analysis.
Broadening of the number of proven analytical approaches.
Finer breakdown of more specific interactions among various actions.
Ability to better examine synergistic effects, particularly the potential interactions between
contaminant releases and direct physical effects and the influence these effects may have
when combined with natural perturbations.
The influence of environmental cumulative effects on socio-economic systems, as well as the
effects of cumulative socio-economic changes on the regional environment.
Selection of management options for dealing effectively with significant cumulative effects.
7
8
KEY TASKS
3.0 KEY TASKS IN COMPLETING
CEAS
3.1 THE ASSESSMENT FRAMEWORK
CEAs build on what has been learned and applied in EIA practice for many years. However,
assessment practitioners need to know in what ways assessing cumulative effects are different.
This Chapter of the Guide identifies and discusses unique tasks in CEAs for each of the five steps
in a basic EIA framework (from CEAA 1994): Scoping, Analysis, Mitigation, Significance and
Follow-up11. This framework itemizes the typical steps followed by practitioners in completing
EIAs. The information box below identifies each of the CEA tasks for these steps.
Frameworks
Assessment Framework
Basic EIA Steps
1. Scoping
Tasks to complete for a CEA
•
•
•
•
•
2. Analysis of Effects •
•
•
3. Identification of
•
Mitigation
4. Evaluation of
•
Significance
•
5. Follow-up
Identify regional issues of concern
Select appropriate regional VECs
Identify spatial and temporal boundaries
Identify other actions that may affect the same VECs
Identify potential impacts due to actions and possible effects
Complete the collection of regional baseline data
Assess effects of proposed action on selected VECs
Assess effects of all selected actions on selected VECs
Recommend mitigation measures
Evaluate the significance of residual effects
Compare results against thresholds or land use objectives and trends
• Recommend regional monitoring and effect management
Ideally, all aspects of a CEA are done concurrently with the EIA, resulting in an assessment
approach that makes no explicit distinction between the two “parts”. In practice, however, the
substantive work in a CEA is often done after the initial identification of effects have been
completed in an EIA. In this way, the early identification of direct project effects “paves the way”
for cumulative effects to be assessed. The Assessment Framework is suitable for assessing actions
of any size. However, as discussed in Chapter 4, a scaled-down framework may be more suitable
for assessing smaller actions (e.g., in screenings).
11
Mitigation may also be identified after significance is evaluated; however, the interpretation of significance changes
(both approaches have been suggested in the EIA literature as valid). In the order shown in the Framework
(mitigation before significance), significance reflects residual effects. This approach implies that mitigation must be
identified regardless of whether there is a significant effect. However, this is not always an onerous task as many
mitigation measures are “standard” practice and often expected to be recommended by regulators. In the reverse
order (significance before mitigation), the significance reflects the “worst-case” situation before mitigation is
applied, and therefore provides an understanding of what may happen if mitigation fails or is not as effective as
predicted. In recent practice, the former approach is more common (mitigation before significance), largely to better
reflect the eventual outcome to decision makers under the assumption that mitigation is effective as described.
9
KEY TASKS
During the completion of a CEA, the five steps of the framework are usually completed in order.
However, earlier steps may be repeated during an assessment if new information suggests that
earlier assumptions and conclusions were incorrect. Also, it is possible that the results of postproject effects monitoring may indicate that further assessment is required.12
What a Project-Specific Cumulative Effects Assessment
Fundamentally Needs to Do
A CEA, for a single project under regulatory review, should fundamentally do the following:
1.
Determine if the project will have an effect on a VEC.
2.
If such an effect can be demonstrated, determine if the incremental effect acts cumulatively with the
effects of other actions, either past, existing or future.
3.
Determine if the effect of the project, in combination with the other effects, may cause a significant
change now or in the future in the characteristics of the VEC after the application of mitigation for that
project.
With the exception of the consideration of future actions, the above are identical to the requirements of a
good EIA (the consideration of the effects of other actions is not necessarily new to CEA, as the existing
environmental setting of a project has typically recognized other actions at least within the EIA’s study area).
A key task in accomplishing the above is examining the effect on the VEC until the incremental contribution
of all actions, and of the project alone to the total cumulative effect, is understood. Keep in mind that an
assessment of a single project (which is what almost all assessments do) must determine if that project is
incrementally responsible for adversely affecting a VEC beyond an acceptable point (by whatever definition).
Therefore, although the total cumulative effect on a VEC due to many actions must be identified, the CEA
must also make clear to what degree the project under review is alone contributing to that total effect.
Regulatory reviewers may consider both of these contributions in their deliberation on the project application.
The remainder of this Chapter discusses in detail each step of the Assessment Framework (the
page heading shows which step you are in).
12
Under CEAA, Responsible Authorities (RAs) do not have jurisdiction to conduct further assessments based on postproject monitoring.
10
KEY TASKS: Scoping
3.2 STEP 1: SCOPING
Scoping (or focussing) involves the identification of key issues of concern and VECs, thereby
ensuring that the assessment remains focussed and the analysis remains manageable and practical.
This assists in determining if the action under review has the potential to contribute to any
cumulative effects. Professional judgement is required to achieve an optimum balance between
the minimum required by legislation and ideal goals. This is referred to as best professional
practice.
Scoping is a well established first step in good EIA practice, and is essential in establishing the
assessment’s Terms of Reference. Although scoping is not unique to CEA, the larger regional
nature and complexity of assessing cumulative effects means that scoping must be more strictly
applied to avoid assessing more than is necessary. A first step in this direction is to focus only on
those effects to which the action under review may actually by contributing. For example,
although continued reductions in wildlife habitat may be a regional concern, there may be no
reason to investigate these effects if the action under review does not contribute to these longterm reductions (e.g., a single pipeline may cause a slight and temporary loss of habitat for some
species, while a network of seismic lines or logging roads may cause more significant long-term
changes).
The scoping of regional cumulative (i.e., indirect) effects is often completed after the scoping of
local (i.e., direct) effects in an EIA. In this case, information and conclusions from the EIA may
assist in scoping of the CEA, including: action description, environmental baseline, identification
of issues and VECs, types of effects caused, conclusions about significance of effects, and
mitigation measures.
Although local effects may not have been scoped in the EIA in as large a scale as required in a
CEA, the results provide a useful starting point.
What is Done First in Scoping?
The Assessment Framework identifies five tasks that must be done in scoping a CEA: issue identification,
selection of VECs, setting of boundaries, identification of other actions and initial identification of potential
impacts and effects. If performed in that order, the practitioner will be able to make decisions in one step that
will guide the decisions for the next. However, this does not always have to be the case. In some situations
(e.g., when very large areas have been digitally mapped by remote sensing), it may be more practical to first
set some spatial boundaries, then identify other issues and actions, and finally select VECs.
In practice, elements of each of the five steps are often completed concurrently during the earliest stages of
scoping. As scoping progresses, it quickly becomes clear what conclusions will be made.
3.2.1 Identify Regional Issues of Concern
While many of the issues addressed in an EIA will also be examined in a CEA, a CEA may assess
a broader range of environmental concerns due to its larger study area. Issues should only be
considered if their assessment will influence the decision regarding approval by the regulatory
reviewers.
Issues can be identified by soliciting comment from local individuals and regional stakeholders,
such as regulators, public organizations, industry, First Nations and directly affected parties.
Issues can also be identified by specialists with scientific knowledge of the environmental effects.
11
KEY TASKS: Scoping
Should a CEA Consider Contribution
to Trans-Boundary and Global-Scale Effects?
Trans-boundary effects (e.g., animal migrations) and global-scale effects (e.g., atmospheric effects such as
ozone depletion and global warming) must be addressed if a proposed action may contribute to such effects.
However, in recognition of the complexities and often practical difficulty of scoping these effects, the CEA
should at least identify the action’s contributing causes, attempt to quantify the magnitude of the action’s
contribution, and suggest appropriate mitigation responses. In this way, decision-makers can account for the
action’s contribution within broad (i.e., national or international) initiatives.
It is therefore appropriate for a CEA to identify and assess trans-boundary or global-level effects that may be
affecting the VECs under study; however, the level of mitigative response is often ultimately beyond the
capability of a single proponent.
3.2.2 Select Appropriate Regional Valued Ecosystem Components
Valued Ecosystem Components (VECs) are components of the natural and human world that are
considered valuable by participants in a public review process (Beanlands and Duinker 1983).13
VECs need not be environmental in nature. Value may be attributed for economic, social,
environmental, aesthetic or ethical reasons. VECs represent the investigative focal point of any
EIA or CEA. CEA can be concerned with additive or synergistic effects on the same ecosystem
components as would be considered in an EIA. In addition to this, CEA tends to be concerned
with larger scale VECs such as within entire ecosystems, river basins or watersheds; and, broad
social and economic VSCs such as quality of life and the provincial economy. VECs may also be
used as indicators (· Section 3.3.2.3).
VECs can be selected by distilling stakeholder concerns, assessing and prioritizing various
components through a weighting scheme, and soliciting input from workshops attended by
experts and stakeholders (Hegmann and Yarranton 1995).
Valued Ecosystem Components
CASE STUDY
Cold Lake Oil Sands Project:
Issues, Valued Ecosystem Components and Indicators
Environmental
Component
Air Systems
Surface Water
Regional Issues of Concern
Acidic deposition, odours,
greenhouse gas emissions
(global issue)
Lowering of lake water levels,
contamination of water
Regional
Valued Components
Air Quality
Water Quality and
Quantity
Examples of Indicators
Emitted gases transported
over long distances (NOx,
SO2)
Combined water volume
withdrawals, water quality
constituents affecting
drinking water standards
(cont . . . )
13
Practitioners use a considerable number of definitions and applications for VECs. It is beyond the scope of this
Guide to discuss in detail this aspect of EIAs. The practitioner should examine some of the references provided to
obtain a better understanding of VECs.
12
KEY TASKS: Scoping
Groundwater
Depletion of aquifers
Potable well water
Aquatic
Resources
Vegetation
Contamination of fish,
increased harvest pressures
Loss of vegetation through
land clearing, effects of
airborne deposition
Loss, sensory alienation and
fragmentation of habitat, direct
mortality due to increased
traffic and hunting harvest
Decreased opportunities for
resource harvesting (fish,
traditional plants, hunting,
timber, trapping), increased
road access, visual effects
Sport fish species
Wildlife
Resource Use
Combined water volume
withdrawals
Northern pike
Vegetation ecosites
Low bush cranberry,
Aspen, White spruce
Hunted and trapped
species
Moose, black bear, lynx,
fisher
Timber harvest areas,
furbearers, game
species, new road
access, recreational
enjoyment
Aspen stands, beaver,
moose, campsites
3.2.3 Identify Spatial and Temporal Boundaries
Setting boundaries is the process of establishing limits to the area and period of time examined in
an assessment. There are two types of boundaries: spatial (i.e., how far?), and temporal (i.e., how
long into the past and into the future?). Spatial boundaries are often referred to as the "regional
study area".
The challenge facing the CEA practitioner in establishing appropriate boundaries is in finding the
balance between practical constraints of time, budget and available data, and the need to
adequately address complex environmental interactions that, theoretically, could extend for
considerable distances away and well into the future.
Setting Boundaries
3.2.3.1 Spatial Boundaries
EIAs have traditionally involved defining more or less arbitrary boundaries around action sites
that are often local and limited to the effects of the single action. CEA, by definition, expands
those spatial horizons. The practitioner must determine at what point to stop the pursuit of effects
as some constraint on information gathering and analysis is necessary. Accurate and reliable
determination of the probabilities of occurrence, and the magnitudes and durations of all potential
effects would be costly, time consuming and excessive.
However, there remains the realities of the cause-effect relationships (known and perceived)
caused by the action. The implication of too small a boundary is that important regional and longterm effects may not be examined. The long-range transport of pollutants in airsheds or
waterways, the movements of far-ranging wildlife, and the progressive incursion of humans into
hinterland areas are all examples that suggest the need to assess effects over a larger and larger
geographic area.
The practitioner must determine at what point an effect is trivial or insignificant. The concept that
such a point is reached at a certain threshold is attractive (· Section 3.5.3), but often difficult to
define (especially quantitatively) except for cases in which regulated or recommended levels
provide a point of comparison (e.g., for air and water emissions). The complexity of any
relationship beyond those purely at the physical-chemical level often results in considerable
reliance on best professional judgement and the consideration of risk. An adaptive approach
13
KEY TASKS: Scoping
should be followed when setting boundaries, in which the first boundary, often arrived at by an
educated “guess”, may later change if new information suggests that a different boundary is
required.
An argument could be made in some cases that the boundary should be national, or even
international. This scale of assessment is rarely merited and would usually be appropriate only for
air or water effects (e.g., the long-range transport of air pollutants) or where species migrate over
considerable distances. On a more pragmatic basis, boundaries can be assigned based on the
limits of available data. A well-studied watershed, a well-known caribou migration path or
available coverage of remote sensed imagery may influence the spatial extent of an assessment
since the cost and time required to obtain more data may be prohibitive to the proponent and may
not be justified by the needs of decision makers. The decision as to whether more data must be
collected requires that the practitioners judge the adequacy of existing data in providing the basis
for a sound and defensible assessment.
Ultimately, the assessment response should be appropriate to the project. Setting boundaries relies
less on special CEA techniques than on the time-honoured basics of EIA practice of:
• making conservative assumptions about the magnitude and probability of the effect in the face
of uncertainty (i.e., assume that effects will be greater rather than smaller);
• relying on professional judgement;
• practicing risk management; and
• using an adaptive approach.
Establishing Spatial Boundaries
Any of the following rules-of-thumb may be used to assist in setting spatial boundaries. It is important to
understand that establishing boundaries is often an iterative process, in which a boundary may initially be
identified without all the necessary information available, and subsequently modified if new information
becomes available.
•
Establish a local study area in which the obvious, easily understood and often mitigable effects will occur.
•
Establish a regional study area that includes the areas where there could be possible interactions with
other actions. Consider the interests of other stakeholders.
•
Consider the use of several boundaries, one for each environmental component as this is often
preferable to one boundary.
•
For terrestrial VECs such as vegetation and wildlife, ensure boundaries are ecologically defensible
wherever possible (e.g., winter range boundaries for assessing effects on critical wildlife habitat).
•
Expand boundaries sufficiently to address the cause-effect relationships between actions and VECs.
•
Characterize the abundance and distribution of VECs at a local, regional, or larger scale if necessary
(e.g., for very rare species), and ensure that the boundaries take this into account.
•
Determine if geographic constraints may limit cumulative effects within a relatively confined area near
the action.
•
Characterize the nature of pathways that describe the cause-effect relationships to establish a “line-ofinquiry” (e.g., effluent from a pulp mill to contaminants in a river to tainting of fish flesh and finally to
human and wildlife consumption).
•
Set boundaries at the point at which cumulative effects become insignificant.
•
Be prepared to adjust the boundaries during the assessment process if new information suggests this is
warranted, and defend any such changes.
14
KEY TASKS: Scoping
Spatial Boundaries Should be Flexible
Practitioners often establish boundaries based on the "zone-of-influence" beyond which the effects of the
action have diminished to an acceptable or trivial state (i.e., very low probability of occurrence or acceptably
small magnitude). Ideally, such an approach should be taken for each effect on each environmental
component examined (e.g., air, water, vegetation, wildlife), therefore requiring multiple boundaries instead of
the more typical single study area. Bounds therefore become flexible, expanding and contracting according
to the unique ecological relationships encountered. Using jurisdictional borders to define the study area may
appear to be expedient, but such an approach usually ignores the ecological realities of the area.
For example, to determine boundaries for assessing water quality, one may "trace" the path of a chemical
constituent along a river as far as one believes it may still be reactive and cause a significant effect. For
wildlife with well-defined territories or ranges, one may "follow" the seasonal path of an individual and
determine where it may be influenced by other actions, regardless of whether it crosses over national or
international borders.
CASE STUDY
Examples of Establishing Boundaries
•
Eagle Terrace, a 60 ha subdivision, was proposed on the slopes of a mountain valley in the Town of
Canmore, Alberta (· Appendix B). In the assessment (Eagle Terrace 1996), boundaries were based on
the availability of a vegetation base map that covered enough of a mountain valley to include a
considerable number of actions adjacent to the project under review, and to adequately assess the
effects on wildlife VECs in that valley.
•
In the Cold Lake Expansion Project, boundaries were set for each environmental component (e.g., water,
air) based on a combination of administrative boundaries and watershed features (such as rivers),
resulting in a regional study area that included several other large actions (· Appendix B). The
geographic boundaries for some VECs (wildlife, vegetation) were restricted to a township area due to the
availability of historical and current information on vegetation composition and wildlife habitat (the extent
of available air-photo coverage was also a factor in establishing boundaries). A judgement was made
that the available information was sufficient to complete the assessment.
•
A section of the Trans Canada Highway in Banff National Park was to be expanded from two to four
lanes (· Appendix B). In the assessment (Parks Canada 1994), the smaller of two regional boundaries
was based on the constraining topography (i.e., mountain valleys) and their implications to watersheds
and physical barriers to wildlife movements. The larger boundary was based partly on administrative
borders.
3.2.3.2 Temporal Boundaries
“How far back in time” and “how far ahead in the future” to consider in an assessment depends
on what the assessment is trying to accomplish. Comparison of incremental changes over time
requires the use of historical records for establishing an environmental baseline. The possibility of
new actions requires the need to look ahead into the future.
The boundary in the past ideally begins before the effects associated with the action under review
and possibly before the effects of most major actions were present. The boundary in the future
typically ends when pre-action conditions become re-established (i.e., VECs have recovered and
effects become trivial). However, the further back or ahead in time, the greater the dependence
will be on qualitative analysis and conclusions due to lack of descriptive information (e.g., what
conditions were like years ago or which other actions may occur in the future) and increasing
uncertainty in predictions. For these reasons, in practice the scenario in the past often defaults to
the year in which the baseline information for the assessment is collected (i.e., current conditions)
and the future extends no further than including known (i.e., certain) actions.
15
KEY TASKS: Scoping
The use of scenarios provides a useful approach to determining temporal boundaries. Scenarios
represent a point in time with specific disturbances and environmental conditions. Incremental
changes between scenarios can then be compared to assess the relative contribution of various
actions to overall cumulative effects within the regional study area.
In practice, temporal boundaries often first reflect the operational life or phases of the action
under review (e.g., exploration, construction, operations, abandonment),14 and then extend to
reflect the life of all actions under progressively greater levels of regional development. In either
case, the scenarios are often associated with a single year or range of years (e.g., 1997-2000).
Establishing Temporal Boundaries
In general:
•
Organize time-dependent changes in discrete units of time (e.g., as sequential time scenarios).
•
Be prepared to adjust the boundaries during the assessment process, and defend any such changes.
The following provides some options for establishing temporal boundaries. In some assessments, more than
one temporal boundary may be necessary (e.g., for actions with sequential operational and abandonment
phases for different components of the action).
Options for establishing the past boundary
Each of the following options progresses further back in time:
•
when impacts associated with the proposed action first occurred;
•
existing conditions;
•
the time at which a certain land use designation was made (e.g., lease of crown land for the action,
establishment of a park);
•
the point in time at which effects similar to those of concern first occurred; or
•
a past point in time representative of desired regional land use conditions or pre-disturbance conditions
(i.e., the “historical baseline”), especially if the assessment includes determining to what degree later
actions have affected the environment.
Options for establishing the future boundary
Each of the following options progresses further ahead in time:
•
end of operational life of a project;
•
after project abandonment and reclamation; or
•
after recovery of VECs to pre-disturbance conditions (this should also consider the variability of natural
cycles of change in ecosystems).
Each option progressively better reflects the true effects of the action; however, assessment becomes more
difficult to quantify if the time periods are very long (e.g., >30-50 years).
14
Accidental (or “upset” or emergency) events may occur. These events are rare but of significant magnitude. It is
suggested that these events be assessed as unique scenarios, as their effects are too extreme to be assessed with those
caused by normal operational activities.
16
KEY TASKS: Scoping
CASE STUDY
Eagle Terrace Sub-division: Temporal Scenarios
Four scenarios were developed for the Eagle Terrace CEA (Eagle Terrace 1996) to assess the incremental
changes caused by developments in a mountain valley:
1.
Pristine: conditions prior to any or extensive human development, which was simulated by removing the
footprint of all developments from a Geographic Information System (GIS) database
2.
Current: existing conditions
3.
Future without action: future conditions that are predicted to occur, but without the action under review
4.
Future with action: future conditions that are predicted to occur with the action under review
CASE STUDY
Natural Gas Field Development: Regional Development Scenarios
In 1992, the British Columbia government requested a cumulative effects study (Antoniuk 1994) in the 5000
km2 Monkman/Grizzly Valley gas development area in northeastern British Columbia on the Rocky Mountain
Eastern Slopes. This was in response to an increase in gas exploration and development in the region, and
particularly an application for a gas plant expansion by Westcoast Energy which would induce other projects
to occur. Seven companies, all active in the area and who would use the plant, collaborated in supporting an
evaluation of the effects of gas exploration and development over a 15-year period between 1983 and 1998,
including additional production from five new facilities.
The assessment, termed an Environmental Protection Strategy, used a regional development scenario to
"identify the scale of development likely to occur in the near to medium term" so that "conclusions could be
used to establish disturbance thresholds, delineate sensitive areas for key resources, and ensure that
mitigation, monitoring and research are focussed on significant environmental issues".
A Regional Development Scenario was used in lieu of specific exploration and production plans from 1993 to
1998. This included determining quantitative limits or thresholds for various indicators during three scenarios:
existing, minimum and maximum development. Thresholds were determined for the following: kilometres of
seismic lines; kilometres of roads; kilometres of pipelines; number of dehydrating plants; and number of wells.
CASE STUDY
Oil and Gas Developments in Alberta’s Eastern Slopes:
Consideration of Full Project Build-out
The Alberta Energy and Utilities Board is the provincial regulatory authority responsible for the review of a
variety of industrial, power, and oil and gas projects. The Board issued assessment Guidelines for proponents of
projects in the environmentally sensitive Eastern Slopes region of Alberta’s Rocky Mountain front ranges south
of the Bow River (ERCB 1993). Included in these Guidelines is the request for proponents, for each project
stage, to “estimate the overall extent of development” to “avoid piecemeal proposals” and “consolidate their
plans and activities with other operators to the greatest degree practical wherever this may reduce area
impacts”. To assist in accomplishing this, applications for licenses for single projects (e.g., wells) are to be
submitted as “development plans rather than on a piece-meal or single-well approach”. Development plans are
particularly important for areas that are relatively undeveloped or “minimally-developed”.
Development plans would begin at the earliest stages of exploration, even though future plans at that time
were very uncertain. Future project components would include associated infrastructure and expansions
(e.g., pipelines, access roads, and processing plants) that would proceed if exploration led to commercial
operations. The level of detail would vary according to the phase and sensitivity of the area (generally, the
less the existing intrusions such as access roads, the more sensitive the area).
17
KEY TASKS: Scoping
3.2.4 Identify Other Actions
All actions need to be identified that have caused or may cause effects and may interact with
effects caused by the action under review.
Identifying Other Actions
1.
Within the Regional Study Area(s), identify candidate actions that meet the Action Selection Criteria (·
Section 3.2.4.1).
2.
Characterize the actions according to the Action Description Criteria (· Section 3.2.4.2).
3.
Clearly identify (e.g., list) each action being considered.
4.
Modify the Regional Study Area(s) to accommodate the final list of actions, if required.
3.2.4.1 Action Selection Criteria
In recognition of spatial and temporal boundaries (· Section 3.2.3), identify actions associated
with the project that meet the criteria shown in Table 1.15
Table 1: Spatial and Temporal Criteria for Selection of Actions
Spatial criteria
•
Actions with footprints within the regional study
area(s) that may affect the VECs being
assessed. Footprints include associated
components (e.g., access roads, powerlines),
and include air or areas of land or water
directly disturbed.
Actions outside the regional study area if it is
likely that any of their components may interact
with other actions or VECs within that area.
•
Temporal criteria
•
•
•
Past: actions that are abandoned but still may
cause effects of concern.
Existing: currently active actions.
Future: actions that may yet occur.
Past Actions
Past actions are no longer active yet continue to represent a disturbance to VECs (e.g., ongoing
effects of an abandoned gravel pit on terrain, or a plume of solvents from an abandoned wood
preserving factory on a nearby aquifer). It is possible that the effects may no longer be readily
observable (e.g., review of maps or airphotos shows little evidence of the action). However,
significant changes may remain to ecological processes and VECs. In practice, past actions often
become part of the existing baseline conditions. It is important, however, to ensure that the effects
of these actions are recognized.
Future Actions
Selection of future actions must consider the certainty of whether the action will actually proceed.
Figure 1 lists criteria that may be used in the selection process. The figure categorizes actions into
three types:
• Certain: The action will proceed or there is a high probability the action will proceed.
15
It is often suggested that certain natural events, such as flooding and forest fires, be considered as an action in the
same context as human-caused events. This Guide suggests that such natural events should be considered as one of
the attributes that describes environmental baseline conditions.
18
KEY TASKS: Scoping
• Reasonably Foreseeable: The action may proceed, but there is some uncertainty about this
conclusion (The Canadian Environmental Assessment Agency’s Operational Policy Statement
Addressing Cumulative Environmental Effects under the Canadian Environmental Assessment
Act recommends that at least these types of projects be considered).
• Hypothetical: There is considerable uncertainty whether the action will ever proceed.
The selection of future actions to consider should at least reflect the certain scenario and at best
the most likely future scenario. Rigid adherence to minimum regulatory requirement however is
increasingly becoming unacceptable to many stakeholders if there is reason to believe that at least
some reasonably foreseeable projects could have a significant cumulative effect with the project
under review (also, precedent setting court and panel decisions on project approvals will continue
the evolution of change regarding what is and is not expected and acceptable practice).
Practitioners are therefore encouraged to consider the opportunity to also include reasonably
foreseeable actions. The final decision for the assessment is often at the practitioner’s discretion
or under the direction of the regulatory authority.
Figure 1: Options for Selecting Future Actions
Hypothetical
Reasonably
Foreseeable
Certain
Further Ahead in Time,
Decreasing Certainty of Action Proceeding
As one proceeds upwards along the arrow, the certainty decreases of the action occurring.
• Conjectural based on currently available information
• Discussed on a conceptual basis
• Not directly associated with the project under review, but
may proceed if that project is approved (e.g., induced
action for which little information is available)
• Identified in an approved development plan in which
approval is imminent
• Identified in an approved development plan
• Directly associated with project under review, but is
conditional on that project’s approval (e.g., induced
action for which some information is available)
• Intent to proceed officially announced by proponent to
regulatory agencies
• Submission for regulatory review is imminent
• Currently under regulatory review for approval
• Approved
The actions in Figure 1 lie on a continuum from most likely to least likely to occur. The
practitioner will have to decide how far the proponent is obligated to go by statutory requirement,
and by this obligation to demonstrate best practice. In the latter case, the reason for proceeding
beyond statutory requirement (if defined) is to ensure that important future developments that
may cause significant cumulative effects with the action under assessment have been adequately
addressed. The practitioner will have to decide whether consideration of these future actions will
be important to regulatory reviewers of the action. Furthermore, various regulatory agencies, due
19
KEY TASKS: Scoping
to their unique responsibilities, may modify or expand on what constitutes actions to be
included.16
Although requiring interpretation on a case-by-case basis, the selection of future actions will be a
compromise between under-representing the full extent of future change and identifying and
assessing an unreasonably large number of actions. As with most matters facing practitioners,
compromises are continually made between the minimum required by legislation and the
professional obligations perceived by the practitioner.
A major criterion for selecting other actions is whether the action causes similar effects on the
same VECs as the action under assessment. Focussing on actions with similar effects is a good
first step, and will ensure that the most appropriate actions are included in the assessment (i.e.,
those with the greatest likelihood of causing effects that interact). Such a criterion is attractive
from a practical point of view, as it could significantly reduce the number of actions a practitioner
may have to consider.
However, cumulative effects also occur solely due to the physical presence of an action as it
occupies space in the landscape and contributes indirectly to other activities (such as road traffic).
The presence of an action always leads to some degree of landscape fragmentation, representing a
“nibbling” loss of land potential to support other uses (it is this type of cumulative effect that
cannot always be easily addressed on a project-by-project review basis).
The criterion of similar effects may be too restrictive if such effects are interpreted only as a
physical or chemical interaction between the actions. For example, if a pulp mill is the action
under review and the major effluent is waste discharge into a river, then the only other actions
selected on this basis would be other sources of effluent if the major issue of concern was water
quality in the river. However, other types of actions may also contribute to air emissions, land
clearing and sedimentation in waterways.
Induced Actions
Induced actions are projects and activities that may occur if the action under assessment is
approved. Induced actions may not be officially announced or be part of any official plan. They
usually have no direct relationship with the action under assessment, and represent the growthinducing potential of an action. New roads leading from those constructed for a project, increased
recreational activities (e.g., hunting, fishing), and construction of new service facilities are
examples of induced actions. Increases in workforce and nearby communities contribute to this
effect.
There may always be the potential for induced actions following any action. However, a
practitioner usually can only conjecture as to what they may be, their extent and environmental
implications. Must the practitioner nonetheless always consider the implications of induced
actions?17
Induced actions (e.g., public activities) rarely fall under the scrutiny of an approved process: they
just happen, and one must examine the likelihood of this based on existing use, precedent and
implications of the assessed action proceeding. Best practice suggests that effort should be made
16
For example, the Alberta Energy and Utilities Board considers the following as candidates for actions that will occur
in the oil and gas industry: field study is underway, land base is leased, or resource delineation is favourable to
future production.
17
This argument has especially been made in cases where no other specific future actions can be identified (e.g., in
remote hinterland areas). When combined with highly successful mitigation measures, proponents may confidently
claim that there are no cumulative effects. However, induced actions may represent the only source of important
cumulative effects.
20
KEY TASKS: Scoping
in identifying actions if there is reason to believe they may occur, yet are not overly hypothetical.
As illustrated in Figure 1, consideration of induced actions may be more reasonable if there is
sufficient information describing them to allow an adequate assessment of their effects.
Ultimately, because of the uncertainty and often dispersed nature of these actions (i.e., they may
occur in many places within a region), induced actions are best considered as part of Regional
Land Use Planning Studies involving regional administrative agencies.
Example Action List
The following is an example of the type of actions that may be considered for an action proposed in a
forested area under “multiple-use” conditions.
Resource Extraction
Hunting/Fishing
Mining
Oil and gas exploration
Oil and gas wells
Pipelines
Processing plants
Quarries
Saw mills
Seismic lines
Timber harvesting
Trapping
Recreational Use
Camping
Equestrian use
Fishing
Hunting
Mountain biking
Nature tours
Off-highway vehicle use
Outfitting
Wildlife viewing
Land Use and Infrastructure
Access roads
Highways
Protected areas
Railways
Residential communities
First Nation’s Traditional Land
Use
Agriculture
3.2.4.2 Action Description Criteria
Each action that meets the selection criteria must be described in adequate detail to allow effects
to be characterized for later assessment. As a general rule, the amount of information that can be
obtained is usually proportionate to the degree of certainty of the action proceeding.
Some actions may have to be assessed generically because there are too many to practically
characterize individually. This may be the case if there are many small actions suspected of
causing minimal effects due to short duration, low magnitude, irregular and unpredictable
occurrences, or temporary duration. If there are numerous actions, it helps if they are organized
by some categories in recognition of the similar types of effects they may cause. For example,
they can be organized by:
•
•
•
•
shape (e.g., linear, areal dispersed, areal point);
sectoral type (e.g., resource extraction, power generation, urban infrastructure);
industry type (e.g., mining, forestry, municipal infrastructure); or
transportation type (e.g., aircraft, boats, road traffic).
The most important information to obtain about other actions is that which will assist in
identifying and assessing effects on the same VECs as being assessed for the action under review.
These effects can at first be broadly categorized by major environmental components, such as air,
water, soils, vegetation, wildlife and resource use.
Some or all of the following information may be required to adequately assess an action’s
contributing effects:
21
KEY TASKS: Scoping
• location, physical size (e.g., area covered, volume of process throughput) and spatial
distribution of components (e.g., site specific, randomly dispersed, travel corridors);
• components (e.g., main plant, access roads, waste disposal site) and supporting infrastructure
(e.g., waste treatment, powerlines);
• expected life or period of activity (including start date) and phasing involved (e.g.,
exploration, construction, standard operations, later plans for upgraded or expanded
operations, decommissioning and abandonment);
• variations in seasonal operation (e.g., winter closures);
• number of permanent and temporary employees;
• frequency of use (for intermittent activities, e.g., helicopter use);
• transportation routes and mode of transport (e.g., roads, railways, shipping lanes);
• processes used (for industrial activity, e.g., open pit mining, kraft bleaching); and
• approvals received (e.g., permit and license conditions in effect).
Information sources for actions can include:
•
•
•
•
•
•
site visits or tours;
land use maps and aerial photos;
environmental databases, land use planning registers;
interviews and consultation with emissions control regulators, residents, businesses,
administrative authorities, etc.;
development plans (e.g., catchment management plans, air quality management plans); and
other EIAs and State of the Environment Reports.
What if Information about an Action is Not Available?
Information about another action may not be readily available if:
•
proprietary process technology or confidential production records are involved (e.g., for resource-based
industries);
•
for projects approved or under construction, the project design is too preliminary to provide enough
useful information; or
•
for reasonably foreseeable actions, the action is only identifiable by name but little else is known.
In such cases, the assessment must rely on publically available information (e.g., municipal plans) as much
as possible. Any limitations this places on the assessment must be clearly stated. If no or little information is
available, it is difficult to predict cumulative effects unless the practitioner assumes certain project attributes
(e.g., content of waste discharge). These assumptions should be clearly stated, and the uncertainty this
causes in the assessment should be explained.
A reasonable attempt to collect information must at least be demonstrated. Lack of usable information about
other actions can have important implications to the certainty associated with predictions made in a CEA.
22
KEY TASKS: Scoping
CASE STUDY
Placer Mines in the Yukon: Grouping Project Types
Placer (i.e., in-stream) mining for gold has a long history in the Yukon. Some streams have been extensively
mined, in some cases repeatedly by different proponents in the same location over many years. It is not unusual
for many placer claims and operational mines (e.g., greater than 10) to exist along the same waterway.
In assessing a project located in or near one of these streams, identifying each placer mine and its cumulative
effects with the project under review may be unnecessary. In this case, all the placer mines of similar physical
and production size could be grouped to represent downstream and upstream effects on the waterway.
3.2.5 Identify Potential Impacts
Potential impacts must be identified that may affect the VECs. This scoping step is important as it
assists the practitioner in beginning to understand one of the most fundamental assessment
questions: what is affecting what? Good scoping in the initial stages of the study will mean that
the assessment effort will focus on the most likely effect’s pathways of concern.
One approach to accomplishing this, a common step in may EIAs, is to first identify
environmental components (e.g., air, water) that may be affected by various project components
(e.g., land clearing, combustion emissions) for the project being assessed. Then, environmental
components that may be affected by other actions in the region of interest can be identified. The
scoping could then proceed to focus on the relationships between specific impacts from various
actions and specific VECs. The next section describes one means of practically accomplishing
this.
3.2.5.1 Using Interaction Matrices
An Interaction Matrix is a tabulation of the relationship between two quantities. Matrices are
often used to identify the likelihood of whether an action may effect a certain environmental
component or to present the ranking of various effect attributes (e.g., duration, magnitude) for
various VECs. Matrices are an example of one tool that can be used during scoping exercises to
identify the potentially “strongest” cause-effect relationships, and later to concisely summarize
the results of an assessment.
Matrices, however, only show the conclusions made about interactions, and cannot themselves
reveal the underlying assumptions, data and calculations that led to the result shown; matrices are
a simplistic representation of complex relationships. Matrices should, therefore, be accompanied
by a detailed explanation as to how the interactions and rankings were derived (e.g., in a
“decision record”).
A CEA can also use a matrix to rank the “strength” of the interaction between each action in the
regional study area and regional VECs (i.e., how strong is the effect on a VEC due to the overlap
of effects from two different actions?). The interactions can be qualitatively ranked (e.g., 1 = low
to 5 = high on a 5-point scale), or use a number that represents a physical quantity. The first type
of ranking is currently the more commonly used in assessments.
It may also be necessary to return and examine relationships ranked negligible or low if later
information suggests they may be more important, or if the public has considerable interest in the
issue.
23
KEY TASKS: Scoping
Ranking Mechanisms for Matrices
The following two tables provide examples of using matrices to rank effects (IORL 1996a and DIAND 1997,
respectively). Such simple rating schemes are often used during early scoping exercises, before more
detailed assessment confirms the validity of conclusions reached in the matrix.
Ranking of Effects Based on Effect’s Attributes
A ranking of L (Low), M (Moderate), or H (High) is determined based on the duration, magnitude and
extent of an effect.
Duration
and
Magnitude
Extent
Local
Regional
Territorial
National/
International
Short-term
and Low
L
L
M
M
Short-term
and Moderate or High
L
M
M
M
Medium-term
and Low
M
M
M
M
Medium-term
M
M
M
H
Long-term
and Low
M
M
H
H
Long-term
M
H
H
H
Ranking of Effects Based on Spatial and Temporal Overlap
Temporal Overlap
None
Partial
Complete
L
M
M
Sometimes
L
M
H
Often
L
H
H
Never/Rarely
24
Spatial Overlap of Effects
KEY TASKS: Scoping
CASE STUDY
Cold Lake Oil Sands Project:
Interaction Matrix for Various Project Components
An Interaction Matrix was used during an early scoping workshop for the Cold Lake Oil Sands Project (IORL
1997a) to begin to identify possible relationships between various project actions and environmental
components. This was done for all project phases (preliminary activities or exploration, construction,
operations and abandonment). The following matrix shows the results for the operations phase. The ranking
system is based on a combination of potential duration, magnitude and extent of the interaction (the higher
the number, the greater the strength of the relationship; interactions with numbers above 2 were considered
important enough for more detailed assessment).
Amphibians
Terrestrial/Semi-aquatic Wildlife
Rare/Endangered Species
1
0
0
0
3
3
1
1
1
1
1
3
0
0
3
3
1
1
1
Commercial Land Use
Terrestrial Vegetation/Wetlands
1
1
Recreational Land Use
Air Systems
1
0
Aboriginal Land Use
Aquatic Vegetation
0
0
Invertebrate Fauna
0
0
Fish
3
0
Surface Water Quality
0
0
Surface Water Quantity
Soils
0
Co-generation
Project Activity
Well Servicing
Hydrogeology/Geology
Landforms/Terrain
Environmental Components
Steam Injection
0
0
0
3
1
1
1
1
0
0
0
3
3
1
1
1
Bitumen Production
0
0
1
0
0
1
1
1
2
0
0
3
3
1
1
1
Makheses Plant
0
4
0
3
1
1
1
1
4
4
0
3
3
1
1
1
Deep Well Disposal
0
0
4
0
0
1
1
1
0
0
0
0
0
0
0
0
Water Use
0
0
4
4
0
1
1
1
0
0
0
0
0
1
1
1
Ancilliary Facilities
0
3
4
3
1
1
1
1
1
0
3+
3
3
2
2
2
Access/Transportation
0
2
2
3
1
4
3
4
1
3
2
4
4
3
3
3
Workforce
0
0
0
0
0
4
1
1
0
0
0
4
4
2
2
2
Pipelines
0
0
0
0
0
1
1
1
0
3
0
3
3
3
3
3
Upset Events
2
4
5
?
5
5
5
5
4
3
4
3
4
4
4
4
CASE STUDY
Trans Canada Highway:
Interaction Matrix for Various Actions
In a CEA of the Trans Canada Highway (Parks Canada 1994), the potential degrees of interaction between
various regional actions and environmental components was determined. Sixteen actions were identified
and the effects of each action on 10 environmental and social components were ranked from negligible to
high. Below is a sample of the matrix used to present the results.
Project
Terrain
Air Quality Vegetation
Existing highway
M
L
L
Powerline
L
Railway
M
L
L
Townsite
L
L
- = Negligible, L = Low, M = Moderate and H = High
Fish
H
M
-
Visual
L
L
L
L
25
KEY TASKS: Scoping
CASE STUDY
Kluane National Park: Effect’s Interaction Matrix
An assessment of the effects of various existing and proposed actions in and around Kluane National Park
Reserve was conducted (Hegmann 1995) that included the effects on key wildlife VECs. The following
effect’s scoping matrix shows some of the results for grizzly bear. Six types of effects were identified as well
as an overall effect that served to represent the combined influences of all effects from each action on the
VEC.
Overall
L
Removals
Obstruction
M
H
H
M
M
M
M
Mortality
Alienation
Fragmentation
Habitat Loss
Effects
Existing Actions
Backcountry camping
L
Backcountry hiking
M
Flightseeing
H
Aircraft tripping support/ Lowell Lake
H
Rafting campsites
L
H
H
M
H
H
H
Snowmobiling
L
Horseback riding
M
M
M
M
M
Mountain Biking
L
M
M
M
Hunting: aboriginal subsistence
H
M
Future Actions
Alsek Pass/Sugden Creek Road
Slims Valley Roads/Day Use
Sheep Mtn. Sheep Interpretation
Mush Lake Road/Day Use
Goathead Mtn. Trail
Slims Valley Trails
Shuttle to Bear Camp
Shuttle to Lowell Lake (Jetboat, hovercraft)
Helihiking
M
L
M
M
H
H
M
M
M
H
M
H
H
H
L
L
M
L
M
H
H
H
L
M
M
H
M
M
M
H
M
M
M
H
M
H
H
M
The rankings are defined as: “blank”=no effect; L=low probability of occurrence or magnitude of effect (on
reproductive capacity of species or productive capacity of habitat) probably acceptable; M=moderate or
possibly significant effect; H=high probability of occurrence or magnitude of effect probably unacceptable
(e.g., population recovery may never occur or may occur in the long-term). A ranking option for positive
effect (+) was also provided.
26
KEY TASKS: Analysis
3.3 STEP 2: ANALYSIS OF EFFECTS
3.3.1 Collect Regional Baseline Data
A common concern of proponents is the level of effort and resources (i.e., time and money)
required to collect adequate data to assess regional cumulative effects. While early scoping is
required to ensure that the assessment is focussed on the most important VECs, it also ensures
that data collection is limited to only that required to address these issues. In some cases, the
collection of data for some environmental components, such as water quality, air quality and
noise levels, provides baseline data that often captures the collective effects of existing actions.
CEA practitioners must have a clear understanding of how the data will be used in support of a
clearly defined and scientifically defensible analysis. As a rule-of-thumb, it is not advisable to
embark on costly data collection and analysis without careful consideration of the results it may
yield. Practitioners have to often adopt a “coarse filter” approach to data collection; that is, the
level of information is not as detailed as in an EIA because of the much larger area covered (also,
the type of data required may change as the scale of the assessment changes). For example, soils
and vegetation field studies may be relatively intensive within the proposed project footprint and
involve on-site mapping. However, for regional study areas of thousands of hectares, analysis
may have to be based on satellite imagery or existing vegetation surveys completed at very broad
scales.
Who has the Most Information to Collect?
A substantial amount of biophysical data will be required to conduct an EIA for the first action proposed
within a relatively undisturbed hinterland area. However, in most cases, such data are not already available.
Subsequent project assessments will then benefit from the data and analysis done. This benefit will increase
if raw field data are subsequently made available to proponents of future actions.
However, a CEA for that first action may require little data collection, as there are few if any other actions in
the region (except, possibly, induced actions which are likely and for which adequate descriptive information
exists). Each successive CEA for subsequent actions in the vicinity of the first action will then require more
data collection to characterize the increasing number of other actions in that region. A benefit to decisionmakers is that more information becomes available to use in their decision making about subsequent actions
(a tiering of project applications).
3.3.2 Assess Effects on VECs
The analysis of cumulative effects should focus on assessing effects on selected VECs (·
Figure 2). Several approaches are available to assist the practitioner in assessing cumulative
effects. However, there is no one single approach to always be used, nor necessarily one type of
approach for specific effects or types of actions. Instead, the practitioner must select an
appropriate approach or assessment “tool” from a collection or “toolbox” of approaches. The
appropriate method is the one that best provides an assessment of the effects on the VECs being
examined.
27
KEY TASKS: Analysis
Figure 2: Focussing on Effects on VECs
The CEA should be looked at “from the VECs point of view”, in which the combined (i.e.,
cumulative) effects of the various actions on each VEC (i.e., bear and water quality) are assessed
(arrows indicate an action causing an effect on a VEC). Furthermore, although the fish is affected
by one of the other actions, it should not be considered because it is not affected by the proposed
action under review (unless the bear eats the fish!).
Proposed Action
Of the many tools available, a few have been repeatably used in EIAs, and more recently, in
CEAs. These are listed in Table 2 and described in more detail afterwards. The practitioner is also
encouraged to review some of the literature cited in this Guide (· Appendix D) for more details
about these and other tools.
Analytical Approaches
Table 2: Examples of Assessment Tools and their Appropriate Use
Tool
Examples of Appropriate Use
Impact Models
Detailed assessment of cause-effect relationships between an action
and VECs
Quantifying physical properties of actions (e.g., length of roads, area of
cleared land) and changes to landscape features (e.g., loss of wildlife
habitat)
Providing numerical values that represent large-scale disturbances or
change
Quantifying physical-chemical constituents (e.g., air and water quality)
Spatial Analysis using a
Geographic Information System
Landscape Level Indicators of
Change
Numerical Modelling
28
KEY TASKS: Analysis
Many tools are narrowly focussed and are case specific. Some provide qualitative evaluations that
assist in scoping an action’s effects, while others provide a more quantitative (i.e., numerically
based) analysis. Selection of the most appropriate tools can be based on consideration of the
following:
•
•
•
•
•
•
•
•
ability to organize, analyze and present information;
stage of the assessment (e.g., scoping, baseline data collection, analysis);
types of issues;
types of disturbances and effects;
types of VECs;
quality and extent of baseline data;
level of expertise available; and
resources available to complete an acceptable assessment to meet the needs of decision
makers.
If possible, practitioners should predict future conditions that may exist in their reasonably
foreseeable scenarios. However, if uncertainties remain concerning details about future actions or
about complex interactions, the practitioner may wish to discuss future trends instead. For
example, one could pose a theoretical question, such as “If population growth continues at the
historical rate and there is no change in wastewater treatment, then it is probable that...”. The
conclusion would be based on the best scientific data and most advanced analysis possible, but
leaving the final interpretation to the professional judgement of the practitioners and, ultimately,
to the regulatory reviewers.
Questions to Ask When Assessing Effects
•
What are the VECs that may be affected?
•
What parameters are best used to measure the effects on the VECs?
•
What determines their present condition?
•
How will the proposed action in combination with existing and approved actions affect their condition?
•
What are the probabilities of occurrence, probable magnitudes and probable durations of such effects?
•
How much further effect could VECs sustain before changes in condition can not be reversed?
•
What degree of certainty can be attached to the estimates of occurrence and magnitudes of these
predicted effects?
(Hegmann and Yarranton 1995)
29
KEY TASKS: Analysis
Assessing Individual Interactions:
Hydroelectric Projects in a Watershed
In practice, CEAs do not usually assess individual interactions between every action and all VECs. Instead,
the current state-of-the-art is to assess the overall interaction between the one action under review with all
other actions in the regional study area that may also affect a specific VEC (e.g., as accomplished with a
GIS). Assessing one particular interaction may only be necessary if it involves a single effect of major
concern or if it is known that the interaction is more complex than just additive (e.g., the synergistic effect on
fish that may occur during the interaction between two different chemical compounds discharged into the
18
same river from two pulp mills).
This reflects the difficulty in meaningfully characterizing the numerous individual interactions among actions,
particularly for biological organisms. In some cases, because of very important and unique relationships,
interactions between each action may have to be identified. Few techniques have proven effective at this.
One method, referred to as the Multiple Human Development Model (Bain et al. 1986), has attempted to
accomplish this. This approach, developed to examine the cumulative effects of several dams within the
same watershed, is based on two concepts:
1.
The relationship between an action’s disturbance and its effect on a VEC can be defined as a
mathematical function (e.g., as the magnitude of the impact of land clearing increases, the effect on
nesting eagles also increases in a linear fashion).
2.
The total interaction between any two actions is calculated as the sum of the local effects of each action
and the effects of each action on the other, where the final arithmetic total effect is assigned a numerical
value.
The numerical values in concept (2), referred to as “interaction coefficients”, are then entered into a matrix
(action-versus-action), and algebraically reduced to one number representing the overall cumulative effect of
dams in the watershed. However, these coefficients are only subjectively determined by professional
judgement.
As to whether this approach will be widely adopted depends on the level of certainty placed on the analysis
and how successfully decision-makers can meaningfully interpret the one number that represents the final
matrix conclusion (e.g., the overall average cumulative effect of a proposed hydro dam is 3.2 on a scale of 0
to 5).
Checking for Spatial and Temporal Overlap
The concept of the physical overlapping of effects leading to cumulative effects can be a useful approach to
understanding the nature of the interactions. The following series of questions could be used in determining
the degree of overlap between actions (Hegmann 1995):
1.
Do actions rarely or never occur at the same time, and do actions originating in one location rarely or
never continue on to other locations? If yes, cumulative effects interaction is weak.
2.
Do actions in each location sometimes occur at the same time, and do actions originating in one
location sometimes continue on to other locations? If yes, interaction is moderate.
3.
Do actions in each location often occur at the same time, and do actions originating in one location often
continue on to other locations? If yes, interaction is strong.
18
As a region becomes more heavily disturbed due to many actions, it may become difficult to determine which
project is responsible, and to what degree, for which effects (a classic example is the United Kingdom with a legacy
of hundreds of years of development). For regions with significant wilderness areas and lower development
intensity, identifying the action responsible for specific effects may be more clear.
30
KEY TASKS: Analysis
3.3.2.1 Impact Models
Impact Models have been used extensively in EIAs, and may be adopted as a CEA approach
because they provide a concise description of cause-effect relationships that occur between an
action and the surrounding environment.19 The Impact Model approach involves testing the
validity of a statement, similar to that made in a scientific hypothesis. The advantage of using
Impact Models is that they provide a simplification of complex systems, allowing a step-by-step
analysis of each interaction in a cause-effect relationship. They also facilitate the description of
cause-effect relationships over large areas.
Impact Models have three parts (· Cold Lake Oil Sands Project: Applying Impact Models for an
example): Impact Statement, Pathways Diagram and Linkage Statements. The assessment of the
model involves two steps: Linkage Validation, and Pathway Assessment and Evaluation.
CASE STUDY
Saskatchewan Uranium Mines:
Presenting Complex Relationships Using Pathway Diagrams
Several uranium mines were proposed at the same time in northern Saskatchewan (· Appendix B). The
cause-effect relationships between radiation sources and the environment were modelled using pathway
diagrams (Ecologistics 1992). These diagrams, resembling flowcharts, provide a simplistic representation of
complex dose-receptor linkages. The diagrams offer at least two benefits: 1) they assist in analysis by
breaking-down complex relationships into simpler, more manageable components; and 2) they provide an
effective means of communicating these relationships for the purposes of review and discussion.
Network diagrams always start at one “high-level” point from which each subsequent linkage describes an
20
increasingly more precise component affected. In the Uranium Mine assessment, a network diagram was
used to illustrate linkages between a radiation source and the atmosphere, groundwater and surface water.
This included linkages from each of these to a combination of more specific environmental components,
such as vegetation, soil, forage crops, animal produce, aquatic plants, aquatic animals and sediment. The
diagram concludes with a total dose received by these components.
19
An early example of the use of Impact Models is the Beaufort Environmental Monitoring Program (LGL et al.
1984). This program was initiated to provide the technical basis for establishing research and monitoring priorities
related to future oil and gas development in the Beaufort Sea.
20
Network diagrams resemble pathway diagrams in Impact Models; however, network diagrams are simpler in that
they do not necessarily represent a specific scientific hypotheses, and do not necessarily have linkages that are
individually defined and validated.
31
KEY TASKS: Analysis
CASE STUDY
Cold Lake Oil Sands Project: Applying Impact Models
The following provides an example of an Impact Model (from a total of 35 for the EIA) developed to assess
the effects of the Cold Lake Oil Sands Project on surface water quality (IORL 1997b).
Impact Statement
Operation and maintenance of roads and facilities will result in the generation of sediment and transport of
contaminants to receiving waters.
Pathway Diagram
Increased
Sediment/Contaminant
Levels in Receiving
Waters
4
Increased
Runoff from
Roads
3
Sediment Generation and
Mobilization of
Contaminants via
Overland Flow
2
Compaction
1b
1a
Facilities
Roads
(pads, plant)
Linkage Statements
1a. The operation and maintenance of roads will lead to compaction of the roadbed.
1b. Operation and maintenance of pads and plant facilities will result in the generation of sediment and
mobilization of contaminants via overland flow from these facilities.
2.
Compaction will cause an increase in surface runoff from the road.
3.
Increased runoff from roads will result in erosion of exposed soils, resulting in an increase in
sediment generation and transport. Soluble contaminants from the road and the road bed will be
transported along with the sediment.
4.
Increased sediment and contaminant transport will result in higher levels of these parameters in
receiving waters, which will result in a decline in surface water quality.
Linkage Validation
#
Linkage Description
1a
1b
The operation and maintenance of roads will lead to compaction of
the roadbed.
Operation and maintenance of pads and plant facilities will result in
the generation of sediment and mobilization of contaminants via
overland flow from these facilities.
Validity
Confidence
Valid
High
Valid
High
(cont . . . )
32
KEY TASKS: Analysis
2
3
4
Compaction will cause an increase in surface runoff from the road.
Increased runoff from roads will result in erosion of exposed soils,
resulting in an increase in sediment generation and transport.
Soluble contaminants from the road and the road bed will be
transported along with the sediment.
Increased sediment and contaminant transport will result in higher
levels of these parameters in receiving waters, which will result in a
decline in surface water quality.
Valid
Valid
High
High
Valid
High
Pathway Assessment and Evaluation
Pathway Links
Scope Magnitude Duration Frequency Direction Significance Confidence
1
2
1a,2,3,4 Local
1b,4
Local
Moderate Long-term Continuous Negative Insignificant
Moderate Long-term Continuous Negative Insignificant
High
High
3.3.2.2 Spatial Analysis using GIS
Spatial analysis using a Geographic Information System (GIS) involves assessing the effects of
the action under review on a component of the entire surrounding environment in which all the
actions and natural features are combined together into one representative model of the landscape
(this may be done on a scenario-by-scenario basis). The essential feature of a GIS is that it
correlates measures of disturbance to various actions, and then relates those disturbances to the
occurrence of VECs. This allows the creation of a model representing certain cause-effect
relationships. Furthermore, relatively large areas can be readily examined (assuming adequate
descriptive data in spatial form is available) and quantitative results produced.
Typical GIS applications include the determination of:
•
•
•
•
•
•
•
area of land cleared (causing removal of vegetation and disturbance to soils);
distances between (or overlap of) effects on other actions or natural features;
length and density of road access;
area of land in which wildlife are subject to sensory alienation;
area of wildlife habitat lost or of reduced capability (· Figure 3 for an example);
degree of habitat fragmentation; and
changes in any of the above between assessment scenarios.
33
KEY TASKS: Analysis
Regional Landscape Spatial Analysis:
Using GIS to Identify Wildlife Habitat Suitability
Geographic Information Systems (GIS) allow a practitioner to develop and apply models that quantitatively
assess changes due to land disturbances over large areas. A common application of GIS is the assessment
of loss and fragmentation of wildlife habitat. This approach was used in the assessments (· Appendix B) of
the Trans-Canada Highway Phase IIIA, Eagle Terrace, Cold Lake Oil Sands and Cheviot Mine projects.
In each of these cases, a system of ecological land classification or vegetation community mapping was
used to classify similar land units within the regional study area. These types were then translated into
habitat suitability, which was mapped to indicate areas of low, moderate and high suitability. When
superimposed on a map of disturbances (e.g., the proposed action, roads, powerlines, other industrial
activity), the area of habitat lost could be determined. With an alienation buffer placed around each
disturbance, the additional area lost or of reduced habitat capability due to alienation (e.g., noise, light) could
also be determined. A buffer consists of a certain distance from the source of an effect (e.g., a highway) and
a “disturbance factor” that quantifies the probability of an animal residing in that buffer.
This approach (along with air and water quality models) provides one of the few currently available
techniques of assessing large-scale changes on a specific environmental component.
Figure 3: Assessing Regional Wildlife Habitat Change using a GIS
Loss of high, moderate and low habitat was calculated for elk in a mountain valley already
experiencing extensive development (the central black areas indicate areas of development; the
shaded areas indicate levels of quality of habitat; the white areas surrounding developments,
such as the Trans-Canada Highway, are wildlife disturbance buffers) (Eagle Terrace 1996).
34
KEY TASKS: Analysis
3.3.2.3 Indicators
Indicators provide a specific measure of the effects on a VEC. An indicator may sometimes
actually be the VEC itself. Indicators used in a CEA may differ from those used in an EIA if
indicators for local effects do not adequately represent effects at a larger spatial scale or longer
timeframe. For example, in the case of a pulp mill where suspected contamination of a river is an
issue, the VEC for the assessment would be water quality. An indicator for local effects (i.e., as
used in the EIA) could be dissolved oxygen to measure effects a few kilometres downstream. An
indicator for regional effects (i.e., as used in the CEA) could be dioxin concentrations in fish 200
km downstream where a small fishing community lies along the river.
Indicators can measure attributes of human-caused disturbances (e.g., road densities, area cleared)
or attributes of the surrounding environment (e.g., fragmentation indices, biodiversity indices,
length of edge).
Indicators
CASE STUDY
Eagle Terrace Sub-division: Using a Variety of Wildlife Indicators
Three wildlife species were chosen as indicators of change in response to development pressures in a
mountain valley: elk, wolf, and Swainson's Thrush (Eagle Terrace 1996). Elk was used to assess use by
ungulates and to serve as an ecological indicator of use of early seral habitats in the valley. Wolf was used to
assess use by large-carnivores and to serve as an ecological indicator of large-scale regional wildlife
movements. Swainson's Thrush was used to assess use by songbirds and to serve as an ecological
indicator of localized fragmentation of forest habitat.
CASE STUDY
Alliance Pipeline: Landscape Indicators
The Alliance pipeline has been proposed to connect gas fields in north-eastern B.C. to the U.S. border at
Saskatchewan. Extending almost 1700 km, the pipeline would pass through many different biophysical
regions. The CEA analyzed effects in six different study areas along the route, each representative of certain
ecological conditions (Alliance 1997). Several “Landscape Indices” were used to quantify various natural and
constructed features. The values obtained were compared to published thresholds of tolerance, if available,
for several terrestrial and avifauna indicator species: moose, grizzly bear, marten, black-throated green
warbler, trumpeter swan, sharp-tailed grouse and long-billed curlew.
The Landscape Indices included:
•
2
access density (right-of-way km/km ) as an indicator of habitat effectiveness;
•
stream crossing density (crossings/km of streams in each study area) as an indicator of aquatic
disturbances;
•
cleared area (ha) as an indicator of regional habitat availability and fragmentation;
•
edge area (ha) as an indicator of regional habitat availability; and
•
core area (ha) as an indicator of regional habitat availability, fragmentation and connectivity.
35
KEY TASKS: Analysis
Using Road Density to
Indicate Regional Landscape Change
The issue of road proliferation (an example of an induced action) is a major concern in areas undergoing
extensive development, especially in previously undeveloped hinterland areas. Each additional action will
often directly add more road access to a region, which can induce additional activity (e.g. hunters using
ATVs) and further development making use of this access.
The growing network of roads and vehicular traffic represent an increasing alteration of land surface and
sensory disturbance. For wildlife, this represents an incremental direct and indirect (i.e., alienation) loss of
habitat which leads to habitat fragmentation and blockage of wildlife movements.
Mapping the road network over many years can be used to demonstrate how various actions have
contributed cumulatively to large-scale regional changes in the landscape. Roads can then be used as a
2
quantitative indicator of cumulative effects. Road density (i.e., km road/km of landscape) is usually
calculated for various points in time (e.g., years 1930, 1960, 1980 and 1990).
Taking this approach one step further, a specific road density may be selected as a regional threshold for a
particular species (· Section 3.5.3).
3.3.2.4 Numerical Models
Numerical models are algorithms that are used to simulate environmental conditions. The most
common use of these models is to predict the state of a physical or chemical constituent by using
a computer-based application to assess air and water quality, water volume flows, and airborne
deposition on soils and vegetation. Terrestrial and aquatic organisms are relatively more difficult
to model than effects on air and water systems due to uncertainties in predicting their behavioral
and physiological responses.
Air and water modelling has typically followed a cumulative effects approach: the distances in
which airborne or waterborne constituents are typically transported has often necessitated a
regional perspective. Because of this, the use of readily available numerical models may provide
an adequate assessment response to cumulative effects on air and water quality.21 In some
assessments, the spatial boundaries of the airshed or watershed modelled have been used as an
overall regional study area if it adequately addresses effects on other environmental components.
CASE STUDY
Steepbank Mine: Regional Air Emissions Modelling
A regional air emissions analysis was performed for a proposed oilsands project in Alberta (Suncor 1996).
Emission rates (t/d) were determined for four sources and totaled for each of five air quality indicators.
21
Emission
Suncor
Syncrude
SO2
NOx
CO2
VOCs
particulates
233.5
37.1
9643
42.3
6.8
207.4
31.7
23733
17.2
13.9
Other
Industry
0.1
0.5
1101
3.0
0.3
Traffic/
Residential
0.2
1.3
587
2.3
2.9
Total
441.2
70.6
35064
64.8
23.9
In some cases, specific models may be required to meet statutory requirements for permit or license applications.
36
KEY TASKS: Analysis
CASE STUDY
Combining Numerical Models and GIS:
Coastal Temperate Rainforest in Clayoquot Sound
The Coastal Temperate Rainforest Simulation Model (ESSA 1992) was developed to predict possible future
changes in the coastal rainforest depending on various types and rates of change. A raster spatial database
for various watersheds in the Sound was combined with various models that simulated certain conditions
over many years. Map-based data included road access, forest age and percentage fines from streams.
Model variables included volume timber harvest, economic indicators and habitat characteristics. A series of
mathematical functions correlated the magnitude between various attributes (e.g., the sigmoidal-function
response of egg to fry mortality due to increasing levels of fines in the streams caused by nearby timber
harvesting). Models simulated timber harvesting, sediment movement and effects on salmon and its habitat.
37
KEY TASKS: Mitigation
3.4 STEP 3: IDENTIFICATION OF MITIGATION
Managing cumulative effects in a CEA requires, as a start, the same type of mitigation and
monitoring that would be recommended in an EIA. Mitigating a local effect as much as possible
is the best way to reduce cumulative effects; however, to be most effective, mitigation and
monitoring must be long term and regionally based.22 This can be costly, require a few years to
complete, and require broader data collection and decision-making involvement than has
historically been the case with EIAs (monitoring programs for individual actions are usually
designed with the involvement of regional administrative bodies).
The mitigation measures applied in CEAs (e.g., as proposed for the Cheviot Mine project) may be
considerably different from those applied in traditional EIAs. These mitigation measures can be
applied to developments other than the proposed development (e.g., through pollution trading).
Several administrative jurisdictions and stakeholders will usually fall within an assessment’s
regional study area. In many cases, the co-operation of these other interests may be required to
ensure that recommended mitigation is successfully implemented. Effective CEAs, therefore,
often imply the need for regional stakeholder involvement to solve regional concerns.
Considerable reliance is placed on regional efforts to mitigate cumulative effects, such as
initiatives to create regional co-ordinating bodies that direct or recommend further land use,
monitoring and other effects-related research. Participants are usually selected from provincial
and federal ministries, stakeholder groups and commercial interests. The objectives of these
initiatives are generally to protect landscape-scale patches and inter-connecting wildlife corridors,
and disperse permanent and transient human activities to reduce the magnitude of cumulative
effects.
Recommendations for regional initiatives of this type may be the only means of addressing
complex cumulative effects issues. It is generally unreasonable to expect a single proponent to
bear the burden of mitigating effects attributable to other actions in the region. Often it is more
practical and appropriate for regulatory agencies to initiate and help implement these regional
initiatives, with project proponents providing data relevant to their project’s effects.
“No Net Loss” as a Mitigation Measure
The concept of “no-net loss” has been suggested by some regulatory agencies as an appropriate mitigation
measure in response to regional cumulative effects concerns. No-net loss requires that any land or
waterbody disturbed from its pre-action condition be “replaced” with an area of equivalent capability to
ensure that capability of habitat to support wildlife or fish is maintained in the region (this includes the option
of increasing the productivity of existing habitat).
This concept presents two challenges as an effective approach to offsetting cumulative loss of terrestrial
habitat:
•
To create “more land”, existing land must be converted (e.g., through habitat modification). However, it
is typically converted to conditions that benefit one or a few select species (e.g., rare or game species).
By implication, this may be a detriment to other species and may not represent a habitat of equivalent
capability to support the full range of species originally supported by the lost habitat.
•
There may be no remaining land within a reasonable distance of the action to be modified (i.e., within a
distance that beneficial effects would be attributable to the action). This is particularly true for regions
with extensive private land holdings or existing disturbances, land that would be inaccessible to wildlife,
and when vegetation climax conditions are required.
22
Another response to addressing effects is compensation (usually financial) for losses in some form to a person or
personal property. Compensation, however, is not mitigation.
38
When Other Actions Contribute More to Cumulative Effects
What happens if an existing action is found to already be contributing most to cumulative effects in a region?
Typically, the administrative jurisdiction of the agency reviewing the action can only address mitigation for
the proposed action. Mitigating effects caused by the proposed action may solve local effects, but do little to
ameliorate the regional cumulative effects. In these cases, the reviewing agency or Board (if within its
legislative authority) may consider mitigation of effects from existing actions as a condition of approval for
the action under review.
CASE STUDY
Huckleberry Copper Mine: Implications of Mandatory Mitigation
The Huckleberry Copper Mine was proposed in central-west British Columbia (· Appendix B). The
application of mandatory mitigation measures for discharges to waterways meant that cumulative effects on
water quality were unlikely and insignificant (HCPC 1995). Such mitigation measures would ensure that
regulated water quality objectives would be met.
CASE STUDY
Trans Canada Highway Twinning: Wildlife Crossing Structures
To mitigate obstruction of wildlife movements, the Trans Canada Highway CEA (Parks Canada 1994)
proposed that culvert underpasses be built at various locations along the proposed highway twinning project
(· Appendix B). However, due to concerns about use by large carnivores, the assessment further
recommended that usage of these structures by wildlife be monitored for several years to determine which
location would best facilitate regional movements. If use was subsequently deemed inadequate, the
assessment further proposed that a wildlife overpass be constructed (as overpasses were known to be more
effective than underpasses). Later review of wildlife movements resulted in the recommendation of
immediate construction of two overpasses.
CASE STUDY
Express Pipeline: Reclamation of Native Prairie as Mitigation
The proponent contended that cumulative effects on native prairie were not significant given that most of the
project disturbance would be local to the pipeline right-of-way and mitigable (Priddle et al. 1996). Most of the
project consisted of buried pipeline; any disturbed soils and vegetation along the 30 m right-of-way would be
reclaimed. It was expected that 80% of the vegetative composition of the right-of-way would be similar to
pre-disturbance conditions within five years, and full recovery of the different botanical components would
occur within 20 years. No long-term substantial effects on wildlife were expected as a result of clearing or
fragmentation.
39
CASE STUDY
Energy Projects in Alberta’s Eastern Slopes:
Responses to Development Pressures
In the early 1990s, the Eastern Slopes of Alberta’s Rocky Mountains underwent an increase in oil and gas
exploration. In some cases, leases were being issued and actions proposed for areas considered by various
environmental interest groups as environmentally significant. Although there was a regional land use plan in
effect (referred to as an Integrated Resource Plan), it was not sufficiently stringent or specific in land use
zoning to consider specific local areas of concern or larger regional cumulative effects.
In response to these concerns, a multi-stakeholder group represented by the Alberta government, the oil and
gas industry, and environmental groups was established in 1993. The purpose of this group, referred to as
the Eastern Slopes Energy and Environment Committee, was to identify and reach a consensus on areas
that should be restricted from further oil and gas activity for environmental reasons. Although various areas
were agreed upon, the Committee disbanded in 1995 without this goal being achieved.
At the same time, the provincial regulatory agency for the oil and gas industry (the Alberta Energy and
Resources Board) issued an Information Letter or guideline that described actions and assessment issues
that were to be addressed by proponents submitting applications for actions in the Eastern Slopes (ERCB
1993). The Letter requested that proponents attempt to consolidate their plans through sharing of data and
use of common roads and utilities (e.g., pipelines, transmission lines) to minimize surface disturbance. In
general, proponents were requested to take a lead role in identifying and addressing issues in the region.
CASE STUDY
Cheviot Coal Mine: Carnivore Compensation Package
In 1996 Cardinal River Coal proposed to construct a coal mine east of Jasper National Park in Alberta. The
proponent recognized that regional initiatives were required to mitigate significant effects: some that it could
undertake, others that would require a coordinated effort. In the former case, impacts on water quality, old
growth forest, rare plants, land use and recreational access, Harlequin duck, and elk could be addressed by
the proponent alone. However, regional initiatives would be required to address cumulative effects on grizzly
bear.
To compensate for some unmitigable losses to carnivore habitat, it was recommended that a “Cheviot
Carnivore Compensation Program” be established (CRC 1996). This program would contribute to funding
regional research on large carnivore ecology, establishing and supporting a Wildlife Management Board, and
offering regional-oriented education packages. Existing regional initiatives were also recognized, such as the
establishment of new natural areas (e.g., recent creation of Cardinal Divide Natural Area, Foothills Model
Forest), and the Coal Branch Access Management Plan in the Coal Branch Sub-regional Integrated
Resource Plan. Natural areas, along with Jasper National Park, were cited as offering protected reserves
that may be used by any wildlife displaced by the mine. An Access Management Plan could also be used to
reduce adverse effects by limiting vehicular access, hunting and noise.
40
CASE STUDY
West Castle Valley Resort: Wildland Recreation Area
In 1993, the Alberta Natural Resources Conservation Board followed a CEA type approach during its
hearings on an application for a project in the West Castle Valley, located in the foothills of the Canadian
Rockies near Pincher Creek, Alberta (Smith et al. 1993). The project included a four-season destination
resort, with visitor accommodation and recreational facilities.
The practitioner, and subsequently the Board, adopted a gradual progression of inquiry to ensure that
impacts of the project on far-ranging wildlife were understood. For example, the assessment of grizzly bears
required a much larger area (more than 10 times the EIA study area, extending into the U.S.) to be
examined to determine whether the project would threaten the regional grizzly population. Evidence
presented to the Board suggested that the project would block one of three wildlife corridors that linked
important habitat to the north and south of the project. This suggested that potential effects of the project on
grizzlies could threaten the viability of the population. Furthermore, historical precedent demonstrated how
this species had been extirpated from other range in North America as a result of direct mortality and
increased fragmentation of habitat.
There was no overt decision to assess cumulative effects. Rather, the weight of evidence led to the need to
consider a larger spatial scope; historical evidence of effects on bears; and implications for bear populations
in the future. Ultimately, the Board had to determine whether there was any room for alternative corridors to
mitigate the project’s effect. This resulted in the Board's decision that the project should not proceed unless
a nearby area is rezoned as a “Wildland Recreation Area”.
CASE STUDY
Northern River Basins Study: Watershed Monitoring
In 1989, a joint federal-provincial Review Board (DeSorcy et al. 1990) held hearings into the proposed
Alberta-Pacific Forest Industry’s pulp mill (· Appendix B). Located in the boreal forest north of Edmonton,
the mill would discharge waste process water into the Athabasca River, part of the larger Athabasca-Peace
River watershed that encompasses parts of British Columbia, Alberta and the Northwest Territories.
The need for a regional study grew out of recommendations during the Board review for more regional
scientific data. The Board was concerned that impacts from the mill as well as existing and future actions
might adversely affect the region's watersheds. A major component of the study was a public consultation
process, involving residents throughout the region.
The Northern River Basins Study was then initiated in 1990 to "examine the relationships between
development and the Peace, Athabasca and Slave River Basins" (NRBS 1993), an area that includes much
of northern Alberta. This three-and-a-half year, $12.3 million project, under the provisions of the Canada
Water Act, was jointly funded by the Government of Canada and the Province of Alberta, with involvement of
the Northwest Territories Government. Operations were co-ordinated by a Study Board representing various
regional stakeholders, with assistance from a Science Advisory Committee.
The Study Board co-ordinated various research projects to identify data gaps, provide an environmental
baseline database on contaminant levels, develop models to assess cumulative effects of development on
the aquatic environment, and assist future regional planning efforts. Research was directed towards
examining the effects of toxic compounds in the waterways and developing predictive tools to assess the
cumulative effects of multiple sources in those waterways.
41
KEY TASKS: Significance
3.5 STEP 4: EVALUATION OF SIGNIFICANCE
3.5.1 Approaches to Determining Significance
Determining the significance of residual effects (i.e., effects after mitigation) is probably the most
important and challenging step in EIA. The determination of significance for CEAs is
fundamentally the same; however, it may be more complex due to the broader nature of what is
being examined. A cumulative effects approach requires determining how much further effects
can be sustained by a VEC before suffering changes in condition or state that cannot be reversed.
Significance
Deciding Whether Effects are Likely
The Canadian Environmental Assessment Act states that "any cumulative environmental effects that are
likely to result...” must be considered. According to guidance provided by CEAA (1992), the following
questions should be asked:
1.
2.
3.
Are the environmental effects adverse?
Are the adverse environmental effects significant?
Are the significant adverse affects likely?
The determination of likelihood is based on two criteria: 1) probability of occurrence and 2) scientific
certainty. In practice, likelihood as an attribute of significance (· Cold Lake Oil Sands Project: Significance
Attributes for examples of other attributes) is often rated on a scale: e.g., None (no effect will occur), Low
(<25% or minimal chance of occurring), Moderate (a 25% to 75% or some chance of occurring), and High
(>75% or most likely a chance of occurring).
Query for Evaluating Significance
Significance conclusions in assessments should be defensible through some form of explanation of how the
conclusions were reached. The following is an example of one approach (Duval and Vonk 1994). A series of
questions are structured so as to guide the practitioner through a series of steps, eventually leading to a
significance conclusion. The questions follow a basic line of inquiry as follows:
•
•
•
•
Is there an increase in the action’s direct effect in combination with effects of other actions?
Is the resulting effect unacceptable?
Is the effect permanent?
If not permanent, how long before recovery from the effect?
In more detail, these questions appear below, specifically to address the nature of two different types of VECs.
Biological Species VECs
•
How much of the population may have their reproductive capacity and/or survival of individuals
affected? Or, for habitat, how much of the productive capacity of their habitat may be affected (e.g.,
<1%, 1-10%, >10%)?
•
How much recovery of the population or habitat could occur, even with mitigation (e.g., Complete,
Partial, None)?
•
How soon could restoration occur to acceptable conditions (e.g., <1 year or 1 generation, 1-10 years or
1 generation, >10 years or >1 generation)?
Physical-chemical VECs
•
How much could changes in the VEC exceed that associated with natural variability in the region?
•
How much recovery of the VEC could occur, even with mitigation?
•
How soon could restoration occur to acceptable conditions?
42
CASE STUDY
Cold Lake Oil Sands Project: Significance Attributes
Determining the significance of effects associated with the Cold Lake Oil Sands project was, in part, based
on conclusions reached for seven “Significance Attributes” (IORL 1997a). These attributes have generally
gained common acceptance amongst EIA practitioners (although the definitions may vary) as a means of
identifying and measuring various aspects of an effect that collectively assist in the evaluation of
significance.
Attribute
Options
Definition
Beneficial effect on VEC
Direction
Positive
No change to VEC
Neutral
Adverse effect on VEC
Negative
Effect restricted to a small site
Scope
Site
Effect restricted to the project footprint
Local
Sub-regional Effect extends to area within a few kilometres of the project footprint
Effect extends throughout regional assessment area
Regional
Effects are significant for <1 year before recovery returns conditions to
Duration
Short-term
the pre-project level; or, for species, for less than one generation
Medium-term Effects are significant for 1-10 years; or, for species, for one generation
Effects are significant for >10 years; or, for species, for more than one
Long-term
generation
Occurs once only
Frequency
Once
Occurs on a regular basis and regular intervals
Continuous
Occurs rarely and at irregular intervals
Sporadic
Minimal or no impairment of component’s function or process (e.g., for
Magnitude
Low
wildlife, a species’ reproductive capacity, survival or habitat suitability; or,
for soil, ability of organic soil to fix nitrogen)
Measurable change in component’s function or process in the short and
Moderate
medium duration; however, recovery is expected at pre-project level
Measurable change in component’s function or process during the life of
High
the project or beyond (e.g., for wildlife, serious impairment to species
productivity or habitat suitability)
Significance
Insignificant
Based on the analysis, use of Significance Query, and best professional
Significant
judgment, is the effect on the VEC significant?
Unknown
Confidence
Low
In general, what is the confidence level in the conclusion?
Moderate
High
3.5.2 Factors that Influence Interpretation of Significance
A cumulative effect on a VEC may be significant even though each individual project-specific
assessment of that same VEC concludes that the effects are insignificant. This is a fundamental
principle in the understanding of cumulative effects. Project-specific assessments, that focus on
the incremental contribution of the project being assessed, can assist in making such conclusions
as they must consider the implications of other actions also affecting the VECs. However, this
inclusion (and sometimes the analytical approach used) requires the consideration of various
factors that may influence the determination of significance (some which have not always been an
issue in earlier assessments without a cumulative effects component). These factors include the:
• exceedance of a threshold;
• effectiveness of mitigation;
43
•
•
•
•
•
•
•
•
size of study area;
incremental contribution of effects from action under review;
relative contribution of effects of other actions;
relative rarity of species;
significance of local effects;
magnitude of change relative to natural background variability;
creation of induced actions; and
degree of existing disturbance.
Each of these points are discussed below in detail.
• Significance may increase if a threshold is exceeded: If the magnitude of an effect exceeds a
threshold for a VEC, and the effect is not brief in duration, then the effect is usually
considered significant.
• Significance may increase as the effectiveness of mitigation measures decreases:
Determination of the significance of residual effects on a VEC is the most important outcome
of an assessment. The effectiveness of recommended mitigation measures should, therefore, be
acknowledged in the assessment (mitigation that is 100% effective will result in no residual
effects).
• Significance may appear to decrease as the study area size increases: An assessment
approach used in many CEAs involves comparing increases in area covered by successive
actions in a region. The assessor can determine how much the action under review has
contributed to the incremental historical and existing land uses. In such assessments, the study
area against which the comparison is made is usually fixed, resulting in comparison against
the same reference point. Therefore, the larger the study area, the smaller the apparent
contribution of each action to change. In this way, the incremental contribution of even a large
action may appear to be insignificant (e.g., <1%) if the study area is sufficiently large. To
avoid misleading conclusions, the practitioner should also demonstrate how much change is
attributable to the action under review when compared to other actions in the study area (as
opposed to the study area itself).
CASE STUDY
Eagle Terrace Sub-division: Comparing Incremental Effects of a Project
In the Eagle Terrace assessment (Eagle Terrace 1996), the loss of songbird (Swainson’s Thrush) habitat
was calculated in two ways. It was first determined that existing developments caused a 38% loss of
moderate quality habitat, reasonably foreseeable actions would cause a further loss of 7.2%, and the
proposed Eagle Terrace project would cause a further incremental loss of only 0.1%. These numbers were
based on a comparison to a fixed area: the regional study area.
However, the percentages were then re-calculated and compared to the land remaining undisturbed after
each scenario (which becomes progressively smaller). In this case, the loss of habitat changed to 47%, 17%
and 0.2% respectively. Although the contribution of the proposed project would double, it remained
considerably less than 1% (usually a value of change considered insignificant in assessment practice). The
contribution of all other actions, however, would more than double to considerably more than 10% (a value
usually considered significant).
44
• Significance may decrease as the relative contribution of an action decreases: It can be
argued that if the effects of an action within a regional study area are quite small relative to the
effects of other actions in that same area, then the cumulative effects of that action are likely to
be negligible. For example, if a forest cutblock of 4 ha is proposed within a region in which
there are already 300 ha of clearcut areas, then the proposed action contributes an incremental
loss of potential wildlife habitat of only 1.3%. The validity of this argument depends
somewhat on the size of the study area (the larger the regional study area, the smaller the
percentage becomes). The argument may not hold true in all cases, especially if that 4 ha
supports plant species that are regionally rare, provides particularly important habitat for
wildlife (e.g. salt licks for ungulates) or has a unique topographical feature. Furthermore, the
argument may not hold if that further loss of 4 ha causes a threshold to be exceeded for a
certain VEC, beyond which the VEC can not recover. However, applying this “straw-thatbreaks-the-camels-back” view of the implications of adding one more action are often
handicapped by the lack of clearly defined thresholds.
• Significance may decrease as the significance of nearby larger actions increase: For an
action proposed in close proximity to larger existing actions, its relative contribution to
cumulative effects may be minimal. Although this does not mean that a CEA is not required, it
does suggest that the effects of the other action(s) should be adequately understood.
• Significance may increase as a species becomes increasingly rare or threatened: The
significance of effects on a species’ population may have to consider the rarity of the species
at larger scales (e.g., regional, provincial or global). To illustrate for biological organisms,
consider a population of 200 animals or plants living within the "footprint" of a proposed
action. Such a population might be severely affected. The importance, however, that is
attributed to such an effect will almost certainly depend on whether the population is part of a
local, regional or global population of 200, 2000 or 200 million. In addition, it must also be
considered if that remaining population itself is rare or threatened.
• Significance may decrease as the significance of local effects decrease: It has been argued
that if the conclusions of an EIA indicate that none of the residual direct effects are
significant, then there will be no cumulative effects (as therefore there are no effects
remaining to act cumulatively with other actions). While this may be true for some types of
effects, this may not always be the case: an insignificant local effect may still contribute to a
significant cumulative effect!
• The argument of insignificance may be true, for example, if mitigation eliminates or
substantially reduces the transport of a constituent elsewhere (e.g., a contaminant discharged
into a waterway) or the emanation of a sensory disturbance (e.g., noise). In these cases, the
potential for cumulative effects with other actions will be reduced.
• However, the argument may be false if, on a regional scale, there nonetheless remains an
important indirect effect that results in a regionally important loss of a VEC (e.g., loss of 10%
of the population of a rare plant species with the study area) or of a resource on which the
VEC depends (e.g., fragmentation of wildlife habitat). This indirect effect most commonly
occurs as a result of the clearing of land which, although perhaps not significant at a local
scale, may have important regional implications (i.e., the nibbling effect). In these cases, the
practitioner must recognize this possibility and, while determining significance, consider the
relative scarcity of what is being affected.
• Significance may decrease if effects are within natural background variability: If a direct
effect causes no detectable change in a VEC, then the effect would usually be considered
insignificant. If the change caused by the effect is detectable but within the magnitude of
naturally fluctuating conditions (e.g., annual water temperatures and flows, percentage
45
dissolved oxygen, seasonal wildlife population size), then the effect would also usually be
considered insignificant. However, these arguments may not remain true if a number of
individual actions each contribute small incremental changes, each below natural variability,
which eventually causes a detectable change and exceedance of natural background
conditions. For example, the effects of a series of placer mines or pulp mills along the same
river may individually be considered insignificant due to adequately applied mitigation (e.g.,
the sediment or pollutants are diluted below background levels). However, their cumulative
downstream effects may exceed even worst-case natural conditions (e.g., during periods of
drought). Furthermore, there is often considerable uncertainty associated with identifying
natural variability; its use for comparison purposes must therefore be approached with caution.
• Significance may increase as the number of induced actions increase: A proposed action
may induce new actions to occur in the region. Although considering these spin-off actions in
the CEA implies some certainty that they will occur, greater significance may be borne by the
effects of the action under assessment.
• Significance may decrease if the surrounding environment is already heavily disturbed: An
action proposed in a region already heavily disturbed due to existing actions may not be
significant if environmental components are already compromised (e.g., thresholds have been
exceeded). For example, a pipeline could be proposed in an area already crossed by numerous
other rights-of-way (e.g., access roads), in which case the pipeline itself would not necessarily
be an important contributing cause to a possible collapse of a wildlife population.
3.5.3 Using Thresholds
Thresholds are limits beyond which cumulative change becomes a concern, such as extensive
disturbance to a habitat resulting in the rapid collapse of a fish population, or when contaminants
in soil suddenly appear in potable water supplies. Thresholds may be expressed in terms of goals
or targets, standards and guidelines, carrying capacity, or limits of acceptable change, each term
reflecting different combinations of scientific data and societal values. For example, a threshold
can be a maximum concentration of a certain pollutant beyond which health may be adversely
affected, a maximum number of hectares of land cleared from its existing natural state before
visual impacts become unacceptable, or a maximum number of deer lost from a valley habitat
before the viability of the population is threatened.
Making useful conclusions about cumulative effects requires some limit of change to which
incremental effects of an action may be compared. Theoretically, if the combined effects of all
actions within a region do not exceed a certain limit or threshold, the cumulative effects of an
action are considered acceptable. In practice, however, the assessment of cumulative effects is
often hindered by a lack of such thresholds. This is particularly true for terrestrial components of
ecosystems. Contaminants affecting human health and constituents in air and water are usually
regulated; therefore, thresholds useful for assessment purposes are defined by regulation or
available in guidelines (e.g., Health Canada’s drinking water quality guidelines).23
There is not, therefore, always an objective technique to determine appropriate thresholds, and
professional judgment must usually be relied upon. When an actual capacity level cannot be
determined, analysis of trends can assist in determining whether goals are likely to be achieved or
patterns of degradation are likely to persist.
23
Consideration of human health is often implicit is some assessments of biophysical components (e.g., air quality).
46
In the absence of defined thresholds, the practitioner can either: 1) suggest an appropriate
threshold; 2) consult various stakeholders, government agencies and technical experts (best done
through an interactive process such as workshops); or 3) acknowledge that there is no threshold,
determine the residual effect and its significance, and let the reviewing authority decide if a
threshold is being exceeded.
Thresholds
Carrying Capacity and Limits of Acceptable Change
Carrying capacity is the maximum level of use or activity that a system can sustain without undesirable
consequences. This is very much a subjective determination, which depends on the values and context
involved. Ecological carrying capacity reflects biophysical limits, while social or recreational carrying capacity
may be determined largely by user perception and levels of satisfaction associated with a specific activity.
The concept of “limits of acceptable change” shifts the focus from identifying appropriate levels of use to
describing environmental conditions that are deemed acceptable. The advantage of this approach is that
once acceptable conditions have been described, the appropriate combination of levels of use and
maintenance interventions required to sustain those conditions can be determined (Stankey et al. 1985,
Wight 1994).
CASE STUDY
Placer Mining in the Yukon: Stream Sedimentation Thresholds
The Yukon Placer Authorization (GOC 1993) specifies maximum acceptable sediment discharge
concentrations, based on acceptable effects on fish, for five different classes of streams. For example, the
maximum concentration of sediment levels above natural background levels for Type III streams is 200mg/L
(the type is based on fish bearing and harvesting attributes). Furthermore, some streams are uniquely
classified on a series of mapsheets covering much of the southern Yukon. The cumulative effects implication
of this Authorization is that any number of actions (i.e., placer mines) may occur on a single stream until the
sedimentation limit is reached. This approach, therefore, provides a stream threshold that can assist in
future decision making for actions affecting stream sedimentation.
CASE STUDY
Highwood River: Instream Flow Needs
The Alberta Government proposed to divert some of the peak flow volume of the Highwood River to
supplement water supplies to a proposed reservoir. Concerns were raised about possible effects of water
withdrawals on riparian vegetation and fish. A study (Yarranton and Rowell 1991) investigated how to
determine minimum instream flow needs and what the flows should be. These flows represented a threshold,
below which the survival of the VECs would be threatened. The flow was determined, based on best
professional judgement, as the minimum flow requirements for various stream-related factors (e.g.,
vegetation regeneration, geomorphological changes, fish survivorship). The final threshold was selected as
the highest volume flow required in each season for any one of those factors.
47
CASE STUDY
Banff National Park: Human Use and Grizzly Bear Thresholds
In a recent cumulative effects study by the Banff-Bow Valley Task Force, increased human use in Banff
National Park was identified as causing a significant effect on the park’s environment (BBVS 1996). In
assessing these effects, a GIS was used to map levels of human use in the park on a 6-point scale, ranging
from 10 persons per month to 1 million persons per month (each increment represented an increase in use
by a factor of 10). As expected, backcountry trails experienced the least amount of use, while popular tourist
areas, highways and townsites received the highest level of use.
Research in the park on grizzly bear-human interaction suggested that a limit of 100 persons per month (i.e.,
the second lowest level of use) would not exceed a threshold of tolerance for the bears during the summer
(Gibeau et al. 1996). Since bears are not active in winter, the winter threshold of 1000 person per month was
based on observed responses of wolves to human disturbances and activities (Paquet et al. 1996). These
thresholds of use were then recommended to assist in future park management efforts in the park’s
backcountry. In the frontcountry (i.e., in highly developed areas), the thresholds obviously could not be
applied; however, efforts were made in those areas to provide movement corridors so that large mammals
(e.g., elk, wolf and bear) could effectively move into more suitable habitat.
In an assessment of the effects of expansion of the Trans Canada Highway in the park (Parks Canada
1994), it was suggested that habitat effectiveness of only 70 to 80% (compared to existing capability) could
exceed the threshold of disturbance for grizzly bear. Another study in Yellowstone National Park provides a
grizzly bear threshold based on a maximum tolerance of road density (Mattson 1993). The study suggests
2
that road densities of greater than 0.4 km/km in a region would greatly increase the likelihood that bears
would be permanently alienated from the region.
3.5.4 Handling Uncertainty
Uncertainty in predicting effects and determining significance can arise due to variations in
natural systems, a lack of information, knowledge or scientific agreement regarding cause-effect
relationships, or the inability of predictive models to accurately represent complex systems. The
degree of uncertainty in addressing cumulative effects is greater than for conventional EIAs
because of a longer time horizon and larger study area.
It is recommended that the rules-of-thumb described below be considered when dealing with
uncertainty.
Considerations when Handling Uncertainty
•
Make conservative conclusions (i.e., assume that an effect is more rather than less adverse). This is
24
referred to as the Precautionary Principle.
•
Provide a record or audit trail of all assumptions, data gaps, and confidence in data quality and analysis
to justify conclusions.
•
Recommend mitigation measures to reduce adverse effects and monitoring, followed by evaluation and
management of effects, to ensure effectiveness of these measures.
•
Implement mechanisms to evaluate the results of the monitoring and provide for subsequent mitigation
or project modification, as necessary.
24
Other definitions exist of this term.
48
KEY TASKS: Follow-up
3.6 STEP 5: FOLLOW-UP
According to the Canadian Environmental Assessment Act, the purpose of follow-up is to verify
the accuracy of environmental assessments and determine the effectiveness of mitigation
measures. Follow-up in practice is normally recognized as monitoring and the establishment of
environmental management measures. The federal Responsible Authority defines and implements
the follow-up program. The proponent’s responsibilities should be based on their specific action’s
contribution to cumulative environmental effects, given the understanding that it would usually
be unreasonable for the proponent to solely monitor effects caused by other proponents.
The situations in which a follow-up is required include those where (Davies 1996):
• there is some uncertainty about the environmental effects of other actions, especially imminent
ones;
• the assessment of the action’s cumulative effects is based on a new or innovative method or
approach; or
• there is some uncertainty about the effectiveness of the mitigation measures for cumulative
effects.
49
50
APPLICATIONS
4.0 DIFFERENT APPLICATIONS OF
THE ASSESSMENT
FRAMEWORK
The Assessment Framework described in Chapter 3 can be applied in various ways to meet the
needs of different review requirements. Two of these are described in this section: assessing small
actions (commonly referred to as “screenings”), and regional land use plans and studies.
4.1 ASSESSING SMALL ACTIONS
The majority of applications submitted to regulatory agencies for approval are for actions that do
not require a detailed assessment and preparation of a formal EIA report. These actions are
subject to a cursory or screening level review because they are relatively small in size and cause
predictable and mitigable effects. Many small actions within the same area have the potential to
cause cumulative (nibbling) effects. This often happens, for example, when many developments
occur in rapid succession (e.g., a resource use boom). These types of actions may cause far more
cumulative effects than one large action in the same area.25
Almost all CEA approaches discussed in the literature are intended for assessing large actions
(i.e., relatively large in size or with a high likelihood of causing effects at a regional level). It may
not always be feasible or necessary for practitioners conducting screening level assessments to
carry out these often complex, time consuming and expensive tasks. It is government agencies
themselves who often do all or most screenings in response to permit and license applications —
some regulatory agencies must process thousands or tens of thousands of applications each year.
Therefore, there is a need to define a process by which cumulative effects of small actions can be
considered at the screening level (e.g., as required under the Canadian Environmental Assessment
Act) that takes into account the limitations of assessing cumulative effects at this level.26 In effect,
a “condensed” or “mini-CEA” is required, which is nevertheless based on all the approaches
suggested in this Guide. Considerable work is still required to formalize such processes that are
practical and easily implemented by reviewers.
In essence, addressing cumulative effects in small project screenings involves considering the
potential effects that may arise from the project under review in terms of the broader context in
which the project would occur. Such an analysis can be done quite effectively by considering
three main aspects. First, it is helpful to consider the potential effects of the project under review
from the perspective of general trends affecting the VECs (e.g., are there currently known trends
of concern, such as gradual loss of water quality that could indicate a need to assess more closely
the potential for interactions)? Second, would the project occur in an area where numerous other
actions have taken place (e.g., for actions of a similar nature that could result in similar types of
effects, such as shoreline modifications along a recreational waterway)? Third, are there any
overall policies, thresholds or objectives that have been established at a strategic level of decision
25
It is also possible that “large” projects may be subject to a screening if, in the case of review under the Canadian
Environmental Assessment Act, the project does not quite meet the particular specifications of the Act’s
Comprehensive Study List. For these larger projects subject to a screening, the Assessment Framework described in
Chapter 3 may well be more appropriate.
26
Class assessments have been proposed as one means of facilitating the expedient review of many similar projects of
known, minor and mitigable effects; however, cumulative effects are normally considered on a project-by-project
basis in class assessments.
51
APPLICATIONS
making that would be relevant (e.g., provincial guidelines or municipal master plans may
establish relevant criteria for cumulative effects of projects such as stormwater outlets)?
It is also important to avoid a mismatch between the scale at which impacts accumulate and the
scale at which decisions are made. In an ideal world, policies and plans would also undergo
environmental assessments, which would include cumulative effects assessments. This would
provide a context for addressing cumulative effects at the screening level. In reality, however, this
does not always happen and screenings may raise issues that are well beyond the scope of the
project under review. In such cases, the broader cumulative effects should be flagged so that they
can be addressed at an appropriate level of decision making.
4.1.1 Elements of a Practical Design for a Screening Process
If cumulative effects are to be considered, they must be addressed in a simple and efficient
manner that applies simple tests to the action and provides quick answers. The tests must also
provide some indication of risk or likelihood of significance to determine if a more detailed
review is required. The screener must be able to quickly make decisions; at no point should a
screening process leave the screener wondering how to answer a complex question for which
resources and time are not available to properly respond.
The following points should be considered when designing an assessment response for a
particular agency. The approach should provide:
• a step-by-step process;
• a series of simple question-based criteria for determining rankings (e.g., significance);
• simple mechanisms to respond to typical CEA needs such as setting boundaries and
identifying other actions;
• a mechanism to support requests for further information both within and outside the agency
responsible for the review while ensuring that the screener’s knowledge about the type of
action and the geographic area can be incorporated;
• clear, concise questions that do not include terms open to interpretation (e.g., asking “is
ecosystem integrity impaired?” would require “integrity” to be explicitly and practically
defined);
• a written record to assist in later understanding on what basis decisions were made;
• clear decision points as to where to go next, including a “bump-up” mechanism (i.e., to move
beyond screening to a more detailed level of review); and
• a customized response to the types of actions and effects of most concern to the reviewing
agency (e.g., focussed on water-related issues for water use licenses) while at the same time
identifying the possibility of any indirect effects that may lead to cumulative effects.
The following Case Study Information Boxes provide examples of how some agencies have
begun to address cumulative effects at a screening level. It is suggested that users of this Guide
review these and adopt and modify an approach suitable for their specific requirements.
52
APPLICATIONS
Query for Assessing Small Actions
1.
Will the action potentially affect ecosystems or VECs that are currently exhibiting trends of concern?
2.
Will the action occur in an area where numerous other actions have taken place?
3.
Are there any overall policies or plans that establish relevant objectives or criteria to facilitate the
adoption of a broader perspective?
CASE STUDY
Parks Canada: A “Short-Cut” Approach
Parks Canada has recognized the need for a detailed CEA approach to address larger and more complex
actions, and a short-cut approach to address cumulative effects for smaller actions (Kingsley 1997). The
short-cut, a condensed version of the detailed approach, is simply an expedient way to determine if there are
any potential impacts, and if so, if they may act cumulatively with other actions. This approach is
summarized below.
Step 1: Scoping
A series of questions are first asked:
• Are the potential impacts of the action, as well as other existing stressors, occurring so closely over time
that the recovery of the system is being exceeded?
• Are the potential impacts of the action, along with other stressors from other sources, occurring within a
geographical area so close together that their effects overlap?
• Could the impacts from the action interact among themselves, or interact with other existing or known
future stressors, either additively or synergistically?
• Do the potential impacts of the action affect key components of the environment? Have those
components already been affected by other stressors from the same or other actions, either directly,
indirectly or through some complex pathway?
• Is the action one of many of the same type, producing impacts which are individually insignificant but
which affect the environment in such a similar way that they can become collectively important over the
longer term (i.e., nibbling effect)?
If the answer to any of these questions is yes, there is a potential for cumulative effects. The following are
then also asked:
• What are the potential impacts of the action that could give rise to cumulative effects?
• What is the appropriate scale to consider those impacts?
Step 2: Analysis
A matrix, describing various attributes affecting each VEC, is then completed. The attributes are: existing
stressors affecting the VEC; pathways of change (cause-effect linkages); consequences (i.e., resulting
trends of VECs); and contribution of the action to overall changes. Mitigation measures are also identified.
Step 3: Evaluation
The effects are evaluated, using best professional judgment, by asking if the identified changes affect the
integrity of the environment as defined in Parks Canada guidelines. These changes are then compared with
existing goals.
Step 4: Follow-Up, Feedback and Documentation
All information is documented, uncertainties identified, and feedback and monitoring requirements suggested
in the Parks Canada Screening Form.
53
APPLICATIONS
CASE STUDY
National Capital Commission: Stormwater Management Policy
The National Capital Commission (NCC) is a federal Crown corporation responsible for planning and
assisting in the development, conservation and improvement of the region surrounding Ottawa. An important
component of the NCC’s plans for the capital region is public accessibility to waterfront areas; as a result the
NCC owns and manages large areas of river shoreline. Because of this, private developers and/or
municipalities occasionally requested authorization to built stormwater outlets or retention ponds on NCC
river shoreline. The river system spans two provinces and several local municipalities, and broad guidelines
were either not available or were jurisdiction-based. In a screening for a proposed stormwater outlet, the
potential for cumulative effects was flagged. The screening recommended mitigation measures for treating
stormwater but also highlighted the need for a broader stormwater management policy. This policy has since
been formally adopted by the NCC and provides consistent conditions to be met prior to the approval of new
outlets. For example, the policy states that the NCC shall:
•
encourage and support interjurisdictional watershed planning initiatives to resolve stormwater
management issues;
•
encourage and favour source control of stormwater, and practices and designs that make use of natural
filtration and infiltration processes; and
•
ensure that the quantity and quality of stormwater runoff are compatible with federal, provincial and
municipal standards applicable to the region.
By implementing this policy, the cumulative effects of stormwater discharge into the rivers are reduced to an
acceptable level and the environmental assessments for new outlets can focus on site-specific issues.
CASE STUDY
Parks Canada: Trent-Severn Waterway
The Trent-Severn Waterway is a navigable system of lakes, rivers and artificial channels managed by Parks
Canada for the preservation and interpretation of natural and cultural heritage resources. Currently, over 500
stormwater outlets discharge into the waterway. In 1997 managers of the Trent-Severn Waterway
considered mandatory licensing of all stormwater outlets. Under the Canadian Environmental Assessment
Act, each license would trigger an environmental assessment. This provided a test case for Parks Canada’s
approach to CEA. Outlets discharging into the Peterborough Reach section of the Waterway were grouped
into a collective assessment using the following approach:
1.
A scoping workshop focused the assessment on the cumulative effects of total phosphorus (which was
known to be problematic) and E. coli bacteria (which provided an indicator of pathogens in the waterway).
2.
An analysis based on sources, pathways of accumulation and consequences was then undertaken
(CGS 1997). All existing stormwater outlets were mapped and the nature of the surrounding drainage
areas was characterized.
3.
The analysis determined that downstream water quality was not significantly affected by the bacterial
content of stormwater outlet discharge. However, outlets in the vicinity of beaches needed special
attention because of the cumulative effects on recreational activities.
4.
The cumulative phosphorus load was determined to be of concern in the Peterborough Reach, but the
urban stormwater contribution to this load was calculated to be approximately 0.7%. Since mitigation for
existing outlets is expensive, the assessment recommended that greater benefits might be achieved at lower
costs by a reduction of equivalent loads elsewhere in the system (i.e.; a phosphorous trading program).
5.
Other recommendations focused on the encouragement of best management practices for new
stormwater outlets and the adoption of a co-operative approach with federal departments, provincial
agencies and municipalities. It was also recommended that a similar assessment be undertaken along
the entire waterway.
54
APPLICATIONS
CASE STUDY
Natural Resources Canada: Matrix-Based Screening
Natural Resources Canada uses two matrices to assist screeners in completing the Environmental
Assessment Report for a project (NRCan 1996). The first matrix requires the screener to identify if any
aspect of the action causes any of 40 types of biophysical effects (e.g., surface water temperature, erosion,
breeding disturbance) and any of 12 social-cultural-economic effects. Space is provided for the assessor to
include any other applicable effects. The second matrix identifies the potential effects of 26 other common
types of actions (e.g., agriculture, mining, solid waste disposal), and provides space to add others. It requires
the assessor to identify which other actions are present in the study area, and then which of their effects may
combine with those of the project, as identified in the first matrix. In the report, the assessor must then
indicate if any of the potential effects are likely, consider mitigation for likely effects, and determine whether
the residual effects are significant.
CASE STUDY
Yukon DIAND: A Multi-Form-Based Approach to Screening
The Department of Indian Affairs and Northern Development (DIAND) in the Yukon is responsible for
reviewing and issuing hundreds of permits and licenses each year for many types of actions. The
department follows a two-level screening process: Level 1 for relatively small actions with known mitigation,
and Level 2 for the fewer actions with known concerns and requiring more detailed review. A Level 1
screening may be “bumped up” to Level 2 if effects are suspected or known to be significant.
A Form-based approach to screening was proposed (DIAND 1997) to ensure that screening could be
accomplished in an efficient and timely manner within the agency resources available, while ensuring that
any substantive issues of concern receive further review. Each step has a Form (i.e., a “fill in the blanks”
table or checklist) that guides the assessor through that step. Forms are linked so that all or some of the
results of each Form provide input to decisions made in the next.
The screening process consisted of two parts: 1) Referral Information Request; and 2) Effects Screening. In
Part 1, emphasis was placed on first collecting as much information as possible, both from external
agencies, other internal departments, public stakeholders, and the knowledge of the screener. In Part 2,
emphasis was placed on first determining if there were any significant local effects, justifying further
assessment to determine the potential for cumulative effects.
The following summarizes the proposed steps for Level 1 screening:
Part 1: Referral Information Request
1. Identification of Valued Ecosystem and Cultural Components (VECCs): Identify VECCs and justify
27
their selection.
2. Identification of Temporal Boundaries: Identify in which months VECCs occur in the vicinity of the
action, and in which months an action may cause an effect to those VECCs.
3. Identification of Local Effects and their Mitigation: For each type of effect, identify the VECCs
affected and if the effects are mitigable, describe the mitigation applied, and rank the mitigation success
(i.e., none, partial or complete).
4. Identification of Regional Issues: Identify if any special features or “hotspots” (e.g., nearby protected
areas, critical habitat, unique landscape features, rare/endangered species, heavily disturbed areas) may
be affected, if thresholds are available for various environmental components, and if any regional land
use management initiatives are available (e.g., forest harvest plans, wildlife hunting unit objectives).
(cont . . . )
5. Select an Appropriate Spatial Boundary: If no other approach exists to identify a boundary, this Form
is used as an alternative. For each of seven types of actions, a boundary based on the nearest similar
27
The term “VECC” combines the terms “VEC” and Valued Social Component (VSC).
55
APPLICATIONS
interacting feature or a distance in kilometres (from 5 to 20) is suggested for each of nine environmental
components. This boundary is used to select other actions.
6. Action Inclusion List: List the various actions that fall within the spatial boundary and identify if the
action is past, current or future.
7. Identify Regional Cumulative Effects and their Mitigation: For various types of cumulative effects
(the same as identified in Form 10), identify the VECCs that may be affected, if the effects are mitigable,
describe the mitigation, and identify the probable success of mitigation.
8. Identify Sources of Baseline Information: Identify information describing each VECC, particularly if
any maps are available to characterize them.
Part 2: Effects Screening
9. Screening of Local Effects: For each VECC, rank the strength of the interaction between the VECC
and various action components (i.e., Low, Moderate or High) and rank the significance of the interaction.
Tables that define the rankings for various conditions are provided.
10. Screening of Cumulative Effects: For each VECC identified in Form 9 as being significant (i.e., rank of
M or H), rank the degree of temporal and spatial overlap and significance of the cumulative effect on that
VECC for three main types of cumulative effects (see below for an example, partially completed for a
timber permit application). Tables that define the rankings for various conditions are provided for the
screener.
Form 10: Screening of Cumulative Effects
nearby community
traplines
recreation site
Other Projects/Activities*
highway and roads
VECCs
other cutblocks
Type of Cumulative
Effect
woodland caribou (11)
L/L
M/L (12)
L/L
M/L (13)
L/L
american martin (11)
L/L
M/L
L/L
M/L
L/L
L/L (14)
M/M (15)
M/L (16)
M/L (16)
M/L (16)
L/L
L/L
L/L
L/L
L/L
Physical-chemical Transport
Chemical contaminants
Physical constituents
Landscape Nibbling
Direct habitat loss
Habitat fragmentation
woodland caribou
american martin (17)
Blockage of wildlife
movements
Direct-mortality of wildlife
Socio-economic
Changes to community
services and quality of life
Economic redistribution
Alteration of traditional/
cultural activities
* Rankings are degree of overlap followed by significance (e.g., M/L).
Numbers in brackets; e.g., (11), indicate a cross-reference to a decision record.
56
APPLICATIONS
4.2 REGIONAL PLANNING AND LAND USE STUDIES
CEAs are usually done as part of a single project application submitted to regulatory agencies for
approval.28 Effects from the one project are then the focus of the assessment, although CEA
approaches also require consideration of effects from other actions. In some cases, however,
cumulative effects approaches are used as an integral part of what is commonly referred to as a
regional planning or land use study. These are usually initiated because of rising concerns about
the effects of many proposed developments in a certain geographic region. It is also possible that
a proposal for a single, usually large project, may alone raise concerns to trigger such a study.
Although such studies may ultimately provide the best and most complete assessment of
cumulative effects, such initiatives are not as common and are not a legislated requirement as are
single-project assessments required under environmental assessment Acts.
Such studies are usually not the responsibility of a single proponent, but of a number of
government agencies and stakeholders (which may include several proponents of various actions
in the region). Increasingly, multi-stakeholder involvement is the approach being used to
accomplish such studies (e.g., as used in the Athabasca Oil Sands CEA Framework Study in
Alberta and for Natural Area Conservation Plans in northern Canada).
Although these regional studies share some elements of project-specific CEA, they may also:
• involve larger spatial boundaries;
• take many years to complete, often due to the considerable amount of data collection and
analysis required;
• occur before many actions begin in a region as opposed to after an action is first proposed
(i.e., they are proactive as opposed to reactive), in some cases to provide input to area
management plans (such as for a park); and
• be used to establish acceptable thresholds of change, which can then be used for subsequent
project-specific assessments in the same geographic region.
It is important to note that project-specific CEAs cannot be forced into the role of a regional
planning study. Despite their apparent similarities, CEAs demand a greater level of technical
detail and certainty in the analysis and the description and likelihood of other actions and
environmental effects to meet the requirements of regulatory reviewers. An example of this is a
project proposed for a relatively undisturbed region, such as a mine (i.e., the “first-in”). An
assessment of that project’s effects under regulatory review will be limited in predicting effects of
other possible future actions if the nature of those actions remains quite unclear (i.e., what they
may be and when they may proceed, if at all). It is not the responsibility of the mine’s assessment
to include an equivalent level of detailed analysis of effects from other possible future actions if
there is not enough information about those actions to adequately characterize their impacts and
effects. However, a planning study may gather what information is available, project trends into
the future (accepting the uncertainties), and recommend conditions under which future project
applications should be assessed and reviewed to ensure certain long-term land use objectives are
met.
Regional Planning and Studies: Approaches
Regional Planning and Studies: Case Studies
28
This is not always the case in other jurisdictions. In New Zealand, for example, effects assessment and regional
planning are integrated in both legislation and assessment practice.
57
APPLICATIONS
Examples of Regional Planning and Land Use Studies
•
Beaufort Regional Environmental Assessment and Monitoring Program (Beaufort Sea and Mackenzie
Valley Delta/Valley, NWT)
•
Banff-Bow Valley Study (Banff National Park, Alberta)
•
Hudson Bay Program (Hudson Bay Region of Ontario and Quebec)
•
Kluane National Park Reserve (Kluane National Park Reserve, Yukon)
•
Moose River Basin (Ontario, south of Hudson Bay)
•
Niagara Escarpment Plan Area (southern Ontario)
•
Northern River Basins Study (northern Alberta, north-eastern BC and southern NWT)
•
Oak Ridges Moraine Area Planning Study (southern Ontario)
•
West Kitikmeot/Slave Study (NWT)
CASE STUDY
Oil Sands Projects in Northern Alberta: A Regional Study Approach
Extraction of heavy oil from bitumen sand deposits north of Fort McMurray, Alberta has occurred for many
years; however, the latter part of the 1990s saw a sharp increase in the level of activity. A number of new
projects were proposed along with expansions of existing projects. In response to growing concerns about
the cumulative effects of these actions in the Fort McMurray region, and acknowledging the limitations of a
project-by-project review process, various provincial and federal agencies called for a regional study
approach to address these concerns.
For example, in its decision on Syncrude’s Aurora Mine, the Alberta Energy and Utilities Board (AEUB 1997)
stated that “the need for a comprehensive review of potential activity in the oil sands region of northern
Alberta relates to both the environment and conservation of energy resources. Because the ore body is large
and extends over lease boundaries and confluent waterways, cooperative development is
imperative…Cooperation could result in substantial improvement to the post-mining landscape.”
To some extent, the various proponents had arrived at the same conclusion, and had begun discussions on
the topic of regional cumulative effects. Syncrude, for example, stated that “Each of the companies supports
the orderly, efficient, and economical development of Alberta’s oil sands resources. This is best
accomplished by oil sands developers voluntarily exploring opportunities for cooperation which enhance
economic return and mitigate any potentially adverse environmental, socio-economic and cultural impacts.”
(Syncrude 1997).
In response to the recognition of potential cumulative effects, the industry developed a framework whereby
the effects of new facilities would be related to a baseline of existing regional effects. Shell Canada, for
example, provided assessments (Shell 1998) of three development scenarios in it’s Muskeg River Mine
application to the AEUB, each indicating the effects of the project in combination with:
•
existing developments;
•
existing and approved developments; and
•
existing and approved developments, plus publicly disclosed developments (this was termed the
Regional Development Scenario).
As new proposals reach the application review stage, their incremental effects would be referenced to the
regional review information compiled earlier. In all, 13 projects (including in-situ production proposals) were
incorporated in the Regional Development Scenario.
Within each scenario the effects on a number of parameters were predicted for 14 components: air quality,
hydrology, surface water quality, surface water hydrology, aquatic resources, ecological land classification,
terrain and soils, terrestrial vegetation, wetlands, wildlife, human health, historical resources, resource use,
and traditional land use.
58
APPLICATIONS
CASE STUDY
Kluane National Park Reserve: Management Plan Update
A CEA was conducted of Kluane National Park Reserve (KNPR) in the south-western Yukon to provide input
into revisions to the Park’s Management Plan (Hegmann 1995). The intent was to evaluate the effects of
multiple recreational and commercial activities on the park’s ecosystem. A total of 86 actions, both inside
and surrounding the park, were identified as actions possibly contributing to cumulative effects within the
park.
Given the large number of actions, “disturbance nodes” were identified in the park, representing point (e.g.,
visitor interpretation centres) or linear (e.g., flight corridors and hiking trails) concentrations of various
disturbances. The assessment focussed on effects on wildlife, principally large carnivores and ungulates. A
series of steps were used to focus the assessment onto those interactions which had the highest risk of
causing adverse effects on the VECs (e.g., grizzly bear, mountain goat). Zones of Influence and Disturbance
Factors were quantified and used within a qualitative discussion of effects based on an Impact Model
approach.
The CEA concluded by prioritizing the contribution of existing and proposed actions to overall cumulative
effects in the park, thereby flagging actions of major concern for decision makers involved in the park’s
management.
CASE STUDY
Express Pipeline: Who is Responsible for Regional Planning?
Most of the proposed Express Pipeline would pass through two grassland ecoregions in an area currently
undergoing extensive agricultural and oil and gas activity. The major cumulative effects issue raised by
intervenors and addressed by the proponent and review Board was the regional loss and fragmentation of
native prairie (Priddle et al. 1996). On these matters, the proponent submitted three main points:
•
In the one case, where there was a probability of additive effect with another future action (the proposed
nearby Wild Horse Pipeline would share some right-of-way), the period of time before recovery would
remain small and effects localized. Hence, it was suggested that cumulative effects were not significant
in that case.
•
In a long-term historical context, the proposed action contributes only a small fraction of the total land
use change given the large-scale conversion of native prairie to agriculture (some intervenors
suggested that this emphasizes the need to ensure that future developments do not degrade the small
amount of native prairie remaining).
•
A project proponent does not have to complete a regional planning study to satisfy the requirements of
the Canadian Environmental Assessment Act, but only must consider cumulative effects within the
context of legislated EIA (Priddle et al. 1996). Such a study would extend the assessment scope
significantly beyond what could be reasonably expected by a single proponent, especially as such
regional planning initiatives did not yet exist (and, therefore, land use objectives and thresholds of
change that could be used).
These arguments raised two important cumulative effects questions. First, whether a proponent can, in the
absence of any upper limit or acceptable threshold of disturbance, be singly held accountable for the
potential unacceptable loss of a VEC on a regional scale? Second, if mitigation (i.e., reclamation in this
case) is not fully effective, is there the possibility that full recovery will never occur on a regional basis in
highly sensitive areas (e.g., native prairie)?
59
APPLICATIONS
CASE STUDY
New Zealand: CEA and Sustainable Development
In New Zealand, the progress towards institutional reform in support of regional approaches to CEA has
probably gone further than in most places. A comprehensive reform of environmental legislation in the late
1980s led to the passing of the Resource Management Act 1991 (RMA). The RMA has an explicit
requirement to consider cumulative effects in all decisions about resource allocation and use. What is also
significant about this legislation is that environmental effects assessment is not established as a separate
process from other planning decisions, but through the RMA effects assessment is established as an integral
component of all decisions under the Act. At about the same time as the RMA was put in place, there was
also a complete restructuring of local government, under which new territorial planning authorities (called
regional councils) were established. Their geographic boundaries were defined according to major river
catchments, in recognition of the fact that the primary responsibility of these councils is the management of
resources and the environment. The RMA requires that these regional councils develop strategic resource
management policies and plans and, in doing so, cumulative effects must be considered. These legislative
changes, therefore, have given rise to an institutional system that demands a regional approach to resource
management and policy, and in which CEA is an integral component.
What is also interesting about the New Zealand approach is that the central principle of the RMA is
"sustainable management" of resources and the environment. This is significant, because it establishes the
explicit requirement to address the management of resources and the environment according to a principle
of sustainability. There is also the implicit connection made between CEA and sustainable resource
management, because the assessment of cumulative effects is a requirement of all decisions under the
legislation. The inference is that in order to manage resources on a sustainable basis, it is essential to
consider the cumulative effects of decisions and that this is handled best within a strategic and regionallyoriented policy and planning context.
60
PREPARING/COMPLETING CEAs
5.0 PREPARING AND COMPLETING
A CEA
As there is no one clear approach to conducting a CEA, it is suggested that practitioners should
follow the basic guidelines provided in this Guide, learn from the case studies provided,
investigate specific techniques to address the issues of concern from other assessments and as
described in the literature, and finally select an approach that best suits their assessment needs.
Preparing and Completing a CEA
Preparing to do a CEA
1. Discuss with the appropriate regulatory authority what its expectations are regarding the assessment of
cumulative effects, and determine if it has any specific guidance on the content of the assessment.
2.
Ensure that the Terms of Reference (if the proponent is involved in defining the terms) for the
assessment adequately address the concerns of the regulatory authorities and key public stakeholders.
3.
Prepare a complete description of the proposed action.
4.
As early as possible, focus the assessment on only the most important issues and effects. Consult
stakeholders. Admit that choices made now may later change as a result of new information.
5.
Review, if available, assessments done for similar types of actions, ideally in a similar geographic area.
This may provide valuable baseline data and information on suitable assessment approaches.
6.
Review some of the literature on cumulative effects to familiarize yourself with the latest issues and
techniques regarding CEA practice.
Using the Assessment Framework
7. Complete an assessment of the action’s effects as normally done for an EIA (i.e., assess relatively local
and direct effects on VECs caused by the action under review). This should generally follow the 5-EIA
steps and the associated CEA tasks (· Section 3.1).
8.
As you progress through the assessment, expand on the results and conclusions obtained for each step
by examining each of the CEA tasks. This may be done during each step as the EIA progresses, or
done after much of the EIA has been completed (the more common approach). Use the CEA tasks to
form the basis of your CEA approach. Use the “CEA Checklist” (· Section 5.3) and “Key Criteria” (·
Section 5.2) to ensure that you have considered the important attributes of a CEA.
9.
Ensure that conclusions are defensible and the presentation of results can be readily interpreted and
are usable by decision-makers.
Provided the assessment meets all legislated requirements, is technically and scientifically sound,
addresses the key issues related to the action under review, and meets the minimum requirements
expected of any CEA, it is of little importance which type of analysis is used. While doing this,
practitioners may wish to consider the following:
• The ultimate objective of a CEA is to provide information to decision makers to allow them to
make more informed decisions.
• Despite the challenges, assessing cumulative effects is possible and the approaches are
improving as more experience is gained by practitioners and regulatory agencies.
• CEAs cannot do everything for everyone, and are only one step towards providing
information on an action’s effects and addressing the mitigation of those effects. Expectations
as to what CEAs can accomplish must not exceed what can technically be accomplished, what
is scientifically known about environmental conditions, and what is possible within the
existing regulatory review process and jurisdictional land administration.
61
• Cumulative effects methods are currently available for practitioners to conduct CEAs.
• There is not one comprehensive method by which any CEA may be performed; practitioners
must select an appropriate method from a “toolbox” of approaches.
• Availability of good information may determine not only a practitioner’s ability to do a CEA,
but also the methods finally used to predict effects.
• The selected method must incorporate all of the relevant sources that may contribute to the
effect being studied.
• CEAs cannot replace regional land use planning; however, CEAs may provide useful
information for a land use planning process. Similarly, existing land use plans can be used to
assist in completing project-specific CEAs.
• Mitigation recommendations in a CEA can be broader than may typically be proposed in a
conventional EIA.
• As more assessments are conducted for various actions within a region, the amount of
available data grows and precedent is set regarding best accepted practice.
• Despite the lack of regional thresholds and the current piece-meal fashion of project-specific
assessment in addressing overall nibbling effects, the assessment of cumulative effects under
regulatory review process currently represents an opportunity to address concerns of largescale and long-term changes to the environment.
Where is the CEA Placed in the Submission?
There are at least four options for placing the CEA:
•
within a separate “CEA chapter” after the EIA portion (this is the most common approach);
•
as a stand-alone document, separately bound from the EIA report;
•
integrated within the EIA as a unique sub-section, appearing at the end of each major section assessing
effects on major environmental components (e.g., water, air, vegetation); or
•
fully integrated with the EIA as regional issues are raised and examined.
The approach taken will depend on the practitioner’s philosophy of cumulative effects (i.e., as inseparable
from the EIA or as a unique and different view) and on which approach is most readily accomplished given
the division of labour used in assembling the assessment report.
Lessons Learned from the Case Studies
A review of the detailed case studies in this Guide (Appendix B) suggests the following lessons can be
learned:
•
Assessment of cumulative effects on some components is relatively straightforward if quantitative tools
and thresholds are available (e.g., for regulated constituents of air and water).
•
Qualitative conclusions and ranking systems are useful to communicate results if supported by
defensible quantitative analysis.
•
Incremental changes caused by the action under review should be measured relative to an established
baseline condition.
•
Assess effects during “snapshot” points in time.
(cont . . . )
•
62
Perform an assessment from the point of view of effects on VECs as opposed to interactions between
actions.
•
Interactions do not need to be assessed individually; characterize the entire surrounding environment as
it “appears” to each VEC.
•
Other past and existing actions often become part of the background environment for a VEC.
•
Lack of information regarding other actions may limit the assessment of their contribution to effects. As
many disturbances are temporary, effects often recover within an acceptable period of time.
•
Induced activities (e.g., road proliferation) may be an important cause of effects.
5.1 EFFECTIVELY COMMUNICATING RESULTS TO DECISION MAKERS
Environmental assessments are fundamentally the gathering of information, their analysis and
presentation of the results. A CEA is one of many tools that may be used to assist decision-makers
in their deliberations about project applications, resource management plans and conservation
goals. As CEAs may deal with relatively complex issues, the practitioner’s challenge is to ensure
that the methodological approach and assessment results can be readily interpreted and weighed
by decision-makers (e.g., practitioners often use visualization tools such as maps and network
diagrams to distill order from apparent chaos and to communicate results to decision-makers).
Decision-makers require sufficient information to allow them to make justifiable and confident
decisions as they weigh the environmental effects against social and economic benefits and
costs.29 They also wish to ensure that the legal requirements for the CEA are met. Therefore,
assessment practitioners must clearly communicate the results of the assessments to decisionmakers so as to best facilitate their deliberation on project approval. Repetitive use of tables of
numbers and maps (especially if inadequately explained) are no substitute for a concise and
readily defensible conclusions based on the data and analysis applied in the assessment.
One of the most important responsibilities of decision-makers is to determine whether the
proposed project ought to be allowed to proceed and, if so, under what conditions. To facilitate
this decision, it is essential that the CEA should contain, explicitly, a summary of management
options and their consequences. These would include matters such as the mitigation measures to
be employed, any compensation programs and follow-up studies (monitoring and management
programs) to be conducted. Moreover, it is also important to explain why each of these
management features is proposed, by whom it would be carried out and the level of commitment
to each task by those responsible.
To effectively communicate the results of the CEA, the practitioner should consider use of the
following techniques:
Discussion: The discussion should be a description of the analysis and interpretation of the
results. Discussion based on professional judgment should be clearly distinguished from that
based on a specific form of analysis and data. Assumptions, limitations and degree of confidence
(i.e., certainty) placed on the data and analysis should be explained. Full scientific references
should be provided for literature and personal communications.
29
Decision-makers, such as Review Boards, often must make decisions on project approval based on issues other than
those dealt with in an environmental assessment. One example, with cumulative effects implications, is that the
development of a project may foreclose the opportunity for future projects (of the same or different types) to occur
in the vicinity of that proposed project (e.g., a pulp mill is approved on condition that it has guaranteed harvesting
access to a large forested area surrounding the mill). In deliberating on the approval of such a project, the value of
projects prevented from occurring, or occurring at a reduced level, may be considered. As a result, regulatory bodies
may push for more stringent mitigation measures or intensive monitoring of project operations. Another example of
decision-makers pursuing other matters is when they consider effects and issues beyond those strictly required to
meet the conditions of a permit or license application (e.g., triggers from the Law List under the Canadian
Environmental Assessment Act).
63
Decision Record: A decision record30 should be included in the assessment, usually as an
Appendix, to provide further clarification and expand on specific points of discussion.
Tables: Tables should be used to organize data and summarize the results of calculations.
Matrices: A matrix (a table in which the table entries are rankings) can be used to summarize the
scale of effects (· Section 3.2.5.1). These rankings can take three different forms: 1) qualitative
(e.g., low and high), 2) quantitative (i.e., numbers that correspond to an absolute physical
quantity), or 3) indices (i.e., non-dimensional numbers that provide a point of relative
comparison).
Images: Figures should be used as extensively as possible to illustrate the information. Maps,
especially those derived from a GIS, are powerful tools for portraying disturbance and
environmental conditions over a wide region. Photographs, photomontages and video also help to
provide a visual orientation.
5.2 KEY CRITERIA FOR CEA
The following proposes criteria that establish the expectations of best professional practice in
completing a CEA.
Key Criteria for an Acceptable CEA
1.
The study area is large enough to allow the assessment of VECs that may be affected by the action
being assessed. This may result in an area that is considerably larger than the action’s footprint. Each
VEC may have a different study area.
2.
Other actions that have occurred, exist or may yet occur that may also affect those same VECs are
identified. Future actions that are approved within the study area must be considered; officially
announced and reasonably foreseeable actions should be considered if they may affect those VECs and
there is enough information about them to assess their effects. Some of these actions may be outside
the study area if their influence extends for considerable distances and length of time.
3.
The incremental additive effects of the proposed action on the VECs are assessed. If the nature of the
effects interaction is more complex (e.g., synergistic), then the effect is assessed on that basis, or why
that is not reasonable or possible is explained.
4.
The total effect of the proposed action and other actions on the VECs are assessed.
5.
These total effects are compared to thresholds or policies, if available, and the implications to the VECs
are assessed.
6.
The analysis of these effects use quantitative techniques, if available, based on best available data. This
should be enhanced by qualitative discussion based on best professional judgement.
7.
Mitigation, monitoring and effects management are recommended (e.g., as part of an Environmental
Protection Plan). These measures may be required at a regional scale (possibly requiring the
involvement of other stakeholders) to address broader concerns regarding effects on VECs.
8.
The significance of residual effects are clearly stated and defended.
30
This is not to be confused with the Decision Report, issued by regulatory agencies, that explains the decision
reached regarding a project application.
64
5.3 CEA CHECKLIST
Answering the following questions (many during scoping) should ensure that the assessment
incorporates important attributes of a CEA.
Local Effects
; Does the assessment of local effects (i.e., in the EIA) indicate a likelihood of other than
negligible residual effects? If so, on which VECs?
; Is the proposed action within a relatively undisturbed landscape, or a landscape already
disturbed?
; Do topographic or other constraints spatially limit the effect that the action may have on
VECs?
Other Actions
; Is there any evidence that the effects of past actions may still be other than negligible?
; Are the nearest existing actions to the proposed action possibly contributing to effects on the
same VECs?
; Have any actions been officially announced by other proponents with the intent to begin
submission under statutory requirements?
Regional Issues
; Have any issues or VECs already been identified in the EIA or by local stakeholders that may
be of concern beyond the footprint of the proposed action?
; Are any VEC species locally or regionally rare? Are there any environmentally sensitive areas
that may be disturbed?
; With or without local significant effects, could the action contribute to regional “nibbling” loss
of habitat (terrestrial or aquatic) that may affect VECs that reside or pass through the action’s
local study area?
Assessment
; Is the assessment focussed on effects on VECs to which the action under review may
contribute?
; Is there reliable information (both science and traditional-knowledge based) that describes
the VECs and the habitat on which some VECs depend?
; Is there adequate information available about other actions to confidently determine if they
are contributing to other than negligible effects on the same VECs?
; Are indicators available to assess VECs?
; Are there indicators of significance other than thresholds that should be considered?
; Could the action induce other actions to occur (especially road access)?
; Can a historical baseline be described against which consecutive changes can be
compared?
; Are any effects traceable back to the action under review? Is the action responsible for
incrementally contributing to the effect?
; Are certain analytical approaches mandatory for assessing effects on some VECs?
Significance
; Are quantitative thresholds available for any of the VECs? Are qualitative thresholds available
that describe intended land use (e.g., land use plans)?
; If landscape indicators are proposed, can the derived values be used to determine if the
effects on a VEC have exceeded or may exceed the VEC’s ability to recover?
Mitigation
; Is the standard or a novel application of mitigation adequate to mitigate significant effects?
; Can reclamation reduce the duration of land disturbance and hasten the recovery of
environmental components to pre-disturbance conditions?
; Is habitat of equivalent capability available elsewhere to compensate for lost habitat?
65
;
;
66
Is there an opportunity to initiate a regional level mitigation (or compensation) of effects?
What is required for monitoring and effects management as follow-up?
67
BIBLIOGRAPHY
6.0 BIBLIOGRAPHY
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Aurora Mine. Calgary, Alberta.
Alliance Pipeline Limited Partnership. 1997. Environmental and Socio-economic Impact Assessment:
Application to the National Energy Board for a Certificate of Public Convenience and Necessity:
Vol. IV. Calgary, Alberta.
Antoniuk, T. M. 1994. Environmental Protection Strategies for Development of the Monkman/Grizzly
Valley Gas Fields. Prepared by Salmo Consulting for Amoco Canada Petroleum Company Ltd.,
Norcen Energy Resources Limited, Ocelot Energy Inc., Petro-Canada Resources, Sceptre Resources
Ltd., Shell Canada Ltd. and Talisman Energy Inc., Calgary, Alberta.
Bain, M. S., J. S. Irving and R. D. Olsen. 1986. Cumulative Impact Assessment: Evaluating the
Environmental Effects of Multiple Human Developments. Argonne National Laboratory, Energy and
Environmental Systems Division, Argonne.
Banff-Bow Valley Study (BBVS). 1996. Banff-Bow Valley: At the Crossroads. Summary Report of the
Banff-Bow Valley Task Force (R. Page, S. Bayley, J. D. Cook, J. E. Green, J. R. Brent Ritchie).
Prepared for the Honourable Sheila Copps, Minister of Canadian Heritage, Ottawa, Ont.
Beanlands, G.E. and P.N. Duinker. 1983. An Ecological Framework for Environmental Impact Assessment
in Canada. Institute for Resource and Environmental Studies, Halifax.
Canadian Environmental Assessment Agency (CEAA). 1992. A Reference Guide for the Canadian
Environmental Assessment Act: Determining Whether a Project is Likely to Cause Significant
Adverse Environmental Effects. Assessment. Hull, Quebec.
Canadian Environmental Assessment Agency (CEAA). 1994. A Reference Guide for the Canadian
Environmental Assessment Act: Addressing Cumulative Effects Assessment. Hull, Quebec.
Cardinal River Coal (CRC). 1996. Cheviot Mine Project Application, Volume 8: Appendices. Cardinal
River Coals Ltd., Hinton, Alberta.
CH2M Gore and Storrie Limited (CGS). 1997. Cumulative Effects of Stormwater Outlets Along the TrentSevern Waterway: A Practical Approach. Report prepared for Parks Canada by CH2M Gore and
Storrie Limited, Waterloo, Ontario.
Davies, K. 1996. DOE’s CEAA Handbook: Appendix on Assessing Cumulative Environmental Effects and
Socio-economic Effects. Prepared for Environment Canada by Ecosystems Consulting Inc., Ottawa,
Ontario.
Department of Indian and Northern Affairs (DIAND). 1997. Users Guide for Level 1 Screening of
Cumulative Effects: Yukon DIAND Northern Affairs Program. Prepared by AXYS Environmental
Consulting Ltd. for DIAND, Whitehorse, Yukon.
DeSorcy, G., R. Epp, C. Gilday, D. Schindler, J. Boucher, M. Franchuk, B. Ross, and T. West. 1990. The
Proposed Alberta-Pacific Pulp Mill: Report of the EIA Review Board. Alberta Environment,
Edmonton.
Duval, W. and P. Vonk. 1994. A Semi-quantitative Procedure for Preparation of Initial Environmental
Evaluations and Assessment of Potential Impact Significance. AXYS Environmental Consulting
Ltd., Vancouver, British Columbia.
Eagle Terrace Inc. 1996. Area Structure Plan, Technical Report, Volume 1: Environmental Impact
Assessment. Prepared by AXYS Environmental Consulting Ltd. for Eagle Terrace Inc., Canmore,
Alberta.
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BIBLIOGRAPHY
Ecologistics Ltd. 1992. Assessing Cumulative Effects of Saskatchewan Uranium Mines Development.
Prepared for Federal Environmental Assessment Review Office, Ottawa, Ontario.
Energy Resources Conservation Board (ERCB). 1993. IL 93-9 Oil and Gas Developments Eastern Slopes
(Southern Portion). ERCB, Calgary, Alberta.
Environmental and Social Systems Analysts Ltd. (ESSA). 1992. Coastal Temperate Rainforest Simulation
Model: User Guide for the Clayoquot Sound Prototype Version 0.8. Prepared by ESSA for Ecotrust,
Vancouver, British Columbia.
Gibeau, M.L., S. Herrero, J.L. Kansas, and B. Benn. 1996. Grizzly Bear Population and Habitat Status in
Banff National Park: A Report to the Banff Bow Valley Task Force. Prepared for the Banff Bow
Valley Task Force, Banff, Alberta.
Government of Canada (GOC). 1993. The Yukon Placer Authorization and Supporting Documents
Applicable to Placer Mining in the Yukon Territory. Government of Canada, Ottawa, Ontario.
Hegmann, G. L. 1995. A Cumulative Effects Assessment of Proposed Projects in Kluane National Park
Reserve, Yukon Territory. Prepared by the Environmental Research Centre for Parks Canada, Kluane
National Park Reserve, Haines Junction, Yukon.
Hegmann, G. L. and G. A. Yarranton. 1995. Cumulative Effects and the Energy Resources Conservation
Board Review Process. Prepared by the MacLeod Institute for Environmental Analysis for the
Energy Resources Conservation Board, University of Calgary, Calgary, Alberta.
Huckleberry Copper Mine Project Committee (HCMPC). 1995. Huckleberry Copper Mine Project
Committee Report.
Imperial Oil Resources Ltd. (IORL). 1997a. Cold Lake Expansion Project, Volume 2, Part 1: Biophysical
and Resource Use Assessment. Prepared by AXYS Environmental Consulting Ltd. for Imperial Oil
Resources Ltd., Calgary, Alberta.
Imperial Oil Resources Ltd. (IORL). 1997b. Cold Lake Expansion Project, Volume 2, Part 2: Impact Model
Descriptions. Prepared by AXYS Environmental Consulting Ltd. for Imperial Oil Resources Ltd.,
Calgary, Alberta.
Kingsley, L. 1997. A Guide to Environmental Assessments: Assessing Cumulative Effects. Prepared by L.
Kingsley, Natural Resources Branch for Parks Canada, Department of Canadian Heritage, Hull,
Quebec.
LGL Ltd., ESL Ltd., ESSA Ltd. 1984. Beaufort Environmental Monitoring Project: 1983-1984 Final
Report. Prepared for DIAND (Department of Indian and Northern Affairs Canada), Ottawa, Ontario.
Mattson, D.J. 1993. Background and Proposed Standards for Managing Grizzly Bear Habitat Security in
the Yellowstone Ecosystem. U.S. National Biological Survey, University of Idaho, Cooperative Park
Studies Unit, Moscow, Idaho. Technical Report.
National Energy Board (NEB). 1996. Express Pipeline Ltd.: Facilities and Tolls and Tariffs Application by
Express Pipeline Ltd. Volume 3 [January 17]. Transcripts of Public Hearing, Joint Panel Review.
Calgary, Alberta. p. 312
Natural Resources Canada (NRC). 1996. Environmental Assessment Manual. Office of Environmental
Affairs, Natural Resources Canada, Ottawa, Ontario.
Northern River Basins Study (NRBS). 1993. Annual Report 1992-93. Northern River Basins Study Office,
Edmonton, Alberta.
Northern River Basins Study (NRBS). 1997. Northern Rivers Basin Study: The Legacy (The Collective
Findings), Volume 1. CD-ROM. Government of Canada, Government of Alberta, Government of
Northwest Territories.
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Paquet, P.C., J. Wierczhowski, and C. Callaghan. 1996. Summary Report of the Effects of Human Activity
on Gray Wolves in the Bow River Valley, Banff National Park, Alberta. Prepared for Parks Canada,
Banff, Alberta.
Parks Canada. 1994. Initial Assessment of Proposed Improvements to the Trans Canada Highway in Banff
National Park, Phase IIIA, Sunshine Interchange to Castle Mountain Interchange. Prepared by
Thurber Environmental Consultants for Canadian Heritage, Parks Canada, Banff National Park,
Alberta.
Priddle, R., A. Côté-Verhaaf, R.D. Revel and G.M. Lewis. 1996 Express Pipeline Project: Report of the
Joint Review Panel. Prepared for the National Energy Board and Canadian Environmental
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Shell Canada. 1997. Muskeg River Mine Project, Shell Canada Ltd., Calgary, Alberta.
Smith, K.R., G.A. Yarranton, C.H. Weir and C. Dahl Rees. 1993. Decision Report: Application to Construct
Recreational and Tourism Facilities in the West Castle Valley, near Pincher Creek, Alberta. Natural
Resources Conservation Board, Edmonton, Alberta.
Stankey, G. S., D. N. Cole, R. C. Lucas, M. E. Petersen and S. S. Frissell. 1985. The Limits of Acceptable
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Service. General Technical Report INT-176.
Suncor Inc. Oil Sands Group. 1996. Steepbank Mine Project Application. Fort McMurray, Alberta.
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BIBLIOGRAPHY
71
GLOSSARY
A
GLOSSARY
Action: Any project or activity of human origin.
Activity: Any action that is not a physical work. Activities do not involve the construction of an
object and may lead to an environmental effect (e.g., a highway is a physical work, but traffic on
the highway is an activity).
Assessment Framework: A description of a process that organizes actions and ideas, usually in a
step-by-step fashion. Frameworks help to guide practitioners in carrying out an assessment.
Baseline Information: A description of existing environmental, social and economic conditions
at and surrounding an action.
Cause-effect Relationship: The connection between an action’s disturbance (cause) and its effect
on the environment.
Combined Effects: The effects caused by various components of the same action.
Connectivity: A landscape feature that facilitates the movement of biota between blocks of
habitat (i.e., in a fragmented landscape).
Cumulative Effects Assessment: An assessment of the incremental effects of an action on the
environment when the effects are combined with those from other past, existing and future
actions.
Decision Record: A description of various aspects of an assessment, such as what assumptions
were made, uncertainties in the data or analysis, and confidence in the reliability of the data.
Direct effect: An effect in which the cause-effect relationship has no intermediary effects.
Direction: The degree to which an effect on a valued environmental component will worsen or
improve as the action proceeds (i.e., adverse, beneficial or neutral).
Duration: The period of time in which an effect on a valued ecosystem component may exist or
remain detectable (i.e., the recovery time for a resource, species or human use).
Effect: Any response by an environmental or social component to an action’s impact. Under the
Canadian Environmental Assessment Act, “environmental effect” means, in respect of a project,
“(a) any change that the project may cause in the environment, including any effect of any such
change on health and socio-economic conditions, on physical and cultural heritage, on the current
use of lands and resources for traditional purposes by aboriginal persons, or on any structure, site
or thing that is of historical, archaeological, paleontological or architectural significance and (b)
any change to the project that may be caused by the environment, whether any such change
occurs within or outside of Canada”.
Environmental Components: Fundamental elements of the natural and human environment.
Examples of components include: social, air, water, soils, terrain, vegetation, wildlife, fish,
avifauna and land use.
Environmental Protection Plan: A description of what will be done to minimize effects before,
during and after project construction and operation. This includes protection of the environment
and mitigation of effects from project activities.
Evaluation: The determination of the significance of effects. Evaluation involves making
judgements as to the value of what is being affected and the risk that the effect will occur and be
unacceptable.
Focusing: See Scoping.
Footprint: See Project Footprint.
A1
GLOSSARY
Fragmentation: The breaking up of contiguous blocks of habitat into increasingly smaller blocks
as a result of direct loss and/or sensory disturbance (i.e., habitat alienation). Eventually, remaining
blocks may be too small to provide usable or effective habitat for a species.
Frequency: The number of occurrences of an event within a specific period of time.
Impact: any aspect of an action that may cause an effect; for example, land clearing during
construction is an impact, while a possible effect is loss and fragmentation of wildlife habitat.
Impact Attribute: Features of an effect (e.g., magnitude, scope, duration, frequency, direction,
likelihood, significance) that assist in evaluating the nature and significance of the effect.
Impact Model: A formal description of a cause-effect relationship that allows the assessing of
various components of that relationship through the use of an Impact Statement, a Pathways
Diagram, and the validation of linkages and pathways.
Impact Statement: The description of a suspected cause-effect relationship through the use of a
formal scientific hypothesis.
Indicators: Anything that is used to measure the condition of something of interest. Indicators are
often used as variables in the modelling of changes in complex environmental systems.
Indirect effect: An effect in which the cause-effect relationship (e.g., between the project’s
impacts and the ultimate effect on a VEC) has intermediary effects. As an interaction with another
action’s effects is required to have a cumulative effect (hence, creating intermediary effects),
cumulative effects may be considered as indirect.
Induced Action: An action that occurs as a consequence of another action. The induced action is
not an intended component of the initiating action.
Interaction Coefficient: A numerical representation of the magnitude of interaction between an
action and environmental components
Interaction Matrix: A table in which the cell elements are rankings.
Interactions: An action or influence resulting from the mutual relationship between two or more
actions or an action and a VEC.
Issue: A subject of concern to anyone involved in the assessment or affected by the action. A
concern usually has adverse implications to either the environment or people.
Likelihood: The degree of certainty of an event occurring. Likelihood can be stated as a
probability.
Linkage: The relationship between a cause and effect in impact models. Linkages are illustrated
in Pathway Diagrams as arrows between boxes.
Local Study Area: The spatial area within which local effects are assessed (i.e., within close
proximity to the action where direct effects are anticipated).
Magnitude: A measure of how adverse or beneficial an effect may be.
Mitigation: A means of reducing the significance of adverse effects. Under CEAA, mitigation is
“the elimination, reduction or control of the adverse environmental effects of the project, and
includes restitution for any damage to the environment caused by such effects through
replacement, restoration, compensation or any other means”.
Monitoring: A continuing assessment of conditions at and surrounding the action. This
determines if effects occur as predicted or if operations remain within acceptable limits, and if
mitigation measures are as effective as predicted.
Network Diagram: An illustration of cause-effect relationships between an action’s impact and
an effect (also see “Pathway Diagram”).
A2
GLOSSARY
Non-trivial Effect: A high probability of occurrence or an unacceptable magnitude (i.e.,
significant) of an effect.
Pathway Diagram: A simple diagrammatic representation of a cause-effect relationship between
two related states or actions that illustrates an impact model. Pathway diagrams take network
diagrams one-step further by evaluating each linkage and assessing the cause-effect relationship
in the context of a scientific hypothesis.
Pathway: A series of consecutive valid linkages in a Pathways Diagram.
Project: Any action or activity requiring the design, construction and operation of structures or
equipment. Projects are usually defined with a specific name, function and description. Under the
CEAA, a “project” means (s. 2(1)): “(a) in relation to a physical work, any proposed construction,
operation, modification, decommissioning, abandonment or other undertaking in relation to that
physical work, or (b) any proposed physical activity not relating to a physical work that is
prescribed or is within a class of physical activities that is prescribed pursuant to regulations
made under paragraph 59 (b).”
Project Footprint: The land or water area covered by a project. This includes direct physical
coverage (i.e., the area on which the project physically stands) and direct effects (i.e., the
disturbances that may directly emanate from the project, such as noise).
Qualitative Analysis: Analysis that is subjective (i.e., based on best professional judgement).
Quantitative Analysis: Analysis that uses environmental variables represented by numbers or
ranges, often accomplished by numerical modelling or statistical analysis.
Reclamation: The alteration of a landscape, usually as mitigation for an action, to re-create
conditions prior to the project.
Recovery: The return of environmental conditions to the state they were prior to the action.
Region: Any area in which it is suspected or known that effects due to the action under review
may interact with effects from other actions. This area typically extends beyond the local study
area; however, how far it extends will vary greatly depending on the nature of the cause-effect
relationships involved.
Regional Planning and Land Use Study: An assessment of existing environmental and social
conditions due to the combined influence of all actions, usually within a large geographic area.
These studies differ from CEAs in that they are not focussed on only one project application, are
often conducted prior to the review of future actions to assist in decisions on future applications,
and may propose regional thresholds against which incremental changes may be compared for
use in future project applications.
Regional Study Area: The spatial area within which cumulative effects are assessed (i.e.,
extending a distance from the project footprint in which both direct and indirect effects are
anticipated to occur).
Residual Effects: Effects that remain after mitigation has been applied.
Scenario: A description of environmental and development conditions at a certain time to allow
comparisons of change (e.g., pre-development, current, and reasonably foreseeable).
Scoping: A consultative process for identifying and possibly reducing the number of items (e.g.,
issues, VECs) to be examined until only the most important items remain for detailed assessment.
Scoping ensures that assessment effort will not be expended in the examination of trivial effects.
Significance: A measure of how adverse or beneficial an effect may be on a VEC.
Spatial Boundary: The area examined in the assessment (i.e., study area).
Spatial Overlap: An overlap of zones of influence from different actions.
Study Area: The geographic limits within which an impact to a VEC is assessed.
A3
GLOSSARY
Temporal Boundary: The period of time examined in the assessment.
Temporal Overlap: A period of time in which activities from different actions occur
simultaneously.
Threshold: A limit of tolerance of a VEC to an effect, that if exceeded, results in an adverse
response by that VEC.
Trivial Effect: A low probability of occurrence or acceptable magnitude (includes case of no
effect) (i.e., insignificant).
Validation: A confirmation of the validity of an impact hypothesis, linkage or pathway.
Valued Ecosystem Component: Any part of the environment that is considered important by the
proponent, public, scientists or government involved in the assessment process. Importance may
be determined on the basis of cultural values or scientific concern.
Zone of Influence: A geographic area, extending from an action, in which an effect is non-trivial.
A4
CASE STUDIES
B
CEA CASE STUDIES
This Appendix describes 12 CEA case studies.31 Each case study is in the form of a narrative
which describes a project and the approach that was used to address cumulative effects issues in
the project’s assessment. Each case study is prefaced by a brief description of the VECs, the
major issues, the principle methodological approach, and the major lessons that can be learned
from their review. Key attributes of each case study are summarized in Table C1.
The purpose of the case studies is to demonstrate approaches used in addressing various project
types and environmental concerns. The case studies (all from Canada) were selected based on
familiarity of the CEA Working Group members with the projects. Review of these case studies
provides an indication of what has been done in response to legislative requirements and,
therefore, serve as a benchmark for future assessments. The case studies are not judged as to their
quality, and it is not implied that what was done was necessarily state-of-the-art.
It is hoped that the reader can learn by example, and build on these examples with the guidelines
provided in this Guide towards the goal of continually improving assessment practice into the
future.
Practitioners should note that different projects create a unique set of effects and interactions
among relevant VECs. Practitioners should therefore take care in adopting without modification
any of the approaches described unless they are sure that it is appropriate for assessing
conditions for their case at hand.
Case Studies (for references cited in this Appendix)
31
Some of these have appeared earlier in the Case Study Information Boxes. For these, this Appendix provides
additional background information that should help to better place the study in context. Five case studies (Express
Pipeline, Alliance Pipeline, Steepbank Mine, West Castle Valley Resort and Kluane National Park Reserve) are not
described here in detail, and only appear as information boxes in Chapters 2, 3 and 4.
B1
CASE STUDIES
Table C1: Summary of Detailed Case Studies in Appendix B
Project
Alberta-Pacific Pulp Mill
Northern Saskatchewan
Uranium Mines
Cold Lake Oil Sands
Project
Cheviot Coal Mine
Huckleberry Copper Mine
Terra Nova Off-Shore
Petroleum Project
Eagle Terrace Subdivision
Trans-Canada Highway
Twinning Phase IIIA
Transportation Corridors
(Glacier and Banff NPs)
Keenleyside Power
Project
La Mauricie National
Park Hiking Trail
Mineral Exploration in the
Northwest Territories
Example of…
Type of
Project
Type of
Review
Year EIA
Initiated
Major
VECs
Location
Level of
Review
Statutory
Requirements
Assessing long-range aquatic
transport of contaminants
Use of Pathway Models to assess
effects of radionuclides
Focused Impact Assessment and
Impact Models
Use of GIS to assess effects on
wildlife
Assessment of a mine using a Project
Committee approach
Assessing effects in a marine
environment
Use of GIS to assess effects on
wildlife
Assessment in a National Park
Industrial
Process
Mine
(underground)
In-situ
heavy oil
Mine (Open-pit
coal)
Mine (open pit
base metal)
Off-shore
Petroleum
Residential
development
Highway
PH
1989
Water
AB
Joint*
EARP/AEP
PH
1991
All
Sask.
Joint
EARP/Sask.
PH
1996
Water
AB
Prov.
AEP
PH
1996
AB
Joint
CEAA/AEP
PH
1994
BC
Joint
CEAA/BC EAA
PH
1996
Nfld.
Joint
CEAA
PH
1996
Wildlife,
water
Water,
fish
Water,
fish
Wildlife
AB
Town
Municipal
PH
1994
Wildlife
AB
Federal
EARP
Visual Impact Assessment
Highway,
Railway
Hydroelectric
dam
Recreational
trail
Mineral
Exploration
PH
1979
Visual
BC
Federal
EARP
SC
1997
BC
Joint
CEAA/BC EAA
SC
1996
Water,
fish
Wildlife
Quebec
Federal
CEAA
SC
1996
NWT
Territ.
EIRB/IFA
Assessment of a hydroelectric dam
using a workshop approach
Use of a screening level approach
Consideration of effects of remote
exploration activities
Wildlife,
hunting
* i.e.; federal/provincial
Acronyms
Type of Review: PH=Public Hearing, SC=Screening Level Review
Statutory Requirements: AEP Alberta Environmental Protection, CEAA Canadian Environmental Assessment Act, EARP Environmental Assessment and Review Process, EIRB
Environmental Impact Review Board, IFA Inuvialuit Final Agreement, BC EAA British Columbia Environmental Assessment Act
B2
CASE STUDIES
ALBERTA-PACIFIC PULP MILL
Case Study Highlights
VECs: Water quality, aquatic organisms
Issues: Reduced concentration of dissolved oxygen, discharge of chlorinated organic compounds
Approaches: Dissolved oxygen-biological oxygen demand and dioxin transport simulation models
Lessons learned: Addressing effects in large watersheds can be accomplished by mitigation at source and
long-term monitoring
Background
The Alberta-Pacific (Al-Pac) Pulp Mill is a bleached kraft pulp mill that was proposed for northcentral Alberta. As the assessment was completed prior to the enactment of the Canadian
Environmental Assessment Act, cumulative effects were not examined in the submitted EIA.
However, the Terms of Reference for the joint federal-provincial review Board included the
requirement to examine cumulative effects in the Peace Athabasca river system, a watershed that
encompasses parts of British Columbia, Alberta and the Northwest Territories (DeSorcy et al.
1990). Contamination of fish along the river system was suspected to occur a considerable
distance (i.e., in the order of hundreds of kilometres) downstream of existing mills.
Assessment Approach
Two major aquatic concerns arose: dissolved oxygen concentrations and persistence of
chlorinated organic compounds.32 For the first of these (oxygen), the Alberta government,
apparently in anticipation of pulp mill developments, had recently completed a study of dissolved
oxygen (DO) and biological oxygen demand (BOD). All significant contributors to BOD loading
on the rivers were pulp mills (the communities on these rivers were all small), and their BOD
loads were regulated. The information was public, which overcame the problem of Al-Pac
requesting possibly proprietary information from the other mills (i.e., its competitors). A DOBOD simulation model, calibrated to the river system, was used to assess effects. Although
participants in the review argued otherwise, the Board found the model to be credible and
acceptable for predicting DO in the rivers.
The assessment of effects due to chlorinated organic compounds was more difficult. The recent
discovery that these pulp mills produced dioxins and furans (albeit at very small amounts) and the
very high cost of analysis for such compounds in fish (at such low concentrations) meant that
available data was inadequate to conduct a proper assessment. To address this deficiency, the
federal Department of Fisheries and Oceans, experts from the proponent and other individuals
provided information on the cumulative effects of the various mills on the river system. A model
was finally presented that alerted the Board to the potential impacts of the discharge of dioxins
and furans from the Al-Pac Mill in combination with other existing and new mills planned for the
region.
The results of these models influenced the Board’s final recommendations to initiate a multiagency sponsored Northern River Basins Study, coordinated by a Study Board representing
various regional stakeholders with assistance from a Science Advisory Committee. Research
32
The Board’s Terms of Reference specifically excluded one major concern raised by interveners: the effects of timber
harvesting. Inclusion of such effects is arguably required if cumulative effects of the project were to be adequately
assessed.
B3
CASE STUDIES
programs were conducted to identify data gaps, to provide an environmental baseline database
(e.g. on contaminant levels) and to develop aquatic models.
Lessons Learned
• One of the important features of the methods used was that all sources of BOD, dioxins and
furans were considered (i.e., not just from the Al-Pac mill alone).
• Industry data were obtained by government agencies, not by the proponent. This simplified
the data collection process.
• Assessment methods were developed by experts in their respective fields who knew how best
to predict the specific effects. This reflects well on the scoping process used by the Board,
which identified the most important issues and then allowed those who were most
knowledgeable to devise the appropriate studies.
• Uncertainty about the nature of the long-term response of the waterways and biota to the
contaminants contributed to the Board’s final decision to recommend that the project not be
approved, and that trans-boundary studies be conducted on contaminant fate and doseexposure before a reassessment and future regional planning effort could be made.
B4
CASE STUDIES
NORTHERN SASKATCHEWAN URANIUM MINES
VECs: Air quality, groundwater, surface water, vegetation, wildlife, human health
Issues: Exposure to radiation
Approaches: Network diagrams
Lessons learned: Acknowledgement of poor understanding of cause-effect relationships, need for long-term
monitoring supported by many stakeholders
Background
A joint federal-provincial panel was formed in 1991 to review and assess the environmental
effects of five uranium mining proposals in Northern Saskatchewan. Two additional proposals
were added to its mandate in 1992 and 1994. An independent team of consultants were hired to
help the panel foresee significant impacts that may arise from interactions among the projects
(Ecologistic 1992), an initiative that took a more regional view than the project specific impacts
examined in the three Environmental Impact Statements (EISs) originally submitted.
In its January, 1993 report (Lee et al. 1993a), the panel recommended approval for exploration at
one mine (McArthur River). In its October, 1993 report (Lee et al. 1993b), the panel
recommended: 1) conditional approval for an extension of an existing operation (DominiqueJanine, at the Cluff Lake operation); 2) a conditional approval of a new mine (McClean Lake),
with one of the conditions being a five-year delay; 3) and rejection of a third proposal (Midwest
Joint Venture) because the risks to the environment and human health were judged to outweigh
the benefits. In its February, 1997 report (Lee et al. 1997a), the panel recommended conditional
approval for the McArthur River mining proposal. Later in 1997 (Lee et al. 1997b), the panel
recommended conditional approval for the Cigar Lake and Midwest proposals.
The McArthur River mining proposal uses a mill and tailings disposal site at an existing operation
at Key Lake. The Cigar Lake and Midwest proposals will share a milling and tailings disposal site
at McClean Lake. The custom milling and tailings proposals, whereby five mines share two mills
and tailings disposal areas, are recognized to offer significant benefit by reducing the amount of
land disturbance in northern Saskatchewan.
Assessment Approach
The study area for the assessment was half of the province. The principal cumulative effects
issues identified were: transfer of radionuclides and stable heavy metals through the pathways of
surface water, groundwater and vegetation; effects due to ingestion or inhalation by humans,
wildlife and fish; and various socio-economic effects such as effects on public health and native
lifestyles.
An Environmental Transfer Pathway model (i.e., network diagram) was used to assess cumulative
effects (these diagrams convey some of the function of Pathway Diagrams as used in Impact
Models). The model defined physical and chemical linkages or pathways that connected impacts
to effects, and zones of influence that identified the areal extent of those linkages. The diagrams
were useful as aids to illustrate complex linkages. Results were tabulated for various VECs,
which included an assessment of the significance of effects (by areal extent, frequency and
duration, and certainty in prediction) and the potential for significant cumulative effects. An effect
was considered significant if it was regional in extent, long-term and if there was a degree of
uncertainty in the prediction.
B5
CASE STUDIES
Recommendations by the panel for mitigation of cumulative effects included the monitoring of
key biological components and processes, epidemiological studies on all Saskatchewan uranium
miners (past, present and future), use of this data to predict future risks and mitigation measures,
long-term monitoring of worker exposure to airborne dust and gas contaminants, phasing of
proposals, and education and training of residents to ensure long-term employment and avoidance
of a “boom-bust” cycle. Monitoring plans for each project were mandatory to fulfill the
proponent’s licensing requirements, which are reviewed annually by the Canadian Atomic Energy
Control Board and Saskatchewan Environment.
The federal and provincial governments are cooperating on a cumulative effects monitoring
program, and a site-specific and regional cumulative effects model has been developed
Lessons Learned
• The assessment attempted to clearly define an organizational and jurisdictional framework in
which CEA could be conducted, responsibilities of the stakeholders plainly stated, and
collaboration encouraged for the collection of data.
• The specialist’s study identified various problems typically encountered in CEA, such as
"limited knowledge about cause and effect relationships, jurisdictional conflicts and
confusion, poor coordination and cooperation among institutions, and conflicting societal
values and expectations of the environmental assessment process and the varied status of
environmental laws and regulations enforced and implemented by various levels of
government".
B6
CASE STUDIES
COLD LAKE OIL SANDS PROJECT
VECs: Air quality, water quality, water quantity, fish, vegetation, moose, black bear, lynx, fisher
Issues: Changes to air quality, changes to surface and groundwater water quality, decreases in surface
water levels, loss of wildlife habitat, reduced opportunities for fishing and other resource harvesting,
increased road access
Approaches: Focussed Environmental Assessment Process provided an overall framework; Impact Models
provided a structured methodological approach; quantitative GIS-based or other modelling provided
numerical analysis; qualitative discussion based on quantitative results and professional judgment
Lessons learned: Advantages of blending EIA and CEA approaches, benefits of Impact Model approach;
difficulties in obtaining information about other projects
Background
Imperial Oil Resources Limited (Imperial Oil) proposed to expand its operations within its Cold
Lake lease in north-central Alberta (IORL 1997a). This oil sands in-situ development, known as
the Cold Lake Expansion Project, will expand the existing Cold Lake operations by the
development of a central plant and addition of wells. Production is expected to increase from
approximately 14,900 m3/d to more than 20,000 m3/d within a few years of operation.
Approximately 2500 wells are currently operating within the Cold Lake Development Area.
The Cold Lake facility, the second largest producer of oil in Canada, extracts oil from sand
deposits containing bitumen (a heavy oil). These deposits are located more than 400 m below the
earth’s surface, too deep for recovery by surface (open-pit) mining. Imperial Oil therefore
developed cyclic steam stimulation, a thermal recovery process that injects steam at high pressure
and temperature into the bitumen reservoir. The process consists of three steps (steaming, soaking
and production) that is repeated until depletion of the bitumen reservoir.
Many pads, each containing a cluster of vertical and directional drilled wells (approximately 20 to
30) are used to access the bitumen-producing reservoir. Above-ground pipelines serve multiple
pads, delivering steam to the pads and returning produced fluids to the central plant.
Assessment Approach
Imperial Oil was required to submit an EIA according to the Terms of Reference issued by
Alberta Environmental Protection. The EIA was to identify direct project effects and cumulative
regional impacts of the project. The objectives of the CEA component were to evaluate projectspecific impacts in a regional context, taking into consideration other activities and projects that
currently exist in the project region or projects that are reasonably foreseeable (i.e., have been
approved, or are under approval). The Focused Environmental Assessment Process (Kennedy and
Ross 1992) formed the basis of both the EIA and CEA. This approach included the use of a series
of three workshops (issues scoping, assessment and mitigation) that provided a forum for
practitioners to address various assessment issues. The Process also made use of Impact Models
to describe important cause-effect relationships between the project and its surrounding
environment.
Boundaries
Nine major environmental resource components were examined: air systems, surface water
quantity, surface water quality, groundwater, aquatic resources, soils and terrain, vegetation,
wildlife and resource use. A unique local and regional study area was identified for each
component. In some cases, areas were the same for more than one component. Generally, the
B7
CASE STUDIES
CEA’s spatial bounds were based on existing jurisdictional boundaries or boundaries of the
watershed surrounding the project. Effects were examined at local, combined (i.e., all project
components) and regional scales.
Three temporal bounds were identified: 1) “Past” to represent regional conditions (i.e., pre-1979)
prior to the proposed major heavy-oil development in the region; 2) “Existing” that included
Imperial Oil’s current operations and other existing projects in the region (e.g., other oil sands
projects, forestry); and 3) “Reasonably Foreseeable” that included all future projects with
regulatory approval or that were under an approval process.
Analysis
Project effects were assessed at two scales: 1) combined effects of various activities directly
associated with the project such as the pads, roads, and processing facilities; and 2) cumulative
regional effects of the project with all other existing and reasonably foreseeable projects beyond
the proposed expansion area (IORL 1997b).
The CEA relied on the results from a total of 35 Impact Models completed in the EIA (IORL
1997b). The models assessed effects on each of the nine environmental components. These
models generally dealt with local effects; however, some models had regional implications “builtin” due to the wide extent of the effects. In these cases, conclusions reached from the models
served as the basis for further assessment at a regional scale in the CEA (which consisted of a
chapter in one of the volumes of the application submission). For some of these, the Impact
Model itself constituted a substantial portion of the assessment approach for cumulative effects.
Due to the close cause-effect relationships between different environmental components (e.g.,
water quality and aquatic resources), many Impact Models were “linked” together so that the
output (i.e., results) from one model provided input into another.
The assessment of cumulative effects involved various degrees of quantitative (i.e., numerical)
analysis and qualitative discussion. Qualitative analysis was conducted if a quantitative technique
was not available or if a qualitative discussion was adequate. In all cases, interactions with
various other projects were considered if the results of the Impact Models indicated a possibility
of other than local effects. Temporal development scenarios were explicitly used in the
assessment of effects on wildlife (the table “Summary of CEA Approaches” summarizes
approaches used for each environmental component).
Lessons Learned
• The use of a consistent assessment approach (i.e., Focussed Environmental Assessment) was
beneficial, as the assessors found the CEA to be simply an extension of results from the EIA.
Also, use of the same environmental components in the EIA and CEA and consistent
approaches for determining impact areas and significance improved the communication of
assessment results for decision-makers.
• The identification and characterization of other projects in the CEA regional study area
presented some challenges, partially overcome by including only projects with regulatory
approval or under regulatory review.
• The use of threshold values for environmental components presented challenges. For the
physical components (i.e., air, water, soil) it was possible to use accepted guidelines and
standards and, with appropriate assumptions, to simply extend values to the regional scale. For
biological components (i.e., aquatic resources, vegetation, wildlife) it was not as straight
forward, as the implications of project effects were more complicated owing to synergistic
effects and to effects that are not scientifically understood or easily interpreted.
B8
CASE STUDIES
Summary of CEA Approaches
Environmental
Component
Air
Surface Water
Quantity
Surface Water
Quality
Groundwater
Aquatic Resources
Soils and Terrain
Vegetation
Wildlife
Resource Use
CEA Approach
Six Impact Models were developed. NOx and SO2 concentrations were calculated
with a numerical air quality model as required by Alberta Environmental Protection
and compared to provincial air quality thresholds within the airshed surrounding the
project.
Three Impact Models were developed. Water use volumes and project sources
were compared with volumes from other projects.
Four Impact Models were developed. Key water quality parameters as defined by
provincial guidelines were assessed.
Three Impact Models were developed. Contributions to water withdrawals, effects
on water balance, and effects on water quality were assessed.
Two Impact Models were developed. Qualitative discussion was used based on
results of water quality and quantity assessments, regional workforce changes, and
results of assessment of effects on various indicator fish species.
Five Impact Models were developed. Cumulative effects were limited due to the
very local nature of impacts and use of mitigation for provincial reclamation
certification.
Three Impact Models were developed. The area of land cleared was quantitatively
determined in a GIS for each of the 20 vegetation ecosites within the regional study
area.
Four Impact Models were developed. Total habitat lost was quantitatively
determined and implications on wildlife qualitatively discussed; changes in access
density was quantitatively determined and implications on wildlife qualitatively
discussed; changes in habitat suitability for four indicator species (moose, black
bear, lynx and fisher) was quantitatively determined (with a GIS) and compared
between three development scenarios.
Five Impact Models were developed. Qualitative discussion was used, based on
results of impact models for all environmental components, focussing on
implications of influences of regional “agents of change” (e.g., road proliferation,
human population growth).
• The CEA for resource use is complex due to the often broad or subjective nature of the VECs.
It was helpful to assign qualitative criteria for each resource use and provide detailed
qualitative discussion based as much as possible on the baseline data and results from other
Impact Models.
• The proponent was not in a position to reasonably address regional planning issues. Regional
issues were discussed in the CEA with a recommended action plan for review by decisionmakers (e.g., a regional scale environmental monitoring program).
• The integration of results from public consultation is a useful tool in determining relevant
regional issues to be included in the CEA. It is important to ask questions about cumulative
effects concerns during public consultation.
• The CEA’s methodological approach included a judicious blend of quantitative and qualitative
based assessment. In all cases, the Impact Models provided direction in the assessment for
each environmental component. Professional judgement, as is typically the case in EIA
practice, was often used to provide the final interpretation of the assessment results regarding
overall regional and long-term implications on VECs. Extensive use of quantitative analysis
(i.e., air models, water volumes, spatial changes to vegetation and habitat) considerably
improved the final conclusions made by assessment practitioners.
B9
CASE STUDIES
CHEVIOT COAL MINE
VECs: Elk, grizzly bear
Issues: Development near a large protected area (Jasper National Park), destruction of wildlife habitat
Approaches: GIS-based habitat modelling and the Cumulative Effects Model for grizzly bear
Lessons learned: Need for region based mitigation to ameliorate effects
Background
In 1996, Cardinal River Coal proposed a new coal development known as the Cheviot Mine
Project (CRC 1996). The project included an open pit mine, processing plant, restoration of a rail
line, and upgrading of an existing access road. This area is well known for coal mining and coal
mining communities dating back to the early part of the century. Coal continues to play an
important role in the local economy. The mine would be located east of Jasper National Park and
south of the town of Hinton, Alberta. The mine permit area would extend approximately 23 km
by 3.5 km, within which about 3000 ha would be disturbed. The mine would allow Cardinal
River Coal to continue operations in the region, as their existing mine, a short distance north of
the Cheviot site, was almost depleted.
Assessment Approach
The project originally required review as a comprehensive study and was later referred to a panel
review. The timing of the panel review coincided with the provincial Alberta Energy and Utility
Board’s review, which permitted federal-provincial harmonization of the review process (the
review process allows for harmonization under the Alberta Environmental Protection and
Enhancement Act and the Canadian Environmental Assessment Act). Cardinal River Coal
prepared its EIA to follow the model applied in the Environmental Evaluation of Strait Crossing
Inc.’s Northumberland Strait Project (the “PEI fixed link”). This methodology was considered
practical, technically sound and was accepted by the Federal Court of Canada during its
assessment.
The panel’s public hearing occurred over six weeks. As might be expected in a development of
this size, the issues of concern were many, spanning the social, economic, and environmental
interests of the area, region and province. Particular attention was paid to the extensive alteration
of fish habitat, habitat effects for certain wildlife species (specifically, grizzly bear and Harlequin
duck) and reclamation in a sub-alpine setting.
The assessment identified VECs by addressing concerns of the public, government, and the
professional community. VECs considered both biological and socio-economic attributes due to
the broad-based definition of environmental effect as outlined both in federal and provincial
legislation. While the Canadian Environmental Assessment Act offered some guidance regarding
cumulative effects, relatively little was provided by the province.
The CEA examined effects on grizzly bear and elk, both “flagship” species in this area of
Alberta’s east slopes (CRC 1996b). GIS tools and models adapted to local knowledge and
information were used to analyze effects. The modelling illustrated the effects of the mine on the
regional movements and use of habitat by the species. Results indicated significant adverse
negative changes in habitat use. Despite extensive quantitative analysis and time used for study,
the professional judgement of biologists conducting the review was the primary basis for
conclusions reached.
B10
CASE STUDIES
Effects on Elk
Cardinal River Coal conducted a three-step CEA using GIS-based overlays: 1) existing elk habitat
was quantified; 2) the extent to which that habitat had already been modified by human activities
was calculated; and 3) the incremental effect of the mine development was determined. The
analysis was applied to an area of 900 km2. Population viability was assessed using trend surveys
and a population simulation model. A qualitative assessment was then made on the vitality of the
population and the future trends in productivity and habitat effectiveness, which concluded that
“at these levels…the remaining habitat should absorb the displacement of the current population
until reclamation activities begin…”.
Analysis indicated that the mine development would reduce regional winter and summer forage
for elk by 3% and 2% respectively, and reduce cover by 8%. More habitat would also be lost due
to alienation effects. The applicant concluded that initial impacts on elk would be negative as
currently occupied habitat was lost, and re-establishment of annual movement and foraging
patterns in adjacent habitat occurred. Once reclamation was initiated, the effect on elk should be
lessened as quality forage becomes available at the edge of the mining disturbance.
Effects on Grizzly Bear
As carnivores requiring large home ranges are especially susceptible to the effects of human
development, the grizzly bear was chosen as an indicator. The grizzly bear was also suitable
because of its use as an “umbrella” species (i.e., indicates effects on a wide variety of other
species, especially at lower trophic levels). Another reason for choosing grizzly bear was the
existence of a scientifically accepted Cumulative Effects Model that quantitatively estimates
individual and population effects of various land uses (USFS 1990). The model is composed of
three modules: habitat, disturbance and mortality. The results were analyzed to predict habitat
effectiveness and mortality risk, in which a 100% habitat effectiveness value (representing a
disturbance coefficient of “1”) means that grizzly bears were not deterred from using any of the
available habitat due to human disturbance. Alternative land use scenarios could then be
developed and evaluated relative to grizzly bear management objectives.
The analysis also included use of existing data on grizzly bear mortality, locations, and ecology;
conducting of interviews with local residents knowledgeable about carnivores in the region;
review of government fur harvest data; and collection and synthesis of data on regional
populations of wolves and cougar.
The analysis predicted an immediate and significant adverse effect on grizzly bears in the Bear
Management Unit surrounding the mine. The CEA concluded that regional pressures on large
carnivores were reaching the point where “population losses will become serious and perhaps
irreversible”. Mitigation of these effects, even within a 100 year reclamation time frame, was
considered difficult.
Given the prediction that grizzly would be significantly affected, Cardinal River Coal proposed
that a “Carnivore Compensation Package” be created. A regional committee would clarify
wildlife management objectives and develop plans for achieving them. The committee would be
based on co-management among provincial, federal and regional levels of government, scientific
experts, industrial stakeholders and citizen groups. Funding for regional level research would also
be provided, managed and allocated by the committee. A similar cooperative approach was
proposed for elk management, though a formal compensation committee was not specifically
proposed.
B11
CASE STUDIES
Lessons Learned
• In conducting the CEA, it became obvious that many of the factors that could affect a VEC
were not only as a result of activities associated with the proposed mine. Cardinal River Coal
stated that [emphasis added]: “Because of administrative, ecological and technical boundary
constraints, Cardinal River Coal acknowledges that it does not have the time, technical and
economic resources to carry out cumulative effects studies for all anthropogenic sources or
address all cumulative effects assessment factors which could influence all affected VECs. As
a result the company elected to carry out cumulative effects studies only on selected VECs.
Criteria for the selection of specific VEC cumulative effects studies were based either on
professional opinion, public concern, or government interest in particular study disciplines.”
• The applicant was also of the view that the responsibility for administration of land use
activities, and the resulting cumulative effects assessment “lies ultimately with the regional
resource planning agencies”. Cardinal River Coal nonetheless conducted comprehensive data
collection to obtain missing data within the administrative, ecological and technical
constraints of the assessment.
B12
CASE STUDIES
HUCKLEBERRY COPPER MINE
VECs: Water quality, air quality, wildlife and wetland habitat
Issues: Establishing the framework for a CEA
Approaches: Recognition of limited effects due to implementation of mandatory mitigation measures
Lessons learned: A nearby large project can overshadow the cumulative effects contribution of a proposed
but relatively smaller project; local mitigation may be sufficiently adequate to ameliorate cumulative effects;
geography can limit the spatial boundaries
Background
The Huckleberry Copper Mine is an open pit porphyry-copper mine located in central-west
British Columbia. Access is by an 8 km extension of an existing upgraded forest service road or
by air to a gravel airstrip constructed adjacent to the road. Power is supplied by a 115 km power
line constructed along the road.
The company submitted a pre-application document in 1994 and applied for provincial approval
under the Mine Development Assessment Act in 1995. With the proclamation of the B.C.
Environmental Assessment Act in mid-1995, the provincial review was transitioned to the new
review process. The project also required review as a Comprehensive Study under the Canadian
Environmental Assessment Act. The principles of the Canada-B.C. Agreement for Environmental
Assessment Cooperation (still under negotiation at the time) were followed in order to harmonize
the federal and provincial environmental assessment requirements. The joint review was led by a
Project Committee that included federal and provincial representatives. The report of the Project
Committee (HCMPC 1995), which was released in late 1995, was used as the basis for the
subsequent Comprehensive Study Report. The project was approved by both levels of
government at the completion of the review.
Assessment Approach
Initially, there was some uncertainty in response to the federal Act’s requirements to assess
cumulative environmental effects. A subcommittee of federal and provincial officials was
established to draft the assessment for the project committee. Their first action was to determine
the nature and extent of potential interactions and then to identify projects with potential for
cumulative impacts. Two types of regional effects were identified of possible concern: land use
and mine discharges (mostly into water and dust into air). The site geography and small size of
the project simplified the direct examination and detailed assessment of potential impacts and the
identification of spatial boundaries. The temporal boundary was determined from regulatory
requirements.
Land use issues were limited to incremental losses of forest and habitat for fish and wildlife. The
severity of effects was minimized by the small mine footprint and use of the existing road and its
right of way for locating the majority of the power and transportation infrastructure. The spread
of air emissions were limited by the surrounding topography. The project’s remote location and
the limited spatial extent of effects also reduced the number of projects with the potential to
interact with the mine. Two projects were identified that met the Act’s definition for other
projects: a proposal to recover submerged timber from the Kemano Reservoir, and current and
proposed land-based forestry activities. Another concern was the effect that each of these may
have on resource use by aboriginal and non-aboriginal communities.
B13
CASE STUDIES
Mine discharge was subject to regulated water quality levels, thereby substantially reducing the
potential for downstream effects (the reservoir watershed was used to provide a standard for
water quality). Monitoring was recommended during mine operations and after project
abandonment. The effective application of mitigation meant that cumulative effects were not
considered significant and would not impact resource users. Similarly, the proposal to dredge or
otherwise recover the timber submerged during the creation of the reservoir would only be
approved if the impacts were manageable and would not impact resource users when considered
along with the mine impacts.
The extent of loss of forest, wildlife and wetland habitat in Tahtsa Reach, a nearby bay formed by
the creation of the reservoir, was not easily determined as historic baseline information was
unavailable (estimates ranged from 10,000 to 15,000 ha lost). With only a 575 ha footprint, the
mine’s contribution to regional losses was considered negligible, temporary and mitigable.
Furthermore, the proponent must develop reclamation plans to restore or enhance habitat after
mine closure. A similar comparison to forestry activities also indicated that these effects in the
watershed were not significant unless local spatial and brief time scales were considered and if
reclamation was ignored (the latter was not a reasonable assumption given the nature of the
forestry activity in the watershed).
Lessons Learned
• The nature of the project and the spatial limitations of potential effects were such that a
detailed assessment was not considered necessary. This was in part due to the monitoring and
mitigation requirements placed on the mining industry and the successful development of
mine plans and design that included abandonment and reclamation.
• The project identified several areas of uncertainty, including lack of original baseline
information of pre-Kemano conditions. However, the statistical insignificance of the effects
made further assessment unnecessary. The temporal concerns were already regulated and the
industry had made major advances in mitigating future impacts. The monitoring required by
existing regulation would also adequately address concerns at both local and regional (i.e.,
cumulative) scales.
B14
CASE STUDIES
TERRA NOVA OFF-SHORE PETROLEUM PROJECT
VECs: Water and air quality, fish, seabirds, marine mammals
Issues: Changes to water quality, impacts on fish, seabirds and marine mammals; reduced opportunities for
fishing; impact of noise from aircraft and project activities on seabird colonies and marine mammals
Approaches: Interaction matrices indicating scale, magnitude, duration and mitigation measures for each
potential impact on specific development activities and VECs
Lessons Learned: Acknowledgment of lack of information about future offshore projects on the Grand
Banks and the difficulty of assessing cumulative effects because of the uncertainties and multi-jurisdictions
that are involved; project demonstrated the need for follow-up and monitoring programs supported by many
stakeholders
Background
A federal-provincial panel was appointed in 1996 to review and assess an offshore petroleum
development southeast of Newfoundland. The project was designed to recover petroleum
resources from the Terra Nova oil field located in the northeast section of the Grand Banks.
Approximately 1 billion barrels of oil are contained in this reserve. The proponents would use a
floating steel monohull production, storage and offloading vessel; semi-submersible drilling rigs;
and shuttle tankers to transfer produced oil from the site to storage facilities onshore or directly to
markets (Harris et al. 1997). Drilling centres will be located in open glory holes, 10 m deep and
15 m wide, from which flowlines trenched in the ocean floor will carry oil to flexible risers
leading to the production platform.
Assessment Approach
The principle cumulative effects issues identified were: impact of discharging drilling muds,
cuttings, drilling fluids, deck waste and produced waste on water quality, fish and fish refuge, and
marine mammals; impact of oils spills on water quality, fish and fish refuge, and marine
mammals; impact of noise from aircraft and project activities on seabird colonies and marine
mammals; impact of project activities on the fishing industry; and potential impacts on VECs
from the existing Hibernia project and all other potential developments on the Grand Banks. Only
factors specific to planned petroleum projects on the Grand Banks throughout the life of the Terra
Nova Development were included in the assessment.
Within the proponent’s CEA, all possible relationships between project activities and VECs were
identified in interaction matrices. Impacts were evaluated after consideration of mitigation
measures that were designed into the Terra Nova project and its operational procedures. Results
were tabulated for the VECs which included an assessment of the magnitude, scale and duration
of potential impacts. The majority of impacts were evaluated as negligible; however, a limited
number were rated as moderate to major with respect to noise disturbance to seabird colonies.
The proponent stated that with development-specific mitigation measures and monitoring
programs these impacts would be reduced to negligible levels.
With respect to cumulative impacts resulting from potential developments and other projects on
the Grand Banks, the proponent did not include future activities in the assessment because of the
lack of detailed information on their likelihood, timing and scale (Petro Canada 1996). The
assessment did address potential cumulative effects from the Hibernia project, the commercial
fishery and commercial shipping. Resulting impacts from these activities were determined to be
insignificant because the distance between the Terra Nova project and Hibernia would be
B15
CASE STUDIES
sufficient to avoid overlap of effects; in the future the two projects would investigate shared
logistics to reduce the impacts caused by aircraft and shipping vessels; and the safety zones of the
two developments would be large enough to provide a potential refuge for the fisheries and allow
for unimpeded fish harvesting.
Within its report, the Panel stated that it was not possible to hold the proponent responsible for
potential developments beyond their control that may interact with the Terra Nova project to
cause cumulative effects. However the Panel did stress that gradual accumulative degradation of
the Grand Banks environment due to collective anthropogenic impacts was a major
environmental concern and must be avoided (Harris et al. 1997). Without sufficient information
and a defined methodology to identify and measure impacts, the Panel found it difficult to assess
the cumulative effects of the project. The multiple jurisdictions involved in the assessment added
to their difficulty and it was evident to the Panel that it would be necessary to have cooperation
between all stakeholders in order to complete a comprehensive cumulative effects assessment.
Recommendations by the panel to address cumulative effects included the development of a
workshop of experts with experience in environmental monitoring, sampling and measurement to
examine the potential for cumulative effects of petroleum developments and other activities in the
Newfoundland offshore environment and to design an approach to monitor these effects. Once a
cumulative effects monitoring program was established, all offshore development projects would
be required to incorporate this monitoring program into their individual monitoring plan
standards and measures.
Lessons Learned
• It was difficult to assess cumulative effects of the Terra Nova offshore project because of the
uncertainties and lack of information regarding the number and magnitude of future offshore
petroleum developments and other activities on the Grand Banks; and the multi-jurisdictions
involved in the assessment.
• Due to the present difficulties in identifying and measuring cumulative effects; the Panel
recommended a follow-up monitoring program be developed, implemented and supported by
multi-stakeholders for all future offshore developments on the Grand Banks.
B16
CASE STUDIES
EAGLE TERRACE SUB-DIVISION
VECs: Elk, wolf, Swainson’s Thrush
Issues: Loss of critical winter habitat, obstruction of regional wildlife movements
Approaches: Calculation of incremental land lost (direct and indirect) using a GIS due to changes between
successive development scenarios
Lessons learned: Spatial boundaries based on available digital base-map; limitations of interpreting longterm ecological implications of changes
Background
In 1996 a proposal was submitted to the Town of Canmore in Alberta for the development of the
67 ha Eagle Terrace residential subdivision. The project would adjoin existing sub-divisions near
the town, located in the Bow (River) Valley east of Banff National Park. Parts of this valley have
experienced extensive human development since the beginning of this century. Continued growth
in tourism has increased demand for resident and visitor facilities, resulting in development
pressures for housing. This urban growth, combined with a major national transportation corridor
(i.e., four-lane highway and a railway) has disturbed the important montane ecosystem that
supports a wide variety of wildlife species and plants. Concerns were raised about the cumulative
or nibbling loss of wildlife habitat in the mountain valley, and the obstruction of wildlife
movement corridors as developments continue to advance up the lower slopes of the valley.
Assessment Approach
An EIA of the project was prepared which included a CEA chapter (Eagle Terrace 1996). The
assessment method was based on the calculation of available habitat in the valley between
successive development scenarios. This allowed the comparison of incremental losses of habitat.
Three wildlife species were chosen as indicators: elk, wolf and Swainson's Thrush. Elk was used
to assess use by ungulates and to serve as an ecological indicator of use of early seral habitats.
Wolf was used to assess use by large carnivores and to serve as an ecological indicator of regional
wildlife movements between Banff National Park and areas east of the Park. Swainson's Thrush
was used to assess use by songbirds and to serve as an ecological indicator of localized
fragmentation of forest habitat.
Ecosites (classifications of vegetation-landscape association that categorize an area based on its
soils, drainage, and vegetation characteristics) were used to create a habitat base map that
provided input into a GIS. The map defined a regional study area of approximately 17,000 ha,
which extended west from Canmore to the boundary of Banff National Park, and east to the
eastern edge of the Rocky Mountains. Twenty-four ecosites were interpreted, based on their
suitability for providing basic wildlife habitat requirements (e.g., cover, forage), into three habitat
suitability ratings (low, moderate and high) for both summer and winter.
The Eagle Terrace site was mapped along with other existing developments, foreseeable projects
(i.e., those under application for approval or approved), and various infrastructure such as roads
and railways. To represent loss of habitat due to alienation effects (i.e., due to sensory
disturbances such as noise and light), an "alienation buffer" was defined for each indicator
species. These buffers, which surrounded all disturbances, were 500 m for elk, 1000 m for wolf
and 600 m for Swainson's Thrush.
B17
CASE STUDIES
Four development scenarios described changes in the valley. Each scenario was defined by a
combination of habitat suitability and level of development, and represented a "snapshot" in time
of the condition of the human and natural environment. The first scenario, Pristine, was
represented by current valley conditions with all developments removed. The second scenario,
Current, represented the existing Bow Valley with its current settlements, roads and other
developments. The third scenario, Reasonably Foreseeable, included all developments in the
Current scenario and projects which were already under construction or for which there was
considerable likelihood that they would occur. The final scenario, Full Build, added the Eagle
Terrace development to the last scenario.
Direct habitat loss (due to the overlap of various disturbances on the habitat suitability map),
indirect habitat loss (due to the alienation buffers), and total or effective loss (i.e., direct and
indirect) were determined for summer and winter habitat conditions. Losses were determined
between each of the scenarios. The final calculation therefore provided an indication of the
relative contribution of Eagle Terrace to changes in the valley. This contribution could also be
compared to changes that had already occurred due to other projects.
It was determined that the Eagle Terrace project would incrementally contribute a small loss of
montane and wildlife habitat relative to the losses that already had occurred. In general, existing
developments contributed to a loss of 21% or 2789 ha of the important montane ecosite, while the
Eagle Terrace development represented 2% of that loss. A large proportion of the most important
habitat (i.e., high suitability in winter) was found to already have been lost: 59% for elk, 81% for
wolf and 87% for Swainson’s Thrush (see table below for an example of how the results were
presented). The Eagle Terrace project contributed to less than 1% of this change. The implications
of these changes on regional wildlife populations is avoidance of the area by ungulates which
make use of the mountain benchlands for winter refuge, avoidance by carnivores which, make use
of the valley corridor for regional movements, and avoidance by nesting songbirds.
Summer Habitat Losses for Swainson’s Thrush
Scenario
High Suitability
Area
Current
Reason. Fore.
Full Build
Total
1
1
%SA
2
%RA
3
Moderate
Suitability
Area
%SA
Low Suitability
%RA
Area
%SA
%RA
Total
4
1589
9.4
86.5
6470
38.2
46.9
142
0.8
10.8
8201
175
1.0
70.9
1216
7.2
16.6
0
0.0
0.0
1391
0
0.0
0.0
10
0.1
0.2
0
0.0
0.0
10
1764
10.4
7696
45.4
142
0.84
5
6
2
9602
3
Area: area in ha. %SA: habitat loss as percentage of total land in study area (16,959 ha). %RA:
habitat loss as percentage of habitat remaining after last scenario for that habitat suitability class (i.e.,
4
High,. Moderate,. Low) (Note: The total % is not additive and therefore has not been calculated). Total:
5
6
total habitat loss. Reason. Fore.: Reasonably Foreseeable. Full Build: represents incremental change
due to addition of Eagle Terrace to Reasonably Foreseeable scenario.
Lessons Learned
• The assessment approach provided a quantitative determination of regional level habitat
changes due to successive developments and the determination of the relative contribution of
the project under review in the future. However (as is still often true in the assessment of
effects on wildlife), the ultimate ecological implications of these changes could only be
qualitatively determined. It could, for example, be reasonably assumed that losses from
existing developments had already considerably contributed to a steady decline in local and
regional wildlife populations (corroborated to some extent by field data). This suggested that
eventually much of the valley may become permanently alienated to wildlife, or at minimum,
B18
CASE STUDIES
result in conditions unlikely to support wildlife populations at historical levels in the valley.
That the latter conclusion could not be quantitatively determined indicates the difficulty
practitioners experience in translating results from a GIS into the answer ultimately sought;
namely, will the wildlife disappear?33
• The availability of a digital ecosite map for use in a GIS was a major factor during the
determination of spatial bounds. The map included many developments and extended for a
considerable distance along the mountain valley, which ensured an adequate representation of
natural conditions and human-caused disturbance conducive to a regional level analysis.
33
It is notable that no other methodological tool yet exists that may provide a fully confident answer, although the
Cumulative Effects Model (USFS 1990) currently used for the assessment of effects on grizzly bear is making
considerable advances, especially when combined with the interpretation of genetic data.
B19
CASE STUDIES
TRANS-CANADA HIGHWAY TWINNING PHASE IIIA
VECs: Elk, moose, wolf, coyote, grizzly bear and black bear
Issues: Loss/alteration of wildlife habitat, wildlife disturbance due to alienation, collision mortality of wildlife,
and disruption of wildlife movements due to habitat fragmentation
Approaches: Spatial analysis using a GIS to determine loss or reduction of habitat value due to various
types of disturbances to wildlife
Lessons learned: Qualitative conclusions and ranking systems are useful to communicate results if
supported as much as possible by quantitative analysis that is defensible
Background
In 1994 an EIA was submitted for the proposed twinning of a section (IIIA) of the Trans Canada
Highway in Banff National Park, Alberta (Parks Canada 1994). The project consisted of
upgrading 18 km of two-lane highway to four lanes and the construction of interchanges. The
section to be upgraded was approximately half the distance between the townsites of Banff and
Lake Louise, and closely followed the Bow River along its entire length. The Bow River valley
forms a long and narrow mountain valley through the park.
The project proponent was Parks Canada, the federal department responsible for that portion of
the highway. The project was assessed under the Environmental Assessment and Review Process
Guidelines Order (the predecessor to the new federal Act). The highway, Canada’s major eastwest route, required upgrading due to increased traffic volumes (especially from trucking and
tourist visitation). The Phase IIIA proposal was able to make extensive use of assessments
previously done for earlier Phases I and II, also in the Park.
Assessment Approach
The assessment identified two study areas: the Middle Bow Valley within the immediate vicinity
of the highway right-of-way, and the Central Rockies Ecosystem. The areas were 1,150 km2 and
43,000 km2, respectively. Most of the analysis was done in the Middle Bow Valley, with the
results of that assessment extrapolated to the Central Rockies Ecosystem. A time limit (i.e.,
temporal bounds) was not defined as the affected environment was assumed to exist indefinitely
in a national park.
Environmental components of most concern were wetlands, the river channel, fish-bearing
streams, wildlife (particularly large carnivores and ungulates with regional movements),
vegetation and fish. The residual effects on wildlife were summarized in the EIA, which preceded
the CEA, for nine species and five wildlife categories. Based on these results, vegetation, fish and
wildlife were identified as most likely to be affected cumulatively.
The assessment consisted of three parts: 1) screening of other projects and environmental effects
(based on the results of the local effects assessment which preceded the cumulative effects
assessment), 2) within the Middle Bow Valley, quantitative analysis of effects on six wildlife
species and vegetation and a qualitative analysis of effects on other wildlife species and fish; and
3) within the Central Rockies Ecosystem, quantitative analysis of overall habitat loss due to
human disturbances.
Cumulative Effects Screening
A project inclusion list of 28 projects and activities was first identified. Linear projects were
separated from areal projects due to the different analytical approaches used for each. The
B20
CASE STUDIES
projects were screened to determine “which projects are likely to make a measurable contribution
to cumulative effects” in the Middle Bow Valley. A screening table rated the likelihood of effects
on ten environmental components (i.e., terrain, hydrology, air quality, vegetation, fish, wildlife,
recreation, history and archaeology, visual, socio-economic) of various projects, ranked on a 4
point scale (negligible, low, moderate and high). The rankings, qualitatively determined, indicated
that wildlife was the most affected environmental component.
Effects on Indicators in Middle Bow Valley
Most of the quantitative analysis was performed on six wildlife indicators: elk, moose, wolf,
coyote, grizzly bear and black bear. These were selected based on the availability of data (i.e., life
history, movements, population dynamics) and their scientific and public profile. The assessment
used available Ecological Land Classification and wildlife data to analyze effects.
Sixteen projects were identified in the screening as possibly contributing to cumulative effects.
For each species, the contribution of these projects to cumulative effects were ranked in a matrix
against habitat loss/alteration, disturbance due to alienation, collision mortality, and disruption of
movements due to habitat fragmentation. The relative contribution of each project to overall
cumulative effects in the Middle Bow Valley ecosystem was also ranked. The actual rankings
were qualitatively determined, but based on the results of the GIS analysis.
The GIS calculated a series of indices that were based on the degree by which habitat suitability
was reduced or lost due to various disturbances. A map of the 16 projects was overlaid on a
habitat map for each species. The area of spatial overlap was multiplied by the habitat suitability
rating for that ecosite and a modifier specific to the type of disturbance and species being
modelled. Modifiers were estimated, based on professional judgement, in recognition of the
animal’s known behaviour, and in some cases on empirical data. Modifiers were used to represent
alienation effects (i.e., “0” represented no disturbance, “5” represented a highly disturbed area), a
barrier factor for blockage of movement effects, and a collision mortality factor for death due to
collisions with vehicles. A specific distance around disturbances (i.e., “zone of disturbance”) was
also defined for areas of human use to define a spatial buffer in which alienation effects were
expected to occur.
Finally, the total of each index for each species and type of effect (loss, alienation, fragmentation
and mortality) was calculated and the incremental changes compared between three scenarios:
existing, existing with proposed project, and all possible future projects. The final results were
discussed and summarized as qualitative rankings. For example, the results for grizzly bear
indicated that: the overall cumulative effect from all activities was “major” (i.e., long-term
adverse effects on population in study area), the main contributors to the overall cumulative effect
on bear were the existing Trans Canada Highway and the Lake Louise townsite, the incremental
effect of the proposed project as a contribution to overall cumulative effects on grizzly bear was
“moderate”, and two other projects (controlled burns and existing powerlines) contributed to an
equal level of incremental effect as the proposed highway twinning project.
Effects of Human Disturbance in the Central Rockies Ecosystem
Areas of human development were mapped at three levels: no and low development, moderate,
and high. The density and distribution of three wildlife indicators (elk, moose and bear) were also
mapped. Spatial overlap of these maps indicated how severely the cumulative effect of these
developments may have already impaired habitat supporting these species. Areas of high habitat
potential that were disturbed by areas of high or moderate development were considered of
concern. For example, 30% of the Central Rockies Ecosystem had high or very high habitat
B21
CASE STUDIES
capability for large carnivores, yet 87% of that area occurred in areas of moderate or high
disturbance.
Mitigation
The greatest concern was blockage of movements of bear and ungulates through the park. As
mitigation, wildlife underpasses at various points along the highway, and possibly one overpass
(i.e., wildlife cross a bridge over the highway) were recommended. However, later evidence
indicated that underpasses elsewhere along the existing sections of twinned highway were not
used (especially by bears) to the extent originally predicted. This resulted in the recommendation
for overpasses only. Furthermore, the effectiveness of the overpasses would be monitored, and
fencing along the highway would again be used to reduce collisions and guide wildlife to these
crossings. “Carnivore Conservation Areas” were also recommended to ensure that large areas
remained undeveloped.
Lessons Learned
• Despite the use of quantitative analysis that provides “precise” numbers, conclusions often
had to be made qualitatively. This is generally more true the more complex the effects are,
and is particularly true for conclusions about effects on animal species. The numbers
provided only one (albeit important and sometimes pivotal) source of information — the
balance of the decision based on professional judgement of the assessor and of experts
solicited for advice. It is always important, to assist decision-makers in making an informed
decision, that an explanation is always provided that describes how such tables of numbers
are “translated” into rankings.
•
When performing a “quantitative” assessment, care must be taken to fully explain
assumptions and uncertainties associated with the derivation of certain quantities. In this
assessment, the various modifiers represented a significant source of qualitative input into a
“quantitative” analysis. Given the complexities presented in a CEA, this is not in itself
unacceptable if the assumptions and uncertainties are explained. At least, upon later
examination, reviewers will be aware of the limitations of the method and data used, and
weigh the information provided by its conclusions accordingly.
•
The presentation of results from the Middle Bow Valley analysis relied on matrices with
qualitative rankings and associated qualitative discussion. The presentation of results from
the Central Rockies Ecosystem analysis relied on qualitative discussion and GIS maps. This
combination of information is useful as the matrices organized results and summarized
discussion points. Although the derivation of the matrix rankings were not provided, the
results were discussed in detail.
•
Performing a CEA in an area under only one principal jurisdiction, such as a National Park,
has a significant advantage. This case study had the benefit of relatively well defined land use
goals (e.g., from the Park Management Plan and other guidelines), data from extensive
ecological research, and ready access to the descriptions of other projects and activities in a
large regional study area. Most assessments do not benefit from these advantages.
•
The mitigation in response to cumulative effects represented two important approaches: 1)
implementation of conventional or innovative on-site design modification (i.e., overpasses);
and 2) long-term interjurisdictional planning and monitoring on a regional basis to create a
forum in which various stakeholders communicate their concerns, support monitoring and
reach consensus on land use goals.
B22
CASE STUDIES
TRANSPORTATION CORRIDORS IN
GLACIER AND BANFF NATIONAL PARKS
VECs: Scenery
Issues: Degradation of aesthetic qualities of view from highway
Approaches: Comparison of visual images before and after project construction
Lessons learned: Consideration of CEA issues arises from EIAs
Background
Visual effects were assessed for two projects in two of Canada's National Parks during public
hearings under the Environmental Assessment Review Process Guidelines Order: the twinning
(four-laning of a two-lane highway) of the Trans Canada Highway in Banff National Park
(FEARO 1979, FEARO 1982a), and the twinning (adding a second track) of the CP Rail main
railway line at Rogers Pass in Glacier National Park (FEARO 1982b, FEARO 1983). Cumulative
effects were considered because there were existing projects (i.e., highways, railways and some
other developments) that could interact with the proposed projects.
Assessment Approach
The Parks are widely regarded for their scenery, and so the scoping process quickly identified
visual impacts to be a significant issue. The method used for the Banff project involved a
landscape architect who compared photos of the existing highway and predicted views (using
sketches) from the same locations after project completion. The method of comparing photos with
sketches fully integrates the cumulative effects of everything in the images. The predictions of
how the view would appear after construction were based on the design of the reclamation
program for the cut and fill slopes. This also allowed the reader of the environmental impact
statement to visualize how the project would lead to an improvement of the visual impacts created
by the construction of the previous highway. As previous disturbances (i.e., poorly done cut and
fill slopes) were being mitigated, the cumulative effect of the twinning project would be an
enhancement in the visual quality of the highway. This did not mean that the new project had no
effects, but that mitigating existing impacts was an added benefit.
The Rogers Pass project also had the potential to create unacceptable visual effects in locations
viewed by travelers along the Trans Canada Highway who frequently stop to admire the scenery.
Again, the effects were cumulative with those of the existing railway line. There was also forest
harvesting just outside the Park but readily visible from viewpoints within the Park. A photo
montage was used to assess visual effects, in which existing photos were compared against
retouched photos that simulated the view after the project was completed.
Lessons Learned
• For both projects, the visual effects were determined by methods commonly used by
landscape architects. In addition, the landscape architect who did the work was closely
involved with the project design team and a number of significant revisions were made to the
design to minimize the visual effects. This combination of prediction with mitigation is
important in EIA generally.
• The EIAs for these projects were completed prior to statutory requirements for assessment of
cumulative effects. However, it can be argued that cumulative effects often unavoidably arise
and are examined anytime an EIA is reviewed during public hearings. The nature of the
B23
CASE STUDIES
hearing process, with the Panel reviewing and questioning information presented, often results
in inquiries being made with cumulative effect’s implications.
B24
CASE STUDIES
KEENLEYSIDE POWER PROJECT
Issues: Defining a process for the CEA to follow
Approaches: Inter-governmental workshop
Lessons learned: Process can be summarized as a series of questions; conflicts over process approaches
are often more procedural, legal and political than technical
Background
The Keenleyside Powerplant Project includes the construction and operation of a hydro-electric
generation facility at the existing Hugh Keenleyside Dam on the Columbia River in south-central
British Columbia, and a transmission line to an existing electrical substation near the Canada-U.S.
border. This case study examines the process followed under the Canada-B.C. Agreement for
Environmental Assessment Cooperation to develop CEA requirements. The process was
developed by the Project Committee appointed under the B.C. Environmental Assessment Act,
which was composed of members from the federal, provincial and local governments and directly
affected First Nations (KPC 1997).
Assessment Approach
The potential for difficulties in setting out the CEA requirements was recognized early in the
assessment process. Many past projects in the vicinity of the power project have placed the region
under stress, and there were several other existing or suspected projects yet to come. It was
decided to convene a workshop of federal and provincial officials and a representative of the
directly affected First Nations to derive a workable set of CEA requirements. During the
workshop, legal and process related issues were discussed, from which a seven step process was
developed consisting of a series of questions to direct the CEA inquiry. The seven steps, designed
to satisfy the requirements of a screening under the federal Act and of a Project Report under the
provincial Act, are as follows:
1. Which direct effects of the project under review are relevant?
2. Which other projects have effects to which these direct effects could contribute
incrementally?
3. What is the geographic scope of the assessment regarding direct effects?
4. What is the temporal scope of the assessment regarding direct effects?
5. What is the overall scale of the cumulative effects likely to be?
6. What mitigation could minimize or address the cumulative effects?
7. What are the residual cumulative effects and their significance?
The workshop participants first agreed to each produce a preliminary list of direct environmental
effects. While a seemingly straightforward task, a few problems were encountered; for example,
establishing a realistic timeline which would allow the identification of direct effects to proceed
in parallel with the assessment of cumulative effects, rather than sequentially as would be more
logical given the stepwise nature of the CEA approach.
A decision was made to follow the federal approach of requiring the proponent to develop the
draft CEA of all the effects, both those under federal and provincial jurisdiction (in the B.C.
B25
CASE STUDIES
process, the proponent supplies the data and information and the B.C. Agencies carry out the
CEA). Each jurisdiction would then review and determine the acceptability of the CEA under
their legislation. Although the proponent was encouraged to propose a conclusion regarding level
of significance, the final determination of the significance of the cumulative effects will rest with
the Project Committee.
The last issue resolved during the workshop was which future projects must be considered (i.e.,
the second question). The decision was that only those projects approved or already in a formal
regulatory process (and thus likely to occur) could legally be required for consideration.
Participants recognized that certain concerns are associated with this approach — for example,
failure to consider all future projects could place the approval of those future projects at risk
given the cumulative stresses on the ecosystem.
Lessons Learned
• A principal lesson from this process (which lasted about a year) is that when any assessment
process is reduced to its fundamental components, most of the conflicts are procedural, legal
or political in nature.
• Most assessments are concerned with the same issues and are amenable to resolution using
existing EIA processes as demonstrated in other assessments.
• The Federal/Provincial review concluded that the cumulative effects of the project were
adequately assessed and after mitigation found to not be significant. The assessment did reveal
one interesting potential advantage to CEA: assessing potential impacts on a wider spatial
scale also widens the range of potential mitigative measures to address direct impacts of the
project. The contents of the guidelines were also “proven” and have formed the base for CEA
reviews of several other projects in the province.
B26
CASE STUDIES
LA MAURICIE NATIONAL PARK HIKING TRAIL
VECs: Timber wolf, black bear, common loon
Issues: Induced effects due to new access
Approaches: Qualitative discussion of “total stress load” on VECs
Lessons learned: Even relatively small local projects may indirectly lead to more regional effects
Background
In 1996 a screening was conducted under the Canadian Environmental Assessment Act for a
proposed hiking trail in La Mauricie National Park in Quebec. Cumulative effects were examined
in a separate study (Béland 1996) after the initial screening was completed.
The park, located northwest of the town of Trois-Rivieres, offers various recreational
opportunities for visitors, including hiking, camping, and canoeing. Visitor usage is high
(400,000/yr). The park is surrounded by various disturbances, including logging, hunting,
farming, resorts, recreational activities, off-road vehicle use and urban development. The
proposed trail would provide new public access into a previously inaccessible wilderness area in
the northern portion of the park. The trail would be built with a minimum of new facilities in
recognition of the conservation goals of that area.
Concerns were raised that trail use might possibly lead to further induced actions such as requests
for winter access (the trail was proposed only for summer and fall use) and upgraded facilities.
This may lead to disturbance of wildlife of regional importance that are also representative of the
park’s ecosystem.
Assessment Approach
Two stakeholder workshops were used to solicit advice from various stakeholders. Participants
first identified long-term objectives of the park and verified if the trail is compatible with park
policy, park management plan, and park zoning (it was). The scoping of issues and VECs relied
on results of the earlier completed screening, which indicated that the trail would cause very
minor local effects. For example, only a relatively small amount of clearing would be required
(10 ha) and the trail itself represented a negligible break in the forest cover. The trail therefore
caused minimal habitat fragmentation, but would pose some sensory alienation of wildlife due to
the presence of hikers.
The assessment approach was based on qualitatively assessing the total “stress load” on the
selected wildlife VECs: timber wolf, black bear, and the common loon. The state of the species’
population and trends were described, stressors identified, and the increase in total stress load
attributable to the trail was estimated. Existing trends and objectives for each species were then
discussed.
The distribution of the wildlife VECs suggested that a regional spatial boundary include the
various types of disturbances surrounding the park (e.g., an adjacent multiple use area with
recreational and timber harvesting activities). The time of creation of the park 25 years ago was
identified as the beginning of the temporal boundary.
A table identified the stresses that may be affecting each VEC. Stresses included recreational
activities and facilities in the park, park management activities, activities outside the park (both
B27
CASE STUDIES
existing and prior to the park’s creation), and “large-scale effects” such as airborne pollutants.
The temporal status of each stress was also determined (e.g., past, current, future).
Timber wolf was acknowledged, due to its large regional movements, as the VEC most affected
by local and regional habitat fragmentation. Any disturbances in the park contributing to this were
considered a possible cumulative effect, as the wilderness park area is one of the last remnants of
protected habitat suitable for wolf in the region. Black bears may be attracted to garbage by trail
users, and the trail would increase the probability of bear-visitor conflicts. The trail would also
provide new access to lakes and possibly threaten loons, especially at nesting sites. Loons were
also recognized as being affected by lake acidification and fishing. A user visitation threshold for
nesting loon, based on field observation, was suggested at 15 persons/ha/yr, beyond which a
decrease in reproductive success could occur.
Various mitigation measures were suggested, including trail use quotas of 50 persons/day, bear
proofing facilities, and avoidance of access to loon nesting sites. Monitoring programs for each
species were also recommended.
Lessons Learned
• Despite the results of a local effects screening indicating minimal effects, cumulative effects
concerns were nonetheless raised about this relatively small project. The concerns were
largely that of possible induced effects due to increased visitation and demands for new or
expanded infrastructure, possibly leading to adverse effects on important wildlife species.
• Analysis of effects on wildlife at this level of assessment were restricted to qualitative
discussion, based on knowledge about regional wildlife, habitat and disturbance conditions.
B28
CASE STUDIES
MINERAL EXPLORATION IN THE NORTHWEST TERRITORIES
VECs: Peary caribou, aboriginal harvesting
Issues: Potential for disturbance of an endangered species (Peary caribou) due to mineral exploration
activities, potential for disruption of aboriginal harvesting
Approaches: Screening and community consultation involving groups established pursuant to an aboriginal
land claim
Lessons Learned: Benefit of co-management process, advantage of community consultation by proponents
early in project development, potential for negative effects resulting from activities below the threshold
requiring a land use permit
Background
During 1996, WMC International Ltd. (WMC) proposed to conduct a mineral exploration
program around Prince Albert Sound and the Shaler Mountains on Victoria Island, Northwest
Territories (WMC 1996). The helicopter-supported exploration program included remote field
camp facilities, drummed fuel caches, prospecting, sampling, ground geophysical surveys and
geophysical mapping. A drilling program was to occur after completion of regional mapping and
surveys. Aber Resources Ltd. (Aber) and Monopros Ltd. (Monopros) were also pursuing
exploration activities on the island. Aber’s proposed Kuujjua Nickel Project included airborne
geophysical surveys and surface sampling (Aber 1996). Monopros proposed to conduct an
aeromagnetic survey.
Concern about mineral exploration had been growing on Victoria Island since 1994 when WMC
proposed an airborne survey adjacent to Prince Albert Sound. Residents of Holman, one of two
communities on Victoria Island, had just agreed to suspend the harvest of caribou north of the
Kuujjua River in efforts to protect the endangered Peary caribou. It was expected that there would
be an increase in harvest activities south of the River (along the north coast and head of Prince
Albert Sound) an area in which WMC proposed to explore during one of the peak harvesting
periods. As interest in mineral deposits on Victoria Island increased during 1995, so did the
concern of residents about disturbance to caribou during the calving and post-calving seasons,
and disruption to Inuvialuit traditional harvesting by exploration activities, including low-level
flights associated with aeromagnetic surveys.
An aerial survey of caribou conducted by the Territorial government over western Victoria Island
in June 1994 supported residents’ concerns during examination of WMC’s 1996 program.
Caribou cow-calf pairs had been sighted in the Shaler Mountains neighboring the proposed camp
site. Permitted and claim areas also covered an extensive area of central Victoria Island including
that identified as calving and post-calving habitat.
Assessment Approach
The north-western portion of Victoria Island forms part of the Inuvialuit Settlement Region (ISR)
established following signing in 1984 of the Western Arctic (Inuvialuit) Claims Settlement Act
(the “Inuvialuit Final Agreement”). As a result of the Inuvialuit land claim settlement, the
Environmental Impact Screening Committee (the Committee), Environmental Impact Review
Board (the Board), and Inuvialuit Land Administration (the Administration) were established to
oversee the environmental assessment of developments proposed for the region. The Committee
and Board are comprised of an equal number of Inuvialuit and government-appointed members.
B29
CASE STUDIES
Review of developments proposed for Inuvialuit private lands are the mandate of the
Administration. Developments proposed for crown lands within the region must be screened by
the Committee which assesses whether the proposed development is likely to have a negative
environmental impact on wildlife, habitat, or on Inuvialuit wildlife harvesting. If there is potential
for negative environmental impacts it may be referred to the Board.
Through an agreement signed in 1995, the Department of Indian Affairs and Northern
Development (DIAND) and the Inuvialuit Regional Corporation requested the Committee to
conduct an annual review of mineral activity in the region, and to examine the cumulative effects
of prospecting and exploration activities that are below and above the threshold level requiring
land use permits.
In 1996 WMC required a land use permit from DIAND to establish a camp and cache fuel on
crown lands. This triggered a screening by the Committee and DIAND. Because WMC’s area of
interest included Inuvialuit private lands, their proposal was also reviewed by the Administration.
The Committee and DIAND did not screen airborne geophysical and aeromagnetic surveys
because land use permits were not required. The Administration approved Aber’s aerial survey
activities that were proposed for areas over Inuvialuit private lands. In the project descriptions
submitted to the Committee, WMC, Monopros, and Aber also described activities that were
below the threshold level requiring a land use permit.
The local Inuvialuit Hunters’ and Trappers’ Committees (HTC) are the focal point of community
consultation regarding wildlife in the region. In addition, the Holman Joint Land Use Committee,
comprised of representatives from the Olokhaktomiut (Holman) HTC, Hamlet Council, the
Community Corporation, the Elders Council and the Youth Council was formed in 1995. The
Committee encourages developers to consult with the affected community early in the project
planning stage to identify local concerns and potential conflicts.
WMC consulted with the Olokhaktomiut HTC and Holman Joint Land Use Committee in January
of 1996. Monopros and Aber also consulted with the community. Holman residents requested that
no activities occur within a 5 to 15 kilometer band of land along Prince Albert Sound between
mid-July and late August to prevent disruption of caribou harvesting activities. The need to
minimize disturbance of migratory bird nesting areas and bears, and to avoid important arctic
charr spawning areas was also expressed. WMC assured the community that harvesting areas,
caribou calving habitat in the Shaler Mountains, and caribou migration routes would be avoided
at sensitive times.
The most important concerns raised were the potential impacts of the developments on caribou
during the calving and post calving period and on harvesting activities. Each proponent addressed
these concerns in their project descriptions. WMC proposed to do a satellite tracking study to
monitor the seasonal movements of female caribou in relation to their camp, operations base, and
other areas of interest for mineral exploration using satellite telemetry. Activities would also be
temporarily suspended to avoid disturbance of wildlife. Pilots were instructed to maintain a
minimum of 500 m elevation on ferrying trips to reduce the disturbance to wildlife. Aber
confirmed its intent to require pilots to fly at altitudes greater than 300 m above ground level and
verified that it would not operate near Prince Albert Sound.
WMC, Monopros, and Aber submitted project descriptions to the Committee including the results
of community consultation as required by the Committee’s Operating Guidelines and Procedures.
The Committee screened the activities in April 1996 and considered:
•
the information provided in the project description;
B30
CASE STUDIES
•
•
•
•
•
•
•
mapped information showing the footprints of the projects (including camps, fuel caches, and
areas of exploration) overlaid with relevant areas of interest identified in the Olokhaktomiut
Community Conservation Plan (harvesting areas, cultural sites, important areas for wildlife);
recommendations and guidelines in species management plans;
the recommendations of Olokhaktomiut HTC and Holman Joint Land Use Committee;
Inuvialuit Harvest Study data to assess peak harvesting areas and times;
the concerns of government fish and wildlife management agencies;
below permit threshold activities proposed by Aber and Monopro; and
the knowledge of the Inuvialuit/government-appointed members.
The Committee also solicited comments from various stakeholders.
The Committee decided that the activities proposed by WMC and Aber during 1996 would have
no significant negative impact on the environment or Inuvialuit harvesting, provided that the
mitigative measures outlined in the project description were implemented. This decision applied
only to activities proposed for 1996. The Committee wished to examine any activities proposed
for 1997 with the benefit of the information from the caribou research. Both companies were to
ensure that Peary caribou would not be disturbed during the calving period. To allow caribou to
move out of the area, the Committee recommended that WMC start work at the beginning of July,
and that Aber first work in the northern portions of the exploration area while deferring activities
in the southern areas until the first week of July.
Although Monopros and Aber’s aeromagnetic surveys were not subject to screening they were
encouraged by the Committee to maintain contact with the Olokhaktomiut HTC. In addition, it
was suggested that they contact the Territorial Regional Biologist to ensure that calving Peary
caribou would not be negatively impacted by the aeromagnetic surveys.
Lessons Learned
• The co-management process in the region not only ensures equal participation by Inuvialuit
and government in the environmental assessment process but facilitates the exchange of
information between the groups.
• Consultation by proponents with Inuvialuit organizations at an early stage of project
development enables proponents to incorporate mitigation into their programs to the benefit
of the Inuvialuit and proponents alike.
• Potential exists for significant negative effects resulting from activities outside the scope of
the Land Use Regulations. For example, aeromagnetic surveys (low-level flights) are
recognized as having potential for significant negative effect. Such activities have clear
implications for proper consideration of cumulative effects and can be addressed
cooperatively through the consultation process.
B31
B32
HISTORY
C
CUMULATIVE EFFECTS HISTORY
IN CANADA
Since the advent of formal EIA legislation and policy in the 1970s, the evolution and practice of
EIA has resulted in both greater detail in technical response and a broadening of expectations
placed on the scope of assessments. What became increasingly clear was that conventional
approaches to single project assessments would not necessarily dampen broad environmental
degradation over many years; namely, the result of cumulative effects. Deficiencies in both
environmental assessment practice and legislation did not provide the mechanisms to move
practitioners from the examination of local short-term effects to more far-reaching goals such as
sustainable development and maintenance of biodiversity.
In the 1970s, Canada’s first federal and provincial environmental assessment requirements were
promulgated: the federal Canadian Environmental Assessment and Review Process and Ontario’s
Environmental Assessment Act, respectively. At the federal level this was a policy and guideline
only until 1984 when the Guidelines Order was issued. Although now there were frameworks to
conduct environmental assessments, concerns grew regarding approaches to assessments and
inherent limitations in their technical practice. Thus began, in the 1980s, a series of initiatives
upon which assessments would become firmly established in Canada.
The publication of Beanlands and Duinker’s An Ecological Framework for Environmental Impact
Assessment in Canada in 1983 laid the fundamentals for future assessment practice. This
document arguably did more to assist cumulative effects assessments practice than any other
single effort by ensuring a solid basis on which to conduct any conventional EIA. In 1984, the
federal government created the Canadian Environmental Assessment Research Council to support
EIA research. This led to a 1985 joint U.S.-Canada workshop on cumulative effects assessments
with proceedings subsequently published separately in the U.S. and Canada (CEARC/NRC
1986). This workshop tackled the subject through the examination of types of cumulative impacts
in various environmental systems (e.g., freshwater) and issues related to managerial and
institutional limitations. The report also recognized the complexity and uncertainties of
approaching the assessment of cumulative effects. Further research was recommended.
In recognition of the growing importance of addressing cumulative effects in Canada and the
need for direction, the Council sponsored the subsequent review of research, management and
ecosystem components of CEA and the linkages between them (Peterson et al. 1987). These
efforts led to the identification of specific technical issues requiring clarification (e.g., analysis of
pathways, establishing of spatial boundary) and the need to provide practical methods by which
to accomplish CEAs. The Council continued to support these efforts (e.g., Lane et al. 1988).
Meanwhile, various legislated assessments and project reviews were beginning to incorporate the
assessment of cumulative effects (e.g., Northern Saskatchewan Uranium Mines, Alberta-Pacific
Pulp Mill).
By the 1990s, various long-term regional studies were providing examples of planning
approaches to CEAs (e.g., Hudson Bay Programme, Northern Rivers Basin Study, Oak Ridges
Moraine Area Planning Study). A national cumulative effects conference in 1994, hosted by the
Alberta Society of Professional Biologists, demonstrated that CEA practice was well established,
although methodological approaches remained in their infancy (see Kennedy 1994).
By this time, all provinces had legislation or policy for environmental assessments, and the
federal process was replaced by the more comprehensive Canadian Environmental Assessment
C1
HISTORY
Act in 1995. The consideration of cumulative effects was now explicit and mandatory in
legislation both federally and in two provinces (British Columbia and Alberta). However, the
concept of CEA was also beginning to expand beyond its established role to address the
assessment of policy and research, and to provide the technical basis for future land use planning.
The federal cabinet agreed (Boulden 1996) that policy, plans or programs would be subject to
assessment, a directive that was administratively strengthened by the passage of the Act. This
evolution of assessment into the broader Strategic Environmental Assessment was suggested as
the “next generation process” of assessment practice by the recent International Study on the
Effectiveness of Environmental Assessment, an international study initiated in part by the
Canadian Environmental Assessment Agency (Sadler 1995).
Currently, there are three bilateral (federal-provincial) harmonization agreements on
environmental assessment in Canada (with Alberta, Manitoba and British Columbia). Other
agreements are being negotiated with provincial governments. These agreements are designed to
ensure efficiency and avoid duplication in environmental assessment between jurisdictions. Since
CEA is not a requirement in all jurisdictions, harmonization becomes a particular challenge.
The 1991 Cabinet Directive on Environmental Assessment of policy in Canada requires that all
new federal policies and programs seeking Cabinet approval must consider their environmental
implications. This provides an opportunity to apply CEA on a broader and perhaps more useful
scale. Approaches are currently being developed; however, due to resource constraints in the
public sector, it has not received the attention required to adequately advance its implementation.
Future initiatives at the national level will advance CEA practice by building on lessons learned
from “case studies”, and summarizing the growing body of assessment theory in support of CEA
practice. The key is a broad dissemination of information that is targetted to both practitioners
and decision-makers. This may include a second Bi-national workshop or conference on
cumulative effects, and continued use of the internet to facilitate the transfer of information (e.g.,
through a Canadian CEA homepage and conferencing). These efforts could result in new training
initiatives for administrators and consultants.
Perhaps the greatest long-term challenge will be the creation of regional land use committees and
biophysical/land use databases to assist in the identification of cumulative effects thresholds. The
success of CEA practice will ultimately rely on the guidance provided by such efforts, and ensure
that the rapidly evolving consensus on CEA approaches can be effectively applied to ensure
Canada’s sustainable development goals are met. Approaches to assessment of policies and
programs are on-going.
Assessment History
C2
REFERENCES
D
SUGGESTED CEA REFERENCES
This Appendix provides references for the following subjects identified in the Guide with the
symbol:
•
•
•
•
•
•
•
•
•
•
•
•
•
•
Assessment History
Canadian Environmental Assessment Act
Case Studies
CEA Primers
Frameworks
Indicators
Significance
Setting Boundaries
Thresholds
The Canadian Environmental Assessment Agency also maintains an extensive Annotated
Bibliography of CEA literature on its web homepage at www.ceaa.gc.ca. The bibliography
contains more than 400 references which are indexed by subject.
D1
REFERENCES
Armour, C.L., and S.C. Williamson. 1998. Guidance for Modeling Causes and Effects in Environmental
Problem Solving. U.S. Fish & Wildlife Service, Serv. Biol. Rep. 89(4). 21pp.
Bain, M. S., J. S. Irving and R. D. Olsen. 1986. Cumulative Impact Assessment: Evaluating the
Environmental Effects of Multiple Human Developments. Argonne National Laboratory, Energy and
Environmental Systems Division, Argonne.
Brooks, R.P., et al. 1989. A Methodology for Biological Monitoring of Cumulative Impacts on Wetland,
Stream, and Riparian Components of Watersheds. In Wetlands and River Corridor Management.
Charleston, SC, July 5, 1989. Berne, NY: Association of Wetland Managers. pp. 387-398.
Burdick, et al. 1988. Planning for Cumulative Impact Management using Landscape Patterns and
Principles of Conservation Biology. In Observations Across Scales: Functions of Management of
Landscapes. Third Annual Landscape Ecology Symposium. University of New Mexico.
Canter, L.W. and J. Kamath. 1995. Questionnaire Checklist for Cumulative Impacts. Environmental Impact
Assessment Review, Vol. 15: 311-339.
Childers, D.L. and J. G. Gosselink. 1990. Assessment of Cumulative Impacts to Water Quality in a Forested
Wetland Landscape. J. of Environmental Quality 19: 455-464.
Cobourn, J. 1989. Cumulative Watershed Effects (CWE) Analysis in Federal and Private Forests in
California. In Proceedings of the AWRA Headwaters Hydrology Symposium, Missoula, Montana,
June 23-27, 1989. Bethesda, Maryland: American Water Resources Association: pp. 441-448.
Cocklin, C., S. Parker and J. Hay. 1992. Notes on Cumulative Environmental Change II: A Contribution to
Methodology. J. of Environmental Management 35: 51-67.
Cocklin. C. 1989. Methodological Approaches to the Assessment of Cumulative Environmental Change.
Environmental Science Occasional Publication No. CEC-02, University of Auckland, New Zealand.
59 pp.
Dixon, J and B. Montz. 1995. From Concept to Practice: Implementing Cumulative Impact Assessment in
New Zealand. Environmental Management, Vol. 19, No. 3: 445-456.
Eccles, R., J. Green., R. Morrison, A. Kennedy. 1994. Approaches to Cumulative Effects Assessment of
Petroleum Development in Alberta. In Cumulative Effects Assessment in Canada: From Concept to
Practice. Papers from the 15th Symposium Held by the Alberta Society of Professional Biologists.
Edited by A.J. Kennedy. Alberta Society of Professional Biologists, pp. 189-196.
Emery, R.M. 1986. Impact Iteration Potential: A Basin-wide Algorithm for Assessing Cumulative Impacts
from Hydroelectric Projects. Journal of Environmental Management, Vol. 23, No. 4: 341-360.
Goodchild, M. F., B. O. Parks and L. T. Steyaert. 1993. Environmental Modelling with GIS. Oxford
University Press, New York.
Gosselink, J.G., and L.C. Lee. 1987. Cumulative Impact Assessment in Bottomland Hardwood Forest.
Baton Rouge, LA. Center for Wetland Resources.
Haines-Young, R., D. R. Green and S. H. Cousins (eds.). 1993. Landscape Ecology and Geographic
Information Systems. Taylor and Francis, New York.
Johnston, C. A., N. E. Detenbeck, J. P. Bonde and G. J. Niemi. 1988. Geographic Information Systems for
Cumulative Impact Assessment. Photogrammetric Engineering and Remote Sensing 54 (11): 16091615.
Klock, G.O. 1985. Modelling the Cumulative Effects of Forestry Practices on Downstream Aquatic
Ecosystems. Journal of Soil and Water Conservation, Vol. 40: 237-241.
D2
REFERENCES
Lane, P. and Associates Ltd. 1988. Reference Guide to Cumulative Effects Assessment in Canada. Vol. IReference Guide. Prepared for the Canadian Environmental Assessment Research Council. Hull,
Quebec.
Lee, L. and J. Gosselink. 1988. Cumulative Impacts on Wetlands: Linking Scientific Assessments and
Regulatory Alternatives. Environmental Management, Vol.12: 591-603.
Lipeitz, G.S. 1994. An Assessment of the Cumulative Impacts of Development and Human Uses on Fish
Habitat in the Kenai River. Final Report. Technical Report No. 94-6. Alaska Department of Fish and
Game, Habitat Restoration Division, Anchorage, Alaska.
Mattson, D. J. and R. R. Knight. 1991b. Application of Cumulative Effects Analysis to the Yellowstone
Grizzly Bear Population. U.S.D.I National Park Service Interagency Grizzly Bear Study Team
Report.
McKendry, J. E. and G. E. Machlis. 1993. The Role of Geography in Extending Biodiversity Gap Analysis.
Applied Geography 11: 135-152.
Proett, M. A. 1987. Cumulative Impacts of Hydroelectric Development: Beyond the Cluster Impact
Assessment Procedure. Harvard Environmental Law Review 11(77): 77-146.
Raley, C. M., W. A. Hubert and S. H. Anderson. 1987. Development of a Qualitative Cumulative Effects
Model to Assess External Threats to the North Fork Flathead River Basin Within Glacier National
Park. University of Wyoming, National Park Service Center, Laramie.
Scott, J.M., et al. 1993. Gap Analysis: A Geographic Approach to Protection of Biological Diversity.
Wildlife Monographs, No. 123. The Wildlife Society. 40 pages.
Smit, B. and H. Spaling. 1995. Methods for Cumulative Effects Assessment. Environmental Impact
Assessment Review, Vol. 15: 81-106.
Spaling, H. and B. Smit. 1995. A Conceptual Model of Cumulative Environmental Effects of Agricultural
Land Drainage. Agriculture, Ecosystems & Environment, Vol. 53, No. 2: 99-108.
Stull, E.A., et al. 1988. Cumulative Impact Assessment: Issues to Consider in Selecting a Cumulative
Assessment Method. In Water Power '87. Proceedings of an International Conference on
Hydropower. Edited by B.W. Clowes. New York: American Society of Civil Engineers, pp. 636-641.
Stull, E.A., K. E. La Gory and W.S. Vinikour. 1987. Methodologies for the Cumulative Environmental
Effects of Hydroelectric Development on Fish and Wildlife in the Columbia River Basin: Volume 2:
Example and Procedural Guidelines. Energy and Environmental Systems Division, Argonne
National Laboratory, Argonne.
Therival, R and P. Morris. Interactions between Impacts. In: Methods of Environmental Impact
Assessment. Edited by P. Morris and R. Therival. Vancouver, B.C. UBC Press, 297-305.
U.S. GAO (United States General Accounting Office). 1988. Energy Regulation: Opportunities for
Strengthening Hydropower Cumulative Impact Assessment. GAO, Washington, D.C.
Vlachos, E. 1985. Assessing Long-range Cumulative Impacts. Pages 49-80 In Covello V. T. (ed.)
Environmental Impact Assessment, Technology Assessment, and Risk Analysis. Springer Verlag,
Berlin.
Weaver, J. L., R. E. Escano and D. Winn. 1986. A Framework for Assessing Cumulative Effects on Grizzly
Bears. Proceedings of the 52nd North American Wildlife and Natural Resources Conference: 364376.
D3
REFERENCES
Assessment History
in Canada. Institute for Resource and Environmental Studies, Dalhousie University, Halifax, Nova
Scotia.
Boulden, R.S. 1996. Environmental Assessment Effectiveness in Canada - Better Decisions. Conference
Proceedings for the 16th (1996) Annual Meeting of the International Association for Impact
Assessment: Volume 1.
Canadian Environmental Assessment Research Council/U.S. National Research Council (CEARC/NRC).
1986. Cumulative Environmental Effects: A Binational Perspective. CEARC, Hull, Quebec.
Kennedy, A. J. (ed.). 1994. Cumulative Effects Assessment in Canada: From Concept to Practice. Papers
from the 15th Symposium Held by the Alberta Society of Professional Biologists. Hignell Printing
Ltd.
Lane, P., et al. 1988. Reference Guide to Cumulative Effects Assessment in Canada. Vol. II: Feasibility
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Prairie Provinces. Prepared for the Canadian Environmental Assessment Research Council, Hull,
Quebec.
Peterson, E.B., et al. 1987. Cumulative Effects Assessment in Canada: An Agenda for Action and
Research. Canadian Environmental Assessment Research Council, Hull, Quebec.
Sadler, B. 1995. Environmental Assessment: Toward Improved Effectiveness: Interim Report and
Discussion Paper. International Study of the Effectiveness of Environmental Assessment.
Canadian Environmental Assessment Act
Davies, K. 1991. Assessing Cumulative Environmental Effects in Compliance with the Proposed Canadian
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Assessment Review Office, Hull, Quebec.
Drouin, C. and P. LeBlanc. 1994. The Canadian Environmental Assessment Act and Cumulative
Environmental Effects. In Cumulative Effects Assessment in Canada: From Concept to Practice.
Papers from the 15th Symposium Held by the Alberta Society of Professional Biologists. Edited by
A.J. Kennedy. Alberta Society of Professional Biologists, pp. 25-36.
Canadian Environmental Assessment Agency (CEAA). 1997. Guide to the Preparation of a Comprehensive
Study: for Proponents and Responsible Authorities. CEAA, Hull, Quebec.
Government of Canada. 1995. Canadian Environmental Assessment Act. Ministry of Supply and Services,
Hull.
Case Studies
Aber Resources Limited (Aber). 1996. Proposed Mineral Exploration Program, Kuujjua Nickel Project,
Victoria Island, NWT. Submission to the Environmental Impact Screening Committee. Vancouver,
British Columbia.
Béland, M. 1996. Long Distance Hiking Trail Cumulative Effects Assessment. Produced by Les
Consultants Jacques Berube Inc. for Parks Canada, Department of Canadian Heritage, Quebec.
Cardinal River Coal (CRC). 1996a. Cheviot Mine Project Application, Volume 1. Cardinal River Coals
Ltd., Hinton, Alberta.
Cardinal River Coal (CRC). 1996b. Cheviot Mine Project Application, Volume 8: Appendices. Cardinal
River Coals Ltd., Hinton, Alberta.
D4
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Department of Indian Affairs and Northern Development (DIAND). 1984. The Western Arctic (Inuvialuit)
Claims Settlement Act: Inuvialuit Final Agreement. DIAND, Ottawa, Ontario.
DeSorcy, G., R. Epp, C. Gilday, D. Schindler, J. Boucher, M. Franchuk, B. Ross, and T. West. 1990. The
Proposed Alberta-Pacific Pulp Mill: Report of the EIA Review Board. Alberta Environment,
Edmonton, Alberta.
Ecologistics Ltd. 1992. Assessing Cumulative Effects of Saskatchewan Uranium Mines Development.
Prepared for Federal Environmental Assessment Review Office, Ottawa, Ontario.
Federal Environmental Assessment Review Office (FEARO). 1979. Banff Highway Project (East Gate to
km 13): Report of the Environmental Assessment Panel, Federal Environmental Assessment and
Review Office, Hull, Quebec.
Federal Environmental Assessment Review Office (FEARO). 1982a. Banff Highway Project (km 13 to km
27): Report of the Environmental Assessment Panel, Federal Environmental Assessment and Review
Office, Hull, Quebec.
Federal Environmental Assessment Review Office (FEARO). 1982b. CP Rail Rogers Pass Development:
Preliminary Report of the Environmental Assessment Panel, Federal Environmental Assessment and
Review Office, Hull, Quebec.
Federal Environmental Assessment Review Office (FEARO). 1983. CP Rail Rogers Pass Development:
Final Report of the Environmental Assessment Panel, Federal Environmental Assessment Review
Office, Hull, Quebec.
Harris, L., I. Baird, and J. Lien. 1997. Terra Nova Development: An Offshore Petroleum Project, Minister
of Public Works and Government Services Canada.
Huckleberry Copper Project Committee (HCPC). 1995. Huckleberry Copper Project Committee Report.
Imperial Oil Resources Ltd. (IORL). 1997a. Cold Lake Expansion Project, Volume 2, Part 1: Biophysical
and Resource Use Assessment. Prepared by AXYS Environmental Consulting Ltd. for Imperial Oil
Resources Ltd., Calgary, Alberta.
Imperial Oil Resources Ltd. (IORL). 1997b. Cold Lake Expansion Project, Volume 2, Part 2: Impact Model
Descriptions. Prepared by AXYS Environmental Consulting Ltd. for Imperial Oil Resources Ltd.,
Calgary, Alberta.
Keenleyside Project Committee (KPC). 1997. Columbia Power Corporation Keenleyside 150 MW
Powerplant Project: Amended Requirements for the Completion of the Project Report.
Kennedy, A. J. and W. A. Ross. 1992. An Approach to Integrate Impact Scoping with Environmental
Impact Assessment. Environmental Management 16 (4): 475-484.
Lee, D. G., Lee, J.F. Archibald, J. Dantouze, R. Neal, and A. Yassi. 1993a. McArthur River Underground
Exploration Program, Supply and Services Canada.
Lee, D.G., J.F Archibald, and R. Neal. 1997a. McArthur River Uranium Mine Project, Minister of Public
Works and Government Services Canada.
Lee, D.G., J.F. Archibald, and R. Neal. 1997b. Midwest Uranium Mine Project, Cigar Lake Uranium Mine
Project, Cumulative Observations, Minister of Public Works and Government Services Canada.
Lee, D.G., J.F. Archibald, J. Dantouze, R. Neal and A. Yassi. 1993b. Dominique-Janine Extension,
McClean Lake Project, and Midwest Joint Venture, Supply and Services Canada.
Parks Canada. 1994. Initial Assessment of Proposed Improvements to the Trans Canada Highway in Banff
National Park, Phase IIIA, Sunshine Interchange to Castle Mountain Interchange. Prepared by
Thurber Environmental Consultants for Canadian Heritage, Parks Canada, Banff National Park,
Alberta.
D5
REFERENCES
Petro Canada Ltd. 1996. Development Application for the Terra Nova Development, Environmental Impact
Statement. Petro-Canada Ltd., St. John's, Newfoundland.
U.S. Forestry Service (USFS). 1990. CEM — A Model for Assessing Effects on Grizzly Bears. U.S.
Forestry Service.
WMC International Limited (WMC). 1996. Victoria Island 1996 Revised Exploration Program.
Submission to the Environmental Impact Screening Committee, Nepean, Ontario.
CEA Primers
The following references provide a comprehensive review of CEAs. These primers serve as compendiums
on cumulative effects issues and approaches, and are a good place to start to gain familiarity with
the subject.
Canadian Environmental Assessment Research Council (CEARC) and U.S. National Research Council
(NRC). 1986. Cumulative Environmental Effects: A Binational Perspective. CEARC, Hull, Quebec.
Board Review Process. University of Calgary, Environmental Research Centre, Calgary, Alberta.
Kennedy, A. J. (ed.). 1994. Cumulative Effects Assessment in Canada: From Concept to Practice. Alberta
Society of Professional Biologists, Hignell Printing Ltd., Edmonton.
Kingsley, L. 1997. A Guide to Environmental Assessments: Assessing Cumulative Effects. Parks Canada,
Department of Canadian Heritage, Hull, Quebec.
Lane, P. A., R. R. Wallace, R. L. Johnson and D. Bernard. 1988. Reference Guide, Feasibility Study, and
Overview of Institutions Interested in Cumulative Effects Assessment: Volume 1: Reference Guide
to Cumulative Effects Assessment in Canada. CEARC (Canadian Environmental Assessment
Council), Ottawa.
Shoemaker, D. J. 1994. Cumulative Environmental Assessment. University of Waterloo, Department of
Geography, Waterloo, Ontario.
U.S. Council on Environmental Quality. 1994. Cumulative Effects Analysis: Handbook for NEPA
Practitioners. Washington, D.C.
Canadian Environmental Assessment Research Council and U.S. National Research Council. 1986.
Cumulative Environmental Effects: A Binational Perspective. CEARC, Hull, Quebec.
Contant, C.K. and L. L. Wiggins. 1991. Defining and Analyzing Cumulative Environmental Effects.
Environmental Impact Assessment Review 11: 297-309.
National Research Council. 1986. The Special Problem of Cumulative Effects. In Ecological Knowledge
and Environmental Problem Solving -- Concepts and Case Studies. Committee on the Applications
of Ecological Theory to Environmental Problems. Washington, DC: National Academy Press.
Ross, W.A. 1994. Assessing Cumulative Environmental Effects: Both Impossible and Essential. Pages 3-9
In Kennedy, A.J. (ed.) Cumulative Effects Assessment in Canada: From Concept to Practice. Hingell
Printing Ltd., Edmonton.
Spaling, H. 1994. Cumulative Effects Assessment: Concepts and Principles. Impact Assessment, Vol. 12,
No. 3: 231-252.
D6
REFERENCES
Yarranton, G.A. and G.L. Hegmann. 1994. A Decision-Maker's View of Cumulative Effects Assessment. In
Cumulative Effects Assessment in Canada: From Concept to Practice. Papers from the 15th
Symposium Held by the Alberta Society of Professional Biologists. Edited by A.J. Kennedy.
Calgary, AB: Alberta Society of Professional Biologists, pp. 277-289.
Frameworks
Barnes, J.L. and D.A. Westworth. 1994. Methodological Framework for Cumulative Effects Assessment. In
Cumulative Effects Assessment in Canada: From Concept to Practice. Papers from the 15th
Symposium Held by the Alberta Society of Professional Biologists. A.J. Kennedy. ed. Alberta
Society of Professional Biologists, pp. 67-80.
Bureau of Land Management. 1994. Guidelines for Assessing and Documenting Cumulative Impacts. U.S.
Dept. of Interior, Bureau of Land Management.
Canadian Environmental Assessment Agency (CEAA). 1994. Reference Guide: Addressing Cumulative
Environmental Effects In: Responsible Authority’s Guide. Ottawa: Minister of Supply and Services
Canada. pp.133-156.
Council on Environmental Quality. 1997. Considering Cumulative Effects Under the National
Environmental Policy Act). Council on Environmental Quality, Executive Office of the President,
Washington D.C.
Damman, D.C, D.R. Cressman and M. Sadar. 1994. Cumulative Effects Assessment: the Development of
Practical Frameworks. Presented at the 1994 IAIA (International Association for Impact
Assessment) Conference, Quebec City, Quebec.
Environmental Protection Agency. 1992a. A Synoptic Approach to Cumulative Impact Assessment: A
Proposed Methodology. U.S. EPA, Corvallis.
Board Review Process. University of Calgary, Environmental Research Centre, Calgary, Alberta.
Horak, G. C., E. C. Vlachos and E. W. Cline. 1983. Methodological Guidance for Assessing Cumulative
Impacts on Fish and Wildlife. U.S. Fish and Wildlife Service, Eastern Energy and Land Use Team.
Irwin, F. and B. Rodes. 1992. Making Decisions on Cumulative Environmental Impacts: A Conceptual
Framework. WWF (World Wildlife Fund), Washington D.C.
Kingsley, L. 1997. A Guide to Environmental Assessments: Assessing Cumulative Effects. Parks Canada,
Department of Canadian Heritage, Hull, Quebec.
Sonntag, N.C., et al. 1987. Cumulative Effects Assessment: A Context for Further Research and
Development. Canadian Environmental Assessment Research Council, Hull, Quebec.
Spaling, H. and B. Smit. 1993. Cumulative Environmental Change: Conceptual Frameworks, Evaluation,
Approaches, and Institutional Perspectives Environmental Management 17 (5): 587-600.
Stakhiv, E. Z. 1991. A Cumulative Impact Analysis Framework for the Corps of Engineers' Regulatory
Program. U.S. Army Corps of Engineers, Institute for Water Resources.
D7
REFERENCES
Indicators
Bakkes, J.A., et al. 1994. An Overview of Environmental Indicators: State of the Art and Perspectives.
Study commissioned by the United Nations Environment Programme. EAP.TR/001.
Cairns, J., P. V. McCormick and B. R. Neiderlehner. 1993. A Proposed Framework for Developing
Indicators of Ecosystem Health. Hydrobiologic 263: 1-44.
Croonquist, M.J., and R.P. Brooks. 1991. Use of Avian and Mammalian Guilds as Indicators of Cumulative
Impacts in Riparian-wetland Areas. Environmental Management, Vol. 15: 701-714.
Eckman, K. 1993. Using Indicators of Unsustainability in Development Programs. Impact Assessment, Vol.
11, No. 3: 275-287.
Kelly, J. R. and M. A. Harwell. 1990. Indicators of Ecosystem Recovery. Environmental Management 14
(5): 527-545.
Mills, L. S., M. E. Soulé and D. F. Doak. 1993. The Keystone-Species Concept in Ecology and
Conservation. Bioscience 43 (4): 219-224.
Stevenson, W. 1994. Cumulative Effects Assessment in EA: An Indicators Approach. Presented to the
Ontario Society for Environmental Management. Environmental Assessment Branch, Ministry of
Environment and Energy Ontario.
Woodley, S. 1993. Monitoring and Measuring Ecosystem Integrity in Canadian National Parks. Pages 155173 In Woodley, S., J. Kay and G. Francis ed. Ecological Integrity and the Management of
Ecosystems. St. Lucie Press.
CEPA (Commonwealth Environment Protection Agency). 1994. Assessment of Cumulative Impacts and
Strategic Assessment in Environmental Impact Assessment. Commonwealth of Australia.
Colnett, D. 1991. Integrating Cumulative Effects Assessment with Regional Planning. Canadian
Environmental Assessment Research Council, Hull, Quebec.
Davies, K. 1991. Towards Ecosystem-based Planning: A Perspective on Cumulative Environmental
Effects. Canadian Waterfront Resource Center, Toronto.
McDonald, G. 1990. Regional Economic and Social Impact Assessment. Environmental Impact Assessment
Review 10: 25-36.
Munn, R.E. (ed.) 1994. Looking Ahead: The Inclusion of Long-term Global Futures in Cumulative
Environmental Assessments. Environmental Monograph No. 11. Institute for Environmental
Studies, University of Toronto, Toronto, Ontario.
Ontario Ministry of Environment and Energy (OMEE). 1994. Toward an Ecosystem Approach to Land-use
Planning. OMEE, Environmental Planning Branch, Toronto, Ontario.
Slocombe, D. S. 1993. Implementing Ecosystem-based Management: Development of Theory, Practice,
and Research for Planning and Managing a Region. Bioscience 43 (9): 612-622.
Banff-Bow Valley Study. 1996. Banff-Bow Valley: At the Crossroads. Summary Report of the Banff-Bow
Valley Task Force (R. Page, S. Bayley, J. D. Cook, J. E. Green, J. R. Brent Ritchie). Prep. for the
Honourable Sheila Copps, Minister of Canadian Heritage, Ottawa, Ontario.
Banff-Bow Valley Study. 1996. Banff-Bow Valley: At the Crossroads. Technical Report of the Banff-Bow
Valley Task Force (R. Page, S. Bayley, J. D. Cook, J. E. Green, J. R. Brent Ritchie). Prep. for the
Honourable Sheila Copps, Minister of Canadian Heritage, Ottawa, Ontario.
D8
REFERENCES
Bernard, D.P., RR. Everitt and J. Green. 1994. Mackenzie Valley Cumulative Effects Monitoring Program:
Final Report. Prepared by ESSA Technologies Ltd., and the Delta Environmental Management
Group Ltd., Vancouver, B.C., for Indian and Northern Affairs Canada, Northern Affairs Program,
Yellowknife, Northwest Territories.
Bunch, J. N. and R. R. Reeves (ed.). 1992. Proceedings of a Workshop on the Potential Cumulative
Impacts of Development in the Region of Hudson and James Bays, 17-19 June 1992. Department of
Fisheries and Oceans, Physical and Chemical Sciences, Ottawa, Ontario.
DIAND (Department of Indian and Northern Affairs Canada). 1987. Mackenzie Environmental Monitoring
Project - Phase II: 1987 Activities. Minister of Supply and Services, Ottawa, Ontario.
Ecologistics. 1994. A Cumulative Effects Assessment and Monitoring Framework for the Oak Ridges
Moraine Area: Background Reports 13 and 14 to the Oak Ridges Moraine Planning Study.
ORMTWC (Oak Ridges Moraine Technical Working Committee), Toronto, Ontario.
Environmental Impact Screening Committee. 1998. Mineral Exploration in the Northwest Territories. Joint
Secretariat – Inuvialuit Renewable Resources Committees. Inuvik, Northwest Territories.
Goldstein, B. E. 1992. Can Ecosystem Management Turn an Administrative Patchwork into a Greater
Yellowstone Ecosystem? The Northwest Environmental Journal 8: 285-324.
Greig, L., et al. 1992. Hypotheses of Effects of Development in the Moose River Basin: Workshop
Summary. Prepared for the Department of Fisheries and Oceans, Richmond Hill, Ontario, by
Environmental and Social Systems Analysts Ltd.
Hegmann, George. September 1995. A Cumulative Effects Assessment of Proposed Projects in Kluane
National Park Reserve, Yukon. Parks Canada, Haines Junction, Yukon.
Hubbard, P.M. 1990. Cumulative Effects Assessment and Regional Planning in Southern Ontario. Prepared
for the Canadian Environmental Assessment Research Council, Hull, Quebec.
Hudson Bay Programme. 1994. Towards the Assessment of Cumulative Impacts in Hudson Bay. Canadian
Arctic Resources Committee, Ottawa, Ontario.
LGL Ltd., ESL Ltd., ESSA Ltd. 1984. Beaufort Environmental Monitoring Project: 1983-1984 Final
Report. Prepared for DIAND (Department of Indian and Northern Affairs Canada), Ottawa, Ontario.
MacViro Consultants. 1994. Monitoring Cumulative Environmental Effects in the Niagara Escarpment
Plan Area: Phase I Report. OMEE (Ontario Ministry of Environment and Energy), Toronto, Ontario.
Ministry of Natural Resources . 1993. Oak Ridges Moraine Cumulative Assessment Framework Discussion
Paper: Options for Developing a Model to Predict Cumulative Environmental Effects. Ontario
Ministry of Natural Resources, Toronto, Ontario.
Northern River Basins Study (NRBS). 1993. Annual Report 1992-93. Northern River Basins Study Office,
Edmonton, Alberta.
Oak Ridges Moraine Technical Working Committee (ORMTWC). 1994. The Oak Ridges Moraine Area
Strategy for the Greater Toronto Area: An Ecological Approach to the Protection and Management
of the Oak Ridges Moraine. Ministry of Natural Resources, Toronto, Ontario.
Sallenave, J. D. (ed.).1994. Towards the Assessment of Cumulative Impacts in Hudson Bay. Canadian
Arctic Resources Committee and The Municipality of Sanikiluaq. The Hudson Bay Programme,
Ottawa, Ontario.
Significance
Also see “Analytical Approaches”, “CEA Primers” and “Definitions and Concepts”.
D9
REFERENCES
Cairns, J. Jr. 1990. Gauging the Cumulative Effects of Developmental Activities on Complex Ecosystems.
In Ecological Processes and Cumulative Impacts: Illustrated by Bottomland Hardwood Wetland
Ecosystems. Edited by J.G. Gosselink, C.L. Lyndon, T.A. Muir. Chelsea, Michigan: Lewis
Publishers.
Canadian Environmental Assessment Agency (CEAA). 1992. Determining Whether a Project Is Likely to
Cause Significant Adverse Environmental Effects. CEAA, Hull.
Hunsaker, C.T., et al. 1990. Assessing Ecological Risk on a Regional Scale. Environmental Management.
Vol. 14, No. 3: 325-332.
Hunsaker, C.T. 1993. Ecosystem Assessment Methods for Cumulative Effects at the Regional Scale. In The
Scientific Challenges of NEPA: Future Directions. Ninth Oak Ridge National Laboratory Life
Sciences Symposium. Knoxville, Tennessee, October 24-27, 1989. Edited by S.G. Hildebrand and J.
B. Cannon, Ann Arbor, Michigan: Lewis Publishers, pp. 480-493.
Ludwig, D., R. Hilborn and C. Walters. 1993. Uncertainty, Resource Exploitation, and Conservation:
Lessons from History. Science, 260 (2).
Myers, N. 1993. Biodiversity and the Precautionary Principle. Ambio 22 (2-3): 74-79.
Ontario Ministry of Environment and Energy (OMEE). 1992. Workshop for EA Administrators on
Cumulative Environmental Assessment . Toronto: Ontario Ministry of the Environment.
Wilcox, B. A. and D. D. Murphy. 1985. Conservation Strategy: The Effects of Fragmentation on
Extinction. American Naturalist 125: 879-887.
Setting Boundaries
Setting boundaries is discussed as a fundamental CEA issue in various publications providing an overview
of CEA. Refer to references under “CEA Primers”, “Definitions” and Concepts”, “Frameworks” and
“Analytical Approaches”.
Thresholds
Also see the references under “CEA Primers”, “Definitions and Concepts”, and “Analytical Approaches”.
Stankey, G. S., D. N. Cole, R. C. Lucas, M. E. Petersen and S. S. Frissell. 1985. The Limits of Acceptable
Change (LAC) System for Wilderness Planning. U.S. Forest Service, Ogden.
Ziemer, R.R. 1994. Cumulative Effects Assessment Impact Thresholds: Myths and Realities. In Cumulative
Effects Assessment in Canada: From Concept to Practice. Papers from the 15th Symposium Held by
the Alberta Society of Professional Biologists. Edited by A.J. Kennedy. Calgary: Alberta Society of
Professional Biologists, pp. 319-326.
Also see the references under “CEA Primers”, “Definitions and Concepts”, and “Analytical Approaches”.
in Canada. Institute for Resource and Environmental Studies, Halifax.
Doyle, D. 1994. Addressing Cumulative Effects in Canadian Environmental Assessment. Presented to the
Workshop and Seminar on Environmental Assessment under the Canada/Hong Kong Environment
Cooperation Agreement, Hong Kong, March 7-22, 1994.
D10
Docket: T-867-05
Citation: 2006 FC 1354
BETWEEN:
DENE THA' FIRST NATION
Applicant
and
MINISTER OF ENVIRONMENT
MINISTER OF FISHERIES AND OCEANS,
MINISTER OF INDIAN AND NORTHERN AFFAIRS CANADA,
MINISTER OF TRANSPORT,
IMPERIAL OIL RESOURCES VENTURES LIMITED,
on behalf of the Proponents of the Mackenzie Gas Project,
NATIONAL ENERGY BOARD, AND
ROBERT HORNAL, GINA DOLPHUS, BARRY GREENLAND,
PERCY HARDISTY, ROWLAND HARRISON, TYSON PERTSCHY AND
PETER USHER, all in their capacity as panel members of a Joint Review Panel
established pursuant to the Canadian Environmental Assessment Act
to conduct an environmental review of the Mackenzie Gas Project
Respondents
REASONS FOR JUDGMENT
2006 FC 1354 (CanLII)
Date: 20061110
Page: 2
INDEX
I.
Introduction ......................................................................................................................... 4
II.
Facts ..................................................................................................................................... 6
A.
B.
Dene Tha’.................................................................................................................. 6
(1)
Dene Tha’ People and Territory..................................................................... 6
(2)
Dene Tha’ – Treaty 8 Rights in Alberta ........................................................ 7
(3)
Dene Tha’ – Aboriginal Rights in NWT ....................................................... 8
Mackenzie Gas Pipeline – Regulatory and Environmental Matrices..................... 9
(1)
(2)
(3)
(4)
(5)
The “Cooperation Plan” ................................................................................. 10
(a)
The Genesis........................................................................................... 10
(b)
The Mandate ......................................................................................... 11
The Agreement for Coordination of the Regulatory Review
of the MGP (“Regulators’ Agreement”)........................................................ 12
(a)
The Genesis........................................................................................... 12
(b)
The Mandate ......................................................................................... 12
The Agreement for an Environmental Impact Review of the
MGP (Joint Review Panel Agreement – JRP Agreement)........................... 12
(a)
The Genesis........................................................................................... 12
(b)
The Mandate ......................................................................................... 13
Environmental Impact Terms of Reference .................................................. 13
(a)
The Genesis........................................................................................... 13
(b)
The Mandate ......................................................................................... 14
The Joint Review Panel Proceedings............................................................. 14
2006 FC 1354 (CanLII)
Page
Page: 3
(7)
C.
(b)
The Mandate ......................................................................................... 14
The National Energy Board Proceedings ...................................................... 16
(a)
The Genesis........................................................................................... 16
(b)
The Mandate ......................................................................................... 16
The Crown Consultation Unit ........................................................................ 16
(a)
The Genesis........................................................................................... 16
(b)
The Mandate ......................................................................................... 17
Dene Tha’s Involvement in these Processes............................................................ 18
(1)
Cooperation Plan............................................................................................. 18
(2)
Regulators’ Agreement, JRP Agreement, and Terms of
Reference......................................................................................................... 18
(3)
NEB Proceedings and JRP Proceedings........................................................ 19
(4)
CCU................................................................................................................. 19
D.
Jurisdiction over Consultation.................................................................................. 21
E.
Comparison of Dene Tha’ to other First Nations .................................................... 24
F.
III.
The Genesis........................................................................................... 14
(1)
The Inuvialuit, Gwich’in, and Sahtu.............................................................. 25
(2)
The Deh Cho................................................................................................... 26
Summary of First Nations Comparison ................................................................... 27
Duty to Consult – Timing and Content.............................................................................. 29
A.
Introduction ............................................................................................................... 29
B.
The Trigger for Consultation.................................................................................... 31
C.
Content of the Duty to Consult and Accommodate ................................................ 32
D.
Standard of Review................................................................................................... 34
2006 FC 1354 (CanLII)
(6)
(a)
Page: 4
IV.
Application of the Law to the Dene Tha’ ................................................................ 38
(1)
When did the Duty Crystallize? ..................................................................... 38
(2)
What is the Content of the Duty?................................................................... 42
Remedy................................................................................................................................ 44
********
PHELAN J.
I.
INTRODUCTION
[1]
A massive industrial project like the Mackenzie Gas Pipeline (MGP), one that anticipates
the creation of a corridor of pipeline originating in Inuvik in the far north of the Northwest
Territories and terminating 15 metres south of the Northwest Territories and Alberta border, where a
proposed connecting pipeline will link it up with existing provincial pipelines for southern
distribution (the “Connecting Facilities”), attracts a myriad of government obligations. The issues of
environmental review go beyond the physical pipeline from the north to this connection point.
Government must deal with the proponents of the project, detractors of the project, regulatory
review boards, environmental review boards, and affected First Nations. The alleged failure of the
Government of Canada to fulfill its obligations toward this last group, specifically the Dene Tha’
First Nation (Dene Tha’), forms the subject matter of this judicial review.
[2]
The Dene Tha’ alleges that the Government of Canada through the Minister of
Environment, the Minister of Fisheries and Oceans, the Minister of Indian and Northern Affairs
Canada and the Minister of Transport (the Ministers) breached its constitutionally entrenched duty
2006 FC 1354 (CanLII)
E.
Page: 5
to consult and accommodate the First Nations people adversely affected by its conduct. Specifically,
the Dene Tha’ identifies as the moment of this breach as its exclusion from discussions and
MGP. The Ministers deny that any duty arose at this point and, in any event or in the alternative,
asserts that its behavior with respect to the Dene Tha’ was sufficiently reasonable to discharge its
duty to consult and thus withstands judicial scrutiny. The so-called discharge of the duty to consult
and accommodate consisted of (1) including the Dene Tha’ in a single media release of June 3, 2004
inviting public consultation on a draft Environment Impact Terms of Reference and Joint Review
Panel Agreement and (2) a 24-hour deadline on July 14, 2004 to comment on these documents. That
is not sufficient to meet the duty to consult and accommodate.
[3]
This Court’s conclusion is that the Ministers breached their duty to consult the Dene Tha’ in
its conduct surrounding the creation of the regulatory and environmental review processes related to
the MGP from as early as the first steps to deal with the MGP in late 2000 through to early 2002 and
continued to breach that duty to the present time. The Dene Tha’ had a constitutional right to be, at
the very least, informed of the decisions being made and provided with the opportunity to have its
opinions heard and seriously considered by those with decision-making authority. The Dene Tha’
were never given this opportunity, the Ministers having taken the position that no such duty to
consult had arisen yet.
[4]
Quite remarkably, when the Ministers did decide to “consult” with the Dene Tha’, upon the
establishment of the process for the Joint Review Panel, the Dene Tha’ were given 24 hours to
respond to a process which had taken many months and years to establish and had involved
2006 FC 1354 (CanLII)
decisions regarding the design of the regulatory and environmental review processes related to the
Page: 6
substantial consultation with everyone potentially affected but for the Dene Tha’. This last gasp
[5]
To arrive at this conclusion, this Court has considered the following matters: (1) the factual
background relating to the regulatory and environmental processes underlying the MGP; (2) the
particular facts relating to the Dene Tha’; (3) the current state of the law relating to aboriginal
consultation; and (4) how the law applies to the situation of the Dene Tha’.
[6]
At the outset, it should be noted that the issue of remedy in this case is not straightforward.
Hence, it will receive special attention in the final section of these Reasons. At the very least, any of
the current procedures which may affect the Dene Tha’ must be stayed until other remedial
provisions can be completed.
II.
FACTS
A.
Dene Tha’
(1)
[7]
Dene Tha’ People and Territory
The Dene Tha’ is an Aboriginal group within the meaning of section 35 of the Constitution
Act, 1982 and an Indian Band under the Indian Act. Currently, there are approximately 2500
members of the Dene Tha’, the majority of which resides on the Dene Tha’s seven Reserves. All
Dene Tha’ Reserves are located in Alberta. The three most populous Reserve communities are
Chateh, Bushe River, and Meander.
2006 FC 1354 (CanLII)
effort at “consultation” was a case of too little, too late.
Page: 7
[8]
The Dene Tha’ defines its “Traditional Territory” as lying primarily in Alberta, but also
extending into northeastern British Columbia and the southern Northwest Territories (NWT). In the
whom the Dene Tha’ shares significant familial and cultural relationships. The Crown asserts that
the phrase “Traditional Territory” imports no legal significance with respect to the Aboriginal rights
claimed by the Dene Tha’ north of the 60 parallel – the division between the NWT and the Province
of Alberta.
(2)
[9]
Dene Tha’ – Treaty 8 Rights in Alberta
In 1899 the Dene Tha’ signed Treaty 8. Treaty 8 is a classic surrender treaty whereby the
Government promised payment and various rights, including the rights to hunt, trap, and fish in
exchange for the surrender of land. The territory defined by Treaty 8 does not extend into the
traditional territory claimed by the Dene Tha’ in the NWT. The Dene Tha’ asserts that this means its
rights in the NWT remain unextinguished as they are outside the bounds contemplated by Treaty 8.
Conversely, if the Ministers are correct and the Dene Tha’s rights in the NWT are extinguished by
Treaty 8, the Dene Tha’ submits that this is an admission by the Ministers that the Dene Tha’ has
Treaty 8 rights in the NWT. Dene Tha’s allegation of unextinguished aboriginal rights in the NWT
is discussed more fully later in these Reasons.
[10]
The proposed course of the MGP travels through the NWT, ending just south of the NWT
and Alberta border. The portion of the pipeline stemming from the Alberta border to its southern
terminus runs through territory of the Dene Tha’ defined by Treaty 8. The proposed Connecting
2006 FC 1354 (CanLII)
NWT, the Dene Tha’ claims that its territory overlaps with that of the Deh Cho First Nation, with
Page: 8
Facilities pass through Bitscho Lake which runs through Trap Line 99, a trap line owned by a Dene
[11]
The NGTL pipeline which connects the southern terminus of the MGP with the existing
Nova Gas Transmission Line also runs through territory over which the Dene Tha’ has Treaty 8
rights to hunt, trap, fish, and gather plants for food.
[12]
That the pipeline does not run through a reserve, contrary to the Ministers’ implied
submission, is insignificant. A reserve does not have to be affected to engage a Treaty 8 right as
held in Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), [2005] 3 S.C.R. 388.
What is important is that the pipeline and the regulatory process, including most particularly
environmental issues, are said to affect the Dene Tha’.
(3)
[13]
Dene Tha’ – Aboriginal Rights in NWT
The Dene Tha’ posits unrecognized Aboriginal rights to hunt, trap, fish, and gather plants
for food in the southern portion of the NWT. As proof of Government recognition of said rights, the
Dene Tha’ points to government archives from the 1930’s regarding the proposal for a creation of
an Indian Hunting Preserve for the Dene Tha’ in this area.
[14]
The Court was not asked to determine the legitimacy of the Dene Tha’s claim to Aboriginal
rights in the NWT. Moreover, as the Dene Tha’s Treaty 8 rights in Alberta are sufficient to trigger a
duty to consult, there is no need to make such a determination in order to resolve this judicial
review.
2006 FC 1354 (CanLII)
Tha’ member. None of that pipeline runs directly through Dene Tha’ Reserves.
B.
Mackenzie Gas Pipeline – Regulatory and Environmental Matrices
[15]
The MGP is an enormous and complex industrial undertaking. Its proposed routing
envisions a starting point in the gas fields and central processing facilities near Inuvik in the
northwest corner of the Northwest Territories. From these collecting facilities, the envisioned
pipeline will transport the extracted natural gas through the NWT to just south of the Alberta border.
At this point, Nova Gas Transmission Limited (NGTL) in Alberta will build the Connecting
Facilities up from its existing facilities to connect with the MGP. In this manner, natural gas can be
transported from the northern gathering facilities to a southern distribution terminus.
[16]
Initially the participants in the project envisaged the MGP extending 65 kilometres to the
connecting point with NGTL’s distribution system. It appears that in the hopes of keeping the gas
which flows into Alberta within Alberta jurisdiction, it was decided to have the connection point
with NGTL be located just 15 metres inside the NWT-Alberta border.
[17]
The Dene Tha’s initial judicial review application had sought to raise the constitutional issue
of the original proposal as a single federal work or undertaking. This aspect of judicial review has
been discontinued.
[18]
Given the enormity of this project and its inherent cross-jurisdictional character, its
conception triggered the involvement of a multitude of regulatory mechanisms. As the Dene Tha’s
case rests on its exclusion from the discussions and processes surrounding this regulatory
machinery, it is necessary to describe in some detail the respective geneses of the regulatory
2006 FC 1354 (CanLII)
Page: 9
Page: 10
arrangements and mandates of each of these regulatory bodies. Hence, the purpose of this section is
[19]
The backdrop of the MGP consists of seven major regulatory and environmental layers: (1)
the Cooperation Plan, (2) the Regulators’ Agreement, (3) the Joint Review Panel Agreement, (4) the
Environmental Impact Terms of Reference, (5) the Joint Review Panel Proceedings, (6) the
National Energy Board Proceedings, and (7) the Crown Consultation Unit. Each is discussed below
in what is roughly chronological order – from oldest to most recent.
(1)
The “Cooperation Plan”
(a)
[20]
The Genesis
Four years prior to the filing of an application for the MGP with the National Energy Board
(NEB), representatives from various regulatory agencies began to consult with one another about
how to coordinate the regulatory and environmental impact review process for such an application.
The regulators and authorities involved included: Indian and Northern Affairs Canada (INAC), the
Canadian Environmental Assessment Agency (CEAA), the NEB, the Mackenzie Valley
Environmental Impact Review Board (MVEIRB), the Mackenzie Valley Land and Water Board
(MVLWB), the Gwich’in Land and Water Board, the Sahtu Land and Water Board, the Inuvialuit
Land Administration, and the Inuvialuit Game Council.
[21]
In addition to these core regulatory bodies, other parties were included in the development
of the Cooperation Plan. Representatives from the Government of the Yukon and the Government
of the NWT were included as observers in the negotiations. The Deh Cho First Nation (Deh Cho)
2006 FC 1354 (CanLII)
to outline the geographical, regulatory, and environmental matrices that overlay the MGP.
Page: 11
also, through its MVEIRB delegate, obtained observer status. As it is a helpful counterpoint to the
exclusion of the Dene Tha’ from this stage of the process, a fuller discussion of the participatory
[22]
The parties involved with developing the Cooperation Plan also heard presentations from
gas producers and potential proponents of the MGP. In particular, the parties met with the
Mackenzie Delta Gas Producers Group in December 2000, with the Alaska Gas Producers Group in
May of 2001, and with Imperial Oil Resources Ventures Limited (IORVL).
[23]
As a result of these meetings and information-gathering sessions, in June 2002, the
Cooperation Plan for Environmental Impact Assessment and Regulatory Review of a Northern Gas
Project through the Northwest Territories (“Cooperation Plan”) was finalized. Suffice it to say that
the Dene Tha’ are noticeably absent from the list of persons, organizations and first nations people
who were involved in the development of the regulatory framework.
(b)
[24]
The Mandate
The Cooperation Plan had a laudable objective, namely, to reduce duplication of the
environmental and regulatory processes. To this end, the Cooperation Plan set up a framework for
the environmental and regulatory processes to follow. This framework focused on how these
processes would be integrated, how joint hearings would be conducted, and how the terms of
reference for any future environmental assessment process would be developed.
2006 FC 1354 (CanLII)
role played by the Deh Cho will be developed later in these Reasons.
Page: 12
The Agreement for Coordination of the Regulatory Review of the MGP
(“Regulators’ Agreement”)
(a)
[25]
The Genesis
The Cooperation Plan recommended the filing of a Preliminary Information Package (PIP)
by the proponents of the pipeline. On June 18, 2003, IORVL filed a PIP for the MGP. Subsequent
to this filing, the parties to the Cooperation Plan resumed discussions on the review process for the
MGP and on April 24, 2004, a number of government ministries and agencies entered into an
Agreement for Coordination of the Regulatory Review of the MGP.
(b)
[26]
The Mandate
In addition to implementing the provisions of the Cooperation Plan and ensuring compliance
with applicable legislation, like the Cooperation Plan, the Regulators’ Agreement contained as its
mandate the avoidance of unnecessary duplication. In particular, the parties to the Regulators’
Agreement agreed to incorporate the final Joint Review Panel Report and other relevant materials
from this process into the record of their respective regulatory processes.
(3)
The Agreement for an Environmental Impact Review of the MGP (Joint Review
Panel Agreement – JRP Agreement)
(a)
[27]
The Genesis
On August 3, 2004, the federal Minister of the Environment, the MVEIRB, and the
Inuvialuit Game Council concluded an Agreement for an Environmental Impact Review of the
Mackenzie Gas Project. The JRP Agreement specified the mandate of the Joint Review Panel and
the scope of the environmental impact assessment it would conduct. A further Memorandum of
Understanding, executed between the Minister of the Environment and the Inuvialuit, bestowed
2006 FC 1354 (CanLII)
(2)
Page: 13
upon the JRP the responsibility to address certain provisions of the Inuvialuit Final Agreement
(b)
[28]
The Mandate
The JRP Agreement sets out what bodies are responsible for selecting the members of the
JRP. The MVEIRB (composed of delegates from the Gwich’in, Sahtu, and the Deh Cho) would
appoint three members; the Minister of the Environment, four members (two of whom would be
nominated by the Inuvialuit Game Council). The selection of a Chairperson would be approved by
the Minister of the Environment, the MVEIRB, and the Inuvialuit Game Council. These panelists
were appointed on August 22, 2004 and were: Robert Hornal (Chair), Gina Dolphus, Barry
Greenland, Percy Hardistry, Rowland Harrison, Tyson Pertschy, and Peter Usher – all named
Respondents in this judicial review.
(4)
Environmental Impact Terms of Reference
(a)
[29]
The Genesis
The scope of the JRP’s environmental assessment and the informational requirements that
the proponent (applicant, IORVL) needed to provide for its Environmental Impact Statement (EIS)
were defined on August 22, 2004 in the Environmental Impact Review Terms of Reference for
Review of the Mackenzie Gas Project (“Environmental Impact (EI) Terms of Reference”). The EI
Terms of Reference were issued by the Minister of the Environment, the Chair of the MVEIRB, and
the Chair of the Inuvialuit Game Council.
2006 FC 1354 (CanLII)
(IFA).
Page: 14
(b)
[30]
The Mandate
The EI Terms of Reference describe the MGP as including the Connecting Facilities for the
of Reference also required IORVL to file an Environmental Impact Statement with the JRP. This it
did in August 2004. As it was deficient for failing to include the Connecting Facilities, the JRP
requested IORVL resubmit. This it did in December 2004 by way of a Supplemental Environmental
Impact Statement.
(5)
The Joint Review Panel Proceedings
(a)
[31]
The Genesis
The Joint Review Panel was contemplated initially by the Cooperation Plan, agreed to be
incorporated by the Regulators’ Agreement, and implemented through the JRP Agreement. On
July 18, 2005, the JRP concluded it had received sufficient information from the proponent
(IORVL) to commence the public hearing process. These hearings began on February 14, 2006, are
currently in process, and are scheduled to continue throughout the current calendar year and into the
next.
(b)
[32]
The Mandate
The JRP is assigned the task of conducting the environmental assessment for the project.
The project for the purposes of the JRP encompasses both the environmental impact of the MGP
and the NGTL Connecting Facilities.
2006 FC 1354 (CanLII)
purposes of the JRP process – that is, for the purposes of the environmental assessment. The Terms
Page: 15
[33]
It is important to realize that while the NEB would consider the pipeline regulatory process
from the north through to the connection point 15 metres inside the Alberta border, the
existing NGTL facilities 65 kilometres long partially through territory in which the Dene Tha’ had
asserted treaty rights as well as Aboriginal rights.
[34]
The term “environment” comports a broad meaning. It includes the “cumulative effect” of
the MGP and the NGTL Connecting Facilities and any other facilities to be developed in the future.
The JRP is specifically mandated to consider effects on “health and socio-economic conditions, on
physical and cultural heritage, on the current use of lands and resources for traditional purposes by
aboriginal persons, or on any structure, site or thing that is of historical, archeological,
paleontological or architectural significance”.
[35]
The JRP has no mandate to conduct aboriginal consultation. It can only consider Aboriginal
rights in the context of factual, not legal, determinations. Since the JRP cannot evaluate the legal
legitimacy of an Aboriginal rights claim, it can only make determinations in respect of adverse
impact to current Aboriginal usage of territory. It cannot make a determination regarding the
potential further use of land since this would not be based on a claim of current usage but on a claim
of future use grounded in a claim of an Aboriginal right.
[36]
The JRP Report will inform the NEB decision with respect to whether or not to recommend
the issuance of a Certificate of Public Convenience and Necessity. When the JRP issues its Report,
2006 FC 1354 (CanLII)
environmental review process takes into consideration the MGP and the Connecting Facilities to the
Page: 16
the NEB will stay its public hearings. These hearings will then continue after the NEB has reviewed
(6)
The National Energy Board Proceedings
(a)
[37]
The Genesis
IORVL made its application before the NEB in October of 2004. The NEB review arose as
part of the development of a coordinated process for environmental assessment and regulatory
review of the MGP defined in the Cooperation Plan.
(b)
[38]
The Mandate
The NEB is responsible for the decision of whether to recommend the issuance of a
Certificate of Public Convenience and Necessity (CPCN) to the proponent of the pipeline project,
IORVL. To determine this, the NEB has scheduled public hearings where this issue will be
addressed. These hearings also began in early 2006 and are scheduled in a coordinated fashion with
those of the JRP. The NEB’s hearings will be continued after the JRP process has concluded. The
ultimate decision of the NEB will be informed by the Report from the JRP. If the NEB decides that
the granting of a CPCN is warranted, then the federal Cabinet still must approve the actual issuance
of this Certificate.
(7)
The Crown Consultation Unit
(a)
[39]
The Genesis
The Crown Consultation Unit (CCU) is not the product of a statutory, regulatory, or
prerogative exercise. It is essentially an administrative body within the federal government created
2006 FC 1354 (CanLII)
the Report and will thus provide the public with an opportunity to respond to its contents.
Page: 17
unilaterally by the Government of Canada. Despite its name, one thing it had no authority to do was
consult – at least not with any native group as to its rights, interests or other issues in respect of the
(b)
[40]
The Mandate
The mandate of the CCU is to coordinate and conduct “consultation” with First Nations
groups who believe that their proven or asserted rights under section 35 of the Constitution Act,
1982 may be affected by the MGP. It was intended to serve as a medium through which the
concerns of First Nations regarding the MGP could be brought to the specific relevant government
Ministers. Pursuant to this overall purpose, the CCU was mandated to set up meetings, prepare a
formal record of meetings, and present a record of consultation to the NEB, to Ministers, and to
other Government of Canada entities with regulatory decision-making authority.
[41]
The CCU has no jurisdiction to deal with matters relating to the Cooperation Plan, the
Regulators’ Agreement, or the JRP Agreement. The mandate of the CCU, moreover, does not
extend to the authority to determine the existence of an aboriginal right; rather, it only can address
the impact on an established right. It was for all intents and purposes a “traffic cop” directing issues
to other persons and bodies who had the authority, expertise or responsibility to deal with the
specific matters.
2006 FC 1354 (CanLII)
very matters of concern to the Dene Tha’.
Page: 18
Dene Tha’s Involvement in these Processes
(1)
[42]
Cooperation Plan
The Government of Canada made no effort to consult the Dene Tha’ in respect of the
formulation of the Cooperation Plan. The Dene Tha’ asserts and the evidence demonstrates that all
the various proposed routings of the pipeline passed through territory in Alberta over which the
Dene Tha’ has recognized Treaty 8 rights. The federal government attempts to justify this exclusion
on the basis that the Dene Tha’ was not an agency with any regulatory or environmental assessment
jurisdiction in relation to the pipeline projects -- no jurisdiction was provided by Treaty 8, by
legislation, or by a Comprehensive Land Claim agreement. As such, the Crown argues that it was
reasonable for the Dene Tha’ to be excluded at this stage.
[43]
The federal government further argues that the Dene Tha’ had the opportunity to comment
on the draft of the Cooperation Plan as the Government of Canada released a draft to the public on
January 7, 2002. Details of the public release of the Cooperation Plan and other evidence the federal
government adduces to support the argument that it has fully discharged its duty to consult will be
discussed in a more in-depth fashion in a consideration of whether the Crown has fulfilled its duty
to consult.
(2)
[44]
Regulators’ Agreement, JRP Agreement, and Terms of Reference
The Dene Tha’ was not consulted in respect of the Regulators’ Agreement, the JRP
Agreement, or the Environmental Impact Terms of Reference. On July 14, 2004, the federal
government, through its instrument, the CCU, provided the Dene Tha’ with copies of the draft EI
Terms of Reference and draft JRP Agreement, instructing that the deadline for input on both was
2006 FC 1354 (CanLII)
C.
Page: 19
the following day. The Dene Tha’ asserts that this was the first time it obtained official knowledge
of the contents of these drafts. The federal government further submits that on June 3, 2004 through
Environmental Impact Terms of Reference and JRP Agreement. This fact was also relied upon by
the federal government to support its argument that, to the extent it had a duty to consult, it had
carried out that duty.
(3)
[45]
NEB Proceedings and JRP Proceedings
The Dene Tha’ has intervener status for both the NEB and JRP hearings. As interveners, the
Dene Tha’ can provide oral and written submissions and can submit questions to other interveners
and the proponents. The Dene Tha’ has filed a plan for participation in the public hearings of the
JRP and has actively engaged in the preparation and delivery of Information Requests pursuant to
the JRP Rules of Procedure.
(4)
[46]
CCU
In April of 2004, the Dene Tha’ learned that the federal government intended to consult with
the Dene Tha’ about the MGP through the CCU. On July 14, 2004, the Dene Tha’ met with
representatives of the CCU. The Dene Tha’ provided the CCU with information regarding its
Aboriginal and Treaty Rights and made known its need of financial assistance to facilitate
meaningful consultation efforts.
[47]
The Dene Tha’ alleges that this July meeting marks the first time it was made aware of the
imminent establishment of the JRP by receipt of the draft Environmental Impact Terms of
2006 FC 1354 (CanLII)
select media releases and over the internet, it invited public consultation on drafts of the
Page: 20
Reference and draft JRP Agreement. The Dene Tha’ claims the CCU representative informed it that
it had until the following day (July 15, 2004) to provide comments on these documents. Not
[48]
The Dene Tha’ was also informed at this meeting that the CCU was not yet fully staffed or
operational and had yet to develop its terms of reference. Moreover, up to and including October
2004, the Dene Tha’ was informed that the CCU could only begin consulting with respect to the
MGP once the proponent had filed an application for the project with the NEB.
[49]
The Dene Tha’ consistently and continuously pestered the CCU regarding its claim for
recognition of rights north of 60. This is a subject matter distinct from its treaty rights under
Treaty 8 south of 60. On January 4, 2006, the Dene Tha’ learned definitively that Canada’s position
was and always had been that these rights had been extinguished via Treaty 8. This position turned
out to be intractable and was reiterated by CCU representatives in its further meetings with the Dene
Tha’ in 2006. The CCU stated Canada’s position was that it would consider Dene Tha’ “activities”
in the NWT, but not rights.
[50]
There were no other impediments to consultation with the Dene Tha’ other than the failure
or refusal of the federal government to engage in consultation. The Dene Tha’ put up no barriers to
such consultation, despite the suggestion by the Ministers that the Dene Tha’ had imposed some
form of pre-conditions.
2006 FC 1354 (CanLII)
surprisingly, the Dene Tha’ did not meet this deadline for public comment.
Page: 21
D.
Jurisdiction over Consultation
[51]
It is necessary to consider the jurisdictions of the above institutional entities – the JRP, the
[52]
As this is a factual inquiry, several legally salient issues need not be considered for the
moment. In particular, neither the necessity of express government delegation of its duty to consult
nor the necessity of an intention to consult will be addressed. There is a significant gap in the
mandates of JRP, NEB, and CCU – a gap consisting of the jurisdiction to engage in Aboriginal
consultation with the Dene Tha’.
[53]
The JRP has jurisdiction over the entire pipeline project, including both the MGP portion
stemming from Inuvik to just south of the Alberta border and the Connecting Facilities that connect
the southern terminus of the MGP with the existing NGTL pipeline facilities. The JRP has a broad
mandate to consider a wide range of environmental effects, including adverse impact on First
Nations activities and can make factual, but not legal determinations, regarding Aboriginal rights.
The JRP has no mandate to engage in consultation. Furthermore, it cannot determine the existence
of contested Aboriginal rights.
[54]
The NEB only has jurisdiction over what has been applied for pursuant to the National
Energy Board Act. IORVL submitted an application for the MGP in October of 2004. NGTL has
yet to submit an application for the Connecting Facilities and, when it does, this will not go before
the NEB, but before the Alberta equivalent, the Alberta Energy and Utility Board (AEUB). As such,
the NEB does not have jurisdiction to consider Aboriginal concerns south of the southern terminus
2006 FC 1354 (CanLII)
NEB, and the CCU – over consultation with native groups and specifically the Dene Tha’.
Page: 22
of the MGP. In other words, it cannot consult meaningfully with the Dene Tha’ regarding the area
from the connecting point to the southern end of the Connecting Facilities. Furthermore, there is
the process itself – as the NEB can be argued to have no jurisdiction pre-application date, that is,
pre-October 2004. It is also questionable as to whether the NEB can or should deal with the creation
of the process in which it was intimately involved.
[55]
It was submitted that the NEB, as part of its mandate, is charged with the ability and
responsibility to consider the adequacy of consultation in its determination of whether to
recommend the issuance of a CPCN. It seems that inadequate Aboriginal consultation would be a
factor that would militate against the public benefit of the MGP. Aside from the problems of
allowing a private right to trump the benefits that the MGP might provide to the general public
(given the “public interest” mandate of the NEB), the NEB, as discussed above, does not have
temporal jurisdiction over consultation efforts (or lack thereof) pre-application, that is, pre-October
2004. As this is precisely the time frame that the Dene Tha’ has issues with federal government
behaviour, the NEB’s inability to include such behaviour in its evaluation of the adequacy of
consultation is extremely problematic.
[56]
The federal government raised an argument regarding the exclusion of jurisdiction of the
Federal Court by virtue of the jurisdiction of the NEB over aboriginal consultation. The
government’s argument is that the NEB has a mandate to assess the adequacy of aboriginal
consultation as an issue it will consider in its ultimate decision of whether to issue a CPCN.
2006 FC 1354 (CanLII)
doubt that it can address concerns the Dene Tha’ raises on this judicial review – with the creation of
Page: 23
[57]
The submission is that either the NEB’s jurisdiction over issues relating to aboriginal
consultation ousts the Federal Court’s jurisdiction with respect to this judicial review or that it is
that expertise is in the field of energy resources and undertakings, not native consultation or, more
importantly, whether there is a duty to consult, when the duty arose and whether it had been met.
[58]
It was further agreed that, pursuant to subsection 28(1)(f) of the Federal Courts Act, the
Federal Court of Appeal has jurisdiction to hear and determine applications for judicial review made
in respect of the NEB. Subsection 22.(1) of the National Energy Board Act provides a right of
appeal to the Federal Court of Appeal on questions of law and/or jurisdiction. Section 18.5 of the
Federal Courts Act is thus engaged since if the Federal Court of Appeal has jurisdiction over the
NEB, then the Federal Court, it was argued, should be deprived of its jurisdiction in reviewing
whether the consultation procedure, in part orchestrated by the NEB, is in compliance with section
35 of the Constitution Act, 1982 and/or the honor of the Crown.
[59]
In sum, 18.5 does not apply to the case at hand. There has been no “decision or order of a
federal board, commission, or other tribunal” as required for the exclusion envisioned by s. 18.5 to
operate (Forsyth v. Canada (Attorney General) (T.D.), [2003] 1 F.C. 96; Industrial Gas Users Assn.
v. Canada (National Energy Board) (1990), 43 Admin. L.R. 102).
[60]
Moreover, this argument is essentially a red herring as the scope of the project from the
NEB perspective (that is, excluding the Connecting Facilities and pre-application behavior of the
Crown) does not cover what the JRP does and what is of fundamental concern to the Dene Tha’.
2006 FC 1354 (CanLII)
more appropriate for this Court to defer to the NEB process given that board’s expertise. However,
Page: 24
While the NEB can deal with recognized aboriginal rights north of 60, it cannot address Dene Tha’s
[61]
Hence, neither the JRP nor the NEB is competent to conduct Aboriginal consultation with
the Dene Tha’ in respect of its territory in Alberta. Consequently, one might suppose that the CCU,
the Crown Consultation Unit, the only entity left to consider, would naturally fulfill this role.
However, the CCU expressly states it is not doing consultation. Its mandate does not include the
ability to recognize claims to unproven aboriginal rights and, moreover, affidavit evidence reveals
that the CCU has made up its mind on this point. The CCU had no jurisdiction to consult on matters
relating to the Cooperation Plan, the Regulators’ Agreement, the JRP Agreement, or the EI Terms
of Reference.
[62]
To summarize, the only unit out of the CCU, the NEB, and the JRP that could wholly
address the territorial and temporal areas of concern of the Dene Tha’ is the JRP. However, the JRP
is engaged in environmental assessment, not aboriginal consultation. Although it will assess the
effects the MGP and NGTL pipelines will have on aboriginal communities, it does so through the
lens of environmental assessment, focusing on activities, not rights. Further, an aspect of the subject
matter of which the Dene Tha’ say their rights to consultation and accommodation were ignored is
the process by which the JRP itself was created.
E.
Comparison of Dene Tha’ to other First Nations
[63]
Against the background of the environmental and regulatory processes, it is necessary to
consider the comparative treatment of the Dene Tha’ by the federal government with that of other
2006 FC 1354 (CanLII)
Treaty 8 rights south of 60.
Page: 25
First Nations groups: the Inuvialuit, the Sahtu, the Gwich’in, and, in particular, the Deh Cho. If the
Crown is correct that differences between First Nations groups can justify differential treatment in
between these groups would require similar treatment.
(1)
[64]
The Inuvialuit, Gwich’in, and Sahtu
In 1977, the Report of the Berger Commission was delivered. The Royal Commission,
headed by Justice Thomas Berger, was appointed to assess proposed natural gas development in the
Northwest and Yukon Territories. That Commission found that development in the North would
likely lead to disruption of the traditional way of life of Aboriginal inhabitants of the area. As such,
the Commission recommended any development of the area be preceded by land claims settlements
with the local Aboriginal people.
[65]
As a consequence of Justice Berger’s recommendation, the Inuvialuit, the Gwich’in, and the
Sahtu each negotiated and entered into respective final land claims settlements with the Government
of Canada: (1) The Inuvialuit Final Agreement, entered into in 1984; (2) the Gwich’in
Comprehensive Land Claim Agreement; and (3) the Sahtu Dene and Metis Comprehensive Land
Claim Agreement. These agreements recognized the rights and responsibilities of the Inuvialuit,
Gwich’in, and Sahtu respectively.
[66]
In addition to recognizing rights, the agreements established means by which Aboriginal
peoples could have an ongoing say in what was done to and on the lands stipulated by the
agreements. In particular, various new regulatory agencies were created by the agreements. The
2006 FC 1354 (CanLII)
accordance with those differences, then logic and fairness demands that substantial similarities
Page: 26
regulatory agencies of particular relevance in this matter are the Inuvialuit Game Council, the
Gwich’in Land and Water Board, the Sahtu Land and Water Board, and the Mackenzie Valley
[67]
Of these relevant agencies, the MVEIRB plays a crucial role in the establishment of the JRP.
The MVEIRB, through its enabling statute the Mackenzie Valley Resource Management Act,
anticipates the creation of joint panels to conduct environmental assessments. Pursuant to its
enabling legislation, at least half of the MVEIRB’s members must be nominated by the Sahtu, the
Gwich’in, and the Tlicho First Nation Governments.
(2)
[68]
The Deh Cho
The Deh Cho First Nation (Deh Cho) is the First Nation group whose territory lies directly
north of the Dene Tha’ in the NWT. The Deh Cho does not have a final land claim settlement with
Canada; however, Canada and the Deh Cho are currently in negotiations to this end. Thus far, the
Deh Cho has filed a comprehensive land claim agreement with Canada that Canada has accepted.
Canada and the Deh Cho have entered into an Interim Measures Agreement and an Interim
Resource Development Agreement that give the Deh Cho rights in respect of its claimed territory.
Included in these rights is the right of the Deh Cho to nominate one member to the MVEIRB. As
stated earlier, as result of its delegate to the MVEIRB, the Deh Cho was able to have observer status
during the development of the Cooperation Plan.
[69]
As a result of litigation initiated by the Deh Cho alleging that Canada had failed to consult
with it adequately regarding the MGP, the Deh Cho received a generous settlement agreement.
2006 FC 1354 (CanLII)
Environmental Impact Review Board (MVEIRB).
Page: 27
Pursuant to this agreement, the Deh Cho obtained $5 million in settlement funds, $2 million for
each fiscal year until 2008 to prepare for the environmental assessment and regulatory review of the
identification and implementation of economic development opportunities relating the MGP, and $3
million each fiscal year until 2008 for Deh Cho process funding.
F.
Summary of First Nations Comparison
[70]
Unlike the Inuvialuit, the Sahtu, and the Gwich’in, the Dene Tha’ has no settled land claim
agreement with Canada. A salient consequence of a settled land claim agreement was the creation of
new regulatory agencies: the Inuvialuit Game Council, the Gwich’in Land and Water Board, the
Sahtu Land and Water Board, and the MVEIRB. These Boards were assigned the task of managing
the use of the land and resources within the respectively defined territories. In this case these boards
play an even more significant role in that in part through them the members of the JRP were
selected. Thus, through these Boards and their representatives, the First Nations of the Inuvialuit,
Sahtu, and Gwich’in were able to consult meaningfully with Canada about the anticipated effects of
the MGP. The Dene Tha’ has no settled land claim agreement, no regulatory board, and no
representation on any Board.
[71]
The Deh Cho, like the Dene Tha’, also has no settled land claim agreement. Unlike the Dene
Tha’, however, the Crown is in the process of negotiating such a final agreement. In the spirit of
negotiation, Canada included the Deh Cho in the process for setting up the environmental and
regulatory review process for the MGP by permitting them to nominate one member to the
2006 FC 1354 (CanLII)
MGP, $15 million in economic development funding for this same time period to facilitate the
Page: 28
MVEIRB. Thus, through its representation on the MVEIRB, the Deh Cho may be in a position to be
[72]
The Dene Tha’ has no such representation. Its status is purely that of intervener. Through its
lack of representation on any boards or panels engaged in conducting the environmental and
regulatory review processes themselves, it will always be an outsider to the process.
[73]
The Crown justifies this differential treatment on the basis that different First Nations will
have different rights and thus it is reasonable to treat each differently in accordance with their
differences. The primary differences between the Dene Tha’ and the other First Nations here are:
(1) the Dene Tha’ has no settled land claim agreement and are not in the process of negotiating one,
and (2) the Dene Tha’s uncontested territory lies south of the NWT – Alberta border.
[74]
Neither difference is legally relevant as to the existence of the duty to consult the Dene Tha’
or the time at which the duty arose. It may be relevant to how the consultations are carried out. That
the Dene Tha’ has no settled land claim agreement is not sufficient to exclude the duty to consult as
it has, as a minimum, a constitutionally equivalent agreement with Canada about its rights as
manifest in Treaty 8. The location of the Dene Tha’s affected territory (south of 60) also is
irrelevant to justification for exclusion because the scope of the JRP includes the Connecting
Facilities as part of its consideration of the whole MGP.
2006 FC 1354 (CanLII)
able to consult meaningfully with Canada.
Page: 29
[75]
The conduct of the federal government in involving and consulting every aboriginal group
affected by the MGP but the Dene Tha’ undermines the Ministers’ argument that it was premature
III.
DUTY TO CONSULT – TIMING AND CONTENT
A.
Introduction
[76]
The concept and recognition of the fiduciary duty owed by the Crown toward Aboriginal
peoples was first recognized in Guerin v. Canada, [1984] 2 S.C.R. 335, 13 D.L.R. (4th) 321. The
duty to consult, originally, was held by the Courts to arise from this fiduciary duty (see R. v.
Sparrow, [1990] 1 S.C.R. 1075).
[77]
The Supreme Court of Canada in three recent cases – Haida Nation v. British Columbia
(Minister of Forests), [2004] 3 S.C.R. 511, 2004 SCC 73; Taku River Tlingit First Nation v. British
Columbia (Project Assessment Director), [2004] 3 S.C.R. 550, 2004 SCC 74; and Mikisew Cree
First Nation v. Canada (Minister of Canadian Heritage), [2005] S.C.J. No. 71, 2005 SCC 69 – has
described a more general duty arising out of the honor of the Crown. This duty includes the duty to
consult.
[78]
In Guerin, the Supreme Court of Canada held that a fiduciary obligation on behalf of the
Crown arose when the Crown exercises its discretion in dealing with land on a First Nation’s behalf.
In R. v. Sparrow, [1990] 1 S.C.R. 1075, 70 D.L.R. (4th) 385, the Court expanded this duty to
encompass protection of Aboriginal and treaty rights. Even with this expansion, however, the
fiduciary duty did not fit many circumstances. For example, the duty did not make sense in the
2006 FC 1354 (CanLII)
to consult with the Dene Tha’ when the regulatory/environmental processes were being created.
Page: 30
context of negotiations between the Crown and First Nations with respect to land claim agreements,
as the Crown cannot be seen as acting as a fiduciary and the band a beneficiary in a relationship that
obligations to the public as a whole. It is hard to justify the Crown acting only in the best interests of
one group especially when this might conflict with its overarching duty to the public at large.
[79]
In Wewaykum Indian Band v. Canada, [2002] 4 S.C.R. 245, 220 D.L.R. (4th) 1, 2002 SCC
79, Justice Binnie of the SCC noted that the fiduciary duty does not exist in every case but rather is
limited to situations where a specific First Nation’s interest arises. As Binnie explained at paragraph
81 of that judgment:
But there are limits [to the fiduciary duty of the Crown]. The
appellants seemed at times to invoke the “fiduciary duty” as a source
of plenary Crown liability covering all aspects of the Crown-Indian
band relationship. This overshoots the mark. The fiduciary duty
imposed on the Crown does not exist at large but in relation to
specific Indian interests.
[80]
In light of the decision in Wewaykum, in order for the purpose of reconciliation which
underpins s. 35 of the Constitution Act, 1982 to have meaning, there must be a broader duty on the
Crown with respect to Aboriginal relations than that imposed by a fiduciary relationship. Hence, in
Haida Nation, the Court first identified the honor of the Crown as the source of the Crown’s duty to
consult in good faith with First Nations, and where reasonable and necessary, make the required
accommodation. As such, the Crown must consult where its honor is engaged and its honor does not
require a specific Aboriginal interest to trigger a fiduciary relationship for it to be so engaged.
Another way of formulating this difference is that a specific infringement of an Aboriginal right is
no longer necessary for the Government’s duty to consult to be engaged.
2006 FC 1354 (CanLII)
is essentially contractual. The duty also encountered problems in conjunction with the Crown’s
Page: 31
[81]
The major difference between the fiduciary duty and the honor of the Crown is that the latter
Crown act in the Aboriginal group’s best interest (that is, as a fiduciary). In sum, where an
Aboriginal group has no fiduciary protection, the honor of the Crown fills in to insure the Crown
fulfills the section 35 goal of reconciliation of “the pre-existence of aboriginal societies with the
sovereignty of the Crown.”
[82]
In assessing whether the Crown has fulfilled its duty of consultation, the goal of consultation
– which is reconciliation – must be firmly kept in mind. The goal of consultation is not to be
narrowly interpreted as the mitigation of adverse effects on Aboriginal rights and/or title. Rather, it
is to receive a broad interpretation in light of the context of Aboriginal-Crown relationships: the
facilitation of reconciliation of the pre-existence of Aboriginal peoples with the present and future
sovereignty of the Crown. The goal of consultation does not also indicate any specific result in any
particular case. It does not mean that the Crown must accept any particular position put forward by
a First Nations people.
B.
The Trigger for Consultation
[83]
The trigger for the Crown’s duty to consult is articulated clearly by Chief Justice McLachlin
in Haida Nation at paragraph 35:
But, when precisely does a duty to consult arise? The foundation of
the duty in the Crown's honour and the goal of reconciliation suggest
that the duty arises when the Crown has knowledge, real or
constructive, of the potential existence of the Aboriginal right or title
and contemplates conduct that might adversely affect it: see Halfway
2006 FC 1354 (CanLII)
can be triggered even where the Aboriginal interest is insufficiently specific to require that the
Page: 32
River First Nation v. British Columbia (Minister of Forests), [1997]
4 C.N.L.R. 45 (B.C.S.C), at p. 71, per Dorgan J.
There are two key aspects to this triggering test. First, there must be either an existing or
potentially existing Aboriginal right or title that might be affected adversely by Crown’s
contemplated conduct. Second, the Crown must have knowledge (either subjective or objective) of
this potentially existing right or title and contemplate conduct might adversely affect it. There is
nothing in the Supreme Court decisions which suggest that the triggers for the duty are different in
British Columbia than in other areas of Canada where treaty rights may be engaged.
[85]
Thus, the question at issue here is when did the Crown have or can be imputed as having
knowledge that its conduct might adversely affect the potential existence of the Dene Tha’
aboriginal right or title? In other words, did the setting up of the regulatory and environmental
processes for the MGP constitute contemplation of conduct that could adversely affect a potential
aboriginal right of the Dene Tha’? Given the scope of the MGP and its impact throughout the area
in which it will function, it is hardly surprising that the parties are in agreement that the construction
of the MGP itself triggers the Crown’s duty to consult. Indeed the Crown engaged in that duty with
every other aboriginal group.
C.
Content of the Duty to Consult and Accommodate
[86]
Whenever the duty of consultation is found to have begun, whether the duty was breached
depends on the scope and content of this duty. Again Chief Justice McLachlin’s comments in Haida
Nation are applicable:
2006 FC 1354 (CanLII)
[84]
39
The content of the duty to consult and accommodate varies
with the circumstances. Precisely what duties arise in different
situations will be defined as the case law in this emerging area
develops. In general terms, however, it may be asserted that the
scope of the duty is proportionate to a preliminary assessment of the
strength of the case supporting the existence of the right or title, and
to the seriousness of the potentially adverse effect upon the right or
title claimed.
Hence, unlike the question of whether there is or is not a duty to consult, which attracts a yes or no
answer, the question of what this duty consists is inherently variable. Both the strength of the right
asserted and the seriousness of the potential impact on this right are the factors used to determine the
content of the duty to consult.
[87]
Four paragraphs later, at 43-45, McLachlin C.J.C. invokes the image of a spectrum to
illustrate the variable content of the duty to consult:
Against this background, I turn to the kind of duties that may arise in
different situations. In this respect, the concept of a spectrum may be
helpful, not to suggest watertight legal compartments but rather to
indicate what the honour of the Crown may require in particular
circumstances. At one end of the spectrum lie cases where the claim
to title is weak, the Aboriginal right limited, or the potential for
infringement minor. In such cases, the only duty on the Crown may
be to give notice, disclose information, and discuss any issues raised
in response to the notice. “'[C]onsultation' in its least technical
definition is talking together for mutual understanding”: T. Isaac and
A. Knox, “The Crown's Duty to Consult Aboriginal People” (2003),
41 Alta. L. Rev. 49, at p. 61.
At the other end of the spectrum lie cases where a strong prima facie
case for the claim is established, the right and potential infringement
is of high significance to the Aboriginal peoples, and the risk of noncompensable damage is high. In such cases deep consultation, aimed
at finding a satisfactory interim solution, may be required. While
precise requirements will vary with the circumstances, the
consultation required at this stage may entail the opportunity to make
submissions for consideration, formal participation in the decisionmaking process, and provision of written reasons to show that
Aboriginal concerns were considered and to reveal the impact they
2006 FC 1354 (CanLII)
Page: 33
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Between these two extremes of the spectrum just described, will lie
other situations. Every case must be approached individually. Each
must also be approached flexibly, since the level of consultation
required may change as the process goes on and new information
comes to light. The controlling question in all situations is what is
required to maintain the honour of the Crown and to effect
reconciliation between the Crown and the Aboriginal peoples with
respect to the interests at stake. Pending settlement, the Crown is
bound by its honour to balance societal and Aboriginal interests in
making decisions that may affect Aboriginal claims. The Crown may
be required to make decisions in the face of disagreement as to the
adequacy of its response to Aboriginal concerns. Balance and
compromise will then be necessary.
[88]
To summarize, at the lowest end of the spectrum, the duty to consult requires the Crown to
give notice, disclose information, and discuss any issues raised in response to said notice. On the
highest end of the spectrum, the duty to consult requires the opportunity to make submissions for
consideration, formal participation in the decision-making process, and the provision of written
reasons that reveal that Aboriginal concerns were considered and affected the decision.
D.
Standard of Review
[89]
The Ministers identified as the theme of its submissions the overall reasonableness of the
Crown’s behavior, asserting that this was the appropriate standard of review for the Court to adopt
on this judicial review.
[90]
The Ministers further used the language of deference, imposing the pragmatic and functional
approach from Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R.
2006 FC 1354 (CanLII)
had on the decision. This list is neither exhaustive, nor mandatory for
every case. The government may wish to adopt dispute resolution
procedures like mediation or administrative regimes with impartial
decision-makers in complex or difficult cases.
Page: 35
226 that dominates administrative law onto the case at hand. This approach is not particularly
[91]
The pragmatic and functional approach and the language of deference are tools most often
used by courts to establish jurisdictional respect vis-à-vis statutorily created boards and tribunals.
The law of aboriginal consultation thus far has no statutory source other than the constitutional one
of s. 35. Therefore, to talk of deference and/or impose a test, the goal of which is to determine the
level of deference, is inappropriate in this context.
[92]
In respect of the Ministers’ “theme” of reasonableness, comments by the Chief Justice in
Haida are illuminating. At paragraph 60-63 of her judgment in Haida Nation, McLachlin C.J.C.
concisely addresses the issue of administrative review of government decisions vis-à-vis first
nations:
Where the government's conduct is challenged on the basis of
allegations that it failed to discharge its duty to consult and
accommodate pending claims resolution, the matter may go to the
courts for review. To date, the Province has established no process
for this purpose. The question of what standard of review the court
should apply in judging the adequacy of the government's efforts
cannot be answered in the absence of such a process. General
principles of administrative law, however, suggest the following.
On questions of law, a decision-maker must generally be correct: for
example, Paul v. British Columbia (Forest Appeals Commission),
[2003] 2 S.C.R. 585, 2003 SCC 55. On questions of fact or mixed
fact and law, on the other hand, a reviewing body may owe a degree
of deference to the decision-maker. The existence or extent of the
duty to consult or accommodate is a legal question in the sense that it
defines a legal duty. However, it is typically premised on an
assessment of the facts. It follows that a degree of deference to the
findings of fact of the initial adjudicator may be appropriate. The
need for deference and its degree will depend on the nature of the
question the tribunal was addressing and the extent to which the facts
2006 FC 1354 (CanLII)
helpful in this case where the core issue is whether there was a duty to consult and when did it arise.
were within the expertise of the tribunal: Law Society of New
Brunswick v. Ryan, [2003] 1 S.C.R. 247, 2003 SCC 20; Paul, supra.
Absent error on legal issues, the tribunal may be in a better position
to evaluate the issue than the reviewing court, and some degree of
deference may be required. In such a case, the standard of review is
likely to be reasonableness. To the extent that the issue is one of pure
law, and can be isolated from the issues of fact, the standard is
correctness. However, where the two are inextricably entwined, the
standard will likely be reasonableness: Canada (Director of
Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748.
The process itself would likely fall to be examined on a standard of
reasonableness. Perfect satisfaction is not required; the question is
whether the regulatory scheme or government action “viewed as a
whole, accommodates the collective aboriginal right in question”:
Gladstone, supra, at para. 170. What is required is not perfection, but
reasonableness. As stated in Nikal, supra, at para. 110, “in . . .
information and consultation the concept of reasonableness must
come into play . . . So long as every reasonable effort is made to
inform and to consult, such efforts would suffice”. The government
is required to make reasonable efforts to inform and consult. This
suffices to discharge the duty.
Should the government misconceive the seriousness of the claim or
impact of the infringement, this question of law would likely be
judged by correctness. Where the government is correct on these
matters and acts on the appropriate standard, the decision will be set
aside only if the government's process is unreasonable. The focus, as
discussed above, is not on the outcome, but on the process of
consultation and accommodation.
[93]
It thus follows that as the question as to the existence of a duty to consult and or
accommodate is one of law, then the appropriate standard of review is correctness. Often, however,
the duty to consult or accommodate is premised on factual findings. When these factual findings can
not be extricated from the legal question of consultation, more deference is warranted and the
standard should be reasonableness.
2006 FC 1354 (CanLII)
Page: 36
Page: 37
[94]
These two standards of review dovetail onto the questions of whether there is a duty to
consult and if so, what is its scope. The further question of whether the duty to consult has been met
for this latter question is reasonableness. To put that matter in slightly different terms, the
government’s burden is to demonstrate that the process it adopted concerning consultation with First
Nations was reasonable. In other words, the process does not have to be perfect.
[95]
In this case, all parties agree that there is a duty to consult and accommodate the Dene Tha’.
The disagreement centers on when this duty arose and whether the government’s failure to consult
the Dene Tha’ on issues of design of the consultation process constituted a breach. The federal
government’s efforts made after the determination as to the scope and existence of the duty to
consult may be reviewed on the reasonableness standard. The issue of when the duty to consult
arose is, however, one that goes to the definition of the scope of this duty, as such, as it is
considered a question of law, it would attract the correctness standard of review.
[96]
In my view, the question posed by the Dene Tha’ is whether the duty to consult arose at the
stage of process design – that is, from late 2000 to early 2002. The questions of fact involved in this
issue – what the precise Aboriginal interests of the Dene Tha’ are and what are the adverse effects
of this failure to consult – are better contemplated in determining the content of the duty to consult,
not its bare existence. As the question posed by Dene Tha’ is a question of law focused on whether
the duty to consult extends to a time period prior to any decision-making as to land use, the
appropriate standard of review for this inquiry is correctness.
2006 FC 1354 (CanLII)
attracts a different analysis. From McLachlin C.J.C.’s reasons, it is clear that the standard of review
Page: 38
[97]
Whether or not the government’s actions/efforts after the duty to consult arose complied
with this duty, however, would be judged on a reasonableness standard, assuming that it actually
made reasonable efforts to do so.
E.
Application of the Law to the Dene Tha’
(1)
[98]
When did the Duty Crystallize?
The issue is: at what time did the Crown possess actual or constructive knowledge of an
aboriginal or treaty right that might be adversely affected by its contemplated conduct? (No claim to
Aboriginal title has been brought before this Court).
[99]
There are three components to this question: (1) did the Crown have actual or constructive
knowledge of an aboriginal or treaty right? (2) did it have actual or constructive knowledge that that
right might be affected adversely by its contemplated conduct? and (3) what is the conduct
contemplated?
[100] Dealing with the third question first, the conduct contemplated here is the construction of the
MGP. It is not, as the Crown attempted to argue, simply activities following the Cooperation Plan
and the creation of the regulatory and environmental review processes. These processes, from the
Cooperation Plan onwards, were set up with the intention of facilitating the construction of the
MGP. It is a distortion to understand these processes as hermetically cut off from one another. The
Cooperation Plan was not merely conceptual in nature. It was not, for example, some glimmer of an
idea gestating in the head of a government employee that had to be further refined before it could be
2006 FC 1354 (CanLII)
engaged in consultation. The issue would be whether it had engaged in reasonable consultation or
Page: 39
exposed to the public. Rather, it was a complex agreement for a specified course of action, a road
map, which intended to do something. It intended to set up the blue print from which all ensuing
construction of MGP.
[101] Turning now to the first question, the right in question is the Dene Tha’ Treaty 8 right. As it
is a signatory to the treaty agreements, the federal government has imputed knowledge of the
existence of treaty rights (Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage),
[2005] 3 S.C.R. 388). There is no dispute that the Dene Tha’ has Treaty 8 rights in the territory in
which the MGP and Connecting Facilities will run, and the federal government has knowledge of
these rights. At the time of the Cooperation Plan, all versions of the proposed routing of the pipeline
envisioned it going through Dene Tha’ Treaty 8 territory in Alberta.
[102] The Mikisew decision referred to above is particularly applicable and is virtually on “all
fours” with this judicial review. The decision involved affected rights under Treaty 8 in respect of
the Mikisew Cree First Nation. The subject matter was a new road to be built through the Mikisew’s
territory (but not through a reserve) and the failure of the government to consult despite a public
comment process.
[103] The Court held that any consultation must be undertaken with the genuine intention to
address First Nation concerns. In the present case there was no intention to address the concerns
before the environment and regulatory processes were in place.
2006 FC 1354 (CanLII)
regulatory and environmental review processes would flow. It is an essential feature of the
Page: 40
[104] The Court also held that a public forum process is not a substitute for formal consultation.
That right to consultation takes priority over the rights of other users. Therefore the public comment
Regulators’ Agreement, JRP Agreement and Terms of Reference is not a substitute for consultation.
[105] Furthermore, there is no dispute that the federal government contemplated that the
construction of the MGP had the potential of adversely affecting Aboriginal rights. It admitted on
numerous occasions that it recognized it owed a duty of consultation to the Dene Tha’ upon
construction of the MGP.
[106] The precise moment when the duty to consult was triggered is not always clear. In Haida,
the Court found that the decision to issue a Tree Farm License (T.F.L) gave rise to a duty to consult.
A T.F.L. is a license that does not itself authorize timber harvesting, but requires an additional
cutting permit. The Court held that the “T.F.L. decision reflects the strategic planning for utilization
of the resource” and that “[d]ecisions made during strategic planning may have potentially serious
impacts on Aboriginal right and title”. [Emphasis added. See Haida paragraph 76]
[107] From the facts, it is clear that the Cooperation Plan, although not written in mandatory
language, functioned as a blueprint for the entire project. In particular, it called for the creation of a
JRP to conduct environmental assessment. The composition of the JRP was dictated by the JRP
Agreement, an agreement contemplated by the Cooperation Plan. The composition of this review
panel and the terms of reference adopted by the panel are of particular concern to the Dene Tha’. In
particular, the Dene Tha had unique concerns arising from its unique position. Such concerns
2006 FC 1354 (CanLII)
process in January 2002 in respect of the Cooperation Plan and that of July 2004 in respect of the
Page: 41
included: the question of the enforceability of the JRP’s recommendations in Alberta and funding
difficulties encountered by the Dene Tha’ as result of its not qualifying for the “north of 60 funding
60º parallel). The Dene Tha’ also had other issues to discuss including effects on employment, skill
levels training and requirements and other matters directly affecting the lives of its people.
[108] The Cooperation Plan in my view is a form of “strategic planning”. By itself it confers no
rights, but it sets up the means by which a whole process will be managed. It is a process in which
the rights of the Dene Tha’ will be affected.
[109] There can be no question that the Crown had, at the very least, constructive knowledge of
the fact that the setting up of a Cooperation Plan to coordinate the environmental and regulatory
processes was an integral step in the MGP, a project that the Crown admits has the potential to
affect adversely the rights of the Dene Tha’.
[110] The duty to consult arose at the earliest some time during the contemplation of the
Cooperation Plan – that is, before its finalization in 2002. At the latest before the JRP Agreement
was executed. For purposes of this case, nothing turns on the fixing of a more precise date as no
consultation occurred during the creation of the Cooperation Plan or indeed the other regulatory
processes through to July 15, 2004.
2006 FC 1354 (CanLII)
programs” (a funding program apparently available only to those First Nations bands north of the
Page: 42
(2)
What is the Content of the Duty?
[111] The Ministers submitted that the content of the duty in this case fell at the high end of the
duty.
[112] The Crown also asserted that the combination of the JRP, NEB, and CCU worked to
discharge it of its duty to consult. As canvassed earlier, none of these entities possessed either
separately or together the jurisdiction to engage in consultation.
[113] The first time the Crown admits that what it was doing was consultation was the July 14,
2004 meeting between CCU and the Dene Tha’, 24 hours before the JRP Agreement draft was
finalized. Although there is evidence that the Dene Tha’ had knowledge of the contents of the JRP
draft Agreement prior to this meeting, this is not particularly significant. The first time that the
Crown reached out to the Dene Tha’ was at this meeting. Consultation is not consultation absent the
intent to consult. Consultation cannot be meaningful if it is inadvertent or de facto. Consultation
must represent the good faith effort of the Crown (reciprocated by the First Nation) to attempt to
reconcile its sovereignty with pre-existing claims of rights or title by the First Nation. Thus it is
relevant that at the time of this meeting the CCU asserted it was not engaged in aboriginal
consultation as no application for the MGP had been filed. The Ministers cannot now argue that the
CCU was engaged in consultation.
[114] By depriving the Dene Tha’ of the opportunity to be a participant at the outset, concerns
specific to the Dene Tha’ were not incorporated into the environmental and regulatory process.
2006 FC 1354 (CanLII)
spectrum. The question here is whether the Crown in its behavior toward the Dene Tha’ fulfilled the
Page: 43
Among the concerns cited by the Dene Tha’, two stand out: its concern over the enforceability of
the federal review process’ conclusions vis-à-vis the Alberta portion of the pipeline (the
absence of funding to be able to engage in meaningful consultation.
[115] At the hearing, the Ministers and IORVL agreed that the construction of the MGP would
demand the highest level of consultation from government. It is clear that during the period when
the duty to consult first arose – at the stage of the Cooperation Plan – not even the most minimal
threshold of consultation was met. To take one patent example, the Dene Tha’ was not specifically
notified of the creation of the Cooperation Plan. Public consultation processes cannot be sufficient
proxies for Aboriginal Consultation responsibilities. As such, the Crown has clearly not fulfilled the
content of its duty to consult.
[116] Even if one were to take the view that the duty to consult arose when the JRP process was
being created and finalized, the duty was not met. The duty to consult cannot be fulfilled by giving
the Dene Tha’ 24 hours to respond to a process created over a period of months (indeed years)
which involved input from virtually every affected group except the Dene Tha’. It certainly cannot
be met by giving a general internet notice to the public inviting comments.
[117] This conduct would not even meet the obligation to give notice and opportunity to be heard
which underlies the administrative law principle of fairness much less the more onerous
constitutional and Crown duty to consult First Nations.
2006 FC 1354 (CanLII)
“Connecting Facilities” to be operated and owned by Nova Gas Transmission Limited) and the
Page: 44
[118] The Court’s conclusion is that there was a duty to consult with respect to the MGP; that the
duty arose between late 2000 and early 2002; that the duty was not met at this time because there
consultation.
[119] In the face of the Court’s conclusion that the duty to consult had been breached, it is
necessary to consider the remedy which should flow. The remedies must address the rights of the
offended party, and be practical and effective and fair to all concerned including those who played
no role in the Crown’s breach of its duty.
IV.
REMEDY
[120] The first remedy is a declaration that the Respondents Minister of Environment, Minister of
Fisheries and Oceans, Minister of Indian and Northern Affairs Canada, and the Minister of
Transport are under a duty to consult with the Dene Tha’ in respect of the MGP, including the
Connecting Facilities. The Court further declares that the Ministers have breached their duty to
consult.
[121] The Dene Tha’ requested that there be a “stick”, an incentive, to goad the Crown into
meaningful consultation. Specifically, the Applicant requested that the JRP hearing process be
stayed pending further order of this Court, except insofar as the JRP may deliberate on matters
unrelated to the Connecting Facilities or the territory within which the Dene Tha’ have asserted
Aboriginal or treaty rights. Moreover, the Applicant proposed that 120 days lapse following this
2006 FC 1354 (CanLII)
was no consultation whatsoever; that the meetings in July 2004 cannot be considered reasonable
Page: 45
order before a Party could apply to the Court without the consent of the other party for a lifting of
[122] The Applicant further requested that the Court provide detailed direction to the Ministers
about what constitutes consultation. Specifically, the Applicant requested that the Court order the
Ministers consult with the Dene Tha’ about the MGP, including the design of the environmental
assessment process, the Terms of Reference for the environmental assessment, the treatment of the
Connecting Facilities, and the provision of financial and/or technical support to assist the Dene Tha’
in participating in the process.
[123] In addition, the Applicant suggested the Court play an ongoing supervisory role in the
consultation process to follow as evidenced by its suggestion that a party be able to apply to the
Court on ten days notice to request further directions.
[124] The remedy requested by the Dene Tha’ is somewhat novel. As such, it is beneficial to
search for some first principles regarding remedy in the context of Aboriginal law.
[125] In Haida in the context of whether the Haida Nation were limited in respect of remedy to an
interlocutory injunction of the government, McLachlin C.J.C. provided a glimpse at some general
principles that might underlie the determination of an appropriate remedy in the event of a
governmental breach of its duty to consult.
2006 FC 1354 (CanLII)
this stay.
Page: 46
[126] The Court tied the issue of remedy into the ultimate goal of Aboriginal-Crown relations,
namely, reconciliation, finding that “the alleged duty to consult and accommodate by its very nature
the heart of Crown-Aboriginal relations.” (paragraph 14). The Court also noted that negotiation was
preferable to litigation in respect of achieving this reconciliatory goal.
[127] A striking feature of this present case is that while many government departments, agencies,
entities and boards were involved, no one seemed to be in charge or at least responsible for
consultation with First Nations. Clearly that was the case with Dene Tha’.
[128] As a part of any remedy, it is necessary to fix some Minister or person with responsibility,
whose actions are subject to accountability in meeting the duty to consult which has been breached.
[129] The parties were at some disadvantage in making their arguments on remedies in that they
did not know if and on what basis any liability or breach would be found. To that end, their
submissions on remedy should be considered preliminary in nature.
[130] The difficulty posed by this case is that to some extent “the ship has left the dock”. How
does one consult with respect to a process which is already operating? The prospect of starting
afresh is daunting and could be ordered if necessary. The necessity of doing so in order to fashion a
just remedy is not immediately obvious. However, it is also not immediately obvious how
consultation could lead to a meaningful result.
2006 FC 1354 (CanLII)
entails balancing of Aboriginal and other interests and thus lies closer to the aim of reconciliation at
Page: 47
[131] The first priority has been to identify the problem (if any); the next priority is to fix the
problem to the extent possible in a real, practical, effective and fair way. The parties should be given
[132] Therefore the Court will issue final orders of declaration and an order to consult upon terms
and conditions to be stipulated following a remedies hearing.
[133] To preserve the current situation until a final remedy order is issued, the members of the
JRP shall be enjoined from considering any aspect of the MGP which affects either the treaty lands
of the Dene Tha’ or the aboriginal rights claimed by the Dene Tha’. They shall be further enjoined
from issuing any report of its proceedings to the National Energy Board.
[134] The Court will hold a remedies hearing, after hearing from the parties as to the issues which
should be addressed at that hearing. Those issues shall include but not be limited to:
•
whether the Crown should be required to appoint a Chief Consulting Officer (similar
to a Chief Negotiator in land claims) to consult with the Dene Tha’;
•
the mandate for any such consultation;
•
the provision of technical assistance and funding to the Dene Tha’ to carry out the
consultation;
•
the role, if any, that the Court should play in the supervision of the consultation; and
•
the role that any entities including the JRP and NEB should have in any such
consultation process.
2006 FC 1354 (CanLII)
an opportunity to address some of the ways in which this can be achieved in a final order.
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[135] Therefore, the application for judicial review will be granted with costs. A formal order will
“Michael L. Phelan”
Judge
2006 FC 1354 (CanLII)
issue.
FEDERAL COURT
DOCKET:
T-867-05
STYLE OF CAUSE:
DENE THA’ FIRST NATION
and
MINISTER OF ENVIRONMENT ET AL
PLACE OF HEARING:
Vancouver, British Columbia
DATE OF HEARING:
June 19 to 23, 2006
REASONS FOR JUDGMENT:
Phelan J.
DATED:
November 10, 2006
APPEARANCES:
Mr. Robert J.M. Janes
Mr. Robert Freedman
Mr. Kirk Lambrecht, Q.C.
Ms. Mary E. Comeau
Mr. Andrew Hudson
Mr. Greg Chase
FOR THE APPLICANT
FOR THE RESPONDENT,
ATTORNEY GENERAL OF CANADA
FOR THE RESPONDENT, IMPERIAL
OIL RESOURCES VENTURES LIMITED
FOR THE RESPONDENT,
NATIONAL ENERGY BOARD
FOR THE RESPONDENT,
JOINT REVIEW PANEL FOR THE
MACKENZIE GAS PROJECT
2006 FC 1354 (CanLII)
NAMES OF COUNSEL AND SOLICITORS OF RECORD
Page 2
SOLICITORS OF RECORD:
John H. Sims, Q.C.
Deputy Attorney General of Canada
Edmonton, Alberta
FOR THE APPLICANT
FOR THE RESPONDENT,
ATTORNEY GENERAL OF CANADA
Macleod Dixon LLP
Barristers & Solicitors
Calgary, Alberta
FOR THE RESPONDENT, IMPERIAL
OIL RESOURCES VENTURES LIMITED
National Energy Board
Calgary, Alberta
FOR THE RESPONDENT,
NATIONAL ENERGY BOARD
Miles Davidson LLP
Calgary, Alberta
FOR THE RESPONDENT,
JOINT REVIEW PANEL FOR THE
MACKENZIE GAS PROJECT
2006 FC 1354 (CanLII)
Cook Roberts LLP
Victoria, British Columbia
[2004] 3 R.C.S.
511
NATION HAÏDA c. C.-B. (MINISTRE DES FORÊTS)
Minister of Forests and Attorney
General of British Columbia
on behalf of Her Majesty The Queen
in Right of the Province
of British Columbia Appellants
Ministre des Forêts et procureur
général de la Colombie-Britannique
au nom de Sa Majesté la Reine du
chef de la province de la
Colombie-Britannique Appelants
v.
c.
Council of the Haida Nation and
Guujaaw, on their own behalf
and on behalf of all members of the
Haida Nation Respondents
Conseil de la Nation haïda et
Guujaaw, en leur propre nom et
au nom des membres de la
Nation haïda Intimés
and between
et entre
Weyerhaeuser Company Limited
Appellant
Weyerhaeuser Company Limited
Appelante
v.
c.
Council of the Haida Nation and
Guujaaw, on their own behalf
and on behalf of all members of the
Haida Nation Respondents
Conseil de la Nation haïda et
Guujaaw, en leur propre nom et
au nom des membres de la
Nation haïda Intimés
and
et
Attorney General of Canada,
Attorney General of Ontario,
Attorney General of Quebec,
Attorney General of Nova Scotia,
Attorney General for Saskatchewan,
Attorney General of Alberta,
Squamish Indian Band and
Lax-kw’alaams Indian Band,
Haisla Nation, First Nations Summit,
Dene Tha’ First Nation,
Tenimgyet, aka Art Matthews,
Gitxsan Hereditary Chief, Business
Council of British Columbia,
Aggregate Producers Association
of British Columbia, British Columbia
and Yukon Chamber of Mines,
British Columbia Chamber of Commerce,
Council of Forest Industries, Mining
Association of British Columbia,
Procureur général du Canada,
procureur général de l’Ontario,
procureur général du Québec,
procureur général de la
Nouvelle-Écosse, procureur général
de la Saskatchewan, procureur
général de l’Alberta, Bande indienne
de Squamish et Bande indienne
des Lax-kw’alaams, Nation haisla,
Sommet des Premières nations,
Première nation Dene Tha’, Tenimgyet,
aussi connu sous le nom
d’Art Matthews, chef héréditaire
Gitxsan, Business Council of
British Columbia, Aggregate Producers
Association of British Columbia,
British Columbia and Yukon Chamber of
Mines, British Columbia
Chamber of Commerce, Council of
512
HAIDA NATION v. B.C. (MINISTER OF FORESTS)
[2004] 3 S.C.R.
British Columbia Cattlemen’s Association
and Village of Port Clements Interveners
Forest Industries, Mining Association
of British Columbia, British Columbia
Cattlemen’s Association et Village de Port
Clements Intervenants
Indexed as: Haida Nation v. British Columbia
(Minister of Forests)
Répertorié : Nation haïda c. ColombieBritannique (Ministre des Forêts)
Neutral citation: 2004 SCC 73.
Référence neutre : 2004 CSC 73.
File No.: 29419.
No du greffe : 29419.
2004: March 24; 2004: November 18.
2004 : 24 mars; 2004 : 18 novembre.
Present: McLachlin C.J. and Major, Bastarache, Binnie,
LeBel, Deschamps and Fish JJ.
Présents : La juge en chef McLachlin et les juges Major,
Bastarache, Binnie, LeBel, Deschamps et Fish.
ON APPEAL FROM THE COURT OF APPEAL FOR
BRITISH COLUMBIA
EN APPEL DE LA COUR D’APPEL DE LA
COLOMBIE-BRITANNIQUE
Crown — Honour of Crown — Duty to consult and
accommodate Aboriginal peoples — Whether Crown
has duty to consult and accommodate Aboriginal peoples prior to making decisions that might adversely
affect their as yet unproven Aboriginal rights and title
claims — Whether duty extends to third party.
Couronne — Honneur de la Couronne — Obligation
de consulter les peuples autochtones et de trouver des
accommodements à leurs préoccupations — La Couronne a-t-elle envers les peuples autochtones une
obligation de consultation et d’accommodement avant
de prendre une décision susceptible d’avoir un effet
préjudiciable sur des revendications de droits et titres
ancestraux non encore prouvées? — L’obligation vise-telle aussi les tiers?
For more than 100 years, the Haida people have
claimed title to all the lands of Haida Gwaii and the
waters surrounding it, but that title has not yet been
legally recognized. The Province of British Columbia
issued a “Tree Farm License” (T.F.L. 39) to a large forestry firm in 1961, permitting it to harvest trees in an
area of Haida Gwaii designated as Block 6. In 1981,
1995 and 2000, the Minister replaced T.F.L. 39, and in
1999, the Minister approved a transfer of T.F.L. 39 to
Weyerhaeuser Co. The Haida challenged in court these
replacements and the transfer, which were made without
their consent and, since at least 1994, over their objections. They asked that the replacements and transfer be
set aside. The chambers judge dismissed the petition,
but found that the government had a moral, not a legal,
duty to negotiate with the Haida. The Court of Appeal
reversed the decision, declaring that both the government and Weyerhaeuser Co. have a duty to consult with
and accommodate the Haida with respect to harvesting
timber from Block 6.
Depuis plus de 100 ans, les Haïda revendiquent un titre
sur les terres des îles Haïda Gwaii et les eaux les entourant; ce titre n’a pas encore été juridiquement reconnu.
En 1961, la province de la Colombie-Britannique a délivré à une grosse compagnie forestière une « concession
de ferme forestière » (CFF 39) l’autorisant à récolter des
arbres dans la région des îles Haïda Gwaii connue sous
le nom de Bloc 6. En 1981, en 1995 et en l’an 2000, le
ministre a remplacé la CFF 39 et en 1999 il a autorisé la
cession de la CFF 39 à Weyerhaeuser Co. Les Haïda ont
contesté devant les tribunaux ces remplacements et cette
cession, qui ont été effectués sans leur consentement
et, depuis 1994 au moins, en dépit de leurs objections.
Ils demandent leur annulation. Le juge en son cabinet a
rejeté la demande, mais a conclu que le gouvernement a
l’obligation morale, mais non légale, de négocier avec les
Haïda. La Cour d’appel a infirmé cette décision, déclarant que le gouvernement et Weyerhaeuser Co. ont tous
deux l’obligation de consulter les Haïda et de trouver des
accommodements à leurs préoccupations.
Held: The Crown’s appeal should be dismissed.
Weyerhaeuser Co.’s appeal should be allowed.
Arrêt : Le pourvoi de la Couronne est rejeté. Le pourvoi de Weyerhaeuser Co. est accueilli.
While it is open to the Haida to seek an interlocutory
injunction, they are not confined to that remedy, which
Il est loisible aux Haïda de demander une injonction
interlocutoire, mais ce n’est pas leur seul recours. Par
[2004] 3 R.C.S.
513
may fail to adequately take account of their interests prior
to final determination thereof. If they can prove a special
obligation giving rise to a duty to consult or accommodate, they are free to pursue other available remedies.
ailleurs, il est possible que l’injonction interlocutoire ne
tienne pas suffisamment compte de leurs intérêts avant
qu’une décision définitive soit rendue au sujet de ceux-ci.
S’ils sont en mesure d’établir l’existence d’une obligation
particulière donnant naissance à l’obligation de consulter
ou d’accommoder, ils sont libres de demander l’application de ces mesures.
The government’s duty to consult with Aboriginal
peoples and accommodate their interests is grounded in
the principle of the honour of the Crown, which must be
understood generously. While the asserted but unproven
Aboriginal rights and title are insufficiently specific for
the honour of the Crown to mandate that the Crown act
as a fiduciary, the Crown, acting honourably, cannot cavalierly run roughshod over Aboriginal interests where
claims affecting these interests are being seriously pursued in the process of treaty negotiation and proof. The
duty to consult and accommodate is part of a process of
fair dealing and reconciliation that begins with the assertion of sovereignty and continues beyond formal claims
resolution. The foundation of the duty in the Crown’s
honour and the goal of reconciliation suggest that the duty
arises when the Crown has knowledge, real or constructive, of the potential existence of the Aboriginal right
or title and contemplates conduct that might adversely
affect it. Consultation and accommodation before final
claims resolution preserve the Aboriginal interest and
are an essential corollary to the honourable process of
reconciliation that s. 35 of the Constitution Act, 1982,
demands.
L’obligation du gouvernement de consulter les peuples autochtones et de trouver des accommodements
à leurs intérêts découle du principe de l’honneur de la
Couronne, auquel il faut donner une interprétation généreuse. Bien que les droits et titre ancestraux revendiqués,
mais non encore définis ou prouvés, ne soient pas suffisamment précis pour que l’honneur de la Couronne
oblige celle-ci à agir comme fiduciaire, cette dernière,
si elle entend agir honorablement, ne peut traiter cavalièrement les intérêts autochtones qui font l’objet de
revendications sérieuses dans le cadre du processus de
négociation et d’établissement d’un traité. L’obligation
de consulter et d’accommoder fait partie intégrante du
processus de négociation honorable et de conciliation
qui débute au moment de l’affirmation de la souveraineté et se poursuit au-delà de la reconnaissance formelle des revendications. L’objectif de conciliation ainsi
que l’obligation de consultation, laquelle repose sur
l’honneur de la Couronne, tendent à indiquer que cette
obligation prend naissance lorsque la Couronne a connaissance, concrètement ou par imputation, de l’existence potentielle du droit ou titre ancestral et envisage
des mesures susceptibles d’avoir un effet préjudiciable
sur celui-ci. La prise de mesures de consultation et d’accommodement avant le règlement définitif d’une revendication permet de protéger les intérêts autochtones et
constitue même un aspect essentiel du processus honorable de conciliation imposé par l’art. 35 de la Loi constitutionnelle de 1982.
The scope of the duty is proportionate to a preliminary assessment of the strength of the case supporting the
existence of the right or title, and to the seriousness of the
potentially adverse effect upon the right or title claimed.
The Crown is not under a duty to reach an agreement;
rather, the commitment is to a meaningful process of
consultation in good faith. The content of the duty varies
with the circumstances and each case must be approached
individually and flexibly. The controlling question in all
situations is what is required to maintain the honour of
the Crown and to effect reconciliation between the Crown
and the Aboriginal people with respect to the interests
at stake. The effect of good faith consultation may be
to reveal a duty to accommodate. Where accommodation is required in making decisions that may adversely
affect as yet unproven Aboriginal rights and title claims,
the Crown must balance Aboriginal concerns reasonably
L’étendue de l’obligation dépend de l’évaluation préliminaire de la solidité de la preuve étayant l’existence du
droit ou du titre revendiqué, et de la gravité des effets préjudiciables potentiels sur le droit ou le titre. La Couronne
n’a pas l’obligation de parvenir à une entente mais plutôt
de mener de bonne foi de véritables consultations. Le contenu de l’obligation varie selon les circonstances et il faut
procéder au cas par cas. La question décisive dans toutes
les situations consiste à déterminer ce qui est nécessaire
pour préserver l’honneur de la Couronne et pour concilier
les intérêts de la Couronne et ceux des Autochtones. Des
consultations menées de bonne foi peuvent faire naître
l’obligation d’accommodement. Lorsque des mesures
d’accommodement sont nécessaires lors de la prise d’une
décision susceptible d’avoir un effet préjudiciable sur
des revendications de droits et de titre ancestraux non
encore prouvées, la Couronne doit établir un équilibre
514
[2004] 3 S.C.R.
with the potential impact of the decision on the asserted
right or title and with other societal interests.
raisonnable entre les préoccupations des Autochtones,
d’une part, et l’incidence potentielle de la décision sur le
droit ou titre revendiqué et les autres intérêts sociétaux,
d’autre part.
Third parties cannot be held liable for failing to discharge the Crown’s duty to consult and accommodate.
The honour of the Crown cannot be delegated, and the
legal responsibility for consultation and accommodation
rests with the Crown. This does not mean, however, that
third parties can never be liable to Aboriginal peoples.
Les tiers ne peuvent être jugés responsables de ne pas
avoir rempli l’obligation de consultation et d’accommodement qui incombe à la Couronne. Le respect du principe
de l’honneur de la Couronne ne peut être délégué, et la
responsabilité juridique en ce qui a trait à la consultation
et à l’accommodement incombe à la Couronne. Toutefois,
cela ne signifie pas que des tiers ne peuvent jamais être
tenus responsables envers des peuples autochtones.
Finally, the duty to consult and accommodate applies
to the provincial government. At the time of the Union,
the Provinces took their interest in land subject to any
interest other than that of the Province in the same. Since
the duty to consult and accommodate here at issue is
grounded in the assertion of Crown sovereignty which
pre-dated the Union, the Province took the lands subject
to this duty.
Enfin, l’obligation de consultation et d’accommodement s’applique au gouvernement provincial. Les intérêts acquis par la province sur les terres lors de l’Union
sont subordonnés à tous intérêts autres que ceux que
peut y avoir la province. Comme l’obligation de consulter et d’accommoder qui est en litige dans la présente
affaire est fondée sur l’affirmation par la province, avant
l’Union, de sa souveraineté sur le territoire visé, la province a acquis les terres sous réserve de cette obligation.
The Crown’s obligation to consult the Haida on the
replacement of T.F.L. 39 was engaged in this case. The
Haida’s claims to title and Aboriginal right to harvest red
cedar were supported by a good prima facie case, and
the Province knew that the potential Aboriginal rights
and title applied to Block 6, and could be affected by
the decision to replace T.F.L. 39. T.F.L. decisions reflect
strategic planning for utilization of the resource and may
have potentially serious impacts on Aboriginal rights
and titles. If consultation is to be meaningful, it must
take place at the stage of granting or renewing T.F.L.’s.
Furthermore, the strength of the case for both the Haida’s
title and their right to harvest red cedar, coupled with
the serious impact of incremental strategic decisions on
those interests, suggest that the honour of the Crown may
also require significant accommodation to preserve the
Haida’s interest pending resolution of their claims.
En l’espèce, la Couronne avait l’obligation de consulter les Haïda au sujet du remplacement de la CFF 39. Les
revendications par les Haïda du titre et du droit ancestral
de récolter du cèdre rouge étaient étayées par une preuve
à première vue valable, et la province savait que les droits
et titre ancestraux potentiels visaient le Bloc 6 et qu’ils
pouvaient être touchés par la décision de remplacer la
CFF 39. Les décisions rendues à l’égard des CFF reflètent la planification stratégique touchant l’utilisation de
la ressource en cause et risquent d’avoir des conséquences graves sur les droits ou titres ancestraux. Pour que
les consultations soient utiles, elles doivent avoir lieu à
l’étape de l’octroi ou du renouvellement de la CFF. De
plus, la solidité de la preuve étayant l’existence d’un titre
haïda et d’un droit haïda autorisant la récolte du cèdre
rouge, conjuguée aux répercussions sérieuses sur ces
intérêts des décisions stratégiques successives, indique
que l’honneur de la Couronne pourrait bien commander
des mesures d’accommodement substantielles pour protéger les intérêts des Haïda en attendant que leurs revendications soient réglées.
Cases Cited
Jurisprudence
Applied: Delgamuukw v. British Columbia, [1997]
3 S.C.R. 1010; referred to: RJR — MacDonald Inc.
v. Canada (Attorney General), [1994] 1 S.C.R. 311;
R. v. Van der Peet, [1996] 2 S.C.R. 507; R. v. Badger,
[1996] 1 S.C.R. 771; R. v. Marshall, [1999] 3 S.C.R. 456;
Wewaykum Indian Band v. Canada, [2002] 4 S.C.R.
245, 2002 SCC 79; R. v. Sparrow, [1990] 1 S.C.R. 1075;
R. v. Nikal, [1996] 1 S.C.R. 1013; R. v. Gladstone, [1996]
Arrêt appliqué : Delgamuukw c. ColombieBritannique, [1997] 3 R.C.S. 1010; arrêts mentionnés :
RJR — MacDonald Inc. c. Canada (Procureur général),
[1994] 1 R.C.S. 311; R. c. Van der Peet, [1996] 2 R.C.S.
507; R. c. Badger, [1996] 1 R.C.S. 771; R. c. Marshall,
[1999] 3 R.C.S. 456; Bande indienne Wewaykum c.
Canada, [2002] 4 R.C.S. 245, 2002 CSC 79; R. c.
Sparrow, [1990] 1 R.C.S. 1075; R. c. Nikal, [1996] 1
[2004] 3 R.C.S.
515
2 S.C.R. 723; Cardinal v. Director of Kent Institution,
[1985] 2 S.C.R. 643; Baker v. Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817;
TransCanada Pipelines Ltd. v. Beardmore (Township)
(2000), 186 D.L.R. (4th) 403; Mitchell v. M.N.R., [2001]
1 S.C.R. 911, 2001 SCC 33; Halfway River First Nation
v. British Columbia (Ministry of Forests), [1997] 4
C.N.L.R. 45, aff’d [1999] 4 C.N.L.R. 1; Heiltsuk Tribal
Council v. British Columbia (Minister of Sustainable
Resource Management) (2003), 19 B.C.L.R. (4th) 107;
R. v. Marshall, [1999] 3 S.C.R. 533; R. v. Sioui, [1990] 1
S.C.R. 1025; R. v. Côté, [1996] 3 S.C.R. 139; R. v. Adams,
[1996] 3 S.C.R. 101; Guerin v. The Queen, [1984] 2 S.C.R.
335; St. Catherine’s Milling and Lumber Co. v. The
Queen (1888), 14 App. Cas. 46; Paul v. British Columbia
(Forest Appeals Commission), [2003] 2 S.C.R. 585,
2003 SCC 55; Law Society of New Brunswick v. Ryan,
[2003] 1 S.C.R. 247, 2003 SCC 20; Canada (Director of
Investigation and Research) v. Southam Inc., [1997] 1
S.C.R. 748.
R.C.S. 1013; R. c. Gladstone, [1996] 2 R.C.S. 723;
Cardinal c. Directeur de l’établissement Kent, [1985] 2
R.C.S. 643; Baker c. Canada (Ministre de la Citoyenneté
et de l’Immigration), [1999] 2 R.C.S. 817; TransCanada
Pipelines Ltd. c. Beardmore (Township) (2000), 186
D.L.R. (4th) 403; Mitchell c. M.R.N., [2001] 1 R.C.S.
911, 2001 CSC 33; Halfway River First Nation c. British
Columbia (Ministry of Forests), [1997] 4 C.N.L.R. 45,
conf. par [1999] 4 C.N.L.R. 1; Heiltsuk Tribal Council
c. British Columbia (Minister of Sustainable Resource
Management) (2003), 19 B.C.L.R. (4th) 107; R. c.
Marshall, [1999] 3 R.C.S. 533; R. c. Sioui, [1990] 1 R.C.S.
1025; R. c. Côté, [1996] 3 R.C.S. 139; R. c. Adams, [1996]
3 R.C.S. 101; Guerin c. La Reine, [1984] 2 R.C.S. 335;
St. Catherine’s Milling and Lumber Co. c. The Queen
(1888), 14 App. Cas. 46; Paul c. Colombie-Britannique
(Forest Appeals Commission), [2003] 2 R.C.S. 585,
2003 CSC 55; Barreau du Nouveau-Brunswick c. Ryan,
[2003] 1 R.C.S. 247, 2003 CSC 20; Canada (Directeur
des enquêtes et recherches) c. Southam Inc., [1997] 1
R.C.S. 748.
Statutes and Regulations Cited
Lois et règlements cités
Constitution Act, 1867, s. 109.
Forest Act, R.S.B.C. 1996, c. 157.
Forestry Revitalization Act, S.B.C. 2003, c. 17.
Forest Act, R.S.B.C. 1996, ch. 157.
Forestry Revitalization Act, S.B.C. 2003, ch. 17.
Loi constitutionnelle de 1867, art. 109.
Authors Cited
Doctrine citée
Concise Oxford Dictionary of Current English, 9th ed.
Oxford: Clarendon Press, 1995, “accommodate”,
“accommodation”.
Hunter, John J. L. “Advancing Aboriginal Title Claims
after Delgamuukw: The Role of the Injunction”.
Continuing Legal Education Conference on Litigating
Aboriginal Title, June 2000.
Isaac, Thomas, and Anthony Knox. “The Crown’s Duty
to Consult Aboriginal People” (2003), 41 Alta. L.
Rev. 49.
Lawrence, Sonia, and Patrick Macklem. “From
Consultation to Reconciliation: Aboriginal Rights
and the Crown’s Duty to Consult” (2000), 79 Can.
Bar Rev. 252.
New Zealand. Ministry of Justice. A Guide for
Consultation with Mäori. Wellington: The Ministry,
1997.
Hunter, John J. L. « Advancing Aboriginal Title Claims
after Delgamuukw : The Role of the Injunction ».
Continuing Legal Education Conference on Litigating
Aboriginal Title, June 2000.
Imbs, Paul, dir. Trésor de la langue française, dictionnaire de la langue du XIXe et du XXe siècle (17891960), t. 1. Paris : Centre national de la recherche
scientifique, 1971, « accommodement », « accommoder ».
Isaac, Thomas, and Anthony Knox. « The Crown’s Duty
to Consult Aboriginal People » (2003), 41 Alta. L.
Rev. 49.
Lawrence, Sonia, and Patrick Macklem. « From
Consultation to Reconciliation : Aboriginal Rights
and the Crown’s Duty to Consult » (2000), 79 R. du
B. can. 252.
Nouvelle-Zélande. Ministry of Justice. A Guide for
Consultation with Mäori. Wellington : The Ministry,
1997.
APPEALS from a judgment of the British
Columbia Court of Appeal, [2002] 6 W.W.R. 243,
164 B.C.A.C. 217, 268 W.A.C. 217, 99 B.C.L.R.
(3d) 209, 44 C.E.L.R. (N.S.) 1, [2002] 2 C.N.L.R.
121, [2002] B.C.J. No. 378 (QL), 2002 BCCA 147,
POURVOIS contre un arrêt de la Cour d’appel de
la Colombie-Britannique, [2002] 6 W.W.R. 243, 164
B.C.A.C. 217, 268 W.A.C. 217, 99 B.C.L.R. (3d) 209,
44 C.E.L.R. (N.S.) 1, [2002] 2 C.N.L.R. 121, [2002]
B.C.J. No. 378 (QL), 2002 BCCA 147, avec motifs
516
[2004] 3 S.C.R.
with supplementary reasons (2002), 216 D.L.R.
(4th) 1, [2002] 10 W.W.R. 587, 172 B.C.A.C. 75, 282
W.A.C. 75, 5 B.C.L.R. (4th) 33, [2002] 4 C.N.L.R.
117, [2002] B.C.J. No. 1882 (QL), 2002 BCCA
462, reversing a decision of the British Columbia
Supreme Court (2000), 36 C.E.L.R. (N.S.) 155,
[2001] 2 C.N.L.R. 83, [2000] B.C.J. No. 2427 (QL),
2000 BCSC 1280. Appeal by the Crown dismissed.
Appeal by Weyerhaeuser Co. allowed.
supplémentaires (2002), 216 D.L.R. (4th) 1, [2002]
10 W.W.R. 587, 172 B.C.A.C. 75, 282 W.A.C. 75, 5
B.C.L.R. (4th) 33, [2002] 4 C.N.L.R. 117, [2002]
B.C.J. No. 1882 (QL), 2002 BCCA 462, qui a infirmé
une décision de la Cour suprême de la ColombieBritannique (2000), 36 C.E.L.R. (N.S.) 155, [2001]
2 C.N.L.R. 83, [2000] B.C.J. No. 2427 (QL), 2000
BCSC 1280. Pourvoi de la Couronne rejeté. Pourvoi
de Weyerhaeuser Co. accueilli.
Paul J. Pearlman, Q.C., and Kathryn L. Kickbush,
for the appellants the Minister of Forests and the
Attorney General of British Columbia on behalf of
Her Majesty the Queen in Right of the Province of
British Columbia.
Paul J. Pearlman, c.r., et Kathryn L. Kickbush,
pour les appelants le ministre des Forêts et le procureur général de la Colombie-Britannique au nom
de Sa Majesté la Reine du chef de la province de la
Colombie-Britannique.
John J. L. Hunter, Q.C., and K. Michael Stephens,
for the appellant Weyerhaeuser Company Limited.
John J. L. Hunter, c.r., et K. Michael Stephens,
pour l’appelante Weyerhaeuser Company Limited.
Louise Mandell, Q.C., Michael Jackson, Q.C.,
Terri-Lynn Williams-Davidson, Gidfahl Gudsllaay
and Cheryl Y. Sharvit, for the respondents.
Louise Mandell, c.r., Michael Jackson, c.r.,
Terri-Lynn Williams-Davidson, Gidfahl Gudsllaay
et Cheryl Y. Sharvit, pour les intimés.
Mitchell R. Taylor and Brian McLaughlin, for the
intervener the Attorney General of Canada.
Mitchell R. Taylor et Brian McLaughlin, pour
l’intervenant le procureur général du Canada.
E. Ria Tzimas and Mark Crow, for the intervener
the Attorney General of Ontario.
E. Ria Tzimas et Mark Crow, pour l’intervenant le
procureur général de l’Ontario.
Pierre-Christian Labeau, for the intervener the
Attorney General of Quebec.
Pierre-Christian Labeau, pour l’intervenant le
procureur général du Québec.
Written submissions only by Alexander MacBain
Cameron, for the intervener the Attorney General of
Nova Scotia.
Argumentation écrite seulement par Alexander
MacBain Cameron, pour l’intervenant le procureur
général de la Nouvelle-Écosse.
Graeme G. Mitchell, Q.C., and P. Mitch
McAdam, for the intervener the Attorney General
for Saskatchewan.
Graeme G. Mitchell, c.r., et P. Mitch McAdam,
pour l’intervenant le procureur général de la
Saskatchewan.
Stanley H. Rutwind and Kurt Sandstrom, for the
intervener the Attorney General of Alberta.
Stanley H. Rutwind et Kurt Sandstrom, pour l’intervenant le procureur général de l’Alberta.
Gregory J. McDade, Q.C., and John R. Rich, for
the interveners the Squamish Indian Band and the
Lax-kw’alaams Indian Band.
Gregory J. McDade, c.r., et John R. Rich, pour
les intervenantes la Bande indienne de Squamish et
la Bande indienne des Lax-kw’alaams.
Allan Donovan, for the intervener the Haisla
Nation.
Allan Donovan, pour l’intervenante la Nation
haisla.
[2004] 3 R.C.S.
La Juge en chef
517
Hugh M. G. Braker, Q.C., Anja Brown, Arthur
C. Pape and Jean Teillet, for the intervener the First
Nations Summit.
Hugh M. G. Braker, c.r., Anja Brown, Arthur C.
Pape et Jean Teillet, pour l’intervenant le Sommet
des Premières nations.
Robert C. Freedman, for the intervener the Dene
Tha’ First Nation.
Robert C. Freedman, pour l’intervenante la
Première nation Dene Tha’.
Robert J. M. Janes and Dominique Nouvet,
for the intervener Tenimgyet, aka Art Matthews,
Gitxsan Hereditary Chief.
Robert J. M. Janes et Dominique Nouvet, pour
l’intervenant Tenimgyet, aussi connu sous le nom
d’Art Matthews, chef héréditaire Gitxsan.
Charles F. Willms and Kevin O’Callaghan, for
the interveners the Business Council of British
Columbia, the Aggregate Producers Association of
British Columbia, the British Columbia and Yukon
Chamber of Mines, the British Columbia Chamber
of Commerce, the Council of Forest Industries and
the Mining Association of British Columbia.
Charles F. Willms et Kevin O’Callaghan, pour les
intervenants Business Council of British Columbia,
Aggregate Producers Association of British
Columbia, British Columbia and Yukon Chamber
of Mines, British Columbia Chamber of Commerce,
Council of Forest Industries et Mining Association
of British Columbia.
Thomas F. Isaac, for the intervener the British
Columbia Cattlemen’s Association.
Thomas F. Isaac, pour l’intervenante British
Columbia Cattlemen’s Association.
Stuart A. Rush, Q.C., for the intervener the
Village of Port Clements.
Stuart A. Rush, c.r., pour l’intervenant le village
de Port Clements.
The judgment of the Court was delivered by
Version française du jugement de la Cour rendu
par
The Chief Justice —
I.
Introduction
La Juge en chef —
I.
Introduction
To the west of the mainland of British Columbia
lie the Queen Charlotte Islands, the traditional
homeland of the Haida people. Haida Gwaii, as the
inhabitants call it, consists of two large islands and a
number of smaller islands. For more than 100 years,
the Haida people have claimed title to all the lands
of the Haida Gwaii and the waters surrounding it.
That title is still in the claims process and has not yet
been legally recognized.
À l’ouest de la partie continentale de la ColombieBritannique s’étendent les îles de la Reine-Charlotte,
patrie traditionnelle des Haïda. Les îles Haïda
Gwaii, comme leurs habitants les appellent, se composent de deux grandes îles et de plusieurs petites
îles. Depuis plus de 100 ans, les Haïda revendiquent
un titre sur les terres des îles Haïda Gwaii et les eaux
les entourant. Ce titre en est toujours à l’étape de
la revendication et n’a pas encore été juridiquement
reconnu.
1
The islands of Haida Gwaii are heavily forested.
Spruce, hemlock and cedar abound. The most important of these is the cedar which, since time immemorial, has played a central role in the economy and
culture of the Haida people. It is from cedar that
they made their ocean-going canoes, their clothing,
their utensils and the totem poles that guarded their
Les îles Haïda Gwaii sont densément boisées.
L’épinette, la pruche et le cèdre y foisonnent. Le
plus important de ces arbres est le cèdre, qui, depuis
des temps immémoriaux, joue un rôle central dans
l’économie et la culture des Haïda. C’est à partir du
cèdre qu’ils fabriquaient leurs canots maritimes,
leurs vêtements, leurs ustensiles et les totems qui
2
518
The Chief Justice
[2004] 3 S.C.R.
lodges. The cedar forest remains central to their life
and their conception of themselves.
protégeaient leurs habitations. La forêt de cèdres
demeure essentielle à leur vie et à la conception
qu’ils se font d’eux-mêmes.
3
The forests of Haida Gwaii have been logged
since before the First World War. Portions of the
island have been logged off. Other portions bear
second-growth forest. In some areas, old-growth
forests can still be found.
Les forêts des îles Haïda Gwaii étaient déjà exploitées avant la Première Guerre mondiale. Certaines
parties du territoire ont été coupées à blanc. D’autres
sont occupées par une forêt secondaire. Dans certaines régions, on peut encore trouver de vieilles
forêts.
4
The Province of British Columbia continues to
issue licences to cut trees on Haida Gwaii to forestry companies. The modern name for these
licenses are Tree Farm Licences, or T.F.L.’s. Such
a licence is at the heart of this litigation. A large
forestry firm, MacMillan Bloedel Limited acquired
T.F.L. 39 in 1961, permitting it to harvest trees in
an area designated as Block 6. In 1981, 1995 and
2000, the Minister replaced T.F.L. 39 pursuant to
procedures set out in the Forest Act, R.S.B.C. 1996,
c. 157. In 1999, the Minister approved a transfer
of T.F.L. 39 to Weyerhaeuser Company Limited
(“Weyerhaeuser”). The Haida people challenged
these replacements and the transfer, which were
made without their consent and, since at least 1994,
over their objections. Nevertheless, T.F.L. 39 continued.
La province de la Colombie-Britannique continue de délivrer à des compagnies forestières des
permis de coupe autorisant l’abattage d’arbres sur
les îles Haïda Gwaii. Ce sont ces permis, maintenant appelés [TRADUCTION] « concessions de ferme
forestière » (« CFF »), qui sont au cœur du présent
litige. En 1961, MacMillan Bloedel Limited, une
grosse compagnie forestière, a obtenu la CFF 39,
qui lui permettait de récolter des arbres dans la
région connue sous le nom de « Bloc 6 ». En 1981,
en 1995 et en l’an 2000, le ministre a remplacé la
CFF 39 conformément à la procédure prévue par
la Forest Act, R.S.B.C. 1996, ch. 157. En 1999, il
a autorisé la cession de la CFF 39 à Weyerhaeuser
Company Limited (« Weyerhaeuser »). Les Haïda
ont contesté ces remplacements et cette cession, qui ont été effectués sans leur consentement et, depuis 1994 au moins, en dépit de leurs
objections. La CFF 39 est cependant restée en
vigueur.
5
In January of 2000, the Haida people launched a
lawsuit objecting to the three replacement decisions
and the transfer of T.F.L. 39 to Weyerhaeuser and
asking that they be set aside. They argued legal
encumbrance, equitable encumbrance and breach
of fiduciary duty, all grounded in their assertion of
Aboriginal title.
En janvier 2000, les Haïda ont engagé une procédure par laquelle ils s’opposent aux trois remplacements et à la cession de la CFF 39 à Weyerhaeuser,
et demandent leur annulation. Invoquant l’existence
d’un titre ancestral, ils ont plaidé grèvement en
common law, grèvement en equity et manquement à
l’obligation de fiduciaire.
6
This brings us to the issue before this Court. The
government holds legal title to the land. Exercising
that legal title, it has granted Weyerhaeuser the
right to harvest the forests in Block 6 of the land.
But the Haida people also claim title to the land —
title which they are in the process of trying to
prove — and object to the harvesting of the forests
on Block 6 as proposed in T.F.L. 39. In this situation, what duty if any does the government owe the
Cela nous amène à la question dont la Cour est
saisie. Le gouvernement détient le titre en common
law sur les terres en question. Dans l’exercice
des pouvoirs que lui confère ce titre, il a accordé
à Weyerhaeuser le droit d’exploiter les forêts du
Bloc 6. Mais les Haïda prétendent également détenir un titre sur ces terres — titre dont ils tentent
actuellement d’établir l’existence — et s’opposent
à l’exploitation des forêts du Bloc 6 prévue par la
[2004] 3 R.C.S.
La Juge en chef
519
Haida people? More concretely, is the government
required to consult with them about decisions to
harvest the forests and to accommodate their concerns about what if any forest in Block 6 should be
harvested before they have proven their title to land
and their Aboriginal rights?
CFF 39. Dans ces circonstances, le gouvernement
est-il tenu à une obligation envers les Haïda et, si
oui, laquelle? De façon plus concrète, a-t-il l’obligation de consulter les Haïda avant de prendre des
décisions concernant l’exploitation des forêts et de
trouver des accommodements à leurs préoccupations quant à la question de savoir si les forêts du
Bloc 6 peuvent être exploitées — et, dans l’affirmative, lesquelles — avant qu’ils aient pu établir
l’existence de leur titre sur les terres et leurs droits
ancestraux?
The stakes are huge. The Haida argue that absent
consultation and accommodation, they will win
their title but find themselves deprived of forests
that are vital to their economy and their culture.
Forests take generations to mature, they point out,
and old-growth forests can never be replaced. The
Haida’s claim to title to Haida Gwaii is strong, as
found by the chambers judge. But it is also complex
and will take many years to prove. In the meantime, the Haida argue, their heritage will be irretrievably despoiled.
Les enjeux sont énormes. Les Haïda font valoir
que, si on ne procède pas à ces consultation et
accommodement, ils obtiendront leur titre mais se
retrouveront privés de forêts qui sont vitales à leur
économie et à leur culture. Il faut des générations
aux forêts pour parvenir à maturité, soulignentils, et les vieilles forêts sont irremplaçables.
Comme a conclu le juge en son cabinet, leur revendication du titre sur les îles Haïda Gwaii s’appuie
sur des arguments solides. Mais elle est également complexe, et il faudra de nombreuses années
pour l’établir. Les Haïda affirment qu’entre-temps
ils auront été irrémédiablement dépouillés de leur
héritage.
7
The government, in turn, argues that it has the
right and responsibility to manage the forest resource
for the good of all British Columbians, and that until
the Haida people formally prove their claim, they
have no legal right to be consulted or have their
needs and interests accommodated.
Le gouvernement, pour sa part, soutient qu’il
a le droit et le devoir d’aménager les ressources
forestières dans l’intérêt de tous les habitants de la
Colombie-Britannique et que, tant que les Haïda
n’auront pas formellement établi le bien-fondé de
leur revendication, ils n’ont aucun droit à des consultations ou à des accommodements à leurs besoins et
intérêts.
8
The chambers judge found that the government has a moral, but not a legal, duty to negotiate
with the Haida people: [2001] 2 C.N.L.R. 83, 2000
BCSC 1280. The British Columbia Court of Appeal
reversed this decision, holding that both the government and Weyerhaeuser have a duty to consult with
and accommodate the Haida people with respect to
harvesting timber from Block 6: (2002), 99 B.C.L.R.
(3d) 209, 2002 BCCA 147, with supplementary reasons (2002), 5 B.C.L.R. (4th) 33, 2002 BCCA 462.
Le juge en son cabinet a décidé que le gouvernement a l’obligation morale, mais non légale, de
négocier avec les Haïda : [2001] 2 C.N.L.R. 83,
2000 BCSC 1280. La Cour d’appel de la ColombieBritannique a infirmé cette décision, déclarant que
le gouvernement et Weyerhaeuser ont tous deux
l’obligation de consulter les Haïda et de trouver des
accommodements à leurs préoccupations en ce qui
concerne la récolte de bois sur le bloc 6 : (2002),
99 B.C.L.R. (3d) 209, 2002 BCCA 147, avec motifs
supplémentaires (2002), 5 B.C.L.R. (4th) 33, 2002
BCCA 462.
9
520
The Chief Justice
[2004] 3 S.C.R.
10
I conclude that the government has a legal
duty to consult with the Haida people about the
harvest of timber from Block 6, including decisions
to transfer or replace Tree Farm Licences. Good
faith consultation may in turn lead to an obligation
to accommodate Haida concerns in the harvesting
of timber, although what accommodation if any
may be required cannot at this time be ascertained.
Consultation must be meaningful. There is no duty
to reach agreement. The duty to consult and, if
appropriate, accommodate cannot be discharged by
delegation to Weyerhaeuser. Nor does Weyerhaeuser
owe any independent duty to consult with or accommodate the Haida people’s concerns, although the
possibility remains that it could become liable for
assumed obligations. It follows that I would dismiss the Crown’s appeal and allow the appeal of
Weyerhaeuser.
Je conclus que le gouvernement est légalement
tenu de consulter les Haïda au sujet de la récolte
de bois sur le bloc 6, y compris en ce qui concerne la cession ou le remplacement des CFF. Une
consultation menée de bonne foi pourrait à son
tour entraîner l’obligation de trouver des accommodements aux préoccupations des Haïda à propos
de la récolte de bois, mais il est impossible pour
le moment de préciser le genre d’accommodement
qui s’impose, à supposer qu’une telle mesure soit
requise. Il faut une véritable consultation. Les intéressés n’ont aucune obligation de parvenir à une
entente. Le gouvernement ne peut se décharger des
obligations de consultation et d’accommodement
en les déléguant à Weyerhaeuser. De son côté,
cette dernière n’a pas d’obligation indépendante de
consulter les Haïda ou de trouver des accommodements à leurs préoccupations, bien qu’il demeure
possible qu’elle soit tenue responsable à l’égard
d’obligations qu’elle aurait assumées. Je suis donc
d’avis de rejeter l’appel de la Couronne et d’accueillir l’appel de Weyerhaeuser.
11
This case is the first of its kind to reach this Court.
Our task is the modest one of establishing a general framework for the duty to consult and accommodate, where indicated, before Aboriginal title or
rights claims have been decided. As this framework
is applied, courts, in the age-old tradition of the
common law, will be called on to fill in the details
of the duty to consult and accommodate.
Il s’agit de la première affaire du genre à être
soumise à la Cour. Notre tâche se limite modestement à établir le cadre général d’application,
dans les cas indiqués, de l’obligation de consultation et d’accommodement avant que les revendications de titre et droits ancestraux soient tranchées.
Au fur et à mesure de l’application de ce cadre,
les tribunaux seront appelés, conformément à la
méthode traditionnelle de la common law, à préciser l’obligation de consultation et d’accommodement.
II. Analysis
II. Analyse
A. Does the Law of Injunctions Govern This
Situation?
A. Le droit en matière d’injonction s’applique-t-il
en l’espèce?
It is argued that the Haida’s proper remedy is to
apply for an interlocutory injunction against the government and Weyerhaeuser, and that therefore it is
unnecessary to consider a duty to consult or accommodate. In RJR — MacDonald Inc. v. Canada
(Attorney General), [1994] 1 S.C.R. 311, the requirements for obtaining an interlocutory injunction were
reviewed. The plaintiff must establish: (1) a serious
issue to be tried; (2) that irreparable harm will be
On fait valoir que le recours approprié pour les
Haïda consiste à demander une injonction interlocutoire contre le gouvernement et contre Weyerhaeuser
et qu’il est en conséquence inutile d’examiner la
question de l’existence de l’obligation de consulter
ou d’accommoder. Dans RJR — MacDonald Inc.
c. Canada (Procureur général), [1994] 1 R.C.S.
311, les critères à respecter pour obtenir une injonction interlocutoire ont été examinés. Le demandeur
12
[2004] 3 R.C.S.
La Juge en chef
521
suffered if the injunction is not granted; and (3) that
the balance of convenience favours the injunction.
doit établir les éléments suivants : (1) il existe une
question sérieuse à juger; (2) le refus de l’injonction causera un préjudice irréparable; (3) la prépondérance des inconvénients favorise l’octroi de
l’injonction.
It is open to plaintiffs like the Haida to seek an
interlocutory injunction. However, it does not follow
that they are confined to that remedy. If plaintiffs
can prove a special obligation giving rise to a duty
to consult or accommodate, they are free to pursue
these remedies. Here the Haida rely on the obligation flowing from the honour of the Crown toward
Aboriginal peoples.
Il est loisible à des demandeurs comme les
Haïda de demander une injonction interlocutoire.
Cependant, cela ne signifie pas qu’il s’agit là de leur
seul recours. Si des demandeurs sont en mesure
d’établir l’existence d’une obligation particulière
donnant naissance à l’obligation de consulter ou
d’accommoder, ils sont libres de demander l’application de ces mesures. Ici, les Haïda invoquent l’obligation découlant du principe que la Couronne doit
agir honorablement envers les peuples autochtones.
13
Interlocutory injunctions may offer only partial imperfect relief. First, as mentioned, they may
not capture the full obligation on the government
alleged by the Haida. Second, they typically represent an all-or-nothing solution. Either the project
goes ahead or it halts. By contrast, the alleged duty
to consult and accommodate by its very nature
entails balancing of Aboriginal and other interests and thus lies closer to the aim of reconciliation at the heart of Crown-Aboriginal relations, as
set out in R. v. Van der Peet, [1996] 2 S.C.R. 507,
at para. 31, and Delgamuukw v. British Columbia,
[1997] 3 S.C.R. 1010, at para. 186. Third, the balance of convenience test tips the scales in favour
of protecting jobs and government revenues, with
the result that Aboriginal interests tend to “lose”
outright pending a final determination of the issue,
instead of being balanced appropriately against
conflicting concerns: J. J. L. Hunter, “Advancing
Aboriginal Title Claims after Delgamuukw: The
Role of the Injunction” (June 2000). Fourth, interlocutory injunctions are designed as a stop-gap
remedy pending litigation of the underlying issue.
Aboriginal claims litigation can be very complex
and require years and even decades to resolve in
the courts. An interlocutory injunction over such a
long period of time might work unnecessary prejudice and may diminish incentives on the part of the
successful party to compromise. While Aboriginal
claims can be and are pursued through litigation,
negotiation is a preferable way of reconciling state
L’injonction interlocutoire n’offre parfois qu’une
réparation partielle et imparfaite. Premièrement,
comme nous l’avons déjà mentionné, elle peut ne
pas faire apparaître toute l’obligation du gouvernement, qui, selon les Haïda, incombe au gouvernement. Deuxièmement, elle représente généralement
la solution du tout ou rien. Ou le projet se poursuit,
ou il s’arrête. Par contre, l’obligation de consulter et
d’accommoder invoquée en l’espèce nécessite, de
par sa nature même, une mise en balance des intérêts autochtones et des intérêts non autochtones et
se rapproche donc de l’objectif de conciliation qui
est au cœur des rapports entre la Couronne et les
Autochtones et qui a été énoncé dans les arrêts R.
c. Van der Peet, [1996] 2 R.C.S. 507, par. 31, et
Delgamuukw c. Colombie-Britannique, [1997] 3
R.C.S. 1010, par. 186. Troisièmement, le critère de
la balance des inconvénients fait pencher la balance
du côté de la protection des emplois et des recettes
de l’État, de sorte que les intérêts autochtones
tendent à « être écartés » totalement jusqu’à ce
que la question en litige ait été tranchée de façon
définitive, au lieu d’être convenablement mis en
balance avec les préoccupations opposées : J. J. L.
Hunter, « Advancing Aboriginal Title Claims after
Delgamuukw : The Role of the Injunction » (juin
2000). Quatrièmement, l’injonction interlocutoire
est considérée comme une mesure corrective provisoire jusqu’à ce que le tribunal ait statué sur la
question litigieuse fondamentale. Les affaires portant sur des revendications autochtones peuvent
14
522
The Chief Justice
[2004] 3 S.C.R.
and Aboriginal interests. For all these reasons,
interlocutory injunctions may fail to adequately
take account of Aboriginal interests prior to their
final determination.
être extrêmement complexes et prendre des années,
voire des décennies, avant d’être tranchées par les
tribunaux. L’application d’une injonction interlocutoire pendant une si longue période pourrait causer
des préjudices inutiles et pourrait inciter la partie en
bénéficiant à faire moins de compromis. Même si
les revendications autochtones sont et peuvent être
réglées dans le cadre de litiges, il est préférable de
recourir à la négociation pour concilier les intérêts
de la Couronne et ceux des Autochtones. Pour toutes
ces raisons, il est possible qu’une injonction interlocutoire ne tienne pas suffisamment compte des intérêts autochtones avant qu’une décision définitive soit
rendue au sujet de ceux-ci.
I conclude that the remedy of interlocutory injunction does not preclude the Haida’s claim. We must
go further and see whether the special relationship
with the Crown upon which the Haida rely gives
rise to a duty to consult and, if appropriate, accommodate. In what follows, I discuss the source of the
duty, when the duty arises, the scope and content of
the duty, whether the duty extends to third parties,
and whether it applies to the provincial government
and not exclusively the federal government. I then
apply the conclusions flowing from this discussion
to the facts of this case.
J’estime que le recours en injonction interlocutoire ne fait pas obstacle à la revendication des
Haïda. Nous devons aller plus loin et décider si les
rapports particuliers avec la Couronne qu’invoquent
les Haïda font naître une obligation de consulter et,
s’il y a lieu, d’accommoder. Je vais maintenant analyser la source de l’obligation, le moment où elle prend
naissance, sa portée et son contenu, la question de
savoir si elle vise aussi les tiers et si elle s’applique
au gouvernement provincial, et non exclusivement
au gouvernement fédéral. J’appliquerai ensuite les
conclusions de cette analyse aux faits de l’espèce.
B. The Source of a Duty to Consult and
Accommodate
B. La source de l’obligation de consulter et d’accommoder
16
The government’s duty to consult with Aboriginal
peoples and accommodate their interests is grounded
in the honour of the Crown. The honour of the Crown
is always at stake in its dealings with Aboriginal peoples: see for example R. v. Badger, [1996] 1 S.C.R.
771, at para. 41; R. v. Marshall, [1999] 3 S.C.R. 456.
It is not a mere incantation, but rather a core precept
that finds its application in concrete practices.
L’obligation du gouvernement de consulter les
peuples autochtones et de prendre en compte leurs
intérêts découle du principe de l’honneur de la
Couronne. L’honneur de la Couronne est toujours en
jeu lorsque cette dernière transige avec les peuples
autochtones : voir par exemple R. c. Badger, [1996]
1 R.C.S. 771, par. 41; R. c. Marshall, [1999] 3 R.C.S.
456. Il ne s’agit pas simplement d’une belle formule,
mais d’un précepte fondamental qui peut s’appliquer
dans des situations concrètes.
17
The historical roots of the principle of the
honour of the Crown suggest that it must be understood generously in order to reflect the underlying realities from which it stems. In all its dealings with Aboriginal peoples, from the assertion
of sovereignty to the resolution of claims and the
implementation of treaties, the Crown must act
Les origines historiques du principe de l’honneur de la Couronne tendent à indiquer que ce dernier doit recevoir une interprétation généreuse afin
de refléter les réalités sous-jacentes dont il découle.
Dans tous ses rapports avec les peuples autochtones,
qu’il s’agisse de l’affirmation de sa souveraineté, du
règlement de revendications ou de la mise en œuvre
15
[2004] 3 R.C.S.
La Juge en chef
523
honourably. Nothing less is required if we are to
achieve “the reconciliation of the pre-existence
of aboriginal societies with the sovereignty of the
Crown”: Delgamuukw, supra, at para. 186, quoting
Van der Peet, supra, at para. 31.
de traités, la Couronne doit agir honorablement. Il
s’agit là du minimum requis pour parvenir à « concilier la préexistence des sociétés autochtones et la
souveraineté de Sa Majesté » : Delgamuukw, précité, par. 186, citant Van der Peet, précité, par. 31.
The honour of the Crown gives rise to different
duties in different circumstances. Where the Crown
has assumed discretionary control over specific
Aboriginal interests, the honour of the Crown gives
rise to a fiduciary duty: Wewaykum Indian Band v.
Canada, [2002] 4 S.C.R. 245, 2002 SCC 79, at para.
79. The content of the fiduciary duty may vary to
take into account the Crown’s other, broader obligations. However, the duty’s fulfilment requires
that the Crown act with reference to the Aboriginal
group’s best interest in exercising discretionary control over the specific Aboriginal interest at stake. As
explained in Wewaykum, at para. 81, the term “fiduciary duty” does not connote a universal trust relationship encompassing all aspects of the relationship between the Crown and Aboriginal peoples:
L’honneur de la Couronne fait naître différentes obligations selon les circonstances. Lorsque la
Couronne assume des pouvoirs discrétionnaires à
l’égard d’intérêts autochtones particuliers, le principe de l’honneur de la Couronne donne naissance
à une obligation de fiduciaire : Bande indienne
Wewaykum c. Canada, [2002] 4 R.C.S. 245, 2002
CSC 79, par. 79. Le contenu de l’obligation de fiduciaire peut varier en fonction des autres obligations,
plus larges, de la Couronne. Cependant, pour s’acquitter de son obligation de fiduciaire, la Couronne
doit agir dans le meilleur intérêt du groupe autochtone lorsqu’elle exerce des pouvoirs discrétionnaires
à l’égard des intérêts autochtones en jeu. Comme il
est expliqué dans Wewaykum, par. 81, l’expression
« obligation de fiduciaire » ne dénote pas un rapport
fiduciaire universel englobant tous les aspects des
rapports entre la Couronne et les peuples autochtones :
. . . “fiduciary duty” as a source of plenary Crown liability covering all aspects of the Crown-Indian band relationship . . . overshoots the mark. The fiduciary duty
imposed on the Crown does not exist at large but in relation to specific Indian interests.
. . . [considérer l’] « obligation de fiduciaire » [. . .]
comme si elle imposait à la Couronne une responsabilité
totale à l’égard de tous les aspects des rapports entre la
Couronne et les bandes indiennes[, c’est] aller trop loin.
L’obligation de fiduciaire incombant à la Couronne n’a
pas un caractère général, mais existe plutôt à l’égard de
droits particuliers des Indiens.
Here, Aboriginal rights and title have been asserted
but have not been defined or proven. The Aboriginal
interest in question is insufficiently specific for the
honour of the Crown to mandate that the Crown act
in the Aboriginal group’s best interest, as a fiduciary, in exercising discretionary control over the subject of the right or title.
En l’espèce, des droits et un titre ancestraux ont
été revendiqués, mais n’ont pas été définis ou prouvés. L’intérêt autochtone en question n’est pas suffisamment précis pour que l’honneur de la Couronne
oblige celle-ci à agir, comme fiduciaire, dans le
meilleur intérêt du groupe autochtone lorsqu’elle
exerce des pouvoirs discrétionnaires à l’égard de
l’objet du droit ou du titre.
The honour of the Crown also infuses the processes of treaty making and treaty interpretation. In
making and applying treaties, the Crown must act
with honour and integrity, avoiding even the appearance of “sharp dealing” (Badger, at para. 41). Thus
in Marshall, supra, at para. 4, the majority of this
Court supported its interpretation of a treaty by
L’honneur de la Couronne imprègne également
les processus de négociation et d’interprétation des
traités. Lorsqu’elle conclut et applique un traité,
la Couronne doit agir avec honneur et intégrité, et
éviter la moindre apparence de « manœuvres malhonnêtes » (Badger, par. 41). Ainsi, dans Marshall,
précité, par. 4, les juges majoritaires de la Cour ont
18
19
524
The Chief Justice
[2004] 3 S.C.R.
stating that “nothing less would uphold the honour
and integrity of the Crown in its dealings with the
Mi’kmaq people to secure their peace and friendship . . .”.
justifié leur interprétation du traité en déclarant que
« rien de moins ne saurait protéger l’honneur et l’intégrité de la Couronne dans ses rapports avec les
Mi’kmaq en vue d’établir la paix avec eux et de s’assurer leur amitié . . . ».
20
Where treaties remain to be concluded, the
honour of the Crown requires negotiations leading to a just settlement of Aboriginal claims: R.
v. Sparrow, [1990] 1 S.C.R. 1075, at pp. 1105-6.
Treaties serve to reconcile pre-existing Aboriginal
sovereignty with assumed Crown sovereignty, and
to define Aboriginal rights guaranteed by s. 35 of
the Constitution Act, 1982. Section 35 represents
a promise of rights recognition, and “[i]t is always
assumed that the Crown intends to fulfil its promises” (Badger, supra, at para. 41). This promise is
realized and sovereignty claims reconciled through
the process of honourable negotiation. It is a corollary of s. 35 that the Crown act honourably in
defining the rights it guarantees and in reconciling them with other rights and interests. This, in
turn, implies a duty to consult and, if appropriate,
accommodate.
Tant qu’un traité n’a pas été conclu, l’honneur
de la Couronne exige la tenue de négociations
menant à un règlement équitable des revendications
autochtones : R. c. Sparrow, [1990] 1 R.C.S. 1075,
p. 1105-1106. Les traités permettent de concilier la
souveraineté autochtone préexistante et la souveraineté proclamée de la Couronne, et ils servent à
définir les droits ancestraux garantis par l’art. 35 de
la Loi constitutionnelle de 1982. L’article 35 promet
la reconnaissance de droits, et « [i]l faut toujours
présumer que [la Couronne] entend respecter ses
promesses » (Badger, précité, par. 41). Un processus de négociation honnête permet de concrétiser
cette promesse et de concilier les revendications de
souveraineté respectives. L’article 35 a pour corollaire que la Couronne doit agir honorablement lorsqu’il s’agit de définir les droits garantis par celui-ci
et de les concilier avec d’autres droits et intérêts.
Cette obligation emporte à son tour celle de consulter et, s’il y a lieu, d’accommoder.
21
This duty to consult is recognized and discussed
in the jurisprudence. In Sparrow, supra, at p. 1119,
this Court affirmed a duty to consult with west-coast
Salish asserting an unresolved right to fish. Dickson
C.J. and La Forest J. wrote that one of the factors in
determining whether limits on the right were justified is “whether the aboriginal group in question
has been consulted with respect to the conservation
measures being implemented”.
Cette obligation de consulter a été reconnue et
analysée dans la jurisprudence. Dans Sparrow, précité, p. 1119, la Cour a confirmé l’existence de l’obligation de consulter les Salish de la côte ouest qui
revendiquaient un droit de pêche non encore reconnu.
Le juge en chef Dickson et le juge La Forest ont écrit
que, pour déterminer si les restrictions imposées au
droit sont justifiées, il faut notamment se demander
« si le groupe d’autochtones en question a été consulté au sujet des mesures de conservation mises en
œuvre ».
22
The Court affirmed the duty to consult regarding
resources to which Aboriginal peoples make claim
a few years later in R. v. Nikal, [1996] 1 S.C.R. 1013,
where Cory J. wrote: “So long as every reasonable
effort is made to inform and to consult, such efforts
would suffice to meet the justification requirement”
(para. 110).
Quelques années plus tard, la Cour a confirmé
l’existence de l’obligation de consultation à l’égard
des ressources visées par une revendication autochtone dans R. c. Nikal, [1996] 1 R.C.S. 1013, où le
juge Cory a écrit que « [d]ans la mesure où tous les
efforts raisonnables ont été déployés pour informer
et consulter, on a alors satisfait à l’obligation de justifier » (par. 110).
[2004] 3 R.C.S.
La Juge en chef
525
In the companion case of R. v. Gladstone, [1996]
2 S.C.R. 723, Lamer C.J. referred to the need for
“consultation and compensation”, and to consider
“how the government has accommodated different aboriginal rights in a particular fishery . . ., how
important the fishery is to the economic and material well-being of the band in question, and the criteria taken into account by the government in, for
example, allocating commercial licences amongst
different users” (para. 64).
Dans l’arrêt connexe R. c. Gladstone, [1996]
2 R.C.S. 723, le juge en chef Lamer a fait état
de la nécessité « [des] consultations et [de]
l’indemnisation », et de la nécessité d’examiner « la manière dont l’État a concilié les différents droits ancestraux visant une pêche donnée
[. . .], l’importance de la pêche pour le bien-être
économique et matériel de la bande en question, ainsi que les critères appliqués par l’État,
par exemple, dans la répartition des permis de
pêche commerciale entre les divers usagers »
(par. 64).
23
The Court’s seminal decision in Delgamuukw,
supra, at para. 168, in the context of a claim for title
to land and resources, confirmed and expanded on
the duty to consult, suggesting the content of the
duty varied with the circumstances: from a minimum “duty to discuss important decisions” where
the “breach is less serious or relatively minor”;
through the “significantly deeper than mere consultation” that is required in “most cases”; to “full
consent of [the] aboriginal nation” on very serious
issues. These words apply as much to unresolved
claims as to intrusions on settled claims.
Au paragraphe 168 de l’arrêt de principe
Delgamuukw, précité, prononcé dans le contexte
d’une revendication de titre sur des terres et des
ressources, la Cour a confirmé l’existence de l’obligation de consulter et a précisé cette obligation,
affirmant que son contenu variait selon les circonstances : de la simple « obligation de discuter des
décisions importantes » « lorsque le manquement
est moins grave ou relativement mineur », en passant par l’obligation nécessitant « beaucoup plus
qu’une simple consultation » qui s’impose « [d]ans
la plupart des cas », jusqu’à la nécessité d’obtenir le
« consentement [de la] nation autochtone » sur les
questions très importantes. Ces remarques s’appliquent autant aux revendications non réglées qu’aux
revendications déjà réglées et auxquelles il est porté
atteinte.
24
Put simply, Canada’s Aboriginal peoples were
here when Europeans came, and were never conquered. Many bands reconciled their claims with
the sovereignty of the Crown through negotiated
treaties. Others, notably in British Columbia, have
yet to do so. The potential rights embedded in these
claims are protected by s. 35 of the Constitution
Act, 1982. The honour of the Crown requires
that these rights be determined, recognized and
respected. This, in turn, requires the Crown, acting
honourably, to participate in processes of negotiation. While this process continues, the honour of
the Crown may require it to consult and, where
indicated, accommodate Aboriginal interests.
En bref, les Autochtones du Canada étaient déjà
ici à l’arrivée des Européens; ils n’ont jamais été
conquis. De nombreuses bandes ont concilié leurs
revendications avec la souveraineté de la Couronne
en négociant des traités. D’autres, notamment en
Colombie-Britannique, ne l’ont pas encore fait.
Les droits potentiels visés par ces revendications
sont protégés par l’art. 35 de la Loi constitutionnelle de 1982. L’honneur de la Couronne commande que ces droits soient déterminés, reconnus et respectés. Pour ce faire, la Couronne doit
agir honorablement et négocier. Au cours des
négociations, l’honneur de la Couronne peut obliger celle-ci à consulter les Autochtones et, s’il y
a lieu, à trouver des accommodements à leurs
intérêts.
25
526
The Chief Justice
[2004] 3 S.C.R.
C. When the Duty to Consult and Accommodate
Arises
C. Le moment où l’obligation de consulter et d’accommoder prend naissance
26
Honourable negotiation implies a duty to consult
with Aboriginal claimants and conclude an honourable agreement reflecting the claimants’ inherent
rights. But proving rights may take time, sometimes
a very long time. In the meantime, how are the interests under discussion to be treated? Underlying this
question is the need to reconcile prior Aboriginal
occupation of the land with the reality of Crown
sovereignty. Is the Crown, under the aegis of its
asserted sovereignty, entitled to use the resources at
issue as it chooses, pending proof and resolution of
the Aboriginal claim? Or must it adjust its conduct
to reflect the as yet unresolved rights claimed by the
Aboriginal claimants?
L’obligation de négocier honorablement emporte
celle de consulter les demandeurs autochtones et de
parvenir à une entente honorable, qui tienne compte
de leurs droits inhérents. Mais prouver l’existence de
droits peut prendre du temps, parfois même beaucoup de temps. Comment faut-il traiter les intérêts
en jeu dans l’intervalle? Pour répondre à cette question, il faut tenir compte de la nécessité de concilier l’occupation antérieure des terres par les peuples autochtones et la réalité de la souveraineté de la
Couronne. Celle-ci peut-elle, en vertu de la souveraineté qu’elle a proclamée, exploiter les ressources
en question comme bon lui semble en attendant que
la revendication autochtone soit établie et réglée?
Ou doit-elle plutôt adapter son comportement de
manière à tenir compte des droits, non encore reconnus, visés par cette revendication?
27
The answer, once again, lies in the honour of
the Crown. The Crown, acting honourably, cannot
cavalierly run roughshod over Aboriginal interests
where claims affecting these interests are being
seriously pursued in the process of treaty negotiation and proof. It must respect these potential, but
yet unproven, interests. The Crown is not rendered
impotent. It may continue to manage the resource in
question pending claims resolution. But, depending
on the circumstances, discussed more fully below,
the honour of the Crown may require it to consult
with and reasonably accommodate Aboriginal interests pending resolution of the claim. To unilaterally
exploit a claimed resource during the process of
proving and resolving the Aboriginal claim to that
resource, may be to deprive the Aboriginal claimants of some or all of the benefit of the resource.
That is not honourable.
La réponse à cette question découle, encore une
fois, de l’honneur de la Couronne. Si cette dernière
entend agir honorablement, elle ne peut traiter cavalièrement les intérêts autochtones qui font l’objet de
revendications sérieuses dans le cadre du processus de négociation et d’établissement d’un traité.
Elle doit respecter ces intérêts potentiels mais non
encore reconnus. La Couronne n’est pas paralysée
pour autant. Elle peut continuer à gérer les ressources en question en attendant le règlement des revendications. Toutefois, selon les circonstances, question examinée de façon plus approfondie plus loin,
le principe de l’honneur de la Couronne peut obliger celle-ci à consulter les Autochtones et à prendre
raisonnablement en compte leurs intérêts jusqu’au
règlement de la revendication. Le fait d’exploiter
unilatéralement une ressource faisant l’objet d’une
revendication au cours du processus visant à établir et à régler cette revendication peut revenir à
dépouiller les demandeurs autochtones d’une partie
ou de l’ensemble des avantages liés à cette ressource.
Agir ainsi n’est pas une attitude honorable.
28
The government argues that it is under no duty
to consult and accommodate prior to final determination of the scope and content of the right. Prior
to proof of the right, it is argued, there exists only
Le gouvernement prétend qu’il n’a aucune obligation de consulter et d’accommoder tant qu’une décision définitive n’a pas été rendue quant à la portée
et au contenu du droit. Avant que le droit ne soit
[2004] 3 R.C.S.
La Juge en chef
527
a broad, common law “duty of fairness”, based on
the general rule that an administrative decision that
affects the “rights, privileges or interests of an individual” triggers application of the duty of fairness:
Cardinal v. Director of Kent Institution, [1985] 2
S.C.R. 643, at p. 653; Baker v. Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817,
at para. 20. The government asserts that, beyond
general administrative law obligations, a duty to
consult and accommodate arises only where the
government has taken on the obligation of protecting a specific Aboriginal interest or is seeking
to limit an established Aboriginal interest. In the
result, the government submits that there is no legal
duty to consult and accommodate Haida interests at
this stage, although it concedes there may be “sound
practical and policy reasons” to do so.
établi, affirme-t-on, il n’existe qu’une « obligation
d’équité » générale en common law, fondée sur la
règle générale selon laquelle une décision administrative qui touche « les droits, privilèges ou biens
d’une personne » entraîne l’application de cette obligation d’équité : Cardinal c. Directeur de l’établissement Kent, [1985] 2 R.C.S. 643, p. 653; Baker c.
Canada (Ministre de la Citoyenneté et de l’Immigration), [1999] 2 R.C.S. 817, par. 20. Le gouvernement affirme que, en dehors des obligations générales découlant du droit administratif, l’obligation
de consulter et d’accommoder n’existe que dans le
cas où le gouvernement s’est engagé à protéger un
intérêt autochtone particulier ou cherche à restreindre un intérêt autochtone reconnu. Le gouvernement
soutient donc qu’il n’existe, à ce stade-ci, aucune
obligation légale de consulter les Haïda et de prendre en compte leurs intérêts, bien qu’il admette qu’il
puisse exister de [TRADUCTION] « bonnes raisons
sur le plan pratique et politique » de le faire.
The government cites both authority and policy in
support of its position. It relies on Sparrow, supra, at
pp. 1110-13 and 1119, where the scope and content of
the right were determined and infringement established, prior to consideration of whether infringement was justified. The government argues that its
position also finds support in the perspective of the
Ontario Court of Appeal in TransCanada Pipelines
Ltd. v. Beardmore (Township) (2000), 186 D.L.R.
(4th) 403, which held that “what triggers a consideration of the Crown’s duty to consult is a showing by the First Nation of a violation of an existing
Aboriginal or treaty right recognized and affirmed
by s. 35(1)” (para. 120).
Le gouvernement invoque des précédents et
des considérations d’intérêt général à l’appui de sa
thèse. Il cite Sparrow, précité, p. 1110-1113 et 1119,
où l’étendue et le contenu du droit avaient été déterminés et l’atteinte avait été établie, avant que soit
examinée la question de savoir si l’atteinte était
justifiée. Le gouvernement prétend que sa position
est également étayée par le point de vue exprimé
dans TransCanada Pipelines Ltd. c. Beardmore
(Township) (2000), 186 D.L.R. (4th) 403, où la
Cour d’appel de l’Ontario a jugé que [TRADUCTION]
« ce qui déclenche l’examen de l’obligation de la
Couronne de consulter, c’est la démonstration par la
Première nation qu’il y a eu violation d’un droit existant, ancestral ou issu de traité, reconnu et confirmé
par le par. 35(1) » (par. 120).
29
As for policy, the government points to practical
difficulties in the enforcement of a duty to consult or
accommodate unproven claims. If the duty to consult varies with the circumstances from a “mere”
duty to notify and listen at one end of the spectrum
to a requirement of Aboriginal consent at the other
end, how, the government asks, are the parties to
agree which level is appropriate in the face of contested claims and rights? And if they cannot agree,
how are courts or tribunals to determine this? The
Du point de vue des considérations d’intérêt général, le gouvernement invoque les difficultés que pose
sur le plan pratique l’application de l’obligation de
consulter ou d’accommoder dans les cas de revendications non établies. Si, selon les circonstances,
l’obligation de consulter peut aller de la « simple »
obligation d’informer et d’écouter, à une extrémité
de la gamme, à l’obligation d’obtenir le consentement des Autochtones, à l’autre extrémité, comment,
demande le gouvernement, les parties peuvent-elles
30
528
The Chief Justice
[2004] 3 S.C.R.
government also suggests that it is impractical and
unfair to require consultation before final claims
determination because this amounts to giving a
remedy before issues of infringement and justification are decided.
s’entendre sur le degré de consultation lorsque des
revendications et des droits sont contestés? Et si elles
n’arrivent pas à s’entendre, comment les tribunaux
judiciaires ou administratifs sont-ils censés trancher
la question? Le gouvernement affirme également
qu’il est irréaliste et injuste d’imposer une consultation avant que les revendications soient réglées de
façon définitive, car cela revient à accorder réparation avant que la question de l’atteinte et celle de la
justification aient été tranchées.
31
The government’s arguments do not withstand
scrutiny. Neither the authorities nor practical considerations support the view that a duty to consult
and, if appropriate, accommodate arises only upon
final determination of the scope and content of the
right.
Les arguments du gouvernement ne résistent pas
à un examen minutieux. Ni les précédents ni les considérations d’ordre pratique n’appuient la thèse selon
laquelle l’obligation de consulter et, s’il y a lieu,
d’accommoder ne prend naissance que lorsqu’une
décision définitive a été rendue quant à la portée et
au contenu du droit.
32
The jurisprudence of this Court supports the view
that the duty to consult and accommodate is part
of a process of fair dealing and reconciliation that
begins with the assertion of sovereignty and continues beyond formal claims resolution. Reconciliation
is not a final legal remedy in the usual sense. Rather,
it is a process flowing from rights guaranteed by s.
35(1) of the Constitution Act, 1982. This process of
reconciliation flows from the Crown’s duty of honourable dealing toward Aboriginal peoples, which
arises in turn from the Crown’s assertion of sovereignty over an Aboriginal people and de facto control of land and resources that were formerly in
the control of that people. As stated in Mitchell v.
M.N.R., [2001] 1 S.C.R. 911, 2001 SCC 33, at para.
9, “[w]ith this assertion [sovereignty] arose an obligation to treat aboriginal peoples fairly and honourably, and to protect them from exploitation” (emphasis added).
La jurisprudence de la Cour étaye le point de vue
selon lequel l’obligation de consulter et d’accommoder fait partie intégrante du processus de négociation
honorable et de conciliation qui débute au moment
de l’affirmation de la souveraineté et se poursuit audelà du règlement formel des revendications. La conciliation ne constitue pas une réparation juridique
définitive au sens usuel du terme. Il s’agit plutôt d’un
processus découlant des droits garantis par le par.
35(1) de la Loi constitutionnelle de 1982. Ce processus de conciliation découle de l’obligation de la
Couronne de se conduire honorablement envers les
peuples autochtones, obligation qui, à son tour, tire
son origine de l’affirmation par la Couronne de sa
souveraineté sur un peuple autochtone et par l’exercice de fait de son autorité sur des terres et ressources qui étaient jusque-là sous l’autorité de ce peuple.
Comme il est mentionné dans Mitchell c. M.R.N.,
[2001] 1 R.C.S. 911, 2001 CSC 33, par. 9, « [c]ette
affirmation de souveraineté a fait naître l’obligation
de traiter les peuples autochtones de façon équitable et honorable, et de les protéger contre l’exploitation » (je souligne).
33
To limit reconciliation to the post-proof sphere
risks treating reconciliation as a distant legalistic
goal, devoid of the “meaningful content” mandated
by the “solemn commitment” made by the Crown
in recognizing and affirming Aboriginal rights and
Limiter l’application du processus de conciliation aux revendications prouvées comporte le risque
que la conciliation soit considérée comme un objectif formaliste éloigné et se voie dénuée du « sens
utile » qu’elle doit avoir par suite de l’« engagement
[2004] 3 R.C.S.
La Juge en chef
529
title: Sparrow, supra, at p. 1108. It also risks unfortunate consequences. When the distant goal of proof
is finally reached, the Aboriginal peoples may find
their land and resources changed and denuded. This
is not reconciliation. Nor is it honourable.
solennel » pris par la Couronne lorsqu’elle a reconnu
et confirmé les droits et titres ancestraux : Sparrow,
précité, p. 1108. Une telle attitude risque également
d’avoir des conséquences fâcheuses. En effet, il est
possible que, lorsque les Autochtones parviennent
finalement à établir le bien-fondé de leur revendication, ils trouvent leurs terres changées et leurs ressources épuisées. Ce n’est pas de la conciliation, ni
un comportement honorable.
The existence of a legal duty to consult prior to
proof of claims is necessary to understand the language of cases like Sparrow, Nikal, and Gladstone,
supra, where confirmation of the right and justification of an alleged infringement were litigated at the
same time. For example, the reference in Sparrow
to Crown behaviour in determining if any infringements were justified, is to behaviour before determination of the right. This negates the contention that a
proven right is the trigger for a legal duty to consult
and if appropriate accommodate even in the context
of justification.
L’existence d’une obligation légale de consulter le
groupe intéressé avant qu’il ait apporté la preuve de
sa revendication est nécessaire pour comprendre le
langage employé dans des affaires comme Sparrow,
Nikal et Gladstone, précitées, où la confirmation du
droit et la justification de l’atteinte reprochée ont été
débattues en même temps. Dans Sparrow, par exemple, la référence au comportement de la Couronne
au cours de l’examen de la justification des atteintes
s’entend du comportement avant l’établissement du
droit, ce qui réfute l’argument que ce soit la preuve
de l’existence du droit revendiqué qui déclenche
l’obligation légale de consulter et, s’il y a lieu, d’accommoder, même dans le contexte de la justification.
34
But, when precisely does a duty to consult arise?
The foundation of the duty in the Crown’s honour
and the goal of reconciliation suggest that the duty
arises when the Crown has knowledge, real or constructive, of the potential existence of the Aboriginal
right or title and contemplates conduct that might
adversely affect it: see Halfway River First Nation
v. British Columbia (Ministry of Forests), [1997] 4
C.N.L.R. 45 (B.C.S.C.), at p. 71, per Dorgan J.
Mais à quel moment, précisément, l’obligation
de consulter prend-elle naissance? L’objectif de
conciliation ainsi que l’obligation de consultation,
laquelle repose sur l’honneur de la Couronne, tendent à indiquer que cette obligation prend naissance
lorsque la Couronne a connaissance, concrètement
ou par imputation, de l’existence potentielle du droit
ou titre ancestral revendiqué et envisage des mesures susceptibles d’avoir un effet préjudiciable sur
celui-ci : voir Halfway River First Nation c. British
Columbia (Ministry of Forests), [1997] 4 C.N.L.R.
45 (C.S.C.-B.), p. 71, le juge Dorgan.
35
This leaves the practical argument. It is said that
before claims are resolved, the Crown cannot know
that the rights exist, and hence can have no duty to
consult or accommodate. This difficulty should not
be denied or minimized. As I stated (dissenting) in
Marshall, supra, at para. 112, one cannot “meaningfully discuss accommodation or justification
of a right unless one has some idea of the core of
that right and its modern scope”. However, it will
Il reste l’argument d’ordre pratique. On affirme
que, tant qu’une revendication n’est pas réglée, la
Couronne ne peut pas savoir si les droits revendiqués existent ou non et que, de ce fait, elle ne peut
être tenue à une obligation de consulter ou d’accommoder. Cette difficulté ne saurait être niée ou
minimisée. Comme je l’ai déclaré (dans mes motifs
dissidents) dans Marshall, précité, par. 112, on ne
peut « analyser utilement la question de la prise en
36
530
The Chief Justice
[2004] 3 S.C.R.
frequently be possible to reach an idea of the asserted
rights and of their strength sufficient to trigger an
obligation to consult and accommodate, short of
final judicial determination or settlement. To facilitate this determination, claimants should outline
their claims with clarity, focussing on the scope and
nature of the Aboriginal rights they assert and on
the alleged infringements. This is what happened
here, where the chambers judge made a preliminary
evidence-based assessment of the strength of the
Haida claims to the lands and resources of Haida
Gwaii, particularly Block 6.
compte d’un droit ou de la justification de ses limites sans avoir une idée de l’essence de ce droit et
de sa portée actuelle ». Cependant, il est souvent
possible de se faire, à l’égard des droits revendiqués
et de leur solidité, une idée suffisamment précise
pour que l’obligation de consulter et d’accommoder
s’applique, même si ces droits n’ont pas fait l’objet
d’un règlement définitif ou d’une décision judiciaire
finale. Pour faciliter cette détermination, les demandeurs devraient exposer clairement leurs revendications, en insistant sur la portée et la nature des droits
ancestraux qu’ils revendiquent ainsi que sur les violations qu’ils allèguent. C’est ce qui s’est produit en
l’espèce, lorsque le juge en son cabinet a procédé à
une évaluation préliminaire, fondée sur la preuve,
de la solidité des revendications des Haïda à l’égard
des terres et des ressources des îles Haïda Gwaii, en
particulier du Bloc 6.
37
There is a distinction between knowledge sufficient to trigger a duty to consult and, if appropriate,
accommodate, and the content or scope of the duty
in a particular case. Knowledge of a credible but
unproven claim suffices to trigger a duty to consult
and accommodate. The content of the duty, however, varies with the circumstances, as discussed
more fully below. A dubious or peripheral claim
may attract a mere duty of notice, while a stronger
claim may attract more stringent duties. The law is
capable of differentiating between tenuous claims,
claims possessing a strong prima facie case, and
established claims. Parties can assess these matters, and if they cannot agree, tribunals and courts
can assist. Difficulties associated with the absence
of proof and definition of claims are addressed by
assigning appropriate content to the duty, not by
denying the existence of a duty.
Il y a une différence entre une connaissance suffisante pour entraîner l’application de l’obligation
de consulter et, s’il y a lieu, d’accommoder, et le
contenu ou l’étendue de cette obligation dans une
affaire donnée. La connaissance d’une revendication crédible mais non encore établie suffit à faire
naître l’obligation de consulter et d’accommoder.
Toutefois, le contenu de l’obligation varie selon les
circonstances, comme nous le verrons de façon plus
approfondie plus loin. Une revendication douteuse
ou marginale peut ne requérir qu’une simple obligation d’informer, alors qu’une revendication plus
solide peut faire naître des obligations plus contraignantes. Il est possible en droit de différencier les
revendications reposant sur une preuve ténue des
revendications reposant sur une preuve à première
vue solide et de celles déjà établies. Les parties peuvent examiner la question et, si elles ne réussissent
pas à s’entendre, les tribunaux administratifs et judiciaires peuvent leur venir en aide. Il faut régler les
problèmes liés à l’absence de preuve et de définition des revendications en délimitant l’obligation de
façon appropriée et non en niant son existence.
38
I conclude that consultation and accommodation
before final claims resolution, while challenging,
is not impossible, and indeed is an essential corollary to the honourable process of reconciliation that
s. 35 demands. It preserves the Aboriginal interest
J’estime que, bien que le respect des obligations
de consultation et d’accommodement avant le règlement définitif d’une revendication ne soit pas sans
poser de problèmes, de telles mesures ne sont toutefois pas impossibles et constituent même un aspect
[2004] 3 R.C.S.
La Juge en chef
531
pending claims resolution and fosters a relationship
between the parties that makes possible negotiations,
the preferred process for achieving ultimate reconciliation: see S. Lawrence and P. Macklem, “From
Consultation to Reconciliation: Aboriginal Rights
and the Crown’s Duty to Consult” (2000), 79 Can.
Bar Rev. 252, at p. 262. Precisely what is required
of the government may vary with the strength of the
claim and the circumstances. But at a minimum, it
must be consistent with the honour of the Crown.
essentiel du processus honorable de conciliation
imposé par l’art. 35. Elles protègent les intérêts
autochtones jusqu’au règlement des revendications
et favorisent le développement entre les parties d’une
relation propice à la négociation, processus à privilégier pour parvenir finalement à la conciliation : voir
S. Lawrence et P. Macklem, « From Consultation to
Reconciliation : Aboriginal Rights and the Crown’s
Duty to Consult » (2000), 79 R. du B. can. 252, p.
262. Les mesures précises que doit prendre le gouvernement peuvent varier selon la solidité de la
revendication et les circonstances, mais elles doivent
à tout le moins être compatibles avec l’honneur de la
Couronne.
D. The Scope and Content of the Duty to Consult
and Accommodate
D. L’étendue et le contenu de l’obligation de consulter et d’accommoder
The content of the duty to consult and accommodate varies with the circumstances. Precisely what
duties arise in different situations will be defined
as the case law in this emerging area develops. In
general terms, however, it may be asserted that the
scope of the duty is proportionate to a preliminary
assessment of the strength of the case supporting the
existence of the right or title, and to the seriousness
of the potentially adverse effect upon the right or
title claimed.
Le contenu de l’obligation de consulter et d’accommoder varie selon les circonstances. La nature
précise des obligations qui naissent dans différentes
situations sera définie à mesure que les tribunaux se
prononceront sur cette nouvelle question. En termes
généraux, il est néanmoins possible d’affirmer que
l’étendue de l’obligation dépend de l’évaluation préliminaire de la solidité de la preuve étayant l’existence du droit ou du titre revendiqué, et de la gravité
des effets préjudiciables potentiels sur le droit ou le
titre.
39
In Delgamuukw, supra, at para. 168, the Court
considered the duty to consult and accommodate
in the context of established claims. Lamer C.J.
wrote:
Dans Delgamuukw, précité, par. 168, la Cour a
examiné l’obligation de consulter et d’accommoder
dans le contexte de revendications dont le bien-fondé
a été établi. Le juge en chef Lamer a écrit :
40
The nature and scope of the duty of consultation will
vary with the circumstances. In occasional cases, when
the breach is less serious or relatively minor, it will be
no more than a duty to discuss important decisions that
will be taken with respect to lands held pursuant to aboriginal title. Of course, even in these rare cases when the
minimum acceptable standard is consultation, this consultation must be in good faith, and with the intention of
substantially addressing the concerns of the aboriginal
peoples whose lands are at issue. In most cases, it will be
significantly deeper than mere consultation. Some cases
may even require the full consent of an aboriginal nation,
particularly when provinces enact hunting and fishing
regulations in relation to aboriginal lands.
La nature et l’étendue de l’obligation de consultation
dépendront des circonstances. Occasionnellement, lorsque le manquement est moins grave ou relativement
mineur, il ne s’agira de rien de plus que la simple obligation de discuter des décisions importantes qui seront
prises au sujet des terres détenues en vertu d’un titre aborigène. Évidemment, même dans les rares cas où la norme
minimale acceptable est la consultation, celle-ci doit être
menée de bonne foi, dans l’intention de tenir compte
réellement des préoccupations des peuples autochtones
dont les terres sont en jeu. Dans la plupart des cas, l’obligation exigera beaucoup plus qu’une simple consultation.
Certaines situations pourraient même exiger l’obtention
du consentement d’une nation autochtone, particulièrement lorsque des provinces prennent des règlements de
chasse et de pêche visant des territoires autochtones.
532
The Chief Justice
[2004] 3 S.C.R.
41
Transposing this passage to pre-proof claims, one
may venture the following. While it is not useful to
classify situations into watertight compartments,
different situations requiring different responses can
be identified. In all cases, the honour of the Crown
requires that the Crown act with good faith to provide meaningful consultation appropriate to the circumstances. In discharging this duty, regard may be
had to the procedural safeguards of natural justice
mandated by administrative law.
La transposition de ce passage dans le contexte
des revendications non encore établies permet
d’avancer ce qui suit. Bien qu’il ne soit pas utile de
classer les situations dans des compartiments étanches, il est possible d’identifier différentes situations
appelant des solutions différentes. Dans tous les cas,
le principe de l’honneur de la Couronne commande
que celle-ci agisse de bonne foi et tienne une véritable consultation, qui soit appropriée eu égard aux
circonstances. Lorsque vient le temps de s’acquitter de cette obligation, les garanties procédurales de
justice naturelle exigées par le droit administratif
peuvent servir de guide.
42
At all stages, good faith on both sides is required.
The common thread on the Crown’s part must be “the
intention of substantially addressing [Aboriginal]
concerns” as they are raised (Delgamuukw, supra,
at para. 168), through a meaningful process of consultation. Sharp dealing is not permitted. However,
there is no duty to agree; rather, the commitment
is to a meaningful process of consultation. As for
Aboriginal claimants, they must not frustrate the
Crown’s reasonable good faith attempts, nor should
they take unreasonable positions to thwart government from making decisions or acting in cases
where, despite meaningful consultation, agreement
is not reached: see Halfway River First Nation v.
British Columbia (Ministry of Forests), [1999]
4 C.N.L.R. 1 (B.C.C.A.), at p. 44; Heiltsuk Tribal
Council v. British Columbia (Minister of Sustainable
Resource Management) (2003), 19 B.C.L.R. (4th)
107 (B.C.S.C.). Mere hard bargaining, however, will
not offend an Aboriginal people’s right to be consulted.
À toutes les étapes, les deux parties sont tenues de
faire montre de bonne foi. Le fil conducteur du côté
de la Couronne doit être « l’intention de tenir compte
réellement des préoccupations [des Autochtones] »
à mesure qu’elles sont exprimées (Delgamuukw,
précité, par. 168), dans le cadre d’un véritable processus de consultation. Les manœuvres malhonnêtes sont interdites. Cependant, il n’y a pas obligation
de parvenir à une entente mais plutôt de procéder à
de véritables consultations. Quant aux demandeurs
autochtones, ils ne doivent pas contrecarrer les
efforts déployés de bonne foi par la Couronne et ne
devraient pas non plus défendre des positions déraisonnables pour empêcher le gouvernement de prendre des décisions ou d’agir dans les cas où, malgré
une véritable consultation, on ne parvient pas à s’entendre : voir Halfway River First Nation c. British
Columbia (Ministry of Forests), [1999] 4 C.N.L.R.
1 (C.A.C.-B.), p. 44; Heiltsuk Tribal Council c.
British Columbia (Minister of Sustainable Resource Management) (2003), 19 B.C.L.R. (4th) 107
(C.S.C.-B.). Toutefois, le seul fait de négocier de
façon serrée ne porte pas atteinte au droit des
Autochtones d’être consultés.
43
Against this background, I turn to the kind of
duties that may arise in different situations. In this
respect, the concept of a spectrum may be helpful, not to suggest watertight legal compartments
but rather to indicate what the honour of the Crown
may require in particular circumstances. At one end
of the spectrum lie cases where the claim to title is
weak, the Aboriginal right limited, or the potential
for infringement minor. In such cases, the only duty
Sur cette toile de fond, je vais maintenant examiner le type d’obligations qui peuvent découler de
différentes situations. À cet égard, l’utilisation de la
notion de continuum peut se révéler utile, non pas
pour créer des compartiments juridiques étanches,
mais plutôt pour préciser ce que le principe de l’honneur de la Couronne est susceptible d’exiger dans
des circonstances particulières. À une extrémité du
continuum se trouvent les cas où la revendication
[2004] 3 R.C.S.
La Juge en chef
533
on the Crown may be to give notice, disclose information, and discuss any issues raised in response
to the notice. “‘[C]onsultation’ in its least technical
definition is talking together for mutual understanding”: T. Isaac and A. Knox, “The Crown’s Duty to
Consult Aboriginal People” (2003), 41 Alta. L. Rev.
49, at p. 61.
de titre est peu solide, le droit ancestral limité ou
le risque d’atteinte faible. Dans ces cas, les seules
obligations qui pourraient incomber à la Couronne
seraient d’aviser les intéressés, de leur communiquer
des renseignements et de discuter avec eux des questions soulevées par suite de l’avis. La [TRADUCTION]
« “consultation”, dans son sens le moins technique, s’entend de l’action de se parler dans le but de
se comprendre les uns les autres » : T. Isaac et A.
Knox, « The Crown’s Duty to Consult Aboriginal
People » (2003), 41 Alta. L. Rev. 49, p. 61.
At the other end of the spectrum lie cases where a
strong prima facie case for the claim is established,
the right and potential infringement is of high significance to the Aboriginal peoples, and the risk of
non-compensable damage is high. In such cases deep
consultation, aimed at finding a satisfactory interim
solution, may be required. While precise requirements will vary with the circumstances, the consultation required at this stage may entail the opportunity to make submissions for consideration, formal
participation in the decision-making process, and
provision of written reasons to show that Aboriginal
concerns were considered and to reveal the impact
they had on the decision. This list is neither exhaustive, nor mandatory for every case. The government
may wish to adopt dispute resolution procedures like
mediation or administrative regimes with impartial
decision-makers in complex or difficult cases.
À l’autre extrémité du continuum on trouve les
cas où la revendication repose sur une preuve à première vue solide, où le droit et l’atteinte potentielle
sont d’une haute importance pour les Autochtones et
où le risque de préjudice non indemnisable est élevé.
Dans de tels cas, il peut s’avérer nécessaire de tenir
une consultation approfondie en vue de trouver une
solution provisoire acceptable. Quoique les exigences précises puissent varier selon les circonstances,
la consultation requise à cette étape pourrait comporter la possibilité de présenter des observations,
la participation officielle à la prise de décisions et
la présentation de motifs montrant que les préoccupations des Autochtones ont été prises en compte
et précisant quelle a été l’incidence de ces préoccupations sur la décision. Cette liste n’est pas exhaustive et ne doit pas nécessairement être suivie dans
chaque cas. Dans les affaires complexes ou difficiles, le gouvernement peut décider de recourir à un
mécanisme de règlement des différends comme la
médiation ou un régime administratif mettant en
scène des décideurs impartiaux.
44
Between these two extremes of the spectrum
just described, will lie other situations. Every case
must be approached individually. Each must also be
approached flexibly, since the level of consultation
required may change as the process goes on and new
information comes to light. The controlling question in all situations is what is required to maintain
the honour of the Crown and to effect reconciliation between the Crown and the Aboriginal peoples
with respect to the interests at stake. Pending settlement, the Crown is bound by its honour to balance
societal and Aboriginal interests in making decisions that may affect Aboriginal claims. The Crown
Entre les deux extrémités du continuum décrit
précédemment, on rencontrera d’autres situations.
Il faut procéder au cas par cas. Il faut également
faire preuve de souplesse, car le degré de consultation nécessaire peut varier à mesure que se déroule
le processus et que de nouveaux renseignements
sont mis au jour. La question décisive dans toutes
les situations consiste à déterminer ce qui est nécessaire pour préserver l’honneur de la Couronne et
pour concilier les intérêts de la Couronne et ceux
des Autochtones. Tant que la question n’est pas
réglée, le principe de l’honneur de la Couronne
commande que celle-ci mette en balance les
45
534
46
may be required to make decisions in the face of
disagreement as to the adequacy of its response to
Aboriginal concerns. Balance and compromise will
then be necessary.
intérêts de la société et ceux des peuples autochtones
lorsqu’elle prend des décisions susceptibles d’entraîner des répercussions sur les revendications autochtones. Elle peut être appelée à prendre des décisions
en cas de désaccord quant au caractère suffisant des
mesures qu’elle adopte en réponse aux préoccupations exprimées par les Autochtones. Une attitude de
pondération et de compromis s’impose alors.
Meaningful consultation may oblige the Crown
to make changes to its proposed action based
on information obtained through consultations.
The New Zealand Ministry of Justice’s Guide for
Consultation with Mäori (1997) provides insight (at
pp. 21 and 31):
À la suite de consultations véritables, la Couronne
pourrait être amenée à modifier la mesure envisagée en fonction des renseignements obtenus lors des
consultations. Le Guide for Consultation with Mäori
(1997) du ministère de la Justice de la NouvelleZélande fournit des indications sur la question (aux
p. 21 et 31):
Consultation is not just a process of exchanging information. It also entails testing and being prepared to amend
policy proposals in the light of information received,
and providing feedback. Consultation therefore becomes
a process which should ensure both parties are better
informed . . . .
[TRADUCTION] La consultation n’est pas seulement un
simple mécanisme d’échange de renseignements. Elle
comporte également des mises à l’épreuve et la modification éventuelle des énoncés de politique compte tenu
des renseignements obtenus ainsi que la rétroaction. Elle
devient donc un processus grâce auquel les deux parties
sont mieux informées . . .
.
.
.
. . . genuine consultation means a process that involves . . .:
47
[2004] 3 S.C.R.
The Chief Justice
.
.
.
. . . de véritables consultations s’entendent d’un processus qui consiste . . . :
•
gathering information to test policy proposals
•
à recueillir des renseignements pour mettre à
l’épreuve les énoncés de politique;
•
putting forward proposals that are not yet finalised
•
à proposer des énoncés qui ne sont pas encore
arrêtés définitivement;
•
seeking Mäori opinion on those proposals
•
à chercher à obtenir l’opinion des Mäoris sur ces
énoncés;
•
informing Mäori of all relevant information upon
which those proposals are based
•
à informer les Mäoris de tous les renseignements
pertinents sur lesquels reposent ces énoncés;
•
not promoting but listening with an open mind to
what Mäori have to say
•
à écouter avec un esprit ouvert ce que les Mäoris
ont à dire sans avoir à en faire la promotion;
•
being prepared to alter the original proposal
•
à être prêt à modifier l’énoncé original;
•
providing feedback both during the consultation
process and after the decision-process.
•
à fournir une rétroaction tant au cours de la consultation qu’après la prise de décision.
When the consultation process suggests amendment of Crown policy, we arrive at the stage of
accommodation. Thus the effect of good faith consultation may be to reveal a duty to accommodate.
Where a strong prima facie case exists for the claim,
S’il ressort des consultations que des modifications à la politique de la Couronne s’imposent, il
faut alors passer à l’étape de l’accommodement. Des
consultations menées de bonne foi peuvent donc
faire naître l’obligation d’accommoder. Lorsque la
[2004] 3 R.C.S.
La Juge en chef
535
and the consequences of the government’s proposed
decision may adversely affect it in a significant way,
addressing the Aboriginal concerns may require
taking steps to avoid irreparable harm or to minimize the effects of infringement, pending final resolution of the underlying claim. Accommodation is
achieved through consultation, as this Court recognized in R. v. Marshall, [1999] 3 S.C.R. 533, at para.
22: “. . . the process of accommodation of the treaty
right may best be resolved by consultation and negotiation”.
revendication repose sur une preuve à première vue
solide et que la décision que le gouvernement entend
prendre risque de porter atteinte de manière appréciable aux droits visés par la revendication, l’obligation d’accommodement pourrait exiger l’adoption
de mesures pour éviter un préjudice irréparable ou
pour réduire au minimum les conséquences de l’atteinte jusqu’au règlement définitif de la revendication sous-jacente. L’accommodement est le fruit des
consultations, comme la Cour l’a reconnu dans R. c.
Marshall, [1999] 3 R.C.S. 533, par. 22 : « . . . il est
préférable de réaliser la prise en compte du droit issu
du traité par des consultations et par la négociation ».
This process does not give Aboriginal groups a
veto over what can be done with land pending final
proof of the claim. The Aboriginal “consent” spoken
of in Delgamuukw is appropriate only in cases of
established rights, and then by no means in every
case. Rather, what is required is a process of balancing interests, of give and take.
Ce processus ne donne pas aux groupes autochtones un droit de veto sur les mesures susceptibles
d’être prises à l’égard des terres en cause en attendant que la revendication soit établie de façon définitive. Le « consentement » dont il est question dans
Delgamuukw n’est nécessaire que lorsque les droits
invoqués ont été établis, et même là pas dans tous les
cas. Ce qu’il faut au contraire, c’est plutôt un processus de mise en balance des intérêts, de concessions
mutuelles.
48
This flows from the meaning of “accommodate”.
The terms “accommodate” and “accommodation”
have been defined as to “adapt, harmonize, reconcile” . . . “an adjustment or adaptation to suit a special or different purpose . . . a convenient arrangement; a settlement or compromise”: Concise Oxford
Dictionary of Current English (9th ed. 1995), at p. 9.
The accommodation that may result from pre-proof
consultation is just this — seeking compromise in an
attempt to harmonize conflicting interests and move
further down the path of reconciliation. A commitment to the process does not require a duty to agree.
But it does require good faith efforts to understand
each other’s concerns and move to address them.
Cette conclusion découle du sens des termes
« accommoder » et « accommodement », définis
respectivement ainsi : « Accommoder qqc. à.
L’adapter à, la mettre en correspondance avec quelque chose . . . » et « Action, résultat de l’action d’accommoder (ou de s’accommoder); moyen employé
en vue de cette action. [. . .] Action de (se) mettre
ou fait d’être en accord avec quelqu’un; règlement
à l’amiable, transaction » (Trésor de la langue française, t. 1, 1971, p. 391 et 388). L’accommodement
susceptible de résulter de consultations menées
avant l’établissement du bien-fondé de la revendication correspond exactement à cela : la recherche
d’un compromis dans le but d’harmoniser des intérêts opposés et de continuer dans la voie de la réconciliation. L’engagement à suivre le processus n’emporte pas l’obligation de se mettre d’accord, mais
exige de chaque partie qu’elle s’efforce de bonne
foi à comprendre les préoccupations de l’autre et à
y répondre.
49
The Court’s decisions confirm this vision of
accommodation. The Court in Sparrow raised
La jurisprudence de la Cour confirme cette conception d’accommodement. Dans Sparrow, la Cour
50
536
51
The Chief Justice
[2004] 3 S.C.R.
the concept of accommodation, stressing the
need to balance competing societal interests with
Aboriginal and treaty rights. In R. v. Sioui, [1990]
1 S.C.R. 1025, at p. 1072, the Court stated that the
Crown bears the burden of proving that its occupancy of lands “cannot be accommodated to reasonable exercise of the Hurons’ rights”. And in R.
v. Côté, [1996] 3 S.C.R. 139, at para. 81, the Court
spoke of whether restrictions on Aboriginal rights
“can be accommodated with the Crown’s special
fiduciary relationship with First Nations”. Balance
and compromise are inherent in the notion of reconciliation. Where accommodation is required in
making decisions that may adversely affect as yet
unproven Aboriginal rights and title claims, the
Crown must balance Aboriginal concerns reasonably with the potential impact of the decision on
the asserted right or title and with other societal
interests.
a évoqué cette notion, insistant sur la nécessité
d’établir un équilibre entre des intérêts sociétaux
opposés et les droits ancestraux et issus de traités
des Autochtones. Dans R. c. Sioui, [1990] 1 R.C.S.
1025, p. 1072, la Cour a affirmé qu’il incombe à
la Couronne de prouver que son occupation des
terres « ne peut s’accommoder de l’exercice raisonnable des droits des Hurons ». Et, dans R. c. Côté,
[1996] 3 R.C.S. 139, par. 81, la Cour s’est demandé
si les restrictions imposées aux droits ancestraux
« [étaient] conciliable[s] avec les rapports spéciaux de fiduciaire de l’État à l’égard des premières nations ». La mise en équilibre et le compromis
font partie intégrante de la notion de conciliation.
Lorsque l’accommodement est nécessaire à l’occasion d’une décision susceptible d’avoir un effet
préjudiciable sur des revendications de droits et de
titre ancestraux non encore prouvées, la Couronne
doit établir un équilibre raisonnable entre les préoccupations des Autochtones, d’une part, et l’incidence potentielle de la décision sur le droit ou titre
revendiqué et les autres intérêts sociétaux, d’autre
part.
It is open to governments to set up regulatory schemes to address the procedural requirements appropriate to different problems at different stages, thereby strengthening the reconciliation
process and reducing recourse to the courts. As
noted in R. v. Adams, [1996] 3 S.C.R. 101, at para.
54, the government “may not simply adopt an
unstructured discretionary administrative regime
which risks infringing aboriginal rights in a substantial number of applications in the absence of
some explicit guidance”. It should be observed
that, since October 2002, British Columbia has
had a Provincial Policy for Consultation with First
Nations to direct the terms of provincial ministries’ and agencies’ operational guidelines. Such a
policy, while falling short of a regulatory scheme,
may guard against unstructured discretion and provide a guide for decision-makers.
Il est loisible aux gouvernements de mettre en
place des régimes de réglementation fixant les
exigences procédurales applicables aux différents problèmes survenant à différentes étapes, et
ainsi de renforcer le processus de conciliation et
réduire le recours aux tribunaux. Comme il a été
mentionné dans R. c. Adams, [1996] 3 R.C.S. 101,
par. 54, le gouvernement « ne peut pas se contenter
d’établir un régime administratif fondé sur l’exercice d’un pouvoir discrétionnaire non structuré et
qui, en l’absence d’indications explicites, risque
de porter atteinte aux droits ancestraux dans un
nombre considérable de cas ». Il convient de souligner que, depuis octobre 2002, la ColombieBritannique dispose d’une politique provinciale de
consultation des Premières nations établissant les
modalités d’application des lignes directrices opérationnelles des ministères et organismes provinciaux. Même si elle ne constitue pas un régime de
réglementation, une telle politique peut néanmoins
prévenir l’exercice d’un pouvoir discrétionnaire
non structuré et servir de guide aux décideurs.
[2004] 3 R.C.S.
La Juge en chef
537
E. Do Third Parties Owe a Duty to Consult and
Accommodate?
E. Les tiers ont-ils l’obligation de consulter et
d’accommoder?
The Court of Appeal found that Weyerhaeuser,
the forestry contractor holding T.F.L. 39, owed the
Haida people a duty to consult and accommodate.
With respect, I cannot agree.
La Cour d’appel a conclu que Weyerhaeuser, l’entreprise forestière détenant la CFF 39, avait l’obligation de consulter les Haïda et de trouver des
accommodements à leurs préoccupations. En toute
déférence, je ne puis souscrire à cette conclusion.
52
It is suggested (per Lambert J.A.) that a third
party’s obligation to consult Aboriginal peoples
may arise from the ability of the third party to rely
on justification as a defence against infringement.
However, the duty to consult and accommodate, as
discussed above, flows from the Crown’s assumption
of sovereignty over lands and resources formerly held
by the Aboriginal group. This theory provides no
support for an obligation on third parties to consult
or accommodate. The Crown alone remains legally
responsible for the consequences of its actions and
interactions with third parties, that affect Aboriginal
interests. The Crown may delegate procedural
aspects of consultation to industry proponents seeking a particular development; this is not infrequently
done in environmental assessments. Similarly, the
terms of T.F.L. 39 mandated Weyerhaeuser to specify measures that it would take to identify and consult with “aboriginal people claiming an aboriginal
interest in or to the area” (Tree Farm Licence No.
39, Haida Tree Farm Licence, para. 2.09(g)(ii)).
However, the ultimate legal responsibility for consultation and accommodation rests with the Crown.
The honour of the Crown cannot be delegated.
Il a été dit (le juge Lambert de la Cour d’appel) qu’un tiers peut être tenu de consulter les
Autochtones concernés du fait qu’il a la faculté, en
cas de violation des droits de ces derniers, de plaider en défense que l’atteinte est justifiée. Comme
nous l’avons vu, cependant, l’obligation de consulter et d’accommoder découle de la proclamation
de la souveraineté de la Couronne sur des terres et
ressources autrefois détenues par le groupe autochtone concerné. Cette théorie ne permet pas de conclure que les tiers ont l’obligation de consulter ou
d’accommoder. La Couronne demeure seule légalement responsable des conséquences de ses actes
et de ses rapports avec des tiers qui ont une incidence sur des intérêts autochtones. Elle peut déléguer certains aspects procéduraux de la consultation
à des acteurs industriels qui proposent des activités
d’exploitation; cela n’est pas rare en matière d’évaluations environnementales. Ainsi, la CFF 39 obligeait Weyerhaeuser à préciser les mesures qu’elle
entendait prendre pour identifier et consulter les
[TRADUCTION] « Autochtones qui revendiquaient
un intérêt ancestral dans la région » (CFF 39, CFF
haïda, paragraphe 2.09g)(ii)). Cependant, la responsabilité juridique en ce qui a trait à la consultation et
à l’accommodement incombe en dernier ressort à la
Couronne. Le respect du principe de l’honneur de la
Couronne ne peut être délégué.
53
It is also suggested (per Lambert J.A.) that third
parties might have a duty to consult and accommodate on the basis of the trust law doctrine of “knowing receipt”. However, as discussed above, while the
Crown’s fiduciary obligations and its duty to consult and accommodate share roots in the principle
that the Crown’s honour is engaged in its relationship with Aboriginal peoples, the duty to consult is
distinct from the fiduciary duty that is owed in relation to particular cognizable Aboriginal interests.
Il a également été avancé (le juge Lambert de la
Cour d’appel) que les tiers pourraient être assujettis à l’obligation de consulter et d’accommoder par
l’effet de la doctrine du droit des fiducies appelée
« réception en connaissance de cause ». Cependant,
comme nous l’avons vu, même si les obligations de
fiduciaire de la Couronne et son obligation de consulter et d’accommoder découlent toutes du principe
que l’honneur de la Couronne est en jeu dans ses
rapports avec les peuples autochtones, l’obligation de
54
538
55
The Chief Justice
[2004] 3 S.C.R.
As noted earlier, the Court cautioned in Wewaykum
against assuming that a general trust or fiduciary
obligation governs all aspects of relations between
the Crown and Aboriginal peoples. Furthermore,
this Court in Guerin v. The Queen, [1984] 2 S.C.R.
335, made it clear that the “trust-like” relationship
between the Crown and Aboriginal peoples is not a
true “trust”, noting that “[t]he law of trusts is a highly
developed, specialized branch of the law” (p. 386).
There is no reason to graft the doctrine of knowing receipt onto the special relationship between the
Crown and Aboriginal peoples. It is also questionable whether businesses acting on licence from the
Crown can be analogized to persons who knowingly
turn trust funds to their own ends.
consulter est différente de l’obligation de fiduciaire
qui existe à l’égard de certains intérêts autochtones
reconnus. Comme il a été indiqué plus tôt, la Cour
a souligné, dans Wewaykum, qu’il fallait se garder
de supposer l’existence d’une obligation générale
de fiduciaire régissant tous les aspects des rapports
entre la Couronne et les peuples autochtones. En
outre, dans Guerin c. La Reine, [1984] 2 R.C.S. 335,
la Cour a clairement dit que la relation « semblable
à une fiducie » qui existe entre la Couronne et les
peuples autochtones n’est pas une vraie « fiducie »,
faisant observer que « [l]e droit des fiducies constitue un domaine juridique très perfectionné et spécialisé » (p. 386). Il n’y a aucune raison d’introduire
la doctrine de la réception en connaissance de cause
dans la relation spéciale qui existe entre la Couronne
et les peuples autochtones. Il n’est pas certain non
plus qu’une entreprise en vertu d’une concession de
la Couronne puisse être assimilée à une personne
qui, en toute connaissance de cause, divertit à son
profit des fonds en fiducie.
Finally, it is suggested (per Finch C.J.B.C.) that
third parties should be held to the duty in order to
provide an effective remedy. The first difficulty
with this suggestion is that remedies do not dictate
liability. Once liability is found, the question of
remedy arises. But the remedy tail cannot wag the
liability dog. We cannot sue a rich person, simply
because the person has deep pockets or can provide
a desired result. The second problem is that it is not
clear that the government lacks sufficient remedies
to achieve meaningful consultation and accommodation. In this case, Part 10 of T.F.L. 39 provided
that the Ministry of Forests could vary any permit
granted to Weyerhaeuser to be consistent with a
court’s determination of Aboriginal rights or title.
The government may also require Weyerhaeuser to
amend its management plan if the Chief Forester
considers that interference with an Aboriginal
right has rendered the management plan inadequate (para. 2.38(d)). Finally, the government can
control by legislation, as it did when it introduced
the Forestry Revitalization Act, S.B.C. 2003, c. 17,
which claws back 20 percent of all licensees’ harvesting rights, in part to make land available for
Aboriginal peoples. The government’s legislative
authority over provincial natural resources gives it
Enfin, il a été affirmé (le juge Finch, juge en chef
de la C.-B.) que, pour qu’il soit possible d’accorder
une réparation efficace, il faudrait considérer que
les tiers sont tenus à l’obligation. La première difficulté que comporte cette affirmation réside dans le
fait que la réparation ne détermine pas la responsabilité. Ce n’est qu’une fois la question de la responsabilité tranchée que se soulève la question de la
réparation. Il ne faut pas mettre la charrue (la réparation) devant les bœufs (la responsabilité). Nous
ne pouvons poursuivre une personne riche simplement parce qu’elle a de l’argent plein les poches ou
que cela permet d’obtenir le résultat souhaité. La
seconde difficulté est qu’il n’est pas certain que le
gouvernement ne dispose pas de mécanismes suffisants pour procéder à des mesures de consultation et d’accommodement utiles. En l’espèce, la
partie 10 de la CFF 39 prévoit que le ministre des
Forêts peut modifier toute concession accordée à
Weyerhaeuser pour la rendre conforme aux décisions des tribunaux relativement aux droits ou
titres ancestraux. Le gouvernement peut également
exiger de Weyerhaeuser qu’elle modifie son plan
d’aménagement si le chef des services forestiers
le considère inadéquat du fait qu’il porte atteinte
à un droit ancestral (paragraphe 2.38d)). Enfin, le
[2004] 3 R.C.S.
La Juge en chef
539
a powerful tool with which to respond to its legal
obligations. This, with respect, renders questionable the statement by Finch C.J.B.C. that the government “has no capacity to allocate any part of
that timber to the Haida without Weyerhaeuser’s
consent or co-operation” ((2002), 5 B.C.L.R. (4th)
33, at para. 119). Failure to hold Weyerhaeuser to
a duty to consult and accommodate does not make
the remedy “hollow or illusory”.
gouvernement peut exercer son autorité sur la question par voie législative, comme il l’a fait en édictant la Forestry Revitalization Act, S.B.C. 2003, ch.
17, qui permet de récupérer 20 pour 100 du droit
de coupe des titulaires de concession, en partie
pour mettre des terres à la disposition des peuples
autochtones. De par son pouvoir de légiférer sur les
ressources naturelles de la province, le gouvernement provincial dispose d’un outil puissant pour
s’acquitter de ses obligations légales, situation qui
met en doute l’affirmation du juge en chef Finch de
la C.-B. qu’il [TRADUCTION] « ne peut allouer une
partie de ce bois d’œuvre aux Haïda sans le consentement ou la collaboration de Weyerhaeuser »
((2002), 5 B.C.L.R. (4th) 33, par. 119). Le fait de
ne pas imposer à Weyerhaeuser l’obligation de consulter et d’accommoder ne rend pas la réparation
[TRADUCTION] « futile ou illusoire ».
The fact that third parties are under no duty to
consult or accommodate Aboriginal concerns does
not mean that they can never be liable to Aboriginal
peoples. If they act negligently in circumstances
where they owe Aboriginal peoples a duty of care, or
if they breach contracts with Aboriginal peoples or
deal with them dishonestly, they may be held legally
liable. But they cannot be held liable for failing to
discharge the Crown’s duty to consult and accommodate.
Le fait que les tiers n’aient aucune obligation de
consulter les peuples autochtones ou de trouver des
accommodements à leurs préoccupations ne signifie
pas qu’ils ne peuvent jamais être tenus responsables
envers ceux-ci. S’ils font preuve de négligence dans
des circonstances où ils ont une obligation de diligence envers les peuples autochtones, ou s’ils ne respectent pas les contrats conclus avec les Autochtones
ou traitent avec eux d’une manière malhonnête,
ils peuvent être tenus légalement responsables.
Cependant, les tiers ne peuvent être jugés responsables de ne pas avoir rempli l’obligation de consulter
et d’accommoder qui incombe à la Couronne.
F. The Province’s Duty
F. L’obligation de la province
The Province of British Columbia argues that any
duty to consult or accommodate rests solely with the
federal government. I cannot accept this argument.
La province de la Colombie-Britannique soutient
que l’obligation de consulter ou d’accommoder, si
elle existe, incombe uniquement au gouvernement
fédéral. Je ne peux accepter cet argument.
57
The Province’s argument rests on s. 109 of the
Constitution Act, 1867, which provides that “[a]ll
Lands, Mines, Minerals, and Royalties belonging
to the several Provinces of Canada . . . at the Union
. . . shall belong to the several Provinces.” The
Province argues that this gives it exclusive right
to the land at issue. This right, it argues, cannot
be limited by the protection for Aboriginal rights
found in s. 35 of the Constitution Act, 1982. To do
L’argument de la province repose sur l’art. 109
de la Loi constitutionnelle de 1867, qui dispose que
« [t]outes les terres, mines, minéraux et réserves
royales appartenant aux différentes provinces du
Canada [. . .] lors de l’union [. . .] appartiendront
aux différentes provinces. » Selon la province,
cette disposition lui confère des droits exclusifs
sur les terres en question. Ce droit, affirme-t-elle,
ne peut être limité par la protection accordée aux
58
56
540
59
The Chief Justice
[2004] 3 S.C.R.
so, it argues, would “undermine the balance of federalism” (Crown’s factum, at para. 96).
droits ancestraux par l’art. 35 de la Loi constitutionnelle de 1982. La province affirme qu’agir
ainsi reviendrait à [TRADUCTION] « rompre l’équilibre du fédéralisme » (mémoire de la Couronne,
par. 96).
The answer to this argument is that the Provinces
took their interest in land subject to “any Interest
other than that of the Province in the same” (s.
109). The duty to consult and accommodate here
at issue is grounded in the assertion of Crown sovereignty which pre-dated the Union. It follows that
the Province took the lands subject to this duty.
It cannot therefore claim that s. 35 deprives it of
powers it would otherwise have enjoyed. As stated
in St. Catherine’s Milling and Lumber Co. v. The
Queen (1888), 14 App. Cas. 46 (P.C.), lands in
the Province are “available to [the Province] as a
source of revenue whenever the estate of the Crown
is disencumbered of the Indian title” (p. 59). The
Crown’s argument on this point has been canvassed
by this Court in Delgamuukw, supra, at para. 175,
where Lamer C.J. reiterated the conclusions in
St. Catherine’s Milling, supra. There is therefore
no foundation to the Province’s argument on this
point.
La réponse à cet argument est que les intérêts
que détenait la province sur les terres sont subordonnés à « tous intérêts autres que ceux que peut y
avoir la province » (art. 109). L’obligation de consulter et d’accommoder en litige dans la présente
affaire est fondée sur l’affirmation de la souveraineté de la Couronne qui a précédé l’Union. Il s’ensuit que la province a acquis les terres sous réserve
de cette obligation. Elle ne peut donc pas prétendre
que l’art. 35 la prive de pouvoirs dont elle aurait
joui autrement. Comme il est précisé dans St.
Catherine’s Milling and Lumber Co. c. The Queen
(1888), 14 App. Cas. 46 (C.P.), les terres situées
dans la province [TRADUCTION] « peuvent constituer une source de revenus [pour la province] dans
tous les cas où les biens de la Couronne ne sont
plus grevés du titre indien » (p. 59). L’argument de
la Couronne sur ce point a été examiné de façon
approfondie par la Cour dans Delgamuukw, précité, par. 175, où le juge en chef Lamer a réitéré
les conclusions tirées dans St. Catherine’s Milling,
précité. Cet argument n’est en conséquence pas
fondé.
G. Administrative Review
G. L’examen administratif
60
Where the government’s conduct is challenged
on the basis of allegations that it failed to discharge
its duty to consult and accommodate pending
claims resolution, the matter may go to the courts
for review. To date, the Province has established
no process for this purpose. The question of what
standard of review the court should apply in judging
the adequacy of the government’s efforts cannot be
answered in the absence of such a process. General
principles of administrative law, however, suggest
the following.
Lorsque la conduite du gouvernement est contestée au motif qu’il ne se serait pas acquitté de son
obligation de consulter et d’accommoder en attendant le règlement des revendications, la question
peut être soumise aux tribunaux pour examen. La
province n’a pas encore établi de mécanisme à cette
fin. En l’absence d’un tel mécanisme, il est impossible de déterminer quelle norme de contrôle devrait
appliquer le tribunal appelé à statuer sur le caractère
suffisant des efforts déployés par le gouvernement.
Les principes généraux du droit administratif permettent toutefois de dégager les notions suivantes.
61
On questions of law, a decision-maker must
generally be correct: for example, Paul v. British
Columbia (Forest Appeals Commission), [2003] 2
S.C.R. 585, 2003 SCC 55. On questions of fact or
Quant aux questions de droit, le décideur doit,
en règle générale, rendre une décision correcte :
voir, par exemple, Paul c. Colombie-Britannique
(Forest Appeals Commission), [2003] 2 R.C.S.
[2004] 3 R.C.S.
La Juge en chef
541
mixed fact and law, on the other hand, a reviewing body may owe a degree of deference to the
decision-maker. The existence or extent of the duty
to consult or accommodate is a legal question in
the sense that it defines a legal duty. However, it is
typically premised on an assessment of the facts. It
follows that a degree of deference to the findings of
fact of the initial adjudicator may be appropriate.
The need for deference and its degree will depend
on the nature of the question the tribunal was
addressing and the extent to which the facts were
within the expertise of the tribunal: Law Society
of New Brunswick v. Ryan, [2003] 1 S.C.R. 247,
2003 SCC 20; Paul, supra. Absent error on legal
issues, the tribunal may be in a better position to
evaluate the issue than the reviewing court, and
some degree of deference may be required. In such
a case, the standard of review is likely to be reasonableness. To the extent that the issue is one of
pure law, and can be isolated from the issues of
fact, the standard is correctness. However, where
the two are inextricably entwined, the standard
will likely be reasonableness: Canada (Director
of Investigation and Research) v. Southam Inc.,
[1997] 1 S.C.R. 748.
585, 2003 CSC 55. Par contre, en ce qui a trait
aux questions de fait et aux questions mixtes de
fait et de droit, l’organisme de révision peut devoir
faire preuve de déférence à l’égard du décideur.
L’existence et l’étendue de l’obligation de consulter
ou d’accommoder sont des questions de droit en
ce sens qu’elles définissent une obligation légale.
Cependant, la réponse à ces questions repose habituellement sur l’appréciation des faits. Il se peut
donc qu’il convienne de faire preuve de déférence
à l’égard des conclusions de fait du premier décideur. La question de savoir s’il y a lieu de faire
montre de déférence et, si oui, le degré de déférence
requis dépendent de la nature de la question dont
était saisi le tribunal administratif et de la mesure
dans laquelle les faits relevaient de son expertise :
Barreau du Nouveau-Brunswick c. Ryan, [2003] 1
R.C.S. 247, 2003 CSC 20; Paul, précité. En l’absence d’erreur sur des questions de droit, il est possible que le tribunal administratif soit mieux placé
que le tribunal de révision pour étudier la question,
auquel cas une certaine déférence peut s’imposer.
Dans ce cas, la norme de contrôle applicable est
vraisemblablement la norme de la décision raisonnable. Dans la mesure où la question est une question de droit pur et peut être isolée des questions
de fait, la norme applicable est celle de la décision correcte. Toutefois, lorsque les deux types de
questions sont inextricablement liées entre elles,
la norme de contrôle applicable est vraisemblablement celle de la décision raisonnable : Canada
(Directeur des enquêtes et recherches) c. Southam
Inc., [1997] 1 R.C.S. 748.
The process itself would likely fall to be examined on a standard of reasonableness. Perfect satisfaction is not required; the question is whether
the regulatory scheme or government action
“viewed as a whole, accommodates the collective
aboriginal right in question”: Gladstone, supra, at
para. 170. What is required is not perfection, but
reasonableness. As stated in Nikal, supra, at para.
110, “in . . . information and consultation the concept of reasonableness must come into play. . . . So
long as every reasonable effort is made to inform
and to consult, such efforts would suffice.” The
government is required to make reasonable efforts
Le processus lui-même devrait vraisemblablement être examiné selon la norme de la décision raisonnable. La perfection n’est pas requise; il s’agit
de se demander si, « considéré dans son ensemble,
le régime de réglementation [ou la mesure gouvernementale] respecte le droit ancestral collectif en
question » : Gladstone, précité, par. 170. Ce qui est
requis, ce n’est pas une mesure parfaite mais une
mesure raisonnable. Comme il est précisé dans
Nikal, précité, par. 110, « [l]e concept du caractère
raisonnable doit [. . .] entrer en jeu pour ce qui [. . .]
concern[e] l’information et la consultation. [. . .]
Dans la mesure où tous les efforts raisonnables ont
62
542
63
The Chief Justice
[2004] 3 S.C.R.
to inform and consult. This suffices to discharge
the duty.
été déployés pour informer et consulter, on a alors
satisfait à l’obligation de justifier. » Le gouvernement doit déployer des efforts raisonnables pour
informer et consulter. Cela suffit pour satisfaire à
l’obligation.
Should the government misconceive the seriousness of the claim or impact of the infringement,
this question of law would likely be judged by correctness. Where the government is correct on these
matters and acts on the appropriate standard, the
decision will be set aside only if the government’s
process is unreasonable. The focus, as discussed
above, is not on the outcome, but on the process of
consultation and accommodation.
Si le gouvernement n’a pas bien saisi l’importance
de la revendication ou la gravité de l’atteinte, il s’agit
d’une question de droit qui devra vraisemblablement
être jugée selon la norme de la décision correcte. Si
le gouvernement a raison sur ces points et agit conformément à la norme applicable, la décision ne sera
annulée que si le processus qu’il a suivi était déraisonnable. Comme il a été expliqué précédemment,
l’élément central n’est pas le résultat, mais le processus de consultation et d’accommodement.
H. Application to the Facts
H. L’application aux faits
(1) Existence of the Duty
(1) L’existence de l’obligation
64
The question is whether the Province had knowledge, real or constructive, of the potential existence
of Aboriginal right or title and contemplated conduct that might adversely affect them. On the evidence before the Court in this matter, the answer
must unequivocally be “yes”.
Il s’agit de savoir si la province connaissait, concrètement ou par imputation, l’existence potentielle
d’un droit ou titre ancestral et envisageait des mesures susceptibles d’avoir un effet préjudiciable sur ce
droit ou titre. Compte tenu de la preuve présentée à
la Cour en l’espèce, il ne fait aucun doute qu’il faut
répondre « oui » à cette question.
65
The Haida have claimed title to all of Haida
Gwaii for at least 100 years. The chambers judge
found that they had expressed objections to the
Province for a number of years regarding the rate of
logging of old-growth forests, methods of logging,
and the environmental effects of logging. Further,
the Province was aware since at least 1994 that the
Haida objected to replacement of T.F.L. 39 without their consent and without accommodation with
respect to their title claims. As found by the chambers judge, the Province has had available evidence
of the Haida’s exclusive use and occupation of some
areas of Block 6 “[s]ince 1994, and probably much
earlier”. The Province has had available to it evidence of the importance of red cedar to the Haida
culture since before 1846 (the assertion of British
sovereignty).
Les Haïda revendiquent depuis au moins 100 ans
le titre sur l’ensemble des îles Haida Gwaii. Le juge
de première instance a conclu que les Haïda se plaignaient depuis plusieurs années auprès de la province du rythme d’exploitation des vieilles forêts,
des méthodes d’exploitation et des répercussions
de l’exploitation forestière sur l’environnement. De
plus, la province savait, depuis au moins 1994, que
les Haïda s’opposaient à ce qu’on remplace la CFF
39 sans leur consentement et sans que leurs revendications aient fait l’objet de mesures d’accommodement. Comme l’a constaté le juge en son cabinet, la
province disposait, [TRADUCTION] « [d]epuis 1994,
et peut-être bien avant », d’éléments de preuve établissant que les Haïda utilisaient et occupaient à
titre exclusif certaines régions du Bloc 6. Depuis au
moins 1846 (affirmation de la souveraineté britannique), elle possède des preuves témoignant de l’importance du cèdre rouge dans la culture haïda.
[2004] 3 R.C.S.
La Juge en chef
543
The Province raises concerns over the breadth of
the Haida’s claims, observing that “[i]n a separate
action the Haida claim aboriginal title to all of the
Queen Charlotte Islands, the surrounding waters,
and the air space. . . . The Haida claim includes
the right to the exclusive use, occupation and benefit of the land, inland waters, seabed, archipelagic
waters and air space” (Crown’s factum, at para.
35). However, consideration of the duty to consult
and accommodate prior to proof of a right does not
amount to a prior determination of the case on its
merits. Indeed, it should be noted that, prior to the
chambers judge’s decision in this case, the Province
had successfully moved to sever the question of the
existence and infringement of Haida title and rights
from issues involving the duty to consult and accommodate. The issues were clearly separate in the proceedings, at the Province’s instigation.
La province se dit inquiète de l’ampleur des
revendications des Haïda, faisant observer que,
[TRADUCTION] « [d]ans une action distincte, les
Haïda revendiquent un titre ancestral sur l’ensemble des îles de la Reine-Charlotte, sur les eaux les
entourant et sur l’espace aérien. [. . .] La revendication des Haïda vise le droit à l’utilisation, à l’occupation et au bénéfice exclusifs des terres, des eaux
intérieures, du fond marin, des eaux pélagiques et de
l’espace aérien » (mémoire de la Couronne, par. 35).
Cependant, se demander si l’obligation de consulter et d’accommoder s’applique avant que la preuve
de l’existence d’un droit n’ait été apportée n’équivaut
pas à préjuger de l’affaire sur le fond. D’ailleurs, il
convient de souligner que, avant que le juge en son
cabinet ait rendu sa décision en l’espèce, la province
avait obtenu que la question de l’existence du titre et
des droits des Haïda et de l’atteinte portée à ceuxci soit examinée séparément des questions se rapportant à l’obligation de consulter et d’accommoder.
Les questions ont été clairement séparées dans l’instance, à l’instigation de la province.
66
The chambers judge ascertained that the Province
knew that the potential Aboriginal right and title
applied to Block 6, and could be affected by the decision to replace T.F.L. 39. On this basis, the honour of
the Crown mandated consultation prior to making
a decision that might adversely affect the claimed
Aboriginal title and rights.
Le juge en son cabinet a estimé que la province
savait que les droits et titre ancestraux potentiels en
question visaient le Bloc 6 et qu’ils pouvaient être
touchés par la décision de remplacer la CFF 39. Pour
ce motif, l’honneur de la Couronne commandait que
celle-ci procède à une consultation avant de prendre
une décision susceptible d’avoir un effet préjudiciable sur les droits et titre ancestraux revendiqués.
67
(2) Scope of the Duty
As discussed above, the scope of the consultation required will be proportionate to a preliminary
assessment of the strength of the case supporting the
existence of the right or title, and to the seriousness
of the potentially adverse effect upon the right or
title claimed.
(i) Strength of the Case
On the basis of evidence described as “voluminous”, the chambers judge found, at para. 25, a
number of conclusions to be “inescapable” regarding the Haida’s claims. He found that the Haida had
inhabited Haida Gwaii continuously since at least
1774, that they had never been conquered, never
surrendered their rights by treaty, and that their
(2) L’étendue de l’obligation
Comme il a été expliqué plus tôt, l’ampleur de la
consultation requise dépend de l’évaluation préliminaire de la solidité de la preuve étayant l’existence
du droit ou du titre, ainsi que de la gravité de l’effet
préjudiciable potentiel sur le droit ou titre revendiqué.
68
(i) Solidité de la preuve
Après avoir examiné une preuve qu’il a qualifiée d’[TRADUCTION] « abondante », le juge en son
cabinet a, au par. 25 de sa décision, tiré un certain
nombre de conclusions [TRADUCTION] « incontournables » relativement aux revendications des Haïda.
Il a conclu que les Haïda habitaient les îles Haïda
Gwaii depuis au moins 1774, qu’ils n’avaient jamais
69
544
70
71
The Chief Justice
[2004] 3 S.C.R.
rights had not been extinguished by federal legislation. Their culture has utilized red cedar from
old-growth forests on both coastal and inland areas
of what is now Block 6 of T.F.L. 39 since at least
1846.
été conquis, qu’ils n’avaient jamais cédé leurs droits
dans un traité et qu’aucune loi fédérale n’avait éteint
leurs droits. Depuis au moins 1846, l’utilisation du
cèdre rouge provenant des vieilles forêts des régions
côtières et intérieures de la zone maintenant connue
comme étant le Bloc 6 de la CFF 39 fait partie de
leur culture.
The chambers judge’s thorough assessment of the
evidence distinguishes between the various Haida
claims relevant to Block 6. On the basis of a thorough survey of the evidence, he found, at para. 47:
Le juge en son cabinet a rigoureusement évalué la
preuve et établi une distinction entre les différentes
revendications des Haïda visant le Bloc 6. Au terme
d’un examen approfondi de la preuve, il a tiré les
conclusions suivantes au par. 47 :
(1) a “reasonable probability” that the Haida
may establish title to “at least some parts” of the
coastal and inland areas of Haida Gwaii, including coastal areas of Block 6. There appears to be
a “reasonable possibility” that these areas will
include inland areas of Block 6;
(1) il existe une [TRADUCTION] « probabilité
raisonnable » que les Haïda réussissent à établir l’existence d’un titre sur [TRADUCTION] « au
moins quelques parties » des régions côtières et
intérieures des îles Haïda Gwaii, notamment les
régions côtières du Bloc 6; il semble exister une
[TRADUCTION] « possibilité raisonnable » que
ces régions comprennent les régions intérieures
du Bloc 6;
(2) a “substantial probability” that the Haida
will be able to establish an aboriginal right to
harvest old-growth red cedar trees from both
coastal and inland areas of Block 6.
(2) il existe une [TRADUCTION] « forte probabilité » que les Haïda réussissent à établir l’existence d’un droit ancestral de récolter le cèdre
rouge provenant des vieilles forêts des régions
côtières et intérieures du Bloc 6.
The chambers judge acknowledged that a final resolution would require a great deal of further evidence, but said he thought it “fair to say that the
Haida claim goes far beyond the mere ‘assertion’ of
Aboriginal title” (para. 50).
Le juge en son cabinet a reconnu qu’un règlement
définitif nécessiterait beaucoup plus d’éléments de
preuve, mais, selon lui, [TRADUCTION] « il est juste
de dire que la revendication des Haïda est beaucoup
plus qu’une simple “affirmation” de titre ancestral »
(par. 50).
The chambers judge’s findings grounded the
Court of Appeal’s conclusion that the Haida claims
to title and Aboriginal rights were “supported by
a good prima facie case” (para. 49). The strength
of the case goes to the extent of the duty that the
Province was required to fulfill. In this case the evidence clearly supports a conclusion that, pending
a final resolution, there was a prima facie case in
support of Aboriginal title, and a strong prima facie
case for the Aboriginal right to harvest red cedar.
La Cour d’appel s’est fondée sur les constatations du juge en son cabinet pour conclure que les
revendications par les Haïda du titre et de droits
ancestraux étaient [TRADUCTION] « étayées par une
preuve à première vue valable » (par. 49). La solidité de la preuve influe sur l’étendue de l’obligation
que doit satisfaire la province. En l’espèce, le dossier
permet clairement de conclure, en attendant le règlement définitif, qu’il existe une preuve prima facie de
l’existence d’un titre ancestral et une solide preuve
prima facie de l’existence d’un droit ancestral de
récolter le cèdre rouge.
[2004] 3 R.C.S.
(ii) Seriousness of the Potential Impact
La Juge en chef
545
(ii) Gravité des conséquences potentielles
The evidence before the chambers judge indicated that red cedar has long been integral to Haida
culture. The chambers judge considered that there
was a “reasonable probability” that the Haida would
be able to establish infringement of an Aboriginal
right to harvest red cedar “by proof that old-growth
cedar has been and will continue to be logged on
Block 6, and that it is of limited supply” (para. 48).
The prospect of continued logging of a resource in
limited supply points to the potential impact on an
Aboriginal right of the decision to replace T.F.L.
39.
La preuve présentée au juge en son cabinet indiquait que l’utilisation du cèdre rouge fait depuis
longtemps partie intégrante de la culture haïda. Le
juge a considéré qu’il existait une [TRADUCTION]
« probabilité raisonnable » que les Haïda réussissent à démontrer une atteinte à un droit ancestral de
récolter le cèdre rouge [TRADUCTION] « en prouvant
que le cèdre des vieilles forêts a été et continuera
d’être exploité dans le Bloc 6, et que cette ressource
est limitée » (par. 48). La perspective de l’exploitation continue d’une ressource par ailleurs limitée
laisse entrevoir les répercussions que la décision
de remplacer la CFF 39 pourrait avoir sur un droit
ancestral.
72
Tree Farm Licences are exclusive, long-term
licences. T.F.L. 39 grants exclusive rights to
Weyerhaeuser to harvest timber within an area
constituting almost one quarter of the total land of
Haida Gwaii. The chambers judge observed that “it
[is] apparent that large areas of Block 6 have been
logged off” (para. 59). This points to the potential impact on Aboriginal rights of the decision to
replace T.F.L. 39.
Les CFF ont un caractère exclusif et sont accordées pour de longues périodes. La CFF 39 confère
à Weyerhaeuser le droit exclusif de récolter le bois
dans une région qui représente près du quart de la
superficie totale des îles Haïda Gwaii. Le juge en
son cabinet a fait observer qu’[TRADUCTION] « il
[est] manifeste que de vastes étendues du Bloc 6
ont été coupées à blanc » (par. 59). Ce fait illustre les conséquences potentielles que la décision
de remplacer la CFF 39 a sur les droits ancestraux.
73
To the Province’s credit, the terms of T.F.L.
39 impose requirements on Weyerhaeuser with
respect to Aboriginal peoples. However, more was
required. Where the government has knowledge of
an asserted Aboriginal right or title, it must consult
the Aboriginal peoples on how exploitation of the
land should proceed.
Il faut reconnaître à la province d’avoir imposé
à Weyerhaeuser, dans la CFF 39, des conditions à
l’égard des peuples autochtones. Mais la province
devait faire davantage. Lorsque le gouvernement
sait qu’un droit ou un titre ancestral est revendiqué,
il doit consulter les Autochtones sur la façon dont les
terres visées devraient être exploitées.
74
The next question is when does the duty to consult arise? Does it arise at the stage of granting a
Tree Farm Licence, or only at the stage of granting
cutting permits? The T.F.L. replacement does not
itself authorize timber harvesting, which occurs
only pursuant to cutting permits. T.F.L. replacements occur periodically, and a particular T.F.L.
replacement decision may not result in the substance of the asserted right being destroyed. The
Province argues that, although it did not consult
the Haida prior to replacing the T.F.L., it “has consulted, and continues to consult with the Haida
Il faut maintenant se demander à quel moment
prend naissance l’obligation de consulter. Est-ce à
l’étape de l’octroi d’une CFF, ou seulement à l’étape
de la délivrance des permis de coupe? Le remplacement d’une CFF n’autorise pas en soi la récolte
de bois, qui ne peut se faire qu’en vertu des permis
de coupe. Les CFF sont périodiquement remplacées, et la décision de remplacer une CFF en particulier n’a pas nécessairement pour effet de détruire
l’essence même du droit revendiqué. La province
fait valoir que, bien qu’elle ne les ait pas consultés avant de remplacer la CFF, elle [TRADUCTION]
75
546
The Chief Justice
[2004] 3 S.C.R.
prior to authorizing any cutting permits or other
operational plans” (Crown’s factum, at para. 64).
« a consulté et continue de consulter les Haïda
avant d’autoriser les permis de coupe ou autres
plans d’aménagement » (mémoire de la Couronne,
par. 64).
76
I conclude that the Province has a duty to consult and perhaps accommodate on T.F.L. decisions.
The T.F.L. decision reflects the strategic planning
for utilization of the resource. Decisions made
during strategic planning may have potentially serious impacts on Aboriginal right and title. The holder
of T.F.L. 39 must submit a management plan to the
Chief Forester every five years, to include inventories of the licence area’s resources, a timber supply
analysis, and a “20-Year Plan” setting out a hypothetical sequence of cutblocks. The inventories and the
timber supply analysis form the basis of the determination of the allowable annual cut (“A.A.C.”) for
the licence. The licensee thus develops the technical
information based upon which the A.A.C. is calculated. Consultation at the operational level thus has
little effect on the quantity of the annual allowable
cut, which in turn determines cutting permit terms.
If consultation is to be meaningful, it must take
place at the stage of granting or renewing Tree Farm
Licences.
J’estime que, lorsqu’elle prend des décisions concernant les CFF, la province est tenue à une obligation de consultation, et peut-être à une obligation
d’accommodement. La décision rendue à l’égard
d’une CFF reflète la planification stratégique touchant l’utilisation de la ressource en cause. Les décisions prises durant la planification stratégique risquent d’avoir des conséquences graves sur un droit
ou titre ancestral. Tous les cinq ans, le titulaire de la
CFF 39 doit présenter au chef des services forestiers
un plan d’aménagement comprenant l’inventaire des
ressources du secteur visé par la concession, une
analyse des approvisionnements en bois d’œuvre et
un « plan de 20 ans » présentant une séquence hypothétique de blocs de coupe. C’est à partir de l’inventaire et de l’analyse des approvisionnements en bois
d’œuvre qu’est fixée la possibilité annuelle de coupe
(« PAC ») pour la concession. Ainsi, le titulaire de
la concession établit les renseignements techniques
servant à calculer la PAC. La tenue de consultations
au niveau de l’exploitation a donc peu d’incidence
sur le volume fixé dans la PAC, qui, à son tour,
détermine les modalités du permis de coupe. Pour
que les consultations soient utiles, elles doivent avoir
lieu à l’étape de l’octroi ou du renouvellement de
la CFF.
77
The last issue is whether the Crown’s duty went
beyond consultation on T.F.L. decisions, to accommodation. We cannot know, on the facts here,
whether consultation would have led to a need for
accommodation. However, the strength of the case
for both the Haida title and the Haida right to harvest
red cedar, coupled with the serious impact of incremental strategic decisions on those interests, suggest
that the honour of the Crown may well require significant accommodation to preserve the Haida interest pending resolution of their claims.
Il s’agit enfin de décider si la Couronne avait
l’obligation non seulement de consulter les Haïda
au sujet des décisions relatives aux CFF mais aussi
de trouver des accommodements à leurs préoccupations. Les faits de l’espèce ne permettent pas de dire
si la consultation aurait entraîné la nécessité de telles
mesures. Cependant, la solidité de la preuve étayant
l’existence et d’un titre haïda et d’un droit haïda
autorisant la récolte du cèdre rouge, conjuguée aux
répercussions sérieuses sur ces intérêts des décisions
stratégiques successives, indique que l’honneur de
la Couronne pourrait bien commander des mesures
d’accommodement substantielles pour protéger les
intérêts des Haïda en attendant que leurs revendications soient réglées.
[2004] 3 R.C.S.
(3) Did the Crown Fulfill its Duty?
La Juge en chef
547
(3) La Couronne s’est-elle acquittée de son obligation?
The Province did not consult with the Haida on
the replacement of T.F.L. 39. The chambers judge
found, at para. 42:
La province n’a pas consulté les Haïda au sujet du
remplacement de la CFF 39. Le juge en son cabinet
a tiré la conclusion suivante (par. 42) :
[O]n the evidence presented, it is apparent that the
Minister refused to consult with the Haida about replacing T.F.L. 39 in 1995 and 2000, on the grounds that he
was not required by law to consult, and that such consultation could not affect his statutory duty to replace T.F.L.
39.
[TRADUCTION] [S]elon la preuve présentée, il est manifeste que le ministre a refusé de consulter les Haïda au
sujet du remplacement de la CFF 39 en 1995 et en l’an
2000, au motif que la loi ne l’obligeait pas à le faire et
qu’une telle consultation ne pouvait avoir d’incidence sur
son obligation, prévue par la loi, de remplacer la CFF
39.
In both this Court and the courts below, the
Province points to various measures and policies
taken to address Aboriginal interests. At this Court,
the Province argued that “[t]he Haida were and are
consulted with respect to forest development plans
and cutting permits. . . . Through past consultations
with the Haida, the Province has taken various steps
to mitigate the effects of harvesting . . .” (Crown’s
factum, at para. 75). However, these measures and
policies do not amount to and cannot substitute for
consultation with respect to the decision to replace
T.F.L. 39 and the setting of the licence’s terms and
conditions.
La province a attiré l’attention de la Cour et des tribunaux d’instance inférieure sur les nombreuses
mesures et politiques qu’elle a adoptées pour tenir
compte des intérêts autochtones. Devant la Cour,
elle a affirmé que [TRADUCTION] « [l]es Haïda
ont été et sont consultés au sujet des plans d’aménagement forestier et des permis de coupe. [. . .]
À la suite de consultations antérieures auprès des
Haïda, la province a pris plusieurs mesures pour
atténuer les effets de l’exploitation forestière [. . .] »
(mémoire de la Couronne, par. 75). Cependant, ces
mesures et politiques n’équivalent pas à une consultation au sujet de la décision de remplacer la CFF 39
et de l’établissement de ses modalités, et ne peuvent
la remplacer.
It follows, therefore, that the Province failed to
meet its duty to engage in something significantly
deeper than mere consultation. It failed to engage in
any meaningful consultation at all.
Par conséquent, la province ne s’est pas acquittée
de son obligation de procéder à davantage qu’une
simple consultation. Elle n’a procédé à absolument
aucune consultation utile.
III. Conclusion
III. Conclusion
The Crown’s appeal is dismissed and
Weyerhaeuser’s appeal is allowed. The British
Columbia Court of Appeal’s order is varied so that
the Crown’s obligation to consult does not extend
to Weyerhaeuser. The Crown has agreed to pay the
costs of the respondents regarding the application
for leave to appeal and the appeal. Weyerhaeuser
shall be relieved of any obligation to pay the costs
of the Haida in the courts below. It is not necessary
to answer the constitutional question stated in this
appeal.
Le pourvoi de la Couronne est rejeté et celui
de Weyerhaeuser est accueilli. L’ordonnance de la
Cour d’appel de la Colombie-Britannique est modifiée de manière que l’obligation de consultation de
la Couronne ne s’étende pas à Weyerhaeuser. La
Couronne a accepté de payer les dépens des intimés
pour la demande d’autorisation de pourvoi et pour le
pourvoi. Weyerhaeuser est dispensée de toute obligation de payer les dépens des Haïda devant les instances inférieures. Il n’est pas nécessaire de répondre à la question constitutionnelle dans le présent
pourvoi.
78
79
80
548
[2004] 3 S.C.R.
Appeal by the Crown dismissed. Appeal by
Weyerhaeuser Co. allowed.
Pourvoi de la Couronne rejeté. Pourvoi de
Weyerhaeuser Co. accueilli.
Solicitors for the appellant the Minister of
Forests: Fuller Pearlman & McNeil, Victoria.
Procureurs de l’appelant le ministre des Forêts :
Fuller Pearlman & McNeil, Victoria.
Solicitor for the appellant the Attorney General
of British Columbia on behalf of Her Majesty the
Queen in Right of the Province of British Columbia:
Attorney General of British Columbia, Victoria.
Procureur de l’appelant le procureur général
de la Colombie-Britannique au nom de Sa Majesté
la Reine du chef de la province de la ColombieBritannique : Procureur général de la ColombieBritannique, Victoria.
Solicitors for the appellant Weyerhaeuser
Company Limited: Hunter Voith, Vancouver.
Procureurs de l’appelante Weyerhaeuser
Company Limited : Hunter Voith, Vancouver.
Solicitors for the respondents: EAGLE, Surrey.
Procureurs des intimés : EAGLE, Surrey.
Solicitor for the intervener the Attorney General
of Canada: Department of Justice, Vancouver.
Procureur de l’intervenant le procureur général
du Canada : Ministère de la Justice, Vancouver.
of Ontario: Attorney General of Ontario, Toronto.
Procureur de l’intervenant le procureur général de l’Ontario : Procureur général de l’Ontario,
Toronto.
of Quebec: Department of Justice, Sainte-Foy.
du Québec : Ministère de la Justice, Sainte-Foy.
of Nova Scotia: Department of Justice, Halifax.
Procureur de l’intervenant le procureur général de la Nouvelle-Écosse : Ministère de la Justice,
Halifax.
for Saskatchewan: Deputy Attorney General for
Saskatchewan, Regina.
de la Saskatchewan : Sous-procureur général de la
Saskatchewan, Regina.
of Alberta: Department of Justice, Edmonton.
de l’Alberta : Ministère de la Justice, Edmonton.
Solicitors for the interveners the Squamish Indian
Band and the Lax-kw’alaams Indian Band: Ratcliff
& Company, North Vancouver.
Procureurs des intervenantes la Bande
indienne de Squamish et la Bande indienne des
Lax-kw’alaams : Ratcliff & Company, North
Vancouver.
Solicitors for the intervener the Haisla Nation:
Donovan & Company, Vancouver.
Procureurs de l’intervenante la Nation haisla :
Donovan & Company, Vancouver.
Solicitors for the intervener the First Nations
Summit: Braker & Company, West Vancouver.
Procureurs de l’intervenant le Sommet des
Premières nations : Braker & Company, West
Vancouver.
[2004] 3 R.C.S.
549
Solicitors for the intervener the Dene Tha’ First
Nation: Cook Roberts, Victoria.
Procureurs de l’intervenante la Première nation
Dene Tha’ : Cook Roberts, Victoria.
Solicitors for the intervener Tenimgyet, aka Art
Matthews, Gitxsan Hereditary Chief: Cook Roberts,
Victoria.
Procureurs de l’intervenant Tenimgyet, aussi
connu sous le nom d’Art Matthews, chef héréditaire
Gitxsan : Cook Roberts, Victoria.
Solicitors for the interveners the Business Council
of British Columbia, the Aggregate Producers
Association of British Columbia, the British
Columbia and Yukon Chamber of Mines, the British
Columbia Chamber of Commerce, the Council of
Forest Industries and the Mining Association of
British Columbia: Fasken Martineau DuMoulin,
Vancouver.
Procureurs des intervenants Business Council of
British Columbia, Aggregate Producers Association
of British Columbia, British Columbia and Yukon
Chamber of Mines, British Columbia Chamber of
Commerce, Council of Forest Industries et Mining
Association of British Columbia : Fasken Martineau
DuMoulin, Vancouver.
Solicitors for the intervener the British Columbia
Cattlemen’s Association: McCarthy Tétrault,
Vancouver.
Procureurs de l’intervenante British Columbia
Cattlemen’s Association : McCarthy Tétrault,
Vancouver.
Solicitors for the intervener the Village of
Port Clements: Rush Crane Guenther & Adams,
Vancouver.
Procureurs de l’intervenant le village de Port
Clements : Rush Crane Guenther & Adams,
Vancouver.
mikisew cree first nation v. canada
[2005] 3 S.C.R.
Mikisew Cree First Nation Appellant
Première nation crie Mikisew Appelante
v.
c.
Sheila Copps, Minister of
Canadian Heritage, and Thebacha
Road Society Respondents
Sheila Copps, ministre du Patrimoine
canadien, et Thebacha Road
Society Intimées
and
et
Attorney General for Saskatchewan,
Attorney General of Alberta, Big Island
Lake Cree Nation, Lesser Slave Lake Indian
Regional Council, Treaty 8 First Nations
of Alberta, Treaty 8 Tribal Association,
Blueberry River First Nations and
Assembly of First Nations Interveners
Procureur général de la Saskatchewan,
procureur général de l’Alberta, Nation crie
de Big Island Lake, Lesser Slave Lake Indian
Regional Council, Premières nations de
l’Alberta signataires du Traité no 8, Treaty
8 Tribal Association, Premières nations de
Blueberry River et Assemblée des Premières
Nations Intervenants
Indexed as: Mikisew Cree First Nation v.
Canada (Minister of Canadian Heritage)
Répertorié : Première nation crie Mikisew c.
Canada (Ministre du Patrimoine canadien)
Neutral citation: 2005 SCC 69.
Référence neutre : 2005 CSC 69.
File No.: 30246.
No du greffe : 30246.
2005: March 14; 2005: November 24.
2005 : 14 mars; 2005 : 24 novembre.
Present: McLachlin C.J. and Major, Bastarache, Binnie,
LeBel, Deschamps, Fish, Abella and Charron JJ.
Présents : La juge en chef McLachlin et les juges Major,
Bastarache, Binnie, LeBel, Deschamps, Fish, Abella et
Charron.
on appeal from the federal court of
appeal
en appel de la cour d’appel fédérale
Indians — Treaty rights — Crown’s duty to consult — Crown exercising its treaty right and “taking
up” surrendered lands to build winter road to meet regional transportation needs — Proposed road reducing
territory over which Mikisew Cree First Nation would
be entitled to exercise its treaty rights to hunt, fish and
trap — Whether Crown had duty to consult Mikisew — If
so, whether Crown discharged its duty — Treaty No. 8.
Indiens — Droits issus de traités — Obligation de
consultation de la Couronne — Exercice par la Couronne du droit issu du traité et « prise » de terres cédées afin de construire une route d’hiver pour répondre
aux besoins régionaux en matière de transport — Route
proposée réduisant le territoire sur lequel la Première
nation crie Mikisew aurait le droit d’exercer ses droits
de chasse, de pêche et de piégeage issus du traité — La
Couronne avait-elle l’obligation de consulter les Mikisew? — Dans l’affirmative, la Couronne s’est-elle acquittée de cette obligation? — Traité no 8.
Crown — Honour of Crown — Duty to consult and
accommodate Aboriginal peoples.
Couronne — Honneur de la Couronne — Obligation
de consulter et d’accommoder les peuples autochtones.
Appeal — Role of intervener — New argument.
Appel — Rôle de l’intervenant — Nouvel argument.
2005 SCC 69 (CanLII)
388
première nation crie mikisew
c. canada
389
Under Treaty 8, made in 1899, the First Nations
who lived in the area surrendered to the Crown
840,000 square kilometres of what is now northern Alberta, northeastern British Columbia, northwestern Saskatchewan and the southern portion of
the Northwest Territories, an area whose size dwarfs
France, exceeds Manitoba, Saskatchewan and Alberta
and approaches the size of British Columbia. In exchange for this surrender, the First Nations were promised reserves and some other benefits including, most
importantly to them, the rights to hunt, trap and fish
throughout the land surrendered to the Crown except
“such tracts as may be required or taken up from time
to time for settlement, mining, lumbering, trading or
other purposes”.
Aux termes du Traité no 8 signé en 1899, les premières nations qui vivaient dans la région ont cédé
à la Couronne 840 000 kilomètres carrés de terres
situées dans ce qui est maintenant le nord de l’Alberta,
le nord-est de la Colombie-Britannique, le nord-ouest
de la Saskatchewan et la partie sud des Territoires du
Nord-Ouest, une superficie de très loin supérieure à
celle de la France, qui excède celle du Manitoba, de la
Saskatchewan ou de l’Alberta et qui équivaut presque
à celle de la Colombie-Britannique. En contrepartie de
cette cession, on a promis aux premières nations des
réserves et certains autres avantages, les plus importants pour eux étant les droits de chasse, de pêche et de
piégeage sur tout le territoire cédé à la Couronne à l’exception de « tels terrains qui de temps à autre pourront
être requis ou pris pour des fins d’établissements, de
mine, d’opérations forestières, de commerce ou autres
objets ».
The Mikisew Reserve is located within Treaty 8 in
what is now Wood Buffalo National Park. In 2000, the
federal government approved a winter road, which was
to run through the Mikisew’s reserve, without consulting them. After the Mikisew protested, the road alignment was modified (but without consultation) to track
around the boundary of the reserve. The total area of
the road corridor is approximately 23 square kilometres. The Mikisew’s objection to the road goes beyond
the direct impact of closure to hunting and trapping
of the area covered by the winter road and included
the injurious affection it would have on their traditional lifestyle which was central to their culture. The
Federal Court, Trial Division set aside the Minister’s
approval based on breach of the Crown’s fiduciary duty
to consult with the Mikisew adequately and granted an
interlocutory injuction against constructing the winter
road. The court held that the standard public notices
and open houses which were given were not sufficient
and that the Mikisew were entitled to a distinct consultation process. The Federal Court of Appeal set aside
the decision and found, on the basis of an argument
put forward by an intervener, that the winter road was
properly seen as a “taking up” of surrendered land
pursuant to the treaty rather than an infringement of
it. This judgment was delivered before the release of
this Court’s decisions in Haida Nation and Taku River
Tlingit First Nation.
La réserve des Mikisew se trouve sur le territoire
visé par le Traité no 8 dans ce qui est maintenant le
parc national Wood Buffalo. En 2000, le gouvernement
fédéral a approuvé la construction d’une route d’hiver,
qui devait traverser la réserve des Mikisew, sans consulter ceux-ci. À la suite des protestations des Mikisew,
le tracé de la route a été modifié (mais sans consultation) de manière à ce qu’il longe la limite de la réserve.
La superficie totale du corridor de la route est d’environ 23 kilomètres carrés. L’objection des Mikisew à
la construction de la route va au-delà de l’effet direct
qu’aurait l’interdiction de chasser et de piéger dans le
secteur visé par la route d’hiver et porte sur le préjudice causé au mode de vie traditionnel qui est essentiel
à leur culture. La Section de première instance de la
Cour fédérale a annulé l’approbation de la ministre en
se fondant sur la violation de l’obligation de fiduciaire
de la Couronne de consulter adéquatement les Mikisew
et a accordé une injonction interlocutoire interdisant
la construction de la route d’hiver. La cour a conclu
que les avis publics types et la tenue de séances portes
ouvertes n’étaient pas suffisants et que les Mikisew
avaient droit à un processus de consultation distinct.
La Cour d’appel fédérale a annulé cette décision et a
conclu, en s’appuyant sur un argument présenté par un
intervenant, que la route d’hiver constituait plus justement une « prise » de terres cédées effectuée conformément au traité plutôt qu’une violation de celui-ci.
Cette décision a été rendue avant que notre Cour se
prononce dans les affaires Nation Haïda et Première
nation Tlingit de Taku River.
Held: The appeal should be allowed. The duty of
consultation, which flows from the honour of the Crown,
was breached.
Arrêt : Le pourvoi est accueilli. L’obligation de
consultation qui découle du principe de l’honneur de la
Couronne n’a pas été respectée.
[2005] 3 R.C.S.
[2005] 3 S.C.R.
The government’s approach, rather than advancing
the process of reconciliation between the Crown and
the Treaty 8 First Nations, undermined it. [4]
La démarche adoptée par le gouvernement a nui au
processus de réconciliation entre la Couronne et les
premières nations signataires du Traité no 8 plutôt que
de le faire progresser. [4]
When the Crown exercises its Treaty 8 right to “take
up” land, its duty to act honourably dictates the content
of the process. The question in each case is to determine the degree to which conduct contemplated by the
Crown would adversely affect the rights of the aboriginal peoples to hunt, fish and trap so as to trigger the
duty to consult. Accordingly, where the court is dealing
with a proposed “taking up”, it is not correct to move
directly to a Sparrow justification analysis even if the
proposed measure, if implemented, would infringe a
First Nation treaty right. The Court must first consider
the process and whether it is compatible with the honour of the Crown. [33-34] [59]
Lorsque la Couronne exerce son droit issu du Traité
no 8 de « prendre » des terres, son obligation d’agir honorablement dicte le contenu du processus. La question
dans chaque cas consiste à déterminer la mesure dans
laquelle les dispositions envisagées par la Couronne
auraient un effet préjudiciable sur les droits de chasse,
de pêche et de piégeage des Autochtones de manière à
rendre applicable l’obligation de consulter. Par conséquent, dans les cas où la Cour est en présence d’une
« prise » projetée, il n’est pas indiqué de passer directement à une analyse de la justification fondée sur l’arrêt
Sparrow même si on a conclu que la mesure envisagée, si elle était mise en œuvre, porterait atteinte à un
droit issu du traité de la première nation. La Cour doit
d’abord examiner le processus et se demander s’il est
compatible avec l’honneur de la Couronne. [33-34] [59]
The Crown, while it has a treaty right to “take up”
surrendered lands, is nevertheless under the obligation
to inform itself on the impact its project will have on the
exercise by the Mikisew of their treaty hunting, fishing and trapping rights and to communicate its findings
to the Mikisew. The Crown must then attempt to deal
with the Mikisew in good faith and with the intention
of substantially addressing their concerns. The duty to
consult is triggered at a low threshold, but adverse impact is a matter of degree, as is the extent of the content
of the Crown’s duty. Under Treaty 8, the First Nation
treaty rights to hunt, fish and trap are therefore limited
not only by geographical limits and specific forms of
government regulation, but also by the Crown’s right to
take up lands under the treaty, subject to its duty to consult and, if appropriate, to accommodate the concerns
of the First Nation affected. [55-56]
Même si le traité lui accorde un droit de « prendre »
des terres cédées, la Couronne a néanmoins l’obligation de s’informer de l’effet qu’aura son projet sur
l’exercice, par les Mikisew, de leurs droits de chasse,
de pêche et de piégeage et de leur communiquer ses
constatations. La Couronne doit alors s’efforcer de traiter avec les Mikisew de bonne foi et dans l’intention
de tenir compte réellement de leurs préoccupations.
L’obligation de consultation est vite déclenchée, mais
l’effet préjudiciable et l’étendue du contenu de l’obligation de la Couronne sont des questions de degré. En
vertu du Traité no 8, les droits de chasse, de pêche et
de piégeage issus du traité de la première nation sont
par conséquent restreints non seulement par des limites géographiques et des mesures spécifiques de réglementation gouvernementale, mais aussi le droit pour la
Couronne de prendre des terres aux termes du traité,
sous réserve de son obligation de tenir des consultations
et, s’il y a lieu, de trouver des accommodements aux
intérêts de la première nation. [55-56]
Here, the duty to consult is triggered. The impacts
of the proposed road were clear, established, and demonstrably adverse to the continued exercise of the
Mikisew hunting and trapping rights over the lands in
question. Contrary to the Crown’s argument, the duty
to consult was not discharged in 1899 by the pre-treaty
negotiations. [54-55]
En l’espèce, l’obligation de consultation est déclenchée. Les effets de la route proposée étaient clairs, démontrés et manifestement préjudiciables à l’exercice
ininterrompu des droits de chasse et de piégeage des
Mikisew sur les terres en question. Contrairement à ce
qu’elle prétend, la Couronne ne s’est pas acquittée de
l’obligation de consultation en 1899 lors des négociations qui ont précédé le traité. [54-55]
However, given that the Crown is proposing to build
a fairly minor winter road on surrendered lands where
the Mikisew treaty rights are expressly subject to the
Cependant, étant donné que la Couronne se propose de construire une route d’hiver relativement peu
importante sur des terres cédées où les droits issus du
390
c. canada
391
“taking up” limitation, the content of the Crown’s duty
of consultation in this case lies at the lower end of the
spectrum. The Crown is required to provide notice to
the Mikisew and to engage directly with them. This engagement should include the provision of information
about the project, addressing what the Crown knew to
be the Mikisew’s interests and what the Crown anticipated might be the potential adverse impact on those
interests. The Crown must also solicit and listen carefully to the Mikisew’s concerns, and attempt to minimize adverse impacts on its treaty rights. [64]
traité des Mikisew sont expressément assujettis à la
restriction de la « prise », le contenu de l’obligation
de consultation de la Couronne se situe plutôt au bas
du continuum. La Couronne doit aviser les Mikisew
et nouer un dialogue directement avec eux. Ce dialogue devrait comporter la communication de renseignements au sujet du projet traitant des intérêts des
Mikisew connus de la Couronne et de l’effet préjudiciable que le projet risquait d’avoir, selon elle, sur
ces intérêts. La Couronne doit aussi demander aux
Mikisew d’exprimer leurs préoccupations et les écouter attentivement, et s’efforcer de réduire au minimum
les effets préjudiciables du projet sur les droits issus
du traité des Mikisew. [64]
The Crown did not discharge its obligations when
it unilaterally declared the road re-alignment would
be shifted from the reserve itself to a track along its
boundary. It failed to demonstrate an intention of substantially addressing aboriginal concerns through a
meaningful process of consultation. [64-67]
La Couronne n’a pas respecté ses obligations lorsqu’elle a déclaré unilatéralement que le tracé de la route
serait déplacé de la réserve elle-même à une bande de
terre à la limite de celle-ci. Elle n’a pas réussi à démontrer qu’elle avait l’intention de tenir compte réellement
des préoccupations des Autochtones dans le cadre d’un
véritable processus de consultation. [64-67]
The Attorney General of Alberta did not overstep
the proper role of an intervener when he raised before
the Federal Court of Appeal a fresh argument on the
central issue of whether the Minister’s approval of the
winter road infringed Treaty 8. It is always open to an
intervener to put forward any legal argument in support
of what it submits is the correct legal conclusion on an
issue properly before the court provided that in doing so
its legal argument does not require additional facts not
proven in evidence at trial, or raise an argument that is
otherwise unfair to one of the parties. [40]
Le procureur général de l’Alberta n’a pas outrepassé
le rôle d’un intervenant lorsqu’il a soulevé devant la
Cour d’appel fédérale un nouvel argument pertinent à
la question qui était au cœur du litige, à savoir si l’approbation de la route d’hiver par la ministre violait le
Traité no 8. Un intervenant peut toujours présenter un
argument juridique à l’appui de ce qu’il prétend être
la bonne conclusion juridique à l’égard d’une question
dont la cour est régulièrement saisie pourvu que son
argument juridique ne fasse pas appel à des faits additionnels qui n’ont pas été prouvés au procès, ou qu’il
ne soulève pas un argument qui est par ailleurs injuste
pour l’une des parties. [40]
Cases Cited
Jurisprudence
Considered: R. v. Badger, [1996] 1 S.C.R. 771;
Haida Nation v. British Columbia (Minister of
Forests), [2004] 3 S.C.R. 511, 2004 SCC 73; Taku
River Tlingit First Nation v. British Columbia (Project
Assessment Director), [2004] 3 S.C.R. 550, 2004 SCC
74; distinguished: R. v. Sparrow, [1990] 1 S.C.R.
1075; referred to: R. v. Sioui, [1990] 1 S.C.R. 1025;
R. v. Marshall, [1999] 3 S.C.R. 456; R. v. Marshall,
[2005] 2 S.C.R. 220, 2005 SCC 43; Halfway River
First Nation v. British Columbia (Ministry of Forests)
(1999), 178 D.L.R. (4th) 666, 1999 BCCA 470; R. v.
Morgentaler, [1993] 1 S.C.R. 462; Lamb v. Kincaid
(1907), 38 S.C.R. 516; Athey v. Leonati, [1996] 3
S.C.R. 458; Performance Industries Ltd. v. Sylvan
Lake Golf & Tennis Club Ltd., [2002] 1 S.C.R. 678,
2002 SCC 19; Province of Ontario v. Dominion of
Arrêts examinés : R. c. Badger, [1996] 1 R.C.S. 771;
Nation Haïda c. Colombie-Britannique (Ministre des
Forêts), [2004] 3 R.C.S. 511, 2004 CSC 73; Première
nation Tlingit de Taku River c. Colombie-Britannique
(Directeur d’évaluation de projet), [2004] 3 R.C.S.
550, 2004 CSC 74; distinction d’avec l’arrêt : R. c.
Sparrow, [1990] 1 R.C.S. 1075; arrêts mentionnés : R.
c. Sioui, [1990] 1 R.C.S. 1025; R. c. Marshall, [1999]
3 R.C.S. 456; R. c. Marshall, [2005] 2 R.C.S. 220,
2005 CSC 43; Halfway River First Nation c. British
Columbia (Ministry of Forests) (1999), 178 D.L.R.
(4th) 666, 1999 BCCA 470; R. c. Morgentaler, [1993]
1 R.C.S. 462; Lamb c. Kincaid (1907), 38 R.C.S. 516;
Athey c. Leonati, [1996] 3 R.C.S. 458; Performance
Industries Ltd. c. Sylvan Lake Golf & Tennis Club
Ltd., [2002] 1 R.C.S. 678, 2002 CSC 19; Province of
[2005] 3 R.C.S.
[2005] 3 S.C.R.
Canada (1895), 25 S.C.R. 434; Delgamuukw v. British
Columbia, [1997] 3 S.C.R. 1010; R. v. Smith, [1935] 2
W.W.R. 433.
Ontario c. Dominion of Canada (1895), 25 R.C.S. 434;
Delgamuukw c. Colombie-Britannique, [1997] 3 R.C.S.
1010; R. c. Smith, [1935] 2 W.W.R. 433.
Statutes and Regulations Cited
Lois et règlements cités
Natural Resources Transfer Agreement, 1930 (Alberta)
(Schedule of Constitution Act, 1930, R.S.C. 1985,
App. II, No. 26), para. 10.
Wood Buffalo National Park Game Regulations,
SOR/78-830, s. 36(5).
Convention sur le transfert des ressources naturelles de
1930 (Alberta) (annexe de la Loi constitutionnelle de
1930, L.R.C. 1985, app. II, no 26), par. 10.
Règlement sur le gibier du parc de Wood-Buffalo,
DORS/78-830, art. 36(5).
Treaties and Proclamations
Traités et proclamations
Royal Proclamation (1763), R.S.C. 1985, App. II, No. 1.
Treaty No. 8 (1899).
Proclamation royale (1763), L.R.C. 1985, app. II, no 1.
Traité no 8 (1899).
Authors Cited
Doctrine citée
Mair, Charles. Through the Mackenzie Basin: A
Narrative of the Athabasca and Peace River Treaty
Expedition of 1899. Toronto: William Briggs, 1908.
Report of Commissioners for Treaty No. 8, in Treaty No.
8 made June 21, 1899 and Adhesions, Reports, etc.,
reprinted from 1899 edition. Ottawa: Queen’s Printer,
1966.
Mair, Charles. Through the Mackenzie Basin : A
Expedition of 1899. Toronto : William Briggs, 1908.
Rapport des commissaires sur le Traité no 8, dans Traité
no 8 conclu le 21 juin 1899 et adhésions, rapports
et autres documents annexés. Ottawa : Ministre des
Approvisionnements et Services Canada, 1981.
APPEAL from a judgment of the Federal Court
of Appeal (Rothstein, Sexton and Sharlow JJ.A.),
[2004] 3 F.C.R. 436, 236 D.L.R. (4th) 648, 317
N.R. 258, [2004] 2 C.N.L.R. 74, [2004] F.C.J. No.
277 (QL), 2004 FCA 66, reversing a judgment of
Hansen J. (2001), 214 F.T.R. 48, [2002] 1 C.N.L.R.
169, [2001] F.C.J. No. 1877 (QL), 2001 FCT 1426.
Appeal allowed.
POURVOI contre un arrêt de la Cour d’appel
fédérale (les juges Rothstein, Sexton et Sharlow),
[2004] 3 R.C.F. 436, 236 D.L.R. (4th) 648, 317 N.R.
258, [2004] 2 C.N.L.R. 74, [2004] A.C.F. no 277
(QL), 2004 CAF 66, qui a infirmé un jugement
de la juge Hansen (2001), 214 F.T.R. 48, [2002] 1
C.N.L.R. 169, [2001] A.C.F. no 1877 (QL), 2001
CFPI 1426. Pourvoi accueilli.
Jeffrey R. W. Rath and Allisun Taylor Rana, for
the appellant.
Jeffrey R. W. Rath et Allisun Taylor Rana, pour
l’appelante.
Cheryl J. Tobias and Mark R. Kindrachuk,
Q.C., for the respondent Sheila Copps, Minister of
Canadian Heritage.
Cheryl J. Tobias et Mark R. Kindrachuk, c.r.,
pour l’intimée Sheila Copps, ministre du Patrimoine
canadien.
No one appeared for the respondent the Thebacha
Road Society.
Personne n’a comparu pour l’intimée Thebacha
Road Society.
P. Mitch McAdam, for the intervener the
Attorney General for Saskatchewan.
P. Mitch McAdam, pour l’intervenant le procureur général de la Saskatchewan.
Robert J. Normey and Angela J. Brown, for the
intervener the Attorney General of Alberta.
Robert J. Normey et Angela J. Brown, pour l’intervenant le procureur général de l’Alberta.
392
[2005] 3 R.C.S.
c. canada Le juge Binnie
393
James D. Jodouin et Gary L. Bainbridge, pour
l’intervenante la Nation crie de Big Island Lake.
Allan Donovan and Bram Rogachevsky, for the
intervener the Lesser Slave Lake Indian Regional
Council.
Allan Donovan et Bram Rogachevsky, pour
l’intervenant Lesser Slave Lake Indian Regional
Council.
Robert C. Freedman and Dominique Nouvet,
for the intervener the Treaty 8 First Nations of
Alberta.
Robert C. Freedman et Dominique Nouvet, pour
l’intervenante les Premières nations de l’Alberta signataires du Traité no 8.
E. Jack Woodward and Jay Nelson, for the intervener the Treaty 8 Tribal Association.
E. Jack Woodward et Jay Nelson, pour l’intervenante Treaty 8 Tribal Association.
Thomas R. Berger, Q.C., and Gary A. Nelson, for
the intervener the Blueberry River First Nations.
Thomas R. Berger, c.r., et Gary A. Nelson, pour
l’intervenante Premières nations de Blueberry
River.
Jack R. London, Q.C., and Bryan P. Schwartz,
for the intervener the Assembly of First Nations.
Jack R. London, c.r., et Bryan P. Schwartz, pour
l’intervenante l’Assemblée des Premières Nations.
The judgment of the Court was delivered by
Version française du jugement de la Cour rendu
par
Binnie J. — The fundamental objective of
the modern law of aboriginal and treaty rights is
the reconciliation of aboriginal peoples and nonaboriginal peoples and their respective claims,
interests and ambitions. The management of these
relationships takes place in the shadow of a long
history of grievances and misunderstanding. The
multitude of smaller grievances created by the
indifference of some government officials to aboriginal people’s concerns, and the lack of respect
inherent in that indifference has been as destructive of the process of reconciliation as some of the
larger and more explosive controversies. And so it
is in this case.
Le juge Binnie — L’objectif fondamental du
droit moderne relatif aux droits ancestraux et issus de traités est la réconciliation entre les peuples
autochtones et non autochtones et la conciliation
de leurs revendications, intérêts et ambitions respectifs. La gestion de ces rapports s’exerce dans
l’ombre d’une longue histoire parsemée de griefs et
d’incompréhension. La multitude de griefs de moindre importance engendrés par l’indifférence de certains représentants du gouvernement à l’égard des
préoccupations des peuples autochtones, et le manque de respect inhérent à cette indifférence, ont
causé autant de tort au processus de réconciliation
que certaines des controverses les plus importantes
et les plus vives. Et c’est le cas en l’espèce.
1
Treaty 8 is one of the most important of the postConfederation treaties. Made in 1899, the First
Nations who lived in the area surrendered to the
Crown 840,000 square kilometres of what is now
northern Alberta, northeastern British Columbia,
northwestern Saskatchewan and the southern portion of the Northwest Territories. Some idea of
the size of this surrender is given by the fact that
it dwarfs France (543,998 square kilometres),
Le Traité no 8 est l’un des plus importants traités
conclus après la Confédération. Les premières nations qui l’ont signé en 1899 ont cédé à la Couronne
une superficie de 840 000 kilomètres carrés de terres situées dans ce qui est maintenant le nord de
l’Alberta, le nord-est de la Colombie-Britannique,
le nord-ouest de la Saskatchewan et la partie sud
des Territoires du Nord-Ouest. Pour donner une
idée de l’étendue du territoire cédé, sa superficie est
2
James D. Jodouin and Gary L. Bainbridge, for
the intervener the Big Island Lake Cree Nation.
3
mikisew cree first nation v. canada Binnie
J.
[2005] 3 S.C.R.
exceeds the size of Manitoba (650,087 square kilometres), Saskatchewan (651,900 square kilometres) and Alberta (661,185 square kilometres) and
approaches the size of British Columbia (948,596
square kilometres). In exchange for this surrender, the First Nations were promised reserves and
some other benefits including, most importantly to
them, the following rights of hunting, trapping, and
fishing:
de très loin supérieure à celle de la France (543 998
kilomètres carrés), elle excède celle du Manitoba
(650 087 kilomètres carrés), de la Saskatchewan
(651 900 kilomètres carrés) et de l’Alberta (661 185
kilomètres carrés), et elle équivaut presque à celle
de la Colombie-Britannique (948 596 kilomètres
carrés). En contrepartie de cette cession, on a promis aux premières nations des réserves et certains
autres avantages, y compris, ce qui leur importait le
plus, les droits de chasse, de piégeage et de pêche
suivants :
And Her Majesty the Queen HEREBY AGREES
with the said Indians that they shall have right to
pursue their usual vocations of hunting, trapping and
fishing throughout the tract surrendered as heretofore
described, subject to such regulations as may from time
to time be made by the Government of the country,
acting under the authority of Her Majesty, and saving
and excepting such tracts as may be required or taken
up from time to time for settlement, mining, lumbering,
trading or other purposes. [Emphasis added.]
[TRADUCTION] Et Sa Majesté la Reine convient
par les présentes avec les dits sauvages qu’ils auront
le droit de se livrer à leurs occupations ordinaires de
la chasse au fusil, de la chasse au piège et de la pêche
dans l’étendue de pays cédée telle que ci-dessus décrite,
subordonnées à tels règlements qui pourront être faits
de temps à autre par le gouvernement du pays agissant
au nom de Sa Majesté et sauf et excepté tels terrains
qui de temps à autre pourront être requis ou pris pour
des fins d’établissements, de mine, d’opérations forestières, de commerce ou autres objets. [Je souligne.]
In fact, for various reasons (including lack of
interest on the part of First Nations), sufficient land
was not set aside for reserves for the Mikisew Cree
First Nation (the “Mikisew”) until the 1986 Treaty
Land Entitlement Agreement, 87 years after Treaty
8 was made. Less than 15 years later, the federal
government approved a 118-kilometre winter road
that, as originally conceived, ran through the new
Mikisew First Nation Reserve at Peace Point. The
government did not think it necessary to engage
in consultation directly with the Mikisew before
making this decision. After the Mikisew protested, the winter road alignment was changed
to track the boundary of the Peace Point reserve
instead of running through it, again without consultation with the Mikisew. The modified road
alignment traversed the traplines of approximately
14 Mikisew families who reside in the area near
the proposed road, and others who may trap in that
area although they do not live there, and the hunting grounds of as many as 100 Mikisew people
whose hunt (mainly of moose), the Mikisew say,
would be adversely affected. The fact the proposed
winter road directly affects only about 14 Mikisew
trappers and perhaps 100 hunters may not seem
En fait, pour diverses raisons (y compris un
manque d’intérêt de la part des Autochtones), on
n’a pas mis de côté suffisamment de terres aux fins
d’établissement de réserves pour la Première nation
crie Mikisew (les « Mikisew ») avant l’adoption
du Treaty Land Entitlement Agreement de 1986,
soit 87 ans après la signature du Traité no 8. Moins
de 15 ans plus tard, le gouvernement fédéral a approuvé la construction d’une route d’hiver de 118
kilomètres qui, selon le plan original, traversait la
nouvelle réserve de la Première nation Mikisew à
Peace Point. Le gouvernement n’a pas jugé nécessaire de consulter directement les Mikisew avant
de prendre cette décision. À la suite des protestations de ces derniers, le tracé de la route d’hiver
a été modifié de manière à longer la limite de la
réserve de Peace Point plutôt que de la traverser,
toujours sans que les Mikisew aient été consultés. Le tracé modifié de la route traversait les lignes de piégeage d’environ 14 familles Mikisew
vivant dans le secteur voisin de la route projetée,
et ceux d’autres personnes pouvant installer des
pièges dans ce secteur sans y vivre, ainsi que les
territoires de chasse d’une centaine de Mikisew
dont les activités de chasse (principalement à
394
395
very dramatic (unless you happen to be one of the
trappers or hunters in question) but, in the context
of a remote northern community of relatively few
families, it is significant. Beyond that, however,
the principle of consultation in advance of interference with existing treaty rights is a matter of
broad general importance to the relations between
aboriginal and non-aboriginal peoples. It goes
to the heart of the relationship and concerns not
only the Mikisew but other First Nations and nonaboriginal governments as well.
l’orignal) risquaient, selon les Mikisew, d’être
perturbées. Le fait que la route d’hiver projetée
ne nuise directement qu’à environ 14 trappeurs
Mikisew et quelque 100 chasseurs peut ne pas
sembler très dramatique (sauf si vous êtes vousmême un des trappeurs ou des chasseurs en question), mais dans le contexte d’une collectivité
éloignée du nord composée d’un nombre relativement restreint de familles, ce fait a de l’importance. Au-delà de tout cela, le principe de tenir des
consultations avant de porter atteinte à des droits
issus de traités existants constitue néanmoins une
question qui revêt une importance générale en ce
qui concerne les rapports entre les peuples autochtones et non autochtones. Ce principe touche au
cœur de ces rapports et concerne non seulement
les Mikisew, mais aussi d’autres premières nations
et les gouvernements non autochtones.
In this case, the relationship was not properly
managed. Adequate consultation in advance of
the Minister’s approval did not take place. The
government’s approach did not advance the process of reconciliation but undermined it. The duty
of consultation which flows from the honour of
the Crown, and its obligation to respect the existing treaty rights of aboriginal peoples (now entrenched in s. 35 of the Constitution Act, 1982), was
breached. The Mikisew appeal should be allowed,
the Minister’s approval quashed, and the matter returned to the Minister for further consultation and
consideration.
En l’espèce, les rapports n’ont pas été bien gérés.
Aucune consultation adéquate n’a été tenue avant
l’approbation de la ministre. La démarche adoptée par le gouvernement a nui au processus de
réconciliation plutôt que de le faire progresser.
L’obligation de consultation qui découle du principe de l’honneur de la Couronne, ainsi que l’obligation de celle-ci de respecter les droits issus de
traités existants des peuples autochtones (maintenant reconnus à l’art. 35 de la Loi constitutionnelle
de 1982) ont été violées. Je suis d’avis d’accueillir
le pourvoi des Mikisew, d’annuler l’approbation de
la ministre et de lui renvoyer le dossier pour qu’elle
tienne des consultations et qu’elle en poursuive
l’examen.
I. Facts
I. Faits
About 5 percent of the territory surrendered under Treaty 8 was set aside in 1922 as Wood Buffalo
National Park. The Park was created principally
to protect the last remaining herds of wood bison
(or buffalo) in northern Canada and covers 44,807
square kilometres of land straddling the boundary
between northern Alberta and southerly parts of the
Northwest Territories. It is designated a UNESCO
World Heritage Site. The Park itself is larger than
Switzerland.
Environ 5 p. 100 du territoire cédé en vertu du
Traité no 8 a été réservé en 1922 pour la création
du parc national Wood Buffalo. Le parc a été créé
principalement pour protéger les derniers troupeaux
de bisons des bois du nord du Canada et il occupe
une superficie de 44 807 kilomètres carrés de part
et d’autre de la frontière entre le nord de l’Alberta
et la partie du sud des Territoires du Nord-Ouest.
Il a été désigné site du patrimoine mondial par
l’UNESCO. Le parc est lui-même plus grand que la
Suisse.
[2005] 3 R.C.S.
4
5
J.
[2005] 3 S.C.R.
6
At present, it contains the largest free-roaming,
self-regulating bison herd in the world, the last remaining natural nesting area for the endangered
whooping crane, and vast undisturbed natural boreal forests. More to the point, it has been inhabited
by First Nation peoples for more than over 8,000
years, some of whom still earn a subsistence living by hunting, fishing and commercial trapping
within the Park boundaries. The Park includes the
traditional lands of the Mikisew. As a result of the
Treaty Land Entitlement Agreement, the Peace
Point Reserve was formally excluded from the Park
in 1988 but of course is surrounded by it.
Il abrite actuellement le plus grand troupeau de
bisons en liberté et à reproduction autonome du
monde, et on y trouve la dernière aire de nidification
naturelle des grues blanches, une espèce menacée,
ainsi que de vastes forêts boréales naturelles intactes. Point plus pertinent encore, des Autochtones y
habitent depuis plus de 8 000 ans et certains d’entre
eux tirent encore leur subsistance de la chasse, de la
pêche et du piégeage commercial pratiqués dans les
limites du parc. Les terres ancestrales des Mikisew
se trouvent dans le parc. Par l’effet du Treaty Land
Entitlement Agreement, la réserve de Peace Point a
été formellement exclue du parc en 1988, mais évidemment celui-ci entoure la réserve.
7
The members of the Mikisew Cree First Nation
are descendants of the Crees of Fort Chipewyan
who signed Treaty 8 on June 21, 1899. It is common
ground that its members are entitled to the benefits
of Treaty 8.
Les membres de la Première nation crie Mikisew
sont des descendants des Cris de Fort Chipewyan
qui ont signé le Traité no 8 le 21 juin 1899. Il est établi que ses membres ont droit aux avantages conférés par le Traité no 8.
A. The Winter Road Project
A. Le projet de route d’hiver
The proponent of the winter road is the respondent Thebacha Road Society, whose members include
the Town of Fort Smith (located in the Northwest
Territories on the northeastern boundary of Wood
Buffalo National Park, where the Park headquarters is located), the Fort Smith Métis Council, the
Salt River First Nation, and Little Red River Cree
First Nation. The advantage of the winter road for
these people is that it would provide direct winter
access among a number of isolated northern communities and to the Alberta highway system to the
south. The trial judge accepted that the government’s objective was to meet “regional transportation needs”: (2001), 214 F.T.R. 48, 2001 FCT 1426,
at para. 115.
La promotrice de la route d’hiver est l’intimée
Thebacha Road Society, dont les membres comprennent la ville de Fort Smith (située dans les
Territoires du Nord-Ouest, à la limite nord-est du
parc national Wood Buffalo, où se trouve le centre
administratif du parc), le Conseil des Métis de
Fort Smith, la Première nation de Salt River et la
Première nation crie de Little Red River. Pour ces
gens, la route d’hiver présente l’avantage d’offrir
un accès hivernal direct à un certain nombre de
collectivités nordiques isolées et au réseau routier
de l’Alberta au sud. La juge de première instance
a reconnu que l’objectif du gouvernement était de
répondre à des « besoins régionaux en matière
de transport » : [2001] A.C.F. no 1877 (QL), 2001
CFPI 1426, par. 115.
B. The Consultation Process
B. Le processus de consultation
According to the trial judge, most of the communications relied on by the Minister to demonstrate appropriate consultation were instances
of the Mikisew’s being provided with standard
information about the proposed road in the same
form and substance as the communications being
distributed to the general public of interested
Selon la juge de première instance, pour démontrer qu’une consultation appropriée avait été tenue,
la ministre s’est appuyée sur le fait que la plupart
des communications avec les Mikisew consistaient
à leur fournir les mêmes renseignements généraux
concernant le projet de route que ceux distribués
à l’ensemble des parties intéressées, et ce, tant sur
8
9
396
[2005] 3 R.C.S.
397
le plan de la forme que du contenu. Le 19 janvier
2000, Parcs Canada a ainsi remis aux Mikisew,
pour le compte de la ministre, le cadre de référence
pour l’évaluation environnementale. Les Mikisew
ont été informés que des séances portes ouvertes
seraient tenues au cours de l’été 2000. La ministre affirme n’avoir reçu aucune réponse officielle
des Mikisew avant le 10 octobre 2000, soit environ
deux mois après l’expiration du délai qu’elle avait
fixé pour la présentation des commentaires « publics ». Le chef Poitras a déclaré que les Mikisew
n’avaient pas participé officiellement aux séances portes ouvertes parce que [TRADUCTION] « les
séances portes ouvertes ne sont pas un moyen adéquat de nous consulter ».
Apparently, Parks Canada left the proponent
Thebacha Road Society out of the information
loop as well. At the end of January 2001, it advised
Chief Poitras that it had just been informed that the
Mikisew did not support the road. Up to that point,
Thebacha had been led to believe that the Mikisew
had no objection to the road’s going through the
reserve. Chief Poitras wrote a further letter to
the Minister on January 29, 2001 and received a
standard-form response letter from the Minister’s
office stating that the correspondence “will be
given every consideration”.
Apparemment, Parcs Canada n’a pas mis la promotrice Thebacha Road Society dans le coup non
plus. À la fin de janvier 2001, cette dernière a informé le chef Poitras qu’elle venait tout juste d’apprendre que les Mikisew n’appuyaient pas le projet
de route. Jusque-là, on avait donné à entendre à
Thebacha Road Society que les Mikisew ne s’opposaient pas à ce que la route traverse la réserve.
Le 29 janvier 2001, le chef Poitras a écrit une autre
lettre à la ministre et a reçu du cabinet de la ministre une réponse type disant [TRADUCTION] qu’« il
sera[it] donné suite à la lettre avec toute l’attention
requise ».
10
Eventually, after several more miscommunications, Parks Canada wrote Chief Poitras on April
30, 2001, stating in part: “I apologize to you and
your people for the way in which the consultation
process unfolded concerning the proposed winter road and any resulting negative public perception of the [Mikisew Cree First Nation].” At that
point, in fact, the decision to approve the road with
a modified alignment had already been taken.
Finalement, le 30 avril 2001, après plusieurs
autres malentendus, Parcs Canada a écrit au chef
Poitras une lettre où on pouvait lire notamment ce
qui suit : [TRADUCTION] « Je vous fais, à vous et à
votre peuple, mes excuses pour la façon dont s’est
déroulé le processus de consultation relatif au projet
de route d’hiver et pour toute perception publique
négative de la [Première nation crie Mikisew]. » En
fait, la décision d’approuver une route au tracé modifié avait déjà été prise à ce moment-là.
11
On May 25, 2001, the Minister announced on
the Parks Canada website that the Thebacha Road
Society was authorized to build a winter road 10
metres wide with posted speed limits ranging from
10 to 40 kilometres per hour. The approval was said
to be in accordance with “Parks Canada plans and
policy” and “other federal laws and regulations”.
Le 25 mai 2001, la ministre a annoncé sur le site
Web de Parcs Canada que Thebacha Road Society
était autorisée à construire une route d’hiver d’une
largeur de 10 mètres dont les vitesses limites affichées seraient de 10 à 40 kilomètres à l’heure.
Selon cette annonce, l’autorisation était conforme
[TRADUCTION] « aux plans et politiques de Parcs
12
stakeholders. Thus Parks Canada acting for the
Minister, provided the Mikisew with the Terms
of Reference for the environmental assessment
on January 19, 2000. The Mikisew were advised
that open house sessions would take place over the
summer of 2000. The Minister says that the first
formal response from the Mikisew did not come
until October 10, 2000, some two months after the
deadline she had imposed for “public” comment.
Chief Poitras stated that the Mikisew did not formally participate in the open houses, because “an
open house is not a forum for us to be consulted
adequately”.
J.
[2005] 3 S.C.R.
No reference was made to any obligations to the
Mikisew.
Canada » et à « d’autres lois et règlements fédéraux ». Il n’était aucunement fait mention d’une
quelconque obligation envers les Mikisew.
13
The Minister now says the Mikisew ought not
to be heard to complain about the process of consultation because they declined to participate in the
public process that took place. Consultation is a
two-way street, she says. It was up to the Mikisew
to take advantage of what was on offer. They failed
to do so. In the Minister’s view, she did her duty.
La ministre affirme maintenant que les Mikisew
sont mal venus de se plaindre du processus de
consultation puisqu’ils ont refusé de participer au
processus public qui a été mis en place. La consultation, affirme-t-elle, doit se faire dans les deux
sens. Il n’en tenait qu’à eux de profiter de ce qu’on
leur offrait. Ils ne l’ont pas fait. À son avis, elle s’est
acquittée de son obligation.
14
The proposed winter road is wide enough to allow two vehicles to pass. Pursuant to s. 36(5) of the
Wood Buffalo National Park Game Regulations,
SOR/78-830, creation of the road would trigger a
200-metre wide corridor within which the use of
firearms would be prohibited. The total area of
this corridor would be approximately 23 square
kilometres.
La route d’hiver projetée est suffisamment large
pour permettre le passage de deux véhicules. Par application du par. 36(5) du Règlement sur le gibier
du parc de Wood-Buffalo, DORS/78-830, l’aménagement de la route aurait pour effet de créer un corridor de 200 mètres de large à l’intérieur duquel il
serait interdit d’utiliser des armes à feu. Ce corridor
aurait une superficie totale d’environ 23 kilomètres
carrés.
15
The Mikisew objection goes beyond the direct
impact of closure of the area covered by the winter
road to hunting and trapping. The surrounding area
would be, the trial judge found, injuriously affected. Maintaining a traditional lifestyle, which the
Mikisew say is central to their culture, depends on
keeping the land around the Peace Point reserve in
its natural condition and this, they contend, is essential to allow them to pass their culture and skills
on to the next generation of Mikisew. The detrimental impact of the road on hunting and trapping,
they argue, may simply prove to be one more incentive for their young people to abandon a traditional
lifestyle and turn to other modes of living in the
south.
L’objection des Mikisew va bien au-delà de l’effet
direct qu’aurait l’interdiction de chasser et de piéger
dans le secteur visé par la route d’hiver. Selon la
conclusion de la juge de première instance, le secteur environnant subirait un effet préjudiciable.
Le maintien d’un mode de vie traditionnel, lequel
est, au dire des Mikisew, essentiel à leur culture,
dépend de la conservation des terres entourant la
réserve de Peace Point dans leur état naturel, ce qui,
soutiennent-ils, est nécessaire pour leur permettre
de transmettre leur culture et leur savoir à la prochaine génération. L’effet préjudiciable de la route
sur la chasse et le piégeage, affirment-ils, pourrait
s’avérer constituer, pour leurs jeunes, une incitation
de plus à abandonner leur mode de vie traditionnel
pour se tourner vers d’autres modes de vie du sud.
16
The Mikisew applied to the Federal Court to
set aside the Minister’s approval based on their
view of the Crown’s fiduciary duty, claiming that
the Minister owes “a fiduciary and constitutional
duty to adequately consult with Mikisew Cree First
Nation with regard to the construction of the road”
(trial judge, at para. 26).
Les Mikisew ont demandé à la Cour fédérale
d’annuler l’approbation de la ministre en se fondant
sur leur conception de l’obligation de fiduciaire
de la Couronne, faisant valoir que la ministre est
tenue à [TRADUCTION] « une obligation fiduciaire
et [constitutionnelle] de consulter [adéquatement]
la Première nation crie Mikisew au sujet de la
construction de la route » (la juge de première instance, par. 26).
398
399
17
An interlocutory injunction against construction
of the winter road was issued by the Federal Court,
Trial Division on August 27, 2001.
Le 27 août 2001, la Section de première instance de la Cour fédérale a accordé une injonction
interlocutoire interdisant la construction de la route
d’hiver.
II. Relevant Enactments
II. Dispositions pertinentes
Constitution Act, 1982
Loi constitutionnelle de 1982
35. (1) The existing aboriginal and treaty rights of
the aboriginal peoples of Canada are hereby recognized
and affirmed.
35. (1) Les droits existants — ancestraux ou issus
de traités — des peuples autochtones du Canada sont
reconnus et confirmés.
III. Judicial History
III. Historique judiciaire
A. Federal Court, Trial Division ((2001), 214
F.T.R. 48, 2001 FCT 1426)
A. Section de première instance de la Cour fédérale ([2001] A.C.F. no 1877 (QL), 2001 CFPI
1426)
Hansen J. held that the lands included in Wood
Buffalo National Park were not “taken up” by the
Crown within the meaning of Treaty 8 because the
use of the lands as a national park did not constitute
a “visible use” incompatible with the existing rights
to hunt and trap (R. v. Badger, [1996] 1 S.C.R. 771;
R. v. Sioui, [1990] 1 S.C.R. 1025). The proposed
winter road and its 200-metre “[no] firearm” corridor would adversely impact the Mikisew’s treaty
rights. These rights received constitutional protection in 1982, and any infringements must be justified in accordance with the test in R. v. Sparrow,
[1990] 1 S.C.R. 1075. In Hansen J.’s view, the
Minister’s decision to approve the road infringed
the Mikisew’s Treaty 8 rights and could not be justified under the Sparrow test.
La juge Hansen a conclu que les terres comprises dans le parc national de Wood Buffalo n’avaient
pas été « prises » par la Couronne au sens du Traité
no 8 puisque l’utilisation de ces terres comme parc
national ne constituait pas une « utilisation visible »
non compatible avec le droit de chasser et de piéger
existant (R. c. Badger, [1996] 1 R.C.S. 771; R. c.
Sioui, [1990] 1 R.C.S. 1025). La route d’hiver projetée et son corridor de 200 mètres « [sans] armes
à feu » aurait un effet préjudiciable sur les droits
issus du traité des Mikisew. Ces droits ont reçu une
protection constitutionnelle en 1982, et toute atteinte à ces droits doit être justifiée conformément
au critère énoncé dans l’arrêt R. c. Sparrow, [1990]
1 R.C.S. 1075. Selon la juge Hansen, la décision de
la ministre d’approuver la route portait atteinte aux
droits issus du Traité no 8 des Mikisew et ne pouvait être justifiée suivant le critère énoncé dans l’arrêt Sparrow.
19
In particular, the trial judge held that the standard public notices and open houses which were
given were not sufficient. The Mikisew were entitled to a distinct consultation process. She stated at
paras. 170-71:
Plus particulièrement, la juge de première instance a conclu que les avis publics types et la
tenue de séances portes ouvertes n’étaient pas suffisants. Les Mikisew avaient droit à un processus
de consultation distinct. Elle a affirmé ce qui suit
(par. 170-171) :
20
The applicant complains that the mitigation measures attached to the Minister’s decision were not developed in consultation with Mikisew and were not
designed to minimize impacts on Mikisew’s rights. I
La demanderesse critique les mesures d’atténuation
accompagnant la décision de la Ministre parce qu’elles
n’ont pas été élaborées en consultation avec les Mikisews
et qu’elles n’étaient pas conçues pour minimiser les
18
[2005] 3 R.C.S.
21
22
J.
[2005] 3 S.C.R.
agree. Even the realignment, apparently adopted in response to Mikisew’s objections, was not developed in
consultation with Mikisew. The evidence does not establish that any consideration was given to whether the
new route would minimize impacts on Mikisew’s treaty rights. The evidence of Chief George Poitras highlighted an air of secrecy surrounding the realignment, a
process that should have included a transparent consideration of Mikisew’s concerns.
empiétements sur leurs droits. Je partage ce point de
vue. Même la bifurcation du tracé, apparemment adoptée par suite des objections élevées par les Mikisews,
n’a pas été faite en consultation avec la Première nation.
La preuve n’établit pas qu’on ait pris le moindrement en
considération la question de savoir si la nouvelle route
porterait le moins possible atteinte aux droits issus de
traité des Mikisews. La déposition du chef Poitras met
en évidence l’atmosphère de secret qui entourait le tracé
de la bifurcation, alors que ce processus aurait dû comporter l’examen, en toute transparence, des préoccupations des Mikisews.
Parks Canada admitted it did not consult with
Mikisew about the route for the realignment, nor did
it consider the impacts of the realignment on Mikisew
trappers’ rights.
Parcs Canada a reconnu qu’il n’avait pas consulté
les Mikisews au sujet du tracé de la bifurcation et qu’il
n’avait pas non plus pris en considération les incidences
du nouveau tracé sur les droits des trappeurs mikisews.
Accordingly, the trial judge allowed the application for judicial review and quashed the Minister’s
approval.
La juge de première instance a donc accueilli la
demande de contrôle judiciaire et annulé l’approbation de la ministre.
B. Federal Court of Appeal ([2004] 3 F.C.R. 436,
2004 FCA 66)
B. Cour d’appel fédérale ([2004] 3 R.C.F. 436,
2004 CAF 66)
Rothstein J.A., with whom Sexton J.A. agreed,
allowed the appeal and restored the Minister’s
approval. He did so on the basis of an argument
brought forward by the Attorney General of Alberta
as an intervener on the appeal. The argument was
that Treaty 8 expressly contemplated the “taking
up” of surrendered lands for various purposes, including roads. The winter road was more properly
seen as a “taking up” pursuant to the Treaty rather
than an infringement of it. As Rothstein J.A. held:
Le juge Rothstein, avec l’accord du juge Sexton,
a accueilli l’appel et rétabli l’approbation de la
ministre. Il s’est appuyé sur un argument présenté
par le procureur général de l’Alberta, intervenant
dans l’appel. Selon cet argument, le Traité no 8 prévoyait expressément la « prise » de terres cédées
pour différentes fins, y compris la construction de
routes. Il était plus juste de considérer la route d’hiver comme une « prise » effectuée en application
du traité plutôt que comme une violation de celuici. Selon la conclusion du juge Rothstein :
Where a limitation expressly provided for by a treaty applies, there is no infringement of the treaty and
thus no infringement of section 35. This is to be contrasted with the case where the limitations provided by
the treaty do not apply but the government nevertheless seeks to limit the treaty right. In such a case, the
Sparrow test must be satisfied in order for the infringement to be constitutionally permissible. [para. 21]
Lorsqu’une limitation expressément prévue par un
traité s’applique, le traité n’est pas violé et l’article 35
n’est donc pas non plus violé. Il faut faire la distinction avec le cas où les limitations prévues par le traité
ne s’appliquent pas, mais où le gouvernement cherche
néanmoins à limiter le droit issu du traité. En pareil cas,
il faut satisfaire au critère énoncé dans l’arrêt Sparrow
pour que l’atteinte soit permise sur le plan constitutionnel. [par. 21]
Rothstein J.A. also held that there was no obligation on the Minister to consult with the Mikisew
about the road, although to do so would be “good
practice” (para. 24). (This opinion was delivered
before the release of this Court’s decisions in Haida
Nation v. British Columbia (Minister of Forests),
Le juge Rothstein a également conclu que la ministre n’était tenue à aucune obligation de consulter les Mikisew au sujet de la route, bien qu’il
soit de « bonne pratique » de le faire (par. 24).
(Cette décision a été rendue avant que notre Cour
se prononce dans les affaires Nation Haïda c.
400
401
[2004] 3 S.C.R. 511, 2004 SCC 73, and Taku River
Tlingit First Nation v. British Columbia (Project
Assessment Director), [2004] 3 S.C.R. 550, 2004
SCC 74.)
Colombie-Britannique (Ministre des Forêts),
[2004] 3 R.C.S. 511, 2004 CSC 73, et Première nation Tlingit de Taku River c. Colombie-Britannique
(Directeur d’évaluation de projet), [2004] 3 R.C.S.
550, 2004 CSC 74.)
Sharlow J.A., in dissenting reasons, agreed with
the trial judge that the winter road approval was
itself a prima facie infringement of the Treaty 8
rights and that the infringement had not been justified under the Sparrow test. The Crown’s obligation as a fiduciary must be considered. The failure
of the Minister’s staff at Parks Canada to engage in
meaningful consultation was fatal to the Crown’s
attempt at justification. She wrote:
En dissidence, la juge Sharlow a souscrit à l’opinion de la juge de première instance selon laquelle
l’approbation de la route d’hiver constituait une atteinte prima facie aux droits issus du Traité no 8 et
que l’atteinte n’avait pas été justifiée selon le critère énoncé dans l’arrêt Sparrow. L’obligation de fiduciaire de la Couronne doit être prise en compte.
L’omission du personnel de la ministre travaillant
pour Parcs Canada de procéder à une réelle consultation a été fatale à la tentative de justification de la
Couronne. Elle a écrit ce qui suit :
In this case, there is no evidence of any good faith
effort on the part of the Minister to understand or address the concerns of Mikisew Cree First Nation about
the possible effect of the road on the exercise of their
Treaty 8 hunting and trapping rights. It is significant,
in my view, that Mikisew Cree First Nation was not
even told about the realignment of the road corridor to
avoid the Peace Point Reserve until after it had been
determined that the realignment was possible and reasonable, in terms of environmental impact, and after
the road was approved. That invites the inference that
the responsible Crown officials believed that as long as
the winter road did not cross the Peace Point Reserve,
any further objections of the Mikisew Cree First Nation
could be disregarded. Far from meaningful consultation, that indicates a complete disregard for the concerns of Mikisew Cree First Nation about the breach of
their Treaty 8 rights. [para. 152]
Dans ce cas-ci, rien ne montre que la ministre ait de
bonne foi fait des efforts pour comprendre ou examiner
les préoccupations que la Première nation crie Mikisew
entretenait au sujet de l’effet possible de la route sur
l’exercice du droit de chasse et de piégeage qui lui était
reconnu par le Traité no 8. À mon avis, il importe de noter que l’on a informé la Première nation crie Mikisew
du nouveau tracé du corridor routier destiné à éviter la
réserve de Peace Point qu’une fois qu’il a été conclu que
ce nouveau tracé était réalisable et raisonnable, en ce
qui concerne les répercussions sur l’environnement, et
que la route a été approuvée. On peut en inférer que
les représentants responsables de la Couronne croyaient
que, dans la mesure où la route d’hiver ne traversait
pas la réserve de Peace Point, il était possible de ne
faire aucun cas des autres objections soulevées par la
Première nation crie Mikisew. Cela est bien loin d’indiquer une consultation réelle, mais indique plutôt que
l’on a fait aucun cas des préoccupations qu’entretenait
la Première nation crie Mikisew au sujet de l’atteinte
aux droits qui lui étaient reconnus par le Traité no 8.
[par. 152]
Sharlow J.A. would have dismissed the appeal.
La juge Sharlow aurait rejeté l’appel.
IV. Analysis
IV. Analyse
The post-Confederation numbered treaties were
designed to open up the Canadian west and northwest to settlement and development. Treaty 8 itself
recites that “the said Indians have been notified and
informed by Her Majesty’s said Commission that it
is Her desire to open for settlement, immigration,
trade, travel, mining, lumbering and such other
Les traités numérotés conclus après la
Confédération visaient à permettre la colonisation et le développement de l’Ouest et du NordOuest canadiens. Le Traité no 8 lui-même précise
que [TRADUCTION] « les dits sauvages ont été notifiés et informés par les dits commissaires de Sa
Majesté que c’est le désir de Sa Majesté d’ouvrir à
23
24
[2005] 3 R.C.S.
25
26
J.
[2005] 3 S.C.R.
purposes as to Her Majesty may seem meet”. This
stated purpose is reflected in a corresponding limitation on the Treaty 8 hunting, fishing and trapping
rights to exclude such “tracts as may be required or
taken up from time to time for settlement, mining,
lumbering, trading or other purposes”. The “other
purposes” would be at least as broad as the purposes listed in the recital, mentioned above, including
“travel”.
la colonisation, à l’immigration, au commerce, aux
voyages, aux opérations minières et forestières et
à telles autres fins que Sa Majesté pourra trouver
convenables ». Cet énoncé de l’objet se reflète dans
une limitation corrélative aux droits de chasse, de
pêche et de piégeage issus du Traité no 8 visant à
exclure tels [TRADUCTION] « terrains qui de temps
à autre pourront être requis ou pris pour des fins
d’établissements, de mine, d’opérations forestières,
de commerce ou autres objets ». Les « autres objets » seraient au moins aussi généraux que les fins
mentionnées dans le préambule susmentionné, y
compris les « voyages ».
There was thus from the outset an uneasy tension between the First Nations’ essential demand
that they continue to be as free to live off the land
after the treaty as before and the Crown’s expectation of increasing numbers of non-aboriginal
people moving into the surrendered territory. It
was seen from the beginning as an ongoing relationship that would be difficult to manage, as the
Commissioners acknowledged at an early Treaty 8
negotiation at Lesser Slave Lake in June 1899:
On a donc pu observer, dès le départ, qu’il existait
une tension entre l’exigence essentielle posée par les
premières nations voulant qu’elles demeurent libres
de vivre de la terre autant après qu’avant la signature du traité et le désir de la Couronne d’augmenter
le nombre de non autochtones s’établissant dans le
territoire cédé. Comme les commissaires l’ont reconnu au début des négociations du Traité no 8 au
Petit lac des Esclaves en juin 1899, ces rapports sont
apparus d’entrée de jeu comme des rapports permanents qu’il serait difficile de gérer :
The white man is bound to come in and open up the
country, and we come before him to explain the relations that must exist between you, and thus prevent any
trouble.
[TRADUCTION] L’homme blanc viendra peupler cette
partie du pays et nous venons avant lui pour vous expliquer comment les choses doivent se passer entre vous et
pour éviter tout problème.
(C. Mair, Through the Mackenzie Basin: A
Expedition of 1899, at p. 61)
(C. Mair, Through the Mackenzie Basin : A
Expedition of 1899, p. 61)
As Cory J. explained in Badger, at para. 57, “[t]he
Indians understood that land would be taken up for
homesteads, farming, prospecting and mining and
that they would not be able to hunt in these areas or
to shoot at the settlers’ farm animals or buildings.”
Comme le juge Cory l’a expliqué dans l’arrêt
Badger, par. 57, « [l]es Indiens comprenaient que
des terres seraient prises pour y établir des exploitations agricoles ou pour y faire de la prospection
et de l’exploitation minières, et qu’ils ne seraient
pas autorisés à y chasser ou à tirer sur les animaux
de ferme et les bâtiments des colons. »
The hunting, fishing and trapping rights were
not solely for the benefit of First Nations peoples. It
was in the Crown’s interest to keep the aboriginal
people living off the land, as the Commissioners
themselves acknowledged in their Report on Treaty
8 dated September 22, 1899:
Les droits de chasse, de pêche et de piégeage ne
servaient pas que les intérêts des peuples des premières nations. Comme l’ont reconnu les commissaires eux-mêmes dans leur rapport sur le Traité
no 8 en date du 22 septembre 1899, la Couronne
avait intérêt à laisser les peuples autochtones vivre
de la terre :
402
403
We pointed out that the Government could not undertake to maintain Indians in idleness; that the same
means of earning a livelihood would continue after the
treaty as existed before it, and that the Indians would be
expected to make use of them.
[TRADUCTION] Nous leur fîmes comprendre que le
gouvernement ne pouvait entreprendre de faire vivre
les sauvages dans l’oisiveté, qu’ils auraient après le
traité les mêmes moyens qu’auparavant de gagner
leur vie, et qu’on espérait que les sauvages s’en serviraient.
Thus none of the parties in 1899 expected that
Treaty 8 constituted a finished land use blueprint.
Treaty 8 signalled the advancing dawn of a period
of transition. The key, as the Commissioners pointed out, was to “explain the relations” that would
govern future interaction “and thus prevent any
trouble” (Mair, at p. 61).
Aucune des parties signataires ne s’attendait
donc en 1899 que le Traité no 8 constitue un plan
définitif d’utilisation des terres. Ce traité marquait
l’aube d’une période de transition. Il fallait, comme
l’ont souligné les commissaires, [TRADUCTION]
« expliquer comment les choses [devaient] se passer » à l’avenir [TRADUCTION] « pour éviter tout
problème » (Mair, p. 61).
A. Interpretation of the Treaty
A. Interprétation du traité
The interpretation of the treaty “must be realistic and reflect the intention[s] of both parties, not
just that of the [First Nation]” (Sioui, at p. 1069).
As a majority of the Court stated in R. v. Marshall,
[1999] 3 S.C.R. 456, at para. 14:
L’interprétation du traité « doit être réaliste
et refléter l’intention des deux parties et non seulement celle [de la première nation] » (Sioui, p.
1069). Comme une majorité de notre Cour l’a affirmé dans l’arrêt R. c. Marshall, [1999] 3 R.C.S.
456, par. 14 :
The Indian parties did not, for all practical purposes,
have the opportunity to create their own written record
of the negotiations. Certain assumptions are therefore
made about the Crown’s approach to treaty making
(honourable) which the Court acts upon in its approach
to treaty interpretation (flexible) as to the existence of
a treaty . . . the completeness of any written record . . .
and the interpretation of treaty terms once found to
exist . . . . The bottom line is the Court’s obligation is
to “choose from among the various possible interpretations of the common intention [at the time the treaty was
made] the one which best reconciles” the [First Nation]
interests and those of the British Crown. [Emphasis in
original; citations omitted.]
Les parties indiennes n’ont à toutes fins pratiques pas
eu la possibilité de créer leurs propres compte-rendus
écrits des négociations. Certaines présomptions sont
donc appliquées relativement à l’approche suivie par
la Couronne dans la conclusion des traités (conduite
honorable), présomptions dont notre Cour tient compte
dans son approche en matière d’interprétation des traités (souplesse) pour statuer sur l’existence d’un traité
[. . .] le caractère exhaustif de tout écrit [. . .] et l’interprétation des conditions du traité, une fois qu’il a
été conclu à leur existence. En bout de ligne, la Cour
a l’obligation « de choisir, parmi les interprétations
de l’intention commune [au moment de la conclusion
du traité] qui s’offrent à [elle], celle qui concilie le
mieux » les intérêts [de la première nation] et ceux de la
Couronne britannique. [Souligné dans l’original; références omises.]
See also R. v. Marshall, [2005] 2 S.C.R. 220, 2005
SCC 43, per McLachlin C.J. at paras. 22-24, and
per LeBel J. at para. 115.
Voir également R. c. Marshall, [2005] 2 R.C.S.
220, 2005 CSC 43, la juge en chef McLachlin, par.
22-24, et le juge LeBel, par. 115.
The Minister is therefore correct to insist that
the clause governing hunting, fishing and trapping
cannot be isolated from the treaty as a whole, but
must be read in the context of its underlying purpose, as intended by both the Crown and the First
La ministre a donc raison d’insister sur le fait
que la disposition régissant la chasse, la pêche et le
piégeage ne peut être dissociée du traité dans son
ensemble, mais doit être interprétée en fonction de
son objectif sous-jacent, visé tant par la Couronne
27
28
29
[2005] 3 R.C.S.
J.
[2005] 3 S.C.R.
Nations peoples. Within that framework, as Cory J.
pointed out in Badger,
que par les peuples des premières nations. Comme
l’a fait remarquer le juge Cory dans l’arrêt Badger,
dans ce contexte
the words in the treaty must not be interpreted in their
strict technical sense nor subjected to rigid modern rules
of construction. Rather, they must be interpreted in the
sense that they would naturally have been understood
by the Indians at the time of the signing. [para. 52]
le texte d’un traité ne doit pas être interprété suivant
son sens strictement formaliste, ni se voir appliquer les
règles rigides d’interprétation modernes. Il faut plutôt
lui donner le sens que lui auraient naturellement donné
les Indiens à l’époque de sa signature. [par. 52]
30
In the case of Treaty 8, it was contemplated by
all parties that “from time to time” portions of the
surrendered land would be “taken up” and transferred from the inventory of lands over which the
First Nations had treaty rights to hunt, fish and
trap, and placed in the inventory of lands where
they did not. Treaty 8 lands lie to the north of
Canada and are largely unsuitable for agriculture.
The Commissioners who negotiated Treaty 8 could
therefore express confidence to the First Nations
that, as previously mentioned, “the same means of
earning a livelihood would continue after the treaty
as existed before it”.
Dans le cas du Traité no 8, toutes les parties
signataires envisageaient que « de temps à autre »
des terres cédées seraient « prises » de l’ensemble des terres sur lesquelles les premières nations
avaient des droits de chasse, de pêche et de piégeage issus du traité et seraient transférées à l’ensemble des terres sur lesquelles elles n’avaient pas
un tel droit. Les terres visées par le Traité no 8 se
trouvent dans le nord du Canada et ne se prêtent
pas, pour la plupart, à l’agriculture. Les commissaires qui ont négocié le Traité no 8 pouvaient donc,
comme je l’ai déjà mentionné, assurer aux premières nations qu’elles [TRADUCTION] « auraient après
le traité les mêmes moyens qu’auparavant de gagner
leur vie ».
31
I agree with Rothstein J.A. that not every subsequent “taking up” by the Crown constituted an
infringement of Treaty 8 that must be justified according to the test set out in Sparrow. In Sparrow,
it will be remembered, the federal government’s
fisheries regulations infringed the aboriginal fishing right, and had to be strictly justified. This is
not the same situation as we have here, where the
aboriginal rights have been surrendered and extinguished, and the Treaty 8 rights are expressly limited to lands not “required or taken up from time
to time for settlement, mining, lumbering, trading
or other purposes” (emphasis added). The language
of the treaty could not be clearer in foreshadowing
change. Nevertheless the Crown was and is expected to manage the change honourably.
Je suis d’accord avec le juge Rothstein pour dire
que les « prises » effectuées subséquemment par la
Couronne ne constituaient pas toutes une atteinte
au Traité no 8 devant être justifiée conformément
au critère énoncé dans l’arrêt Sparrow. Dans cet
arrêt, on s’en souviendra, la réglementation sur les
pêches du gouvernement fédéral portait atteinte
au droit de pêche autochtone et devait être strictement justifiée. La situation n’est pas la même en
l’espèce où les droits autochtones ont été cédés et
sont éteints, et où les droits issus du Traité no 8 se
limitent expressément aux terrains qui n’ont pas
[TRADUCTION] « de temps à autre [. . .] [été] requis
ou pris pour des fins d’établissements, de mine,
d’opérations forestières, de commerce ou autres
objets » (je souligne). Le libellé du traité ne peut
annoncer plus clairement des changements à venir.
Néanmoins, la Couronne était et est encore censée
gérer le changement de façon honorable.
32
It follows that I do not accept the Sparroworiented approach adopted in this case by the trial
judge, who relied in this respect on Halfway River
Il s’ensuit que je ne peux souscrire à la démarche
axée sur le critère énoncé dans Sparrow retenue en
l’espèce par la juge de première instance, qui s’est
404
405
First Nation v. British Columbia (Ministry of
Forests) (1999), 178 D.L.R. (4th) 666, 1999 BCCA
470. In that case, a majority of the British Columbia
Court of Appeal held that the government’s right to
take up land was “by its very nature limited” (para.
138) and “that any interference with the right to
hunt is a prima facie infringement of the Indians’
treaty right as protected by s. 35 of the Constitution
Act, 1982” (para. 144 (emphasis in original))
which must be justified under the Sparrow test.
The Mikisew strongly support the Halfway River
First Nation test but, with respect, to the extent the
Mikisew interpret Halfway River as fixing in 1899
the geographic boundaries of the Treaty 8 hunting
right, and holding that any post-1899 encroachment
on these geographic limits requires a Sparrow-type
justification, I cannot agree. The Mikisew argument presupposes that Treaty 8 promised continuity of nineteenth century patterns of land use. It did
not, as is made clear both by the historical context
in which Treaty 8 was concluded and the period of
transition it foreshadowed.
fondée à cet égard sur l’arrêt Halfway River First
Nation c. British Columbia (Ministry of Forests)
(1999), 178 D.L.R. (4th) 666, 1999 BCCA 470.
Dans cette affaire, les juges majoritaires de la Cour
d’appel de la Colombie-Britannique ont conclu que
le droit du gouvernement de prendre des terres était
[TRADUCTION] « limité de par sa nature même »
(par. 138) et [TRADUCTION] « que toute entrave au
droit de chasse constitu[ait] une atteinte prima facie
au droit issu d’un traité des Indiens protégé par
l’art. 35 de la Loi constitutionnelle de 1982 » (par.
144 (en italique dans l’original)) qui devait être justifiée selon le critère énoncé dans l’arrêt Sparrow.
Les Mikisew appuient fortement le critère appliqué dans l’arrêt Halfway River First Nation, mais
en toute déférence, je ne puis accepter leur interprétation dans la mesure où ils affirment que cet
arrêt a fixé en 1899 les limites géographiques du
droit de chasse prévu au Traité no 8, et que tout
empiètement sur ces limites géographiques après
1899 exige une justification comme celle requise
par l’arrêt Sparrow. L’argument des Mikisew suppose que l’on promettait, au Traité no 8, le maintien
des modes d’utilisation des terres établis au XIXe
siècle. Tel n’est pas le cas, comme l’indiquent clairement tant le contexte historique dans lequel le
Traité no 8 a été conclu que la période de transition
qu’il annonçait.
B. The Process of Treaty Implementation
B. Le processus de mise en œuvre du traité
Both the historical context and the inevitable
tensions underlying implementation of Treaty 8 demand a process by which lands may be transferred
from the one category (where the First Nations retain rights to hunt, fish and trap) to the other category (where they do not). The content of the process
is dictated by the duty of the Crown to act honourably. Although Haida Nation was not a treaty case,
McLachlin C.J. pointed out, at paras. 19 and 35:
Tant le contexte historique que les inévitables
tensions sous-jacentes à la mise en œuvre du Traité
no 8 commandent un processus par lequel des terres
peuvent être transférées d’une catégorie (celle des
terres sur lesquelles les premières nations conservent des droits de chasse, de pêche et de piégeage) à
l’autre (celle des terres sur lesquelles elles n’ont pas
ces droits). Le contenu du processus est dicté par
l’obligation de la Couronne d’agir honorablement.
Même si aucun traité n’était en cause dans l’affaire
Nation Haïda, la juge en chef McLachlin a souligné ce qui suit aux par. 19 et 35 :
The honour of the Crown also infuses the processes
of treaty making and treaty interpretation. In making
and applying treaties, the Crown must act with honour
and integrity, avoiding even the appearance of “sharp
L’honneur de la Couronne imprègne également
les processus de négociation et d’interprétation des
traités. Lorsqu’elle conclut et applique un traité, la
Couronne doit agir avec honneur et intégrité, et éviter
[2005] 3 R.C.S.
33
34
35
[2005] 3 S.C.R.
J.
dealing” (Badger, at para. 41). Thus in Marshall, supra, at para. 4, the majority of this Court supported its
interpretation of a treaty by stating that “nothing less
would uphold the honour and integrity of the Crown
in its dealings with the Mi’kmaq people to secure their
peace and friendship . . .”.
la moindre apparence de « manœuvres malhonnêtes »
(Badger, par. 41). Ainsi, dans Marshall, précité, par. 4,
les juges majoritaires de la Cour ont justifié leur interprétation du traité en déclarant que « rien de moins ne
saurait protéger l’honneur et l’intégrité de la Couronne
dans ses rapports avec les Mi’kmaq en vue d’établir la
paix avec eux et de s’assurer leur amitié . . . ».
. . .
. . .
But, when precisely does a duty to consult arise? The
foundation of the duty in the Crown’s honour and the
goal of reconciliation suggest that the duty arises when
the Crown has knowledge, real or constructive, of the
potential existence of the Aboriginal right or title and
contemplates conduct that might adversely affect it.
Mais à quel moment, précisément, l’obligation de
consulter prend-elle naissance? L’objectif de conciliation ainsi que l’obligation de consultation, laquelle
repose sur l’honneur de la Couronne, tendent à indiquer que cette obligation prend naissance lorsque la
Couronne a connaissance, concrètement ou par imputation, de l’existence potentielle du droit ou titre ancestral
revendiqué et envisage des mesures susceptibles d’avoir
un effet préjudiciable sur celui-ci.
In the case of a treaty the Crown, as a party, will
always have notice of its contents. The question in
each case will therefore be to determine the degree to which conduct contemplated by the Crown
would adversely affect those rights so as to trigger
the duty to consult. Haida Nation and Taku River
set a low threshold. The flexibility lies not in the
trigger (“might adversely affect it”) but in the variable content of the duty once triggered. At the low
end, “the only duty on the Crown may be to give
notice, disclose information, and discuss any issues
raised in response to the notice” (Haida Nation, at
para. 43). The Mikisew say that even the low end
content was not satisfied in this case.
Dans le cas d’un traité, la Couronne, en tant que
partie, a toujours connaissance de son contenu. La
question dans chaque cas consiste donc à déterminer la mesure dans laquelle les dispositions envisagées par la Couronne auraient un effet préjudiciable sur ces droits de manière à rendre applicable
l’obligation de consulter. Le critère retenu dans les
arrêts Nation Haïda et Taku River est peu rigoureux. La souplesse ne réside pas tant dans le fait
que l’obligation devient applicable (on envisage
des mesures « susceptibles d’avoir un effet préjudiciable » sur un droit) que dans le contenu variable
de l’obligation une fois que celle-ci s’applique. Au
minimum, « les seules obligations qui pourraient
incomber à la Couronne seraient d’aviser les intéressés, de leur communiquer des renseignements
et de discuter avec eux des questions soulevées
par suite de l’avis » (Nation Haïda, par. 43). Les
Mikisew affirment que l’on n’a pas respecté même
le contenu minimum de l’obligation en l’espèce.
C. The Mikisew Legal Submission
C. L’argument juridique des Mikisew
The appellant, the Mikisew, essentially reminded the Court of what was said in Haida Nation and
Taku River. This case, the Mikisew say, is stronger. In those cases, unlike here, the aboriginal interest to the lands was asserted but not yet proven.
In this case, the aboriginal interests are protected
by Treaty 8. They are established legal facts. As
Les appelants, les Mikisew, ont essentiellement
rappelé à la Cour ce qu’elle a dit dans les arrêts
Nation Haïda et Taku River. La preuve en l’espèce,
affirment-ils, est plus solide. Dans ces affaires,
contrairement au présent pourvoi, l’intérêt autochtone sur les terres était revendiqué mais n’était
pas encore prouvé. En l’espèce, les intérêts des
406
407
in Haida Nation, the trial judge found the aboriginal interest was threatened by the proposed development. If a duty to consult was found to exist in
Haida Nation and Taku River, then, a fortiori, the
Mikisew argue, it must arise here and the majority
judgment of the Federal Court of Appeal was quite
wrong to characterise consultation between governments and aboriginal peoples as nothing more
than a “good practice” (para. 24).
Autochtones sont protégés par le Traité no 8. Ces
intérêts constituent un fait juridique établi. Comme
dans l’affaire Nation Haïda, la juge de première
instance a estimé que le droit des Autochtones
était menacé par le développement projeté. Si on
a conclu à l’existence d’une obligation de consultation dans les affaires Nation Haïda et Taku River,
les Mikisew soutiennent qu’à plus forte raison,
cette obligation doit exister en l’espèce, et que les
juges majoritaires de la Cour d’appel fédérale ont
eu bien tort de considérer la consultation entre les
gouvernements et les peuples autochtones comme
rien de plus qu’une « bonne pratique » (par. 24).
D. The Minister’s Response
D. La réponse de la ministre
The respondent Minister seeks to distinguish
Haida Nation and Taku River. Her counsel advances three broad propositions in support of the
Minister’s approval of the proposed winter road.
La ministre intimée tente d’établir une distinction entre la présente affaire et les affaires Nation
Haïda et Taku River. Pour justifier l’approbation
qu’elle a donnée au projet de route d’hiver, son avocat avance trois propositions générales.
1. In “taking up” the 23 square kilometres for
the winter road, the Crown was doing no more
than Treaty 8 entitled it to do. The Crown as
well as First Nations have rights under Treaty
8. The exercise by the Crown of its Treaty right
to “take up” land is not an infringement of the
Treaty but the performance of it.
1. En « prenant » les 23 kilomètres carrés à des
fins de construction de la route d’hiver, la
Couronne ne faisait que ce que le Traité no 8
l’autorisait à faire. La Couronne, comme les
premières nations, a des droits en vertu du
Traité no 8. L’exercice par la Couronne de son
droit issu du traité de « prendre » des terres ne
constitue pas une violation du traité, mais une
exécution de celui-ci.
2. The Crown went through extensive consultations with First Nations in 1899 at the time
Treaty 8 was negotiated. Whatever duty of
accommodation was owed to First Nations
was discharged at that time. The terms of the
Treaty do not contemplate further consultations whenever a “taking up” occurs.
2. La Couronne a procédé à de vastes consultations auprès des premières nations au moment
de la négociation du Traité no 8 en 1899. Quelle
que soit la nature de l’obligation d’accommodement envers les premières nations, elle s’est
acquittée de cette obligation à ce moment-là.
Les modalités du traité n’exigent pas que l’on
procède à de nouvelles consultations chaque
fois qu’une « prise » est effectuée.
3. In the event further consultation was required,
the process followed by the Minister through
Parks Canada in this case was sufficient.
3. S’il fallait tenir d’autres consultations, le processus suivi en l’espèce par la ministre, par
l’intermédiaire de Parcs Canada, était suffisant.
For the reasons that follow, I believe that each of
these propositions must be rejected.
Pour les motifs qui suivent, j’estime que chacune
de ces propositions doit être rejetée.
[2005] 3 R.C.S.
36
37
J.
[2005] 3 S.C.R.
(1) In “taking up” Land for the Winter Road
the Crown Was Doing No More Than It
Was Entitled To Do Under the Treaty
(1) En « prenant » des terres pour construire la
route d’hiver, la Couronne ne faisait que ce
que le traité l’autorisait à faire
38
The majority judgment in the Federal Court
of Appeal held that “[w]ith the exceptions of cases where the Crown has taken up land in bad faith
or has taken up so much land that no meaningful
right to hunt remains, taking up land for a purpose
express or necessarily implied in the treaty itself
cannot be considered an infringement of the treaty
right to hunt” (para. 18).
La Cour d’appel fédérale a conclu à la majorité qu’« [à] l’exception des cas dans lesquels la
Couronne a pris des terres de mauvaise foi ou a
pris tant de terres qu’il ne reste aucun droit réel de
chasse, la prise de terres dans un but expressément
prévu dans le traité lui-même ou dans un but nécessairement implicite ne peut pas être considérée
comme une atteinte au droit de chasse issu du traité » (par. 18).
39
The “Crown rights” argument was initially put
forward in the Federal Court of Appeal by the
Attorney General of Alberta as an intervener. The
respondent Minister advised the Federal Court of
Appeal that, while she did not dispute the argument, “[she] was simply not relying on it” (para.
3). As a preliminary objection, the Mikisew say
that an intervener is not permitted “to widen or add
to the points in issue”: R. v. Morgentaler, [1993] 1
S.C.R. 462, at p. 463. Therefore it was not open to
the Federal Court of Appeal (or this Court) to decide the case on this basis.
L’argument fondé sur les « droits de la
Couronne » a été présenté pour la première fois devant la Cour d’appel fédérale par le procureur général de l’Alberta qui agissait à titre d’intervenant.
La ministre intimée a informé la Cour d’appel fédérale que, même si elle ne contestait pas cet argument, « [elle] ne se fondait tout simplement pas sur
cette question » (par. 3). Soulevant une objection
préliminaire, les Mikisew affirment qu’il n’est pas
permis à un intervenant « d’élargir la portée des
questions en litige ou d’y ajouter quoi que ce soit » :
R. c. Morgentaler, [1993] 1 R.C.S. 462, p. 463. Il
n’était donc pas loisible à la Cour d’appel fédérale
(ou à notre Cour) de trancher l’affaire en se fondant
sur cet argument.
(a) Preliminary Objection: Did the Attorney
General of Alberta Overstep the Proper
Role of an Intervener?
a) Objection préliminaire : le procureur général de l’Alberta a-t-il outrepassé le rôle
d’un intervenant?
This branch of the Mikisew argument is, with
respect, misconceived. In their application for judicial review, the Mikisew argued that the Minister’s
approval of the winter road infringed Treaty 8. The
infringement issue has been central to the proceedings. It is always open to an intervener to put
forward any legal argument in support of what it
submits is the correct legal conclusion on an issue properly before the Court, provided that in
doing so its legal argument does not require additional facts, not proven in evidence at trial or raise
an argument that is otherwise unfair to one of the
parties. An intervener is in no worse a position
than a party who belatedly discovers some legal
En toute déférence, ce volet de l’argument des
Mikisew est mal fondé. Dans leur demande de
contrôle judiciaire, les Mikisew ont fait valoir que
l’approbation ministérielle de la route d’hiver violait le Traité no 8. La question de la violation est
au cœur de l’instance. Un intervenant peut toujours présenter un argument juridique à l’appui de
ce qu’il prétend être la bonne conclusion juridique
à l’égard d’une question dont la Cour est régulièrement saisie pourvu que son argument juridique
ne fasse pas appel à des faits additionnels qui n’ont
pas été prouvés au procès, ou qu’il ne soulève pas
un argument qui est par ailleurs injuste pour l’une
des parties. L’intervenant n’est pas plus mal placé
40
408
409
argument that it ought to have raised earlier in the
proceedings but did not, as in Lamb v. Kincaid
(1907), 38 S.C.R. 516, where Duff J. stated, at
p. 539:
qu’une partie qui se rend tardivement compte
qu’elle aurait dû soulever un argument juridique
plus tôt dans l’instance mais qui ne l’a pas fait,
comme ce fut le cas dans Lamb c. Kincaid (1907),
38 R.C.S. 516, où le juge Duff a affirmé ce qui suit,
à la p. 539 :
A court of appeal, I think, should not give effect to such
a point taken for the first time in appeal, unless it be
clear that, had the question been raised at the proper
time, no further light could have been thrown upon it.
[TRADUCTION] Selon moi, un tribunal d’appel ne devrait
pas recevoir un tel argument soulevé pour la première
fois en appel, à moins qu’il ne soit clair que, même si
la question avait été soulevée en temps opportun, elle
n’aurait pas été éclaircie davantage.
See also Athey v. Leonati, [1996] 3 S.C.R. 458, at
paras. 51-52.
Voir également Athey c. Leonati, [1996] 3 R.C.S.
458, par. 51-52.
Even granting that the Mikisew can fairly say
the Attorney General of Alberta frames the noninfringement argument differently than was done
by the federal Minister at trial, the Mikisew have
still not identified any prejudice. Had the argument
been similarly formulated at trial, how could “further light” have been thrown on it by additional evidence? The historical record was fully explored at
trial. At this point the issue is one of the rules of
treaty interpretation, not evidence. It thus comes
within the rule stated in Performance Industries
Ltd. v. Sylvan Lake Golf & Tennis Club Ltd.,
[2002] 1 S.C.R. 678, 2002 SCC 19, that “[t]he Court
is free to consider a new issue of law on the appeal
where it is able to do so without procedural prejudice to the opposing party and where the refusal
to do so would risk an injustice” (para. 33). Here
the Attorney General of Alberta took the factual
record as he found it. The issue of treaty infringement has always been central to the case. Alberta’s
legal argument is not one that should have taken
the Mikisew by surprise. In these circumstances it
would be intolerable if the courts were precluded
from giving effect to a correct legal analysis just
because it came later rather than sooner and from
an intervener rather than a party. To close our eyes
to the argument would be to “risk an injustice”.
Même en admettant que les Mikisew puissent
à juste titre affirmer que le procureur général de
l’Alberta formule l’argument de l’absence de violation d’une manière différente de celle employée
par la ministre fédérale en première instance, il
reste que les Mikisew n’ont établi aucun préjudice.
Si l’argument avait été formulé de la même manière au procès, en quoi aurait-il pu être « éclairci
davantage » par des éléments de preuve additionnels? Le dossier historique a été étudié à fond au
procès. À ce stade-ci, la question relève des règles d’interprétation des traités, non des règles de
preuve. Elle est donc visée par la règle énoncée
dans l’arrêt Performance Industries Ltd. c. Sylvan
Lake Golf & Tennis Club Ltd., [2002] 1 R.C.S.
678, 2002 CSC 19, selon laquelle « [i]l est loisible à la Cour, dans le cadre d’un pourvoi, d’examiner une nouvelle question de droit dans les cas où
elle peut le faire sans qu’il en résulte de préjudice
d’ordre procédural pour la partie adverse et où son
refus de le faire risquerait d’entraîner une injustice » (par. 33). En l’espèce, le procureur général
de l’Alberta a pris le dossier factuel dans l’état où
il se trouvait. La question de la violation du traité
est au cœur du litige depuis le début. L’argument
juridique de l’Alberta n’est pas de nature à prendre
les Mikisew par surprise. Dans ces circonstances,
on ne saurait tolérer que les tribunaux soient empêchés de donner effet à une analyse juridique correcte simplement parce qu’elle a été présentée un
peu tard et par un intervenant plutôt que par une
partie. Fermer les yeux sur l’argument « risquerait
d’entraîner une injustice ».
[2005] 3 R.C.S.
41
(b) The Content of Treaty 8
42
43
J.
[2005] 3 S.C.R.
b) Le contenu du Traité no 8
The “hunting, trapping and fishing” clause of
Treaty 8 was extensively reviewed by this Court
in Badger. In that case Cory J. pointed out that
“even by the terms of Treaty No. 8, the Indians’
right to hunt for food was circumscribed by both
geographical limitations and by specific forms of
government regulation” (para. 37). The members of
the First Nations, he continued, “would have understood that land had been ‘required or taken up’
when it was being put to a [visible] use which was
incompatible with the exercise of the right to hunt”
(para. 53).
La disposition du Traité no 8 qui traite de « la
chasse au fusil, de la chasse au piège et de la
pêche » a été examinée en profondeur par notre
Cour dans Badger. Dans cette affaire, le juge Cory
a signalé que « même suivant les termes du Traité
no 8, le droit des Indiens de chasser pour se nourrir
était circonscrit par des limites géographiques et
des mesures spécifiques de réglementation gouvernementale » (par. 37). Les membres de la première
nation, a-t-il ajouté, « comprenaient que des terres
étaient “requises ou prises” si elles étaient utilisées
à des fins [visibles] incompatibles avec l’exercice du
droit de chasse » (par. 53).
[T]he oral promises made by the Crown’s representatives and the Indians’ own oral history indicate that it
was understood that land would be taken up and occupied in a way which precluded hunting when it was
put to a visible use that was incompatible with hunting.
Turning to the case law, it is clear that the courts have
also accepted this interpretation and have concluded
that whether or not land has been taken up or occupied
is a question of fact that must be resolved on a case-bycase basis. [para. 58]
[I]l ressort des promesses verbales faites par les représentants de la Couronne et de l’histoire orale des Indiens
que ceux-ci comprenaient que des terres seraient prises et occupées d’une manière qui les empêcherait d’y
chasser, lorsqu’elles feraient l’objet d’une utilisation visible et incompatible avec la pratique de la chasse. Pour
ce qui est de la jurisprudence, il est évident que les tribunaux ont souscrit à cette interprétation et conclu que
la question de savoir si une terre est oui ou non prise ou
occupée est une question de fait, qui doit être tranchée
au cas par cas. [par. 58]
While Badger noted the “geographic limitation”
to hunting, fishing and trapping rights, it did not
(as it did not need to) discuss the process by which
“from time to time” land would be “taken up”
and thereby excluded from the exercise of those
rights. The actual holding in Badger was that the
Alberta licensing regime sought to be imposed on
all aboriginal hunters within the Alberta portion of
Treaty 8 lands infringed Treaty 8, even though the
treaty right was expressly made subject to “regulations as may from time to time be made by the
Government”. The Alberta licensing scheme
denied to “holders of treaty rights as modified by
the [Natural Resources Transfer Agreement, 1930]
the very means of exercising those rights” (para.
94). It was thus an attempted exercise of regulatory power that went beyond what was reasonably
within the contemplation of the parties to the treaty
in 1899. (I note parenthetically that the Natural
Resources Transfer Agreement, 1930 is not at issue
in this case as the Mikisew reserve is vested in Her
Bien qu’il soit fait état, dans l’arrêt Badger, des
« limites géographiques » circonscrivant les droits
de chasse, de pêche et de piégeage, on n’y a pas
traité (puisque cela n’était pas nécessaire) du processus par lequel « de temps à autre » des terres
seraient « prises » et donc soustraites à l’exercice
de ces droits. Selon la conclusion précisément tirée
dans l’arrêt Badger, le régime de délivrance de permis de l’Alberta que l’on cherchait à imposer à tous
les chasseurs autochtones se trouvant sur les terres
de l’Alberta visées par le Traité no 8 violait ce traité, même si le droit issu du traité était expressément
subordonné à [TRADUCTION] « tels règlements qui
pourront être faits de temps à autre par le gouvernement ». Le régime de délivrance de permis de
l’Alberta privait les « personnes qui sont titulaires
de droits issus de traité modifiés par la Convention
[sur le transfert des ressources naturelles de 1930]
des moyens mêmes d’exercer ces droits » (par.
94). On avait ainsi tenté d’exercer un pouvoir de
réglementation qui allait au-delà de ce qu’avaient
410
411
Majesty in Right of Canada. Paragraph 10 of the
Agreement provides that after-created reserves
“shall thereafter be administered by Canada in the
same way in all respects as if they had never passed
to the Province under the provisions hereof”.)
raisonnablement prévu les signataires du traité en
1899. (Je signale en passant que la Convention sur
le transfert des ressources naturelles de 1930 n’est
pas en cause en l’espèce puisque la réserve Mikisew
appartient à la Couronne du chef du Canada. Le
paragraphe 10 de la Convention prévoit que les réserves créées ultérieurement « seront dans la suite
administrées par le Canada de la même manière à
tous égards que si elles n’étaient jamais passées à la
province en vertu des dispositions des présentes ».)
The Federal Court of Appeal purported to follow Badger in holding that the hunting, fishing and
trapping rights would be infringed only “where the
Crown has taken up land in bad faith or has taken
up so much land that no meaningful right to hunt
remains” (para. 18). With respect, I cannot agree
with this implied rejection of the Mikisew procedural rights. At this stage the winter road is no
more than a contemplated change of use. The proposed use would, if carried into execution, reduce
the territory over which the Mikisew would be entitled to exercise their Treaty 8 rights. Apart from
everything else, there would be no hunting at all
within the 200-metre road corridor. More broadly,
as found by the trial judge, the road would injuriously affect the exercise of these rights in the surrounding bush. As the Parks Canada witness, Josie
Weninger, acknowledged in cross-examination:
La Cour d’appel fédérale entendait suivre l’arrêt
Badger en concluant qu’il n’est porté atteinte aux
droits de chasse, de pêche et de piégeage que dans
les « cas dans lesquels la Couronne a pris des terres
de mauvaise foi ou a pris tant de terres qu’il ne reste
aucun droit réel de chasse » (par. 18). En toute déférence, je ne peux souscrire à ce rejet implicite des
droits de nature procédurale des Mikisew. À ce
stade-ci, la route d’hiver n’est rien de plus qu’un
projet de changement d’utilisation. L’utilisation
proposée, si elle est mise en œuvre, réduirait le territoire sur lequel les Mikisew peuvent exercer leurs
droits issus du Traité no 8. Essentiellement, il n’y
aurait plus du tout de chasse dans le corridor routier
de 200 mètres. De façon plus générale, comme l’a
conclu la juge de première instance, la route nuirait à l’exercice de ces droits dans la forêt environnante. Comme l’a reconnu Josie Weninger, témoin
de Parcs Canada, en contre-interrogatoire :
[TRADUCTION]
Q: But roads, in effect, change the pattern of moose
and other wildlife within the Park and that’s been
what Parks Canada observed in the past with regards to other roads, correct?
Q : Mais dans les faits, les routes modifient les habitudes des orignaux et des autres animaux sauvages
dans le parc, et c’est ce que Parcs Canada a constaté auparavant dans le cas d’autres routes, n’est-ce
pas?
A: It is documented that roads do impact. I would be
foolish if I said they didn’t.
R : On a constaté que les routes ont des répercussions.
Il serait absurde de prétendre le contraire.
The Draft Environmental Assessment Report acknowledged the road could potentially result in
a diminution in quantity of the Mikisew harvest
of wildlife, as fewer furbearers (including fisher, muskrat, marten, wolverine and lynx) will be
caught in their traps. Second, in qualitative terms,
the more lucrative or rare species of furbearers
may decline in population. Other potential impacts
Dans la version préliminaire du rapport d’évaluation environnementale, on a reconnu que la route
pourrait entraîner une diminution quantitative des
récoltes fauniques des Mikisew du fait qu’il y aurait
moins d’animaux à fourrure (notamment le pékan,
le rat musqué, la martre, le carcajou et le lynx) dans
leurs pièges. Deuxièmement, sur le plan qualitatif,
la population des espèces d’animaux à fourrure les
44
[2005] 3 R.C.S.
J.
[2005] 3 S.C.R.
include fragmentation of wildlife habitat, disruption of migration patterns, loss of vegetation, increased poaching because of easier motor vehicle
access to the area and increased wildlife mortality due to motor vehicle collisions. While Haida
Nation was decided after the release of the Federal
Court of Appeal reasons in this case, it is apparent that the proposed road will adversely affect the
existing Mikisew hunting and trapping rights, and
therefore that the “trigger” to the duty to consult
identified in Haida Nation is satisfied.
plus précieuses ou les plus rares pourrait décliner.
Les autres répercussions possibles comprennent la
fragmentation des habitats fauniques, la perturbation des habitudes migratoires, le dépérissement de
la végétation, l’augmentation du braconnage parce
que le territoire est plus accessible par véhicule et
l’augmentation du nombre d’animaux tués par suite
de collisions. Alors que l’affaire Nation Haïda a
été tranchée après le prononcé de la décision de la
Cour d’appel fédérale en l’espèce, il est manifeste
que le projet de route aura un effet préjudiciable
sur les droits de chasse et de piégeage existants
des Mikisew et que, par conséquent, l’obligation
de consultation définie dans Nation Haïda devient
« applicable ».
45
The Minister seeks to extend the dictum of
Rothstein J.A. by asserting, at para. 96 of her factum, that the test ought to be “whether, after the
taking up, it still remains reasonably practicable,
within the Province as a whole, for the Indians to
hunt, fish and trap for food [to] the extent that they
choose to do so” (emphasis added). This cannot
be correct. It suggests that a prohibition on hunting at Peace Point would be acceptable so long as
decent hunting was still available in the Treaty 8
area north of Jasper, about 800 kilometres distant
across the province, equivalent to a commute between Toronto and Quebec City (809 kilometres) or
Edmonton and Regina (785 kilometres). One might
as plausibly invite the truffle diggers of southern
France to try their luck in the Austrian Alps, about
the same distance as the journey across Alberta
deemed by the Minister to be an acceptable fulfilment of the promises of Treaty 8.
La ministre cherche à étendre la portée de la remarque faite par le juge Rothstein en affirmant, au
par. 96 de son mémoire, que le critère doit consister
à [TRADUCTION] « se demander si, après la prise, il
demeure encore raisonnablement possible pour les
Indiens de pratiquer, dans l’ensemble de la province,
la chasse, la pêche et le piégeage de subsistance
autant qu’ils veulent le faire » (je souligne). Cela ne
saurait être exact. Cette affirmation donne à penser
qu’une interdiction de chasser à Peace Point serait
acceptable dès lors qu’une chasse décente peut encore être pratiquée dans le secteur du Traité no 8 qui
se trouve au nord de Jasper, soit à l’autre extrémité
de la province à environ 800 kilomètres de distance,
ce qui équivaut à se déplacer de Toronto à Québec
(809 kilomètres) ou d’Edmonton à Regina (785 kilomètres). Autant demander aux cueilleurs de truffes
du sud de la France de tenter leur chance dans les
Alpes autrichiennes, ce déplacement couvrant environ la même distance que la traversée de l’Alberta
que la ministre considère comme une façon acceptable de tenir les promesses faites dans le Traité no 8.
46
The Attorney General of Alberta tries a slightly different argument, at para. 49 of his factum,
adding a de minimis element to the treaty-wide
approach:
Au paragraphe 49 de son mémoire, le procureur
général de l’Alberta propose un argument légèrement différent, ajoutant un élément de minimis à
l’approche fondée sur l’ensemble des terres visées
par le traité :
In this case the amount of land to be taken up to
construct the winter road is 23 square kilometres out
of 44,807 square kilometres of Wood Buffalo National
[TRADUCTION] En l’espèce, les terres qui doivent
être prises pour construire la route d’hiver représentent 23 kilomètres carrés des 44 807 kilomètres carrés
412
413
Park and out of 840,000 square kilometres encompassed by Treaty No. 8. As Rothstein J.A. found, this is
not a case where a meaningful right to hunt no longer
remains.
qu’occupe le parc national Wood Buffalo et des 840 000
kilomètres carrés visés par le Traité no 8. Comme l’a dit
le juge Rothstein, il ne s’agit pas d’un cas où il ne reste
aucun droit réel de chasse.
The arguments of the federal and Alberta Crowns
simply ignore the significance and practicalities of
a First Nation’s traditional territory. Alberta’s 23
square kilometre argument flies in the face of the
injurious affection of surrounding lands as found
by the trial judge. More significantly for aboriginal people, as for non-aboriginal people, location is
important. Twenty-three square kilometres alone is
serious if it includes the claimants’ hunting ground
or trapline. While the Mikisew may have rights
under Treaty 8 to hunt, fish and trap throughout the
Treaty 8 area, it makes no sense from a practical
point of view to tell the Mikisew hunters and trappers that, while their own hunting territory and traplines would now be compromised, they are entitled to invade the traditional territories of other
First Nations distant from their home turf (a suggestion that would have been all the more impractical in 1899). The Chipewyan negotiators in 1899
were intensely practical people, as the Treaty 8
Commissioners noted in their report:
Les arguments du gouvernement fédéral et de
l’Alberta ne tiennent tout simplement pas compte
de l’importance et des aspects pratiques du territoire traditionnel des premières nations. L’argument
de l’Alberta concernant les 23 kilomètres carrés est
contraire à l’existence d’un effet préjudiciable sur
les terres environnantes à laquelle a conclu la juge
de première instance. Qui plus est, pour les peuples
autochtones, comme pour les peuples non autochtones, le lieu importe. Une superficie de seulement
23 kilomètres carrés est importante si elle comprend
le territoire de chasse ou les lignes de piégeage des
demandeurs. Si le Traité no 8 confère aux Mikisew
les droits de chasse, de pêche et de piégeage dans
tout le territoire visé par le traité, il n’est pas logique
d’un point de vue pratique de dire aux chasseurs et
trappeurs Mikisew que, bien que leurs propres territoires de chasse et lignes de piégeage soient maintenant mis en péril, il leur est permis d’envahir les
territoires traditionnels d’autres premières nations
loin de leur propre terrain (une suggestion qui aurait
été encore plus irréalisable en 1899). Comme l’ont
fait observer les commissaires du Traité no 8 dans
leur rapport, les négociateurs chipewyans étaient,
en 1899, des gens très pratiques :
The Chipewyans confined themselves to asking questions and making brief arguments. They appeared to
be more adept at cross-examination than at speechmaking, and the Chief at Fort Chipewyan displayed
considerable keenness of intellect and much practical
sense in pressing the claims of his band.
[TRADUCTION] Les Chipewyans se confinent à poser
des questions et à les discuter brièvement. Ils paraissent
plus portés à contre-interroger qu’à faire des discours,
et le chef au Fort Chipewyan a fait preuve d’une vive intelligence et de beaucoup de sens pratique en présentant
les prétentions de sa bande.
Badger recorded that a large element of the Treaty
8 negotiations were the assurances of continuity in
traditional patterns of economic activity. Continuity
respects traditional patterns of activity and occupation. The Crown promised that the Indians’ rights to
hunt, fish and trap would continue “after the treaty
as existed before it”. This promise is not honoured
by dispatching the Mikisew to territories far from
their traditional hunting grounds and traplines.
Dans Badger, on a noté qu’un élément important des
négociations du Traité no 8 tenait aux assurances de
continuité des modes traditionnels d’activité économique. La continuité respecte les modes d’activité
et d’occupation traditionnels. La Couronne a promis
aux Indiens que leurs droits de chasse, de pêche
et de piégeage leur apporteraient [TRADUCTION]
« après le traité les mêmes moyens qu’auparavant »
de gagner leur vie. Ce n’est pas honorer cette promesse que d’expédier les Mikisew dans des territoires éloignés de leurs territoires de chasse et de leurs
lignes de piégeage traditionnels.
47
[2005] 3 R.C.S.
48
J.
[2005] 3 S.C.R.
What Rothstein J.A. actually said at para. 18 is
as follows:
Le juge Rothstein a en fait affirmé ceci au
par. 18 :
With the exceptions of cases where the Crown has
taken up land in bad faith or has taken up so much land
that no meaningful right to hunt remains, taking up
land for a purpose express or necessarily implied in the
treaty itself cannot be considered an infringement of
the treaty right to hunt. [Emphasis added.]
À l’exception des cas dans lesquels la Couronne a
pris des terres de mauvaise foi ou a pris tant de terres qu’il ne reste aucun droit réel de chasse, la prise
de terres dans un but expressément prévu dans le traité
lui-même ou dans un but nécessairement implicite ne
peut pas être considérée comme une atteinte au droit de
chasse issu du traité. [Je souligne.]
The “meaningful right to hunt” is not ascertained
on a treaty-wide basis (all 840,000 square kilometres of it) but in relation to the territories over
which a First Nation traditionally hunted, fished
and trapped, and continues to do so today. If the
time comes that in the case of a particular Treaty 8
First Nation “no meaningful right to hunt” remains
over its traditional territories, the significance of
the oral promise that “the same means of earning
a livelihood would continue after the treaty as existed before it” would clearly be in question, and a
potential action for treaty infringement, including
the demand for a Sparrow justification, would be a
legitimate First Nation response.
Le « droit réel de chasse » n’est pas établi en fonction de toutes les terres visées par le traité (la totalité
des 840 000 kilomètres carrés) mais par rapport aux
territoires sur lesquels les premières nations avaient
l’habitude de chasser, de pêcher et de piéger, et sur
lesquels elles le font encore aujourd’hui. S’il advenait
que pour une première nation signataire du Traité
no 8 en particulier, il ne reste « aucun droit réel de
chasse » sur ses territoires traditionnels, l’importance de la promesse verbale qu’ils [TRADUCTION]
« auraient après le traité les mêmes moyens qu’auparavant de gagner leur vie » serait clairement remise
en question, et la première nation aurait raison de
répondre par une action en violation du traité comportant une demande de justification selon le critère
énoncé dans l’arrêt Sparrow.
(c) Unilateral Crown Action
c) Action unilatérale de la Couronne
49
There is in the Minister’s argument a strong advocacy of unilateral Crown action (a sort of “this
is surrendered land and we can do with it what we
like” approach) which not only ignores the mutual promises of the treaty, both written and oral,
but also is the antithesis of reconciliation and mutual respect. It is all the more extraordinary given
the Minister’s acknowledgment at para. 41 of her
factum that “[i]n many if not all cases the government will not be able to appreciate the effect a
proposed taking up will have on the Indians’ exercise of hunting, fishing and trapping rights without
consultation.”
L’argument de la ministre renferme un ardent plaidoyer en faveur de l’action unilatérale de
la Couronne (une approche du genre « il s’agit de
terres cédées et nous pouvons en faire ce que nous
voulons ») qui non seulement fait fi des promesses réciproques, tant verbales qu’écrites, faites lors
de la signature du traité, mais qui constitue également l’antithèse de la réconciliation et du respect
mutuel. Cela est d’autant plus surprenant que la ministre a reconnu, au par. 41 de son mémoire, que
[TRADUCTION] « [d]ans la plupart, voire la totalité,
des cas, le gouvernement n’est pas en mesure d’apprécier l’effet qu’aura une prise projetée sur l’exercice, par les Indiens, de leurs droits de chasse, de pêche
et de piégeage sans procéder à une consultation. »
50
The Attorney General of Alberta denies that
a duty of consultation can be an implied term of
Treaty 8. He argues:
Le procureur général de l’Alberta nie qu’il soit
possible d’inférer une obligation de consultation
des modalités du Traité no 8. Selon lui :
414
415
Given that a consultation obligation would mean that
the Crown would be required to engage in meaningful
consultations with any and all affected Indians, being
nomadic individuals scattered across a vast expanse of
land, every time it wished to utilize an individual plot
of land or change the use of the plot, such a requirement would not be within the range of possibilities of
the common intention of the parties.
[TRADUCTION] Étant donné qu’une obligation de
consultation exigerait de la Couronne qu’elle procède
à une consultation réelle de tous les Indiens touchés,
c’est-à-dire de tous les nomades dispersés sur un vaste
territoire, chaque fois qu’elle entend utiliser une parcelle de terrain ou en modifier l’utilisation, une telle
exigence ne s’inscrirait pas dans la gamme des possibilités prévues selon l’intention commune des parties.
The parties did in fact contemplate a difficult period of transition and sought to soften its impact
as much as possible, and any administrative inconvenience incidental to managing the process was
rejected as a defence in Haida Nation and Taku
River. There is no need to repeat here what was said
in those cases about the overarching objective of
reconciliation rather than confrontation.
Les parties ont effectivement prévu une période
de transition difficile, et ont tenté d’en atténuer le
plus possible les effets, et toute défense fondée sur
les inconvénients administratifs découlant de la
gestion du processus a été rejetée dans les arrêts
Nation Haïda et Taku River. Nul n’est besoin de répéter en l’espèce ce qui a été dit dans ces arrêts au
sujet de l’objectif primordial de réconciliation plutôt que de confrontation.
(d) Honour of the Crown
The duty to consult is grounded in the honour
of the Crown, and it is not necessary for present
purposes to invoke fiduciary duties. The honour of
the Crown is itself a fundamental concept governing treaty interpretation and application that was
referred to by Gwynne J. of this Court as a treaty obligation as far back as 1895, four years before Treaty 8 was concluded: Province of Ontario
v. Dominion of Canada (1895), 25 S.C.R. 434, at
pp. 511-12, per Gwynne J. (dissenting). While he
was in the minority in his view that the treaty obligation to pay Indian annuities imposed a trust on
provincial lands, nothing was said by the majority
in that case to doubt that the honour of the Crown
was pledged to the fulfilment of its obligations to
the Indians. This had been the Crown’s policy as
far back as the Royal Proclamation of 1763, and is
manifest in the promises recorded in the report of
the Commissioners. The honour of the Crown exists as a source of obligation independently of treaties as well, of course. In Sparrow, Delgamuukw
v. British Columbia, [1997] 3 S.C.R. 1010, Haida
Nation and Taku River, the “honour of the Crown”
was invoked as a central principle in resolving aboriginal claims to consultation despite the absence
of any treaty.
[2005] 3 R.C.S.
d) Honneur de la Couronne
L’obligation de consultation repose sur l’honneur
de la Couronne, et il n’est pas nécessaire pour les
besoins de l’espèce d’invoquer les obligations de
fiduciaire. L’honneur de la Couronne est elle-même
une notion fondamentale en matière d’interprétation
et d’application des traités que le juge Gwynne de
notre Cour avait déjà qualifiée d’obligation découlant d’un traité en 1895, soit quatre ans avant la
conclusion du Traité no 8 : Province of Ontario c.
Dominion of Canada (1895), 25 R.C.S. 434, p. 511512, le juge Gwynne (dissident). Même si son opinion, voulant que l’obligation découlant d’un traité
de verser des rentes aux Indiens crée une fiducie à
l’égard des terres provinciales, était minoritaire, les
juges majoritaires n’ont rien dit dans cette affaire qui
permette de douter que l’honneur de la Couronne
garantissait l’exécution de ses obligations envers les
Indiens. La Couronne en avait fait sa politique au
moins depuis la Proclamation royale de 1763, et
cette notion ressort clairement des promesses consignées dans le rapport des commissaires. L’honneur
de la Couronne existe également en tant que source
d’obligation indépendante des traités, bien entendu.
Dans les arrêts Sparrow, Delgamuukw c. ColombieBritannique, [1997] 3 R.C.S. 1010, Nation Haïda
et Taku River, l’« honneur de la Couronne » a été
invoqué à titre de principe central du règlement des
demandes de consultation des Autochtones, et ce,
même en l’absence d’un traité.
51
52
J.
[2005] 3 S.C.R.
It is not as though the Treaty 8 First Nations did
not pay dearly for their entitlement to honourable
conduct on the part of the Crown; surrender of the
aboriginal interest in an area larger than France is
a hefty purchase price.
Ce n’est pas comme si les premières nations signataires du Traité no 8 n’avaient pas payé chèrement leur droit à un comportement honorable de la
part de la Couronne; la cession des intérêts autochtones sur un territoire plus grand que la France
constitue un prix d’achat très élevé.
(2) Did the Extensive Consultations With First
Nations Undertaken in 1899 at the Time
Treaty 8 Was Negotiated Discharge the
Crown’s Duty of Consultation and Accommodation?
(2) La tenue de vastes consultations auprès des
premières nations au moment de la négociation du Traité no 8 en 1899 a-t-elle libéré la
Couronne de son obligation de consultation
et d’accommodement?
The Crown’s second broad answer to the
Mikisew claim is that whatever had to be done was
done in 1899. The Minister contends:
La deuxième réponse générale de la Couronne à
la revendication des Mikisew est que ce qui devait
être fait a été fait en 1899. La ministre soutient ce
qui suit :
While the government should consider the impact
on the treaty right, there is no duty to accommodate
in this context. The treaty itself constitutes the accommodation of the aboriginal interest; taking up lands, as
defined above, leaves intact the essential ability of the
Indians to continue to hunt, fish and trap. As long as
that promise is honoured, the treaty is not breached and
no separate duty to accommodate arises. [Emphasis
added.]
[TRADUCTION] Bien que le gouvernement doive tenir compte des incidences sur le droit issu du traité, il
n’existe aucune obligation d’accommodement dans ce
contexte. Le traité lui-même constitue l’accommodement aux intérêts autochtones; la prise de terres, telle
qu’elle est définie ci-dessus, ne touche aucunement à la
capacité fondamentale des Indiens de continuer à chasser, à pêcher et à piéger. Dans la mesure où cette promesse est honorée, le traité n’est pas violé, et aucune
obligation d’accommodement distincte ne prend naissance. [Je souligne.]
54
This is not correct. Consultation that excludes
from the outset any form of accommodation would
be meaningless. The contemplated process is not
simply one of giving the Mikisew an opportunity
to blow off steam before the Minister proceeds to
do what she intended to do all along. Treaty making is an important stage in the long process of reconciliation, but it is only a stage. What occurred at
Fort Chipewyan in 1899 was not the complete discharge of the duty arising from the honour of the
Crown, but a rededication of it.
Cet argument n’est pas fondé. La consultation
qui exclurait dès le départ toute forme d’accommodement serait vide de sens. Le processus envisagé
ne consiste pas simplement à donner aux Mikisew
l’occasion de se défouler avant que la ministre fasse
ce qu’elle avait l’intention de faire depuis le début.
La conclusion de traités est une étape importante
du long processus de réconciliation, mais ce n’est
qu’une étape. Ce qui s’est passé à Fort Chipewyan
en 1899 ne constituait pas un accomplissement parfait de l’obligation découlant de l’honneur de la
Couronne, mais une réitération de celui-ci.
55
The Crown has a treaty right to “take up” surrendered lands for regional transportation purposes,
but the Crown is nevertheless under an obligation
to inform itself of the impact its project will have
on the exercise by the Mikisew of their hunting and
trapping rights, and to communicate its findings to
the Mikisew. The Crown must then attempt to deal
Le traité accorde à la Couronne un droit de
« prendre » des terres cédées à des fins de transport régional, mais elle n’en est pas moins tenue de
s’informer de l’effet qu’aura son projet sur l’exercice par les Mikisew de leurs droits de chasse et
de piégeage, et de leur communiquer ses constatations. La Couronne doit alors s’efforcer de traiter
53
416
[2005] 3 R.C.S.
417
avec les Mikisew « de bonne foi, dans l’intention
de tenir compte réellement » de leurs préoccupations (Delgamuukw, par. 168). Cela ne signifie pas
que le gouvernement doit consulter toutes les premières nations signataires du Traité no 8 chaque
fois qu’il se propose de faire quelque chose sur les
terres cédées visées par ce traité, même si l’effet
est peu probable ou peu important. L’obligation
de consultation, comme il est précisé dans l’arrêt
Nation Haïda, est vite déclenchée, mais l’effet préjudiciable, comme l’étendue de l’obligation de la
Couronne, est une question de degré. En l’espèce,
les effets étaient clairs, démontrés et manifestement préjudiciables à l’exercice ininterrompu des
droits de chasse et de piégeage des Mikisew sur les
terres en question.
In summary, the 1899 negotiations were the first
step in a long journey that is unlikely to end any
time soon. Viewed in light of the facts of this case,
we should qualify Badger’s identification of two
inherent limitations on Indian hunting, fishing and
trapping rights under Treaty 8 (geographical limits
and specific forms of government regulation) by a
third, namely the Crown’s right to take up lands
under the treaty, which itself is subject to its duty
to consult and, if appropriate, accommodate First
Nations’ interests before reducing the area over
which their members may continue to pursue their
hunting, trapping and fishing rights. Such a third
qualification (not at issue in Badger) is fully justified by the history of the negotiations leading to
Treaty 8, as well as by the honour of the Crown as
previously discussed.
En résumé, les négociations menées en 1899
constituaient la première étape d’un long voyage
qui n’est pas à la veille de se terminer. À la lumière
des faits de la présente affaire, nous devons ajouter aux deux restrictions inhérentes aux droits de
chasse, de pêche et de piégeage que le Traité no 8
accorde aux Indiens qui ont été dégagées dans l’arrêt Badger (limites géographiques et mesures spécifiques de réglementation gouvernementale), une
troisième restriction, soit le droit pour la Couronne
de prendre des terres aux termes du traité, un droit
qui est lui-même assujetti à l’obligation de tenir
des consultations et, s’il y a lieu, de trouver des
accommodements aux intérêts des premières nations avant de réduire le territoire sur lequel leurs
membres peuvent continuer à exercer leurs droits
de chasse, de pêche et de piégeage. Comme nous
l’avons vu, cette troisième restriction (qui n’était
pas en cause dans Badger) est tout à fait justifiée
par l’historique des négociations qui ont mené à la
signature du Traité no 8 ainsi que par l’honneur de
la Couronne.
56
As stated at the outset, the honour of the Crown
infuses every treaty and the performance of every
treaty obligation. Treaty 8 therefore gives rise to
Mikisew procedural rights (e.g., consultation) as
well as substantive rights (e.g., hunting, fishing and
trapping rights). Were the Crown to have barrelled
ahead with implementation of the winter road without adequate consultation, it would have been in
Comme je l’ai affirmé au début, l’honneur de la
Couronne imprègne chaque traité et l’exécution de
chaque obligation prévue au traité. En conséquence,
le Traité no 8 est à l’origine des droits de nature procédurale des Mikisew (p. ex. la consultation) ainsi
que de leurs droits substantiels (p. ex. les droits de
chasse, de pêche et de piégeage). Si la Couronne
avait foncé pour mettre en œuvre le projet de route
57
with the Mikisew “in good faith, and with the intention of substantially addressing” Mikisew concerns (Delgamuukw, at para. 168). This does not
mean that whenever a government proposes to do
anything in the Treaty 8 surrendered lands it must
consult with all signatory First Nations, no matter
how remote or unsubstantial the impact. The duty
to consult is, as stated in Haida Nation, triggered
at a low threshold, but adverse impact is a matter of degree, as is the extent of the Crown’s duty.
Here the impacts were clear, established and demonstrably adverse to the continued exercise of the
Mikisew hunting and trapping rights over the lands
in question.
J.
[2005] 3 S.C.R.
violation of its procedural obligations, quite apart
from whether or not the Mikisew could have established that the winter road breached the Crown’s
substantive treaty obligations as well.
d’hiver sans consultation adéquate, elle aurait violé
ses obligations procédurales, outre le fait que les
Mikisew auraient peut-être pu établir que la route
d’hiver violait en plus les obligations substantielles
que le traité impose à la Couronne.
Sparrow holds not only that rights protected by
s. 35 of the Constitution Act, 1982 are not absolute, but also that their breach may be justified by
the Crown in certain defined circumstances. The
Mikisew rights under Treaty 8 are protected by s.
35. The Crown does not seek to justify in Sparrowterms shortcomings in its consultation in this case.
The question that remains, therefore, is whether
what the Crown did here complied with its obligation to consult honourably with the Mikisew First
Nation.
Selon l’arrêt Sparrow, non seulement les droits
protégés par l’art. 35 de la Loi constitutionnelle de
1982 ne sont pas absolus, mais leur violation peut
être justifiée par la Couronne dans certaines circonstances précises. Les droits que le Traité no 8
confère aux Mikisew sont protégés par l’art. 35. La
Couronne ne cherche pas à justifier au sens de l’arrêt Sparrow les lacunes de sa consultation en l’espèce. Il reste donc à répondre à la question de savoir
si, dans les mesures qu’elle a prises, la Couronne a
respecté son obligation de consulter honorablement
la Première nation Mikisew.
(3) Was the Process Followed by the Minister
Through Parks Canada in This Case Sufficient?
(3) Le processus suivi en l’espèce par la ministre, par l’intermédiaire de Parcs Canada,
était-il suffisant?
59
Where, as here, the Court is dealing with a proposed “taking up” it is not correct (even if it is concluded that the proposed measure if implemented
would infringe the treaty hunting and trapping
rights) to move directly to a Sparrow analysis. The
Court must first consider the process by which the
“taking up” is planned to go ahead, and whether
that process is compatible with the honour of the
Crown. If not, the First Nation may be entitled to
succeed in setting aside the Minister’s order on the
process ground whether or not the facts of the case
would otherwise support a finding of infringement
of the hunting, fishing and trapping rights.
Dans les cas où, comme en l’espèce, la Cour est
en présence d’une « prise » projetée, il n’est pas
indiqué (même si on a conclu que la mesure envisagée, si elle était mise en œuvre, porterait atteinte
aux droits de chasse et de piégeage issus du traité)
de passer directement à une analyse fondée sur
l’arrêt Sparrow. La Cour doit d’abord examiner le
processus selon lequel la « prise » doit se faire, et
se demander si ce processus est compatible avec
l’honneur de la Couronne. Dans la négative, la
première nation peut obtenir l’annulation de l’ordonnance de la ministre en se fondant sur le motif
relatif au processus, peu importe que les faits de
l’affaire justifient par ailleurs une conclusion que
les droits de chasse, de pêche et de piégeage ont été
violés.
60
I should state at the outset that the winter road
proposed by the Minister was a permissible purpose for “taking up” lands under Treaty 8. It is obvious that the listed purposes of “settlement, mining,
lumbering” and “trading” all require suitable transportation. The treaty does not spell out permissible “other purposes” but the term should not be
read restrictively: R. v. Smith, [1935] 2 W.W.R. 433
Je précise d’entrée de jeu que la construction de
la route d’hiver proposée par la ministre est une
fin qui lui permettait de « prendre » des terres aux
termes du Traité no 8. Il est évident que les fins
[TRADUCTION] « d’établissements, de mine, d’opérations forestières » et de [TRADUCTION] « commerce » nécessitent toutes un transport convenable.
Le traité ne définit pas les [TRADUCTION] « autres
58
418
419
(Sask. C.A.), at pp. 440-41. In any event, as noted earlier, the opening recital of Treaty 8 refers to
“travel”.
objets » qui permettent de prendre des terres, mais
cette expression ne doit pas recevoir une interprétation restrictive : R. c. Smith, [1935] 2 W.W.R. 433
(C.A. Sask.), p. 440-441. Quoi qu’il en soit, comme
je l’ai déjà mentionné, on parle de « voyages » dans
le préambule du Traité no 8.
The question is whether the Minister and her staff
pursued the permitted purpose of regional transportation needs in accordance with the Crown’s
duty to consult. The answer turns on the particulars of that duty shaped by the circumstances here.
In Delgamuukw, the Court considered the duty
to consult and accommodate in the context of an
infringement of aboriginal title (at para. 168):
La question est de savoir si la ministre et son
personnel ont tenté de parvenir à la fin autorisée
que constituent les besoins en matière de transport
régional en respectant l’obligation de consultation
de la Couronne. La réponse dépend du contenu de
cette obligation, lequel est tributaire des circonstances de l’espèce. Dans l’arrêt Delgamuukw, la
Cour a examiné l’obligation de consultation et d’accommodement dans le contexte d’une atteinte au
titre aborigène (par. 168) :
In occasional cases, when the breach is less serious or
relatively minor, it will be no more than a duty to discuss important decisions that will be taken with respect
to lands held pursuant to aboriginal title. Of course,
even in these rare cases when the minimum acceptable
standard is consultation, this consultation must be in
good faith, and with the intention of substantially addressing the concerns of the aboriginal peoples whose
lands are at issue. In most cases, it will be significantly
deeper than mere consultation. Some cases may even
require the full consent of an aboriginal nation, particularly when provinces enact hunting and fishing regulations in relation to aboriginal lands. [Emphasis added.]
Occasionnellement, lorsque le manquement est moins
grave ou relativement mineur, il ne s’agira de rien de
plus que la simple obligation de discuter des décisions
importantes qui seront prises au sujet des terres détenues en vertu d’un titre aborigène. Évidemment, même
dans les rares cas où la norme minimale acceptable est
la consultation, celle-ci doit être menée de bonne foi,
dans l’intention de tenir compte réellement des préoccupations des peuples autochtones dont les terres sont en
jeu. Dans la plupart des cas, l’obligation exigera beaucoup plus qu’une simple consultation. Certaines situations pourraient même exiger l’obtention du consentement d’une nation autochtone, particulièrement lorsque
des provinces prennent des règlements de chasse et de
pêche visant des territoires autochtones. [Je souligne.]
In Haida Nation, the Court pursued the kinds of
duties that may arise in pre-proof claim situations,
and McLachlin C.J. used the concept of a spectrum
to frame her analysis (at paras. 43-45):
Dans l’arrêt Nation Haïda, la Cour a examiné les
types d’obligations qui peuvent découler de différentes situations dans le contexte de revendications
non encore prouvées, et la juge en chef McLachlin
a utilisé la notion de continuum comme fondement
de son analyse (par. 43-45) :
At one end of the spectrum lie cases where the claim
to title is weak, the Aboriginal right limited, or the potential for infringement minor. In such cases, the only
duty on the Crown may be to give notice, disclose information, and discuss any issues raised in response to
the notice. . . .
À une extrémité du continuum se trouvent les cas où
la revendication de titre est peu solide, le droit ancestral limité ou le risque d’atteinte faible. Dans ces cas,
les seules obligations qui pourraient incomber à la
Couronne seraient d’aviser les intéressés, de leur communiquer des renseignements et de discuter avec eux
des questions soulevées par suite de l’avis. . .
At the other end of the spectrum lie cases where
a strong prima facie case for the claim is established, the right and potential infringement is of high
À l’autre extrémité du continuum on trouve les cas
où la revendication repose sur une preuve à première
vue solide, où le droit et l’atteinte potentielle sont d’une
61
62
[2005] 3 R.C.S.
63
J.
[2005] 3 S.C.R.
significance to the Aboriginal peoples, and the risk of
non-compensable damage is high. In such cases deep
consultation, aimed at finding a satisfactory interim
solution, may be required. While precise requirements will vary with the circumstances, the consultation required at this stage may entail the opportunity to
make submissions for consideration, formal participation in the decision-making process, and provision of
written reasons to show that Aboriginal concerns were
considered and to reveal the impact they had on the
decision. This list is neither exhaustive, nor mandatory
for every case. . . .
haute importance pour les Autochtones et où le risque
de préjudice non indemnisable est élevé. Dans de tels
cas, il peut s’avérer nécessaire de tenir une consultation
approfondie en vue de trouver une solution provisoire
acceptable. Quoique les exigences précises puissent
varier selon les circonstances, la consultation requise
à cette étape pourrait comporter la possibilité de présenter des observations, la participation officielle à la
prise de décisions et la présentation de motifs montrant
que les préoccupations des Autochtones ont été prises
en compte et précisant quelle a été l’incidence de ces
préoccupations sur la décision. Cette liste n’est pas exhaustive et ne doit pas nécessairement être suivie dans
chaque cas. . .
Between these two extremes of the spectrum just described, will lie other situations. Every case must be
approached individually. Each must also be approached
flexibly, since the level of consultation required may
change as the process goes on and new information
comes to light. The controlling question in all situations is what is required to maintain the honour of the
Crown and to effect reconciliation between the Crown
and the Aboriginal peoples with respect to the interests
at stake. . . . [Emphasis added.]
Entre les deux extrémités du continuum décrit précédemment, on rencontrera d’autres situations. Il faut procéder au cas par cas. Il faut également faire preuve de
souplesse, car le degré de consultation nécessaire peut
varier à mesure que se déroule le processus et que de
nouveaux renseignements sont mis au jour. La question
décisive dans toutes les situations consiste à déterminer ce qui est nécessaire pour préserver l’honneur de la
Couronne et pour concilier les intérêts de la Couronne
et ceux des Autochtones. . . [Je souligne.]
The determination of the content of the duty to
consult will, as Haida Nation suggests, be governed by the context. One variable will be the specificity of the promises made. Where, for example,
a treaty calls for certain supplies, or Crown payment of treaty monies, or a modern land claims
settlement imposes specific obligations on aboriginal peoples with respect to identified resources,
the role of consultation may be quite limited. If
the respective obligations are clear the parties
should get on with performance. Another contextual factor will be the seriousness of the impact
on the aboriginal people of the Crown’s proposed
course of action. The more serious the impact
the more important will be the role of consultation. Another factor in a non-treaty case, as Haida
Nation points out, will be the strength of the aboriginal claim. The history of dealings between
the Crown and a particular First Nation may also
be significant. Here, the most important contextual factor is that Treaty 8 provides a framework
within which to manage the continuing changes in
land use already foreseen in 1899 and expected,
even now, to continue well into the future. In that
context, consultation is key to achievement of the
Comme l’indique l’arrêt Nation Haïda, la détermination du contenu de l’obligation de consultation sera fonction du contexte. La spécificité des
promesses faites sera une des variables prises en
compte. Si, par exemple, un traité exige la fourniture de biens ou le paiement de sommes d’argent
par la Couronne, ou si une entente récente sur les
revendications territoriales impose aux Autochtones
des obligations spécifiques relativement à des ressources données, l’importance de la consultation
peut être assez limitée. Si les obligations respectives sont claires, les parties devraient les exécuter. Un autre facteur contextuel sera la gravité de
l’incidence qu’auront sur le peuple autochtone les
mesures que propose la Couronne. Plus la mesure
aura d’incidence, plus la consultation prendra de
l’importance. S’il n’y a pas de traité, la solidité de
la revendication autochtone sera un autre facteur,
comme le signale l’arrêt Nation Haïda. L’historique
des relations entre la Couronne et une première
nation peut aussi être un facteur important. En l’espèce, le facteur contextuel le plus important est le
fait que le Traité no 8 offre un cadre permettant
de gérer les changements constants à l’utilisation
des terres déjà prévus en 1899 et qui, on le sait
420
421
overall objective of the modern law of treaty and
aboriginal rights, namely reconciliation.
maintenant, vont se poursuivre encore longtemps.
Dans ce contexte, la consultation est un facteur clé
pour parvenir à la réconciliation, l’objectif global
du droit moderne des traités et des droits autochtones.
The duty here has both informational and response components. In this case, given that the
Crown is proposing to build a fairly minor winter road on surrendered lands where the Mikisew
hunting, fishing and trapping rights are expressly
subject to the “taking up” limitation, I believe the
Crown’s duty lies at the lower end of the spectrum.
The Crown was required to provide notice to the
Mikisew and to engage directly with them (and not,
as seems to have been the case here, as an afterthought to a general public consultation with Park
users). This engagement ought to have included
the provision of information about the project addressing what the Crown knew to be Mikisew interests and what the Crown anticipated might be
the potential adverse impact on those interests. The
Crown was required to solicit and to listen carefully to the Mikisew concerns, and to attempt to
minimize adverse impacts on the Mikisew hunting,
fishing and trapping rights. The Crown did not discharge this obligation when it unilaterally declared
the road realignment would be shifted from the reserve itself to a track along its boundary. I agree on
this point with what Finch J.A. (now C.J.B.C.) said
in Halfway River First Nation, at paras. 159-60:
L’obligation en l’espèce comporte des éléments
informationnels et des éléments de solution. Dans
cette affaire, étant donné que la Couronne se propose de construire une route d’hiver relativement
peu importante sur des terres cédées où les droits
de chasse, de pêche et de piégeage des Mikisew
sont expressément assujettis à la restriction de la
« prise », j’estime que l’obligation de la Couronne
se situe plutôt au bas du continuum. La Couronne
devait aviser les Mikisew et nouer un dialogue directement avec eux (et non, comme cela semble
avoir été le cas en l’espèce, après coup lorsqu’une
consultation publique générale a été tenue auprès
des utilisateurs du parc). Ce dialogue aurait dû
comporter la communication de renseignements
sur le projet traitant des intérêts des Mikisew
connus de la Couronne et de l’effet préjudiciable
que le projet risquait d’avoir, selon elle, sur ces intérêts. La Couronne devait demander aux Mikisew
d’exprimer leurs préoccupations et les écouter attentivement, et s’efforcer de réduire au minimum
les effets préjudiciables du projet sur les droits de
chasse, de pêche et de piégeage des Mikisew. Elle
n’a pas respecté cette obligation lorsqu’elle a déclaré unilatéralement que le tracé de la route serait déplacé de la réserve elle-même à une bande de
terre à la limite de celle-ci. Sur ce point, je souscris
à l’opinion exprimée par le juge Finch (maintenant
Juge en chef de la C.-B.) dans Halfway River First
Nation, par. 159-160 :
The fact that adequate notice of an intended decision
may have been given does not mean that the requirement for adequate consultation has also been met.
[TRADUCTION] Ce n’est pas parce qu’on a donné un avis
suffisant d’une décision envisagée qu’on a aussi respecté l’exigence de la consultation suffisante.
The Crown’s duty to consult imposes on it a positive
obligation to reasonably ensure that aboriginal peoples
are provided with all necessary information in a timely
way so that they have an opportunity to express their
interests and concerns, and to ensure that their representations are seriously considered and, wherever possible, demonstrably integrated into the proposed plan of
action. [Emphasis added.]
L’obligation de consultation de la Couronne lui impose le devoir concret de veiller raisonnablement à ce
que les Autochtones disposent en temps utile de toute
l’information nécessaire pour avoir la possibilité d’exprimer leurs intérêts et leurs préoccupations, et de faire
en sorte que leurs observations sont prises en considération avec sérieux et, lorsque c’est possible, sont intégrées d’une façon qui puisse se démontrer dans le plan
d’action proposé. [Je souligne.]
64
[2005] 3 R.C.S.
J.
[2005] 3 S.C.R.
65
It is true, as the Minister argues, that there is
some reciprocal onus on the Mikisew to carry their
end of the consultation, to make their concerns
known, to respond to the government’s attempt to
meet their concerns and suggestions, and to try to
reach some mutually satisfactory solution. In this
case, however, consultation never reached that
stage. It never got off the ground.
Il est vrai, comme le prétend la ministre, que les
Mikisew ont l’obligation réciproque de faire leur
part en matière de consultation, de faire connaître
leurs préoccupations, de supporter les efforts du
gouvernement en vue de tenir compte de leurs préoccupations et suggestions, et de tenter de trouver
une solution mutuellement satisfaisante. En l’espèce, cependant, la consultation n’a jamais atteint
ce stade. Elle n’a jamais pris son essor.
66
Had the consultation process gone ahead, it
would not have given the Mikisew a veto over the
alignment of the road. As emphasized in Haida
Nation, consultation will not always lead to accommodation, and accommodation may or may
not result in an agreement. There could, however, be changes in the road alignment or construction that would go a long way towards satisfying
the Mikisew objections. We do not know, and the
Minister cannot know in the absence of consultation, what such changes might be.
Le processus de consultation, s’il avait suivi son
cours, n’aurait pas conféré aux Mikisew un droit
de veto sur le tracé de la route. Comme on le souligne dans l’arrêt Nation Haïda, la consultation n’entraîne pas toujours un accommodement, et l’accommodement ne se traduit pas toujours par une
entente. On aurait toutefois peut-être pu apporter
au tracé ou à la construction de la route des modifications qui permettraient de répondre, dans une
large mesure, aux objections des Mikisew. Nous ne
savons pas ce que pourraient être ces modifications
et, en l’absence de consultation, la ministre ne peut
pas le savoir non plus.
67
The trial judge’s findings of fact make it clear
that the Crown failed to demonstrate an “‘intention
of substantially addressing (Aboriginal) concerns’
. . . through a meaningful process of consultation”
(Haida Nation, at para. 42). On the contrary, the
trial judge held that
Il ressort clairement des conclusions de fait de
la juge de première instance que la Couronne n’a
pas réussi à démontrer qu’elle avait « “l’intention
de tenir compte réellement des préoccupations (des
Autochtones)” [. . .] dans le cadre d’un véritable
processus de consultation » (Nation Haïda, par.
42). Au contraire, la juge de première instance a
estimé que,
[i]n the present case, at the very least, this [duty to
consult] would have entailed a response to Mikisew’s
October 10, 2000 letter, and a meeting with them to
ensure that their concerns were addressed early in the
planning stages of the project. At the meetings that were
finally held between Parks Canada and Mikisew, a decision had essentially been made, therefore, the meeting could not have been conducted with the genuine intention of allowing Mikisew’s concerns to be integrated
with the proposal. [para. 154]
[e]n l’espèce, il aurait donc au moins fallu répondre à
la lettre des Mikisews du 10 octobre 2000 et rencontrer
ceux-ci pour prendre leurs préoccupations en considération au début de la planification du projet. Lorsque des
rencontres ont finalement eu lieu entre Parcs Canada et
les Mikisews, la décision était pour ainsi dire prise, et
elles ne pouvaient donc se tenir dans l’intention véritable de permettre la prise en compte de leurs préoccupations. [par. 154]
The trial judge also wrote:
La juge de première instance a également écrit
ceci :
. . . it is not consistent with the honour of the Crown, in
its capacity as fiduciary, for it to fail to consult with a
. . . l’honneur de la Couronne, en sa qualité de fiduciaire,
ne saurait permettre qu’une décision portant atteinte à
422
423
First Nation prior to making a decision that infringes on
constitutionally protected treaty rights. [para. 157]
des droits issus de traité et jouissant d’une protection
constitutionnelle soit prise sans que la Première nation
concernée soit consultée. [par. 157]
I agree, as did Sharlow J.A., dissenting in the
Federal Court of Appeal. She declared that the mitigation measures were adopted through a process
that was “fundamentally flawed” (para. 153).
Comme la juge Sharlow, dissidente en Cour
d’appel fédérale, je suis de cet avis. Cette dernière
a affirmé que les mesures d’atténuation avaient été
élaborées par suite d’un processus qui était « fondamentalement vicié » (par. 153).
68
In the result I would allow the appeal, quash
the Minister’s approval order, and remit the winter
road project to the Minister to be dealt with in accordance with these reasons.
En définitive, je suis d’avis d’accueillir le pourvoi, d’annuler l’ordonnance d’approbation de la ministre et de lui renvoyer le dossier du projet de route
d’hiver pour qu’elle prenne une décision conforme
aux présents motifs.
69
V. Conclusion
V. Conclusion
Costs are sought by the Mikisew on a solicitor
and client basis but there are no exceptional circumstances to justify such an award. The appeal
is therefore allowed and the decision of the Court
of Appeal is set aside, all with costs against the respondent Minister in this Court and in the Federal
Court of Appeal on a party and party basis. The
costs in the Trial Division remain as ordered by the
trial judge.
Les Mikisew ont demandé les dépens sur une
base avocat-client, mais aucune circonstance exceptionnelle ne justifie cette demande. En conséquence, le pourvoi est accueilli et la décision de
la Cour d’appel fédérale est annulée, le tout avec
dépens entre parties contre la ministre intimée
dans notre Cour et dans la Cour d’appel fédérale.
L’ordonnance relative aux dépens rendue par la juge
en Section de première instance est maintenue.
Appeal allowed with costs.
Pourvoi accueilli avec dépens.
Solicitors for the appellant: Rath & Co., Priddis, Alberta.
Procureurs de l’appelante : Rath & Co.,
Priddis, Alberta.
Solicitor for the respondent Sheila Copps, Minister of Canadian Heritage: Attorney General of
Canada, Vancouver.
Procureur de l’intimée Sheila Copps, ministre
du Patrimoine canadien : Procureur général du
Canada, Vancouver.
Solicitors for the respondent the Thebacha Road
Society: Ackroyd Piasta Roth & Day, Edmonton.
Procureurs de l’intimée Thebacha Road Society : Ackroyd Piasta Roth & Day, Edmonton.
Solicitor for the intervener the Attorney General for Saskatchewan: Attorney General for Saskatchewan, Regina.
de la Saskatchewan : Procureur général de la Saskatchewan, Regina.
Solicitor for the intervener the Attorney General of Alberta: Attorney General of Alberta,
Edmonton.
Procureur de l’intervenant le procureur général de l’Alberta : Procureur général de l’Alberta,
Edmonton.
Solicitors for the intervener the Big Island
Lake Cree Nation: Woloshyn & Company,
Saskatoon.
Procureurs de l’intervenante la Nation crie
de Big Island Lake : Woloshyn & Company,
Saskatoon.
70
[2005] 3 R.C.S.
[2005] 3 S.C.R.
Solicitors for the intervener the Lesser Slave
Lake Indian Regional Council: Donovan & Co.,
Vancouver.
Procureurs de l’intervenant Lesser Slave
Lake Indian Regional Council : Donovan & Co.,
Vancouver.
Solicitors for the intervener the Treaty 8 First
Nations of Alberta: Cook Roberts, Victoria.
Procureurs de l’intervenante les Premières nations de l’Alberta signataires du Traité no 8 : Cook
Roberts, Victoria.
Solicitors for the intervener the Treaty 8 Tribal
Association: Woodward & Co., Victoria.
Procureurs de l’intervenante Treaty 8 Tribal
Association : Woodward & Co., Victoria.
Solicitor for the intervener the Blueberry River
First Nations: Thomas R. Berger, Vancouver.
Procureur de l’intervenante les Premières nations de Blueberry River : Thomas R. Berger,
Vancouver.
Solicitors for the intervener the Assembly of
First Nations: Pitblado, Winnipeg.
Procureurs de l’intervenante l’Assemblée des
Premières Nations : Pitblado, Winnipeg.
424
Page 1
Case Name:
Paulette v. Canada (Registrar of Titles) (No. 2)
Between
Paulette et al. and (Registrar of Titles) (No. 2)
[1973] N.W.T.J. No. 22
[1973] 6 W.W.R. 97
42 D.L.R. (3d) 8
Northwest Territories Supreme Court
Morrow J.
September 6, 1973.
(123 paras.)
Paulette's Application to file a Caveat.
Counsel:
C.G. Sutton, G. Price, Dr. A.R. Thompson and D. Sanders, for caveators.
D. Brand, amicus curiae.
F. G. Smith, Q.C., J. R. Slaven, M. Smith and Miss P. W.
Flieger, for Government of Northwest Territories.
T. B. Marsh and I. G. Whitehall, for Federal Department of Justice (present during 14th and 15th
May only).
1
MORROW J.:-- On 3rd April 1973 this matter came before me as a result of a Reference
Page 2
under s. 154(1)(b) of the Land Titles Act, R.S.C. 1970, c. L-4. The Reference resulted from a
purported caveat being presented for registration under s. 132 of the Act which claimed an interest
in an area comprising some 400,000 square miles of land located in the western portion of the
Northwest Territories. The caveat was based on a claim for aboriginal rights and was signed by 16
Indian chiefs representing the various Indian bands resident in the area covered by the lands referred
to in the caveat.
2 The caveat document follows the form provided for in the Act. The pertinent portion of the
caveat is as follows:
Caveat
To The Registrar, Land Titles Office, Yellowknife, Northwest Territories,
Take Notice that we Chief Francois Paulette (Fort Smith) ... [there follow the
names of the remaining 15 chiefs] ... being residents of the Northwest Territories
and members of the Indian bands in the Northwest Territories by virtue of
Aboriginal Rights in all land in that tract of land in the Northwest Territories
within the limits of the land described in Treaties 8 and 11 of 1899 and 1921,
respectively, with adhesions of 1900 and 1922, between Her Most Gracious
Majesty Queen Victoria and His Most Gracious Majesty King George V,
respectively, and the Indian inhabitants of the land described in the said Treaties;
which said tract of land may be more particularly described as land included
within the following limits: [Then follows a metes and bounds description
covering the lands shown on a map, copy of which was attached to the
document.]
but, Saving and Excepting There From all lands for which a Certificate of Title in
Fee Simple has been issued: Forbid the registration of any transfer affecting such
land or the granting of a certificate of title thereto except subject to the claim set
forth.
Our address is:
C. Gerald Sutton
Box 2521
Yellowknife, N.W.T.
Page 3
Dated this 24th day of March, 1973.
[Then follow the signatures of the 16 chiefs.]
3 Each of the signing chiefs swore the supporting affidavit required by the form to the effect "that
the allegations in the said caveat are true in substance and in fact".
4
The Reference to me, dated 3rd April 1973, contained two basic paragraphs:
The Registrar under the provisions of the Land Titles Act, subsection 154(1)
hereby refers the following matter to the Judge, to wit:
5 A question has arisen as to the legal validity, and the extent right and interest of the persons
making application, to forbid the registration of any transfer, and whether the Registrar has a duty
conferred or imposed upon him, by the Land Titles Act, to lodge such a document, and enter same
in the day book.
6 Crown Counsel was not ready to proceed on 3rd April so the Reference was put over to 15th
May for argument. Counsel for the Indian Chiefs (hereinafter called "the caveators") requested
some form of protection as a condition of the adjournment and I made the following direction:
3)
That as from the hour of ten o'clock in the forenoon, April 3, 1973, the Registrar
is restrained from accepting for registration or filing any instrument with respect
to the land purported to be affected by the caveat herein unless the person
presenting such instrument for registration or filing executes a covenant
consenting to and preserving whatever priority such caveat may have over such
instrument.
7 The above direction is still in effect, although an appeal has been filed by the Federal
Government (hereinafter called "the Crown"). Up to this date a great many applications have been
made to me to waive the above condition in respect of urgent land development plans, and
exceptions have always been made, some on terms.
8 On 15th and 16th May the argument was heard at Yellowknife restricted to two questions
raised by Crown counsel:
1.
This Court has no jurisdiction to enter into the merits where the Crown is
affected:
(a)
(b)
The effect of the Land Titles Act is that this Court should order the
caveat to be filed and then this Court is functus.
If the Land Titles Act does contemplate that the merits of the claim
Page 4
(c)
(2)
by the caveators should be gone into, then it should be resolved in
the Federal Court of Canada.
The caveators would require a fiat to sue for their rights in the
Supreme Court of the Northwest Territories.
The Land Titles Act has no application to lands for which no certificate of
title has been issued or where no application to register under the Act has
been made.
9 At the conclusion of the argument under the above heads I reserved judgment and directed the
proceedings to continue. 9th July was fixed for the resumption of the proceedings, at which time it
was anticipated that evidence would be heard.
10 Not satisfied with my disposition of 16th May the Crown counsel launched an application in
the Federal Court of Canada against me, requesting a writ of prohibition to prohibit me from
proceeding with any question as to the validity of the proposed caveat. Upon hearing of this
application I prepared and released a judgment restricted to the question of my jurisdiction alone,
leaving the second point that had been argued reserved, and contemplating the continuation of my
hearing on 9th July. My reasons for judgment are dated 14th June 1973 and I do not propose
reviewing the question of my jurisdiction to hear the matter other than to observe that, on 6th July
1973, Collier J., of the Federal Court of Canada, after hearing the above motion at Yellowknife on
5th and 6th July, dismissed the Crown's application and indicated that he thought that I had
"properly and accurately stated" my functions under s. 154(1). My judgment of 14th June is also
presently under appeal by the Crown.
11 The proceedings resumed on 9th July but without Crown counsel, they having withdrawn at
that time "until such time as your Lordship is ready to pronounce judgment". Faced with this most
unusual and, in my opinion, almost contemptuous action by Crown counsel, I felt constrained to
appoint Mr. D. Brand, a Yellowknife lawyer, to assist the Court to maintain objectivity in these
proceedings. He has acted throughout and has been most helpful to me and I am satisfied that he has
ensured that the Crown's interests have been as well protected and presented as if Crown counsel
had themselves been present.
12 Throughout the entire proceedings counsel for the Government of the Northwest Territories
(hereinafter called "the Territorial Government") have been in attendance and have been very
helpful, particularly in assisting with the production of documents and evidence in respect of the
practices followed in the Territorial Land Titles Office.
13 Counsel for the caveators called expert evidence directed towards the practice followed in the
Land Titles Offices both in Yellowknife and in Alberta, to give the Court the observations and
opinions of anthropologists with actual experience in the area, and to introduce through another
witness, who has been engaged in researching Treaties Nos. 8 and 11, certain documents and
Page 5
opinions from various archives. In addition, oral evidence from many of the chiefs who had actually
signed the caveat, as well as testimony from Indians and others still living who remembered the
treaty-making negotiations, was also brought forward. This entailed taking the Court to each of the
Indian settlements within the area comprised to record the evidence of some of these old people. In
three instances, because of the age and illness of the witnesses, the Court actually attended at the
home of the witness and took the evidence there.
14 While it may not be pertinent to this judgment, I would like to observe that I found this part of
the case most interesting and intriguing. I think almost every member of the Court party felt that for
a short moment the pages of history were being turned back and we were privileged to relive the
treaty-negotiating days in the actual setting. The interest shown by today's inhabitants in each
settlement helped to recreate some of the atmosphere. These witnesses, for the most part very old
men and women, one of them 101 years old, were dignified and showed that they were and had
been persons of strong character and leaders in their respective communities. One cannot but be
reminded of the words of Thomas Gray:
Full many a gem of purest ray serene
The dark unfathomed caves of ocean bear;
Full many a flower is born to blush unseen,
And waste its sweetness on the desert air.
15 There is no doubt in my mind that their testimony was the truth and represented their best
memory of what to them at the time must have been an important event. It is fortunate indeed that
their stories are now preserved.
16 Because of the nature of these proceedings I do not consider it necessary to consider the
evidence in depth. As I see my function, I am to look for a prima facie situation or a situation which
may promise a possibility of a claim. At such point, if reached, I must then stop. It will be for some
other tribunal to make the in-depth analysis of the evidence, to rework the same ground, and to
make the final assessment. My findings and my conclusions, as also my remarks here, are therefore
to be taken as only binding to the extent of settling the issues presently before me, and should these
matters, or issues arising out of them, eventually come before a different court in a different type of
proceeding, I want to make it clear that I am not trying in any way to bind that court to my views. It
will and must feel free to reach its own conclusions in its own way.
17 Walter A. Gryba, regional representative for Indian Affairs, was called to confirm that the
caveators were in fact chiefs of the bands as recognized under the Indian Act, R.S.C. 1970, c. I-6, as
of the date of the caveat. He described how such chiefs may be chosen in accordance with Indian
custom or by the formal method set forth in the statute, either method being acceptable. This
witness confirmed that there were no Indian reserves in the Northwest Territories.
Page 6
18 Chief Baptiste Cazon, Chief of the Fort Simpson Band for some 20 years, explained how the
members of the present band at Fort Simpson were all descendants from his great-grandfather and
that, while his people had no written history, as far back as their memories down through each
generation could go, his people had made their homes in the general area of Fort Simpson and that
such lands had always been considered to be theirs. According to him, for thousands of years, his
people had used the land for hunting and fishing, to obtain food and clothing. They roamed all over
the country in pursuit of game. He explained that, in his capacity as chief, he considered that he had
a responsibility to his people to take the place of their and his ancestors who had signed the treaty.
There are still quite a few of his people even at this time who earn their living from the land in the
time-honoured way. This witness further explained that before each of the caveators signed the
caveat they obtained approval from their people. This witness explained how members from other
bands could enter the area normally used by his people. Chief Cazon was a member of the 1959
Commission known as the Nelson Commission.
19 Alexie Arrowmaker, Chief at Fort Rae, agreed that in following their traditional way of life
the Indians, while always working on the land, do not try to extract minerals for money. This chief,
as did many others, described how his people have always migrated, and still do, to the east of the
area encompassed by the proposed caveat, during certain seasons for the purpose of seeking game,
particularly the caribou. Chief Arrowmaker stated that his people, the Dogribs, had never sold their
land to anyone. This witness described how in old times his people, living off the land, would as a
rule only come to settlements such as Fort Rae for the purpose of exchanging furs for ammunition
and supplies but that now, because their children are in schools, the people have for the most part
taken up living in the settlement, going out from there during the hunting, fishing and trapping
seasons. It is not customary for people of his band to interfere with members of some different band
who might come in to their lands to hunt. He agreed that his people did not consider that each of
them owned small parcels of land to the exclusion of others.
20 The Chief of the Loucheux Band at Aklavik, Andrew Stewart, described pretty much the same
state of affairs in respect of the Indians of his area as has been set forth above. About 12 years old at
the time of the treaty, he explained that he had never heard any of the old people say that they had
given up their land to the Government.
21 One or two of the Indians called still lived in the traditional way, away from the settlements.
One of these men was Chief Hyacinthe Andre, Chief of the Arctic Red River Band. He lives some
45 miles up the Mackenzie River from Arctic Red River, coming in to the settlement for Easter and
Christmas. He described how some of his people, like him, live off the land, scattered throughout
the area.
22 The Chief of the Hay River Band, Chief Daniel Sonfrere, explained how in general the people
of each band respected the areas of others.
23
Louis Norwegian, 64 years of age, was present at Fort Simpson in 1921 when "old"
Page 7
Norwegian, as he describes his grandfather, was leader of the Fort Simpson Band and when treaty
was first "paid". He overheard some of the exchange of words between his grandfather and the
Government representatives. According to this witness the Commissioner promised a letter on
fishing and trapping. When his grandfather, the recognized leader, went home to eat, an Indian by
the name of Antoine was left. He took the treaty and became the chief -- the white men made him
the chief. This man's evidence was to the effect that his grandfather "did not want to take the money
for no reason at all". The promises made were that their hunting and fishing would be left to them as
long as the sun shall rise and the rivers shall flow. He heard no mention of reserves but he did hear
mention that, once they took treaty, the Government would receive the land. His memory was that
the purpose of the treaty was to help the Indians live in peace with the whites and that the Indians
would receive a grubstake each treaty payment. Once Antoine took the money, this witness testified
that the Commissioner said everybody had to take the treaty after that. Antoine was given a medal,
the people took the money, and the people -- being "kind of scared" -- felt that they had to keep
Antoine on as chief after that.
24 Chief Vital Bonnetrouge, Chief of the Fort Providence Band, not only confirmed the general
evidence in respect of how the Indian bands had traditionally lived off the land, but added a little
more as to the attitude of the people at the time the treaty was signed. As he states, "the land was
not mentioned at the treaty. The old chief said 'if this five dollars would be for my land, I am not
taking it."'. This witness, by his testimony, left one with the same impression that came from the
stories told by so many, namely, it was a deal to look after the people and nothing else.
25 Almost all of the Indian witnesses described how, in carrying on their traditional way of life,
hunting, trapping, and fishing, they circulated, within the proper seasons, the total areas considered
by each band to be their area, with freedom to cross into the next band's area if felt necessary, as
well as outside the area embraced by the caveat -- to the west to the Yukon, north in the Anderson
River area, and east past Contwoyto Lake.
26 Certain factual situations seemed to be agreed upon by all or certainly most of the Indian
witnesses: that before the introduction of schools the Indian people moved about their own general
area but in a fairly predictable area, governed by availability of game, fish and furs; that other
groups were free to come in and hunt or fish; that the necessity of schooling for the children had
come along in recent years to alter the above pattern, to the extent that most of the Indian people
made more or less permanent homes where the schools were, still going out seasonally to hunt and
fish; that they did not extract metals or minerals but merely hunted and fished for furs and food; and
that each Indian shared the land with the other Indians in his band.
27 Those Indians who had either taken part in the treaty negotiations or who had been present
while the negotiations were under way and heard parts or all of the conversation, seemed to be in
general agreement that their leaders were concerned about what they were giving up, if anything, in
exchange for the treaty money, i.e., they were suspicious of something for nothing; that up to the
time of treaty the concept of chief was unknown to them, only that of leader, but the Government
Page 8
man was the one who introduced them to the concept of chief when he placed the medal over the
Indian's head after he had signed for his people; that they understood that by signing the treaty they
would get a grubstake, money, and the promised protection of the Government from the expected
intrusion of white settlers. It is clear also that the Indians for the most part did not understand
English and certainly there is no evidence of any of the signatories to the treaties understanding
English. Some signatures purport to be what one would call a signature, some are in syllabic form,
but most are by mark in the form of an "X". The similarity of the "X"'s is suggestive that perhaps
the Government party did not even take care to have each Indian make his own "X". Most witnesses
were firm in their recollection that land was not to be surrendered, reserves were not mentioned, and
the main concern and chief thrust of the discussions centred around the fear of losing their hunting
and fishing rights, the Government officials always reassuring them with variations of the phrase
that so long as the sun shall rise in the east and set in the west, and the rivers shall flow, their free
right to hunt and fish would not be interfered with.
28 It seems also that very little, if any, reference to a map was made at any of the settlements. In
several cases, also, it is apparent that fairly large segments of the Indian community were not
present on the occasion of the first treaty, and that the recognized leaders of the respective bands
were not always there either.
29 Father Amourous, called to testify at Fort Rae, gave a very helpful description of how the
Indians had their own names for lakes, rivers and physical features, and how that, even today, some
of the place names shown on modern maps of the area bear the Indian names -- indicating the extent
to which these people made constant use of the area. This aspect was confirmed by the evidence of
the anthropologists and by their references to the names set forth on some of the explorers' maps
filed as exhibits in these proceedings.
30 The two anthropologists called to testify, Mrs. Beryl Gillespie and Dr. June Helm, admitted as
experts in their field and as persons who had made on-the-spot investigations of the very areas that
are encompassed by the proposed caveat, confirmed, as far back as their historical examinations
could take them, and as far back before that that reliable archaeological finds could take them, the
continuous use and occupation of this land by the ancestors of the present Indian bands. The finds
of old camp sites up through historical times to the present show that the present style or way of
life, called the traditional way of life, hunting and fishing, has not changed, nor the areas and places
favoured. Their evidence makes it clear that these people have in their separate groups exploited
specific areas throughout the whole period, going back to several hundred years before Christ, up to
the present, with very little change or variation. This evidence portrayed a picture of very little in
the way of intrusion from other native groups, such as the Eskimos to the north and Algonquins
from the southeast. The explanation given was that the general uniformity of language and the
geographical similarity of the area -- the same general boreal forest, caribou and moose, the same
fish -- were the main contributing factors. As to full exploitation of the area these witnesses made it
clear that down through the years it would be doubtful if any area had not been used at all, except
for a few mountain tops and muskeg areas that could be termed unusable. In general, one is left with
Page 9
the picture that each of the population groups (Indian bands as reflected by the present situation)
have for all these years reached a balance with nature, with their environment, each group
exploiting its own area for the most part and finding that area sufficient to support its own members.
As in the case of the Indian witnesses, the testimony of these two obviously well-informed scientists
was both fascinating and helpful in the present case.
31 Samples of caveats that had been accepted for registration against unpatented Crown lands
were produced as exhibits through Emil Gamache, the Registrar of the Northern Alberta Land
Registration District with office at Edmonton. This witness, experienced in the law and practice of
the Alberta Land Titles System, based on the same Torrens system as the system in the Territories,
was very helpful in explaining how his office handled caveats. Perhaps the most interesting aspect
of his testimony was his description of how, upon receipt of a caveat for registration when there is
no duplicate title in existence, the act of registration is recorded by an entry in a card index specially
set up for this type of title -- it being to all intents and purposes the day-book or book as referred to
in The Land Titles Act, R.S.A. 1970, c. 198, s. 141 (our s. 134). When asked the hypothetical
question of whether his office system would be able to handle registration of a caveat such as the
one under review in the present proceedings, he seemed to think that, while it would present
problems, they would not be insurmountable, but he would have to be assured that it covered an
interest in land and that his surveyor's department could with certainty plot the area of land covered.
32 Gordon R. Carter, Registrar, Land Titles Office, Yellowknife, was also called and outlined the
practice that his office had been following in respect of caveats. His practice was not unlike the
Alberta practice which, of course, was not surprising when it is remembered that the Alberta statute
came historically from the Land Acts of the Northwest Territories before Alberta was carved out as
a province. Perhaps the most interesting aspect of Mr. Carter's evidence was that already there had
been caveats accepted for filing against "untitled" lands, one of them in respect of a claim for
aboriginal rights against a small parcel of land near Fort Rae.
33 The last witness called was Father R. Fumoleau, who, as a Roman Catholic priest presently
living in Yellowknife, has been engaged for some time in researching material in respect of Treaties
Nos. 8 and 11 for the purpose of writing a book on the treaties. His research has carried him through
material in the Public Archives of Canada, the Provincial Archives, Edmonton, as well as the
various Mission Archives located at Ottawa and in Western Canada. Several documents of
historical interest and which help to throw light on events both immediately before and shortly after
the signing of each treaty were forthcoming through this witness. It is unnecessary here to review
his testimony in detail. Suffice to say that requests by Church officials to extend treaty privileges
down the Mackenzie to alleviate the poverty and distress of the Indians in that area appeared to
arouse no interest in Ottawa until oil was found where Norman Wells is now located. One cannot
help but gather that once this event took place the negotiation of a treaty then seemed to acquire a
top priority. The urgency to obtain a treaty, the pressure that seemed to be placed on the Indians to
enter into a treaty, as the treaty party moved from settlement to settlement, is more easily
understood when the above evidence is examined.
Page 10
34 The Territorial Lands Officer of the Government of the Northwest Territories, John King, was
called to explain the practice followed by his Government when lands are moved over from the
Federal Government to the Territorial Government.
35 This concludes my general discussion of the facts, but it is to be understood that some
examination in detail will be necessary as each of the various legal issues involved receives separate
treatment.
36 With respect to allowing in the evidence of such witnesses as the anthropologists and Father
R. Fumoleau, I have been mindful of the remarks of Hall J. in Calder v. Attorney General of British
Columbia, [1973] 4 W.W.R. 1 at 25, 34 D.L.R. (3d) 145 (Can.), where he states:
Consideration of the issues involves the study of many historical documents and
enactments received in evidence, particularly Exs. 8 to 18 inclusive and Exs. 25
and 35. The Court may take judicial notice of the facts of history whether past or
contemporaneous (Monarch SS. Co. v. A/B Karlshamns Oljefabriker, [1949]
A.C. 196 at 234, [1949] 1 All E.R. 1), and the Court is entitled to rely on its own
historical knowledge and researches: Read v. Lincoln (Bishop), [1892] A.C. 644,
Lord Halsbury at pp. 652-4.
37 Similarly, in my treatment of the sometimes repetitious statements of the many Indian
witnesses as to what their ancestors did, I have considered them as coming within the exception to
the hearsay rule relating to declarations of deceased persons about matters of public and general
rights: Milirrpum v. Nabalco Pty. Ltd. (1971), 17 F.L.R. 141.
38 Finally, the evidence of the two Registrars has been allowed in to show administrative
practice, not with the view that because a certain practice has been followed it may by that very fact
alone change or reverse the law, but merely because such administrative practice should be
accorded great weight and deference in the interpretation of the provisions of the particular statutes
under which the practice has operated: Income Tax Commissioners v. Pemsel, [1891] A.C. 531 at
546-7.
39 Counsel for the caveators presented their submissions under six separate headings, so for
convenience I propose considering them in the same order.
1.
2.
The caveat area has been used and occupied by an indigenous people,
Athapascan-speaking Indians, from time immemorial
From the time of the first non-Indian entry into the caveat area, the land has
been occupied by district groups of Indians, organized in societies and using the
land as their forefathers had done for centuries
40 Reference has already been made to the fact that aboriginal occupancy can be verified and
established from archaeological discoveries in this area. As far back as history goes, the journals of
Page 11
such explorers as Samuel Hearne and Alexander Mackenzie, 1769-1771 and 1789, the descriptions
of the peoples living in this area, their language, their customs and their living and hunting habits,
remain consistent and indicate an unbroken occupancy down to modern times.
41
Chief Baptiste Cazon has this to say:
Q.
A.
Q.
A.
42
Where did your grandfather come from?
My great grandfather -- I realize that my grandfather -- all the Fort Simpson band
are descended from the one grandfather about 200 years ago, or something like
that, and various different names.
To your knowledge and belief how long have the Slavey people lived in the
region of Fort Simpson?
I would say -- I don't know the exact date, but thousands and thousands of years
ago, I know.
There were many similar statements. One more from Chief Edward Sayine bears quoting:
My mother is alive; she is 80 now, and she told me she had been there -- that she
was born there [Fort Resolution] and that they were there already, his dad was
there and his grandfather was there, so I will say a thousand years already.
43 It is clear from the evidence that all of the Indian peoples in the area concerned speak the
common language -- the Athapascan tongue -- and this, combined with the geographic similarity of
the area, has been a major factor in keeping them within the general region for as far back as we can
go.
44 Within this common group, speaking variations in the Athapascan language or dialects, there
are to be found different peoples that correspond to the present bands created under the Indian Act.
These distinct groups or peoples are: Chipewyan (including Yellowknifes), Dogrib, Slavey,
Mountain, Bear Lake, Hare, Loucheux (also called Kutchen). Over the years there have been
overlappings or fusions within some of these groups which may have resulted in new groupings and
some variation in names, but there has at no time been any population replacement. These
overlappings have all been what might be called minor adjustments. Some of the bands are single
bands like the Bear Lake Indians, while others like the Dogrib have as many as five regional bands.
The regional band is normally expected to be found living in relation to a particular resource area,
which area may encompass drainage areas, and this regional band would know at what point on the
perimeter of this area Indians of a different regional group might be encountered.
45 While each regional band feels free to enter into another's region, and there did not appear to
be any concept of trespass, such intrusions were always looked upon and treated as temporary.
46
Dr. Helm in her testimony states:
Page 12
Q.
A.
Q.
A.
Dr. Helm, in the last series of questions, we have dealt with the formation of the
Bear Lake Indians by a fusion of population, the ending of the Yellowknifes as a
distinct, named group by a fusion of population. We have discussed the alteration
of use by Dogribs of the territory in the most easterly portion of the area
designated on the map as Dogrib, and we have dealt with the question of the
extension of eastward exploitation by the Kuchin Indians. Leaving aside those
matters, in any other way has there been an alteration of the territories indicated
on this map as being those of particular tribal groups during the period for which
data exists on these questions?
No, there is, I would say, a continuing occupation by peoples who today are
known by these particular names, as Dr. Gillespie pointed out, for instance, as
Beaver Indians who were formerly Slaves at the junction of the Mackenzie and
Liard Rivers, you know, peoples who are currently known by these names such
as the Beaver Indians, and Dr. Gillespie pointed out that the peoples at the forks
of the Liard and Mackenzie Rivers were indeed at that time formerly Slaves, but
not population replacements or thrusts or anything of more than minor
adjustments of which we may never know.
During the period for which data exists, have there been any warfare or hostilities
which have resulted in any significant alteration of territories used by particular
bands or tribes?
The only reliably documented case is that temporary retreat of the Dogribs from
the eastern reaches of their zone due to the stimulation of the fur trade to the
Yellowknifes to bully the Dogribs. The only other one which is very
inadequately and not properly assessed are accounts from whites not in the area
that Chipewyans were attacking people that were designated as Slaves and the
Crees were from outside the territorial region, and whether at some earlier period
that resulted in adjustment of Slave boundaries, I don't think we can ever say.
The significant divisions are those which we have termed regional bands or
regional groups. They are significant because a regional group by de facto
or definition exploits in the course of a year a region which contains
sufficient resources to sustain it year after year and is also a group of
sufficient size to sustain itself generation by generation by substantial
inter-marriage with other members of the same group, given incest
restrictions and restrictions of other kinds, so that it has, first of all,
economic and ecological bases. They are people who, except in times of
stress, can survive year after year and generation after generation, season
through season, within that zone in which they have stations to which they
may move by season, either as a large group or probably as smaller groups,
and then your other question was their relations to other like groups.
Page 13
47
Chief Daniel Sonfrere in his testimony says:
Before even the white people came or even since the white people came, when
people were making their living trapping and hunting, although the boundaries
are not written on maps and not drawn out on maps, the people from each
community realizes and respects other people's areas; although they are not
written, although they are not drawn on the maps, they have respect for each
other's areas, and he realizes how much the people from Fort Smith use it as well
as the people from Fort Providence, but when it comes to helping each other it
does not matter, they help each other.
48
And finally Dr. Helm again:
Q.
A.
Q.
A.
Would you say that this habit of hospitality or hunter ethic, the term you used,
absence of a notion of exclusion or concept of trespass, would you say that this
means that there are no real definable territories for the regional bands in the
Northwest Territories?
No, I couldn't say that, because any really knowledgeable Indian could tell you
by the thousands of place names which places were in his territory, in his group,
and which ones are in the range of the neighbouring group. So, adult informed
persons would know by this welter of knowledge of the land. So, 'we go here, we
go there, we go some other place', and 'that is where the so-and-so people go'.
'That is their country.' And by that, of course, there are territories, recognized by
the peoples themselves.
I want to put a quote to you and I want you to tell me if this would be an accurate
statement in relation to the Indians of the Northwest Territories whom you have
been describing. Would it be accurate to say that when the non-Indians came, the
Indians were here, organized in society and occupying the land as their
forefathers have done for centuries? Would you say that that is an accurate
statement? Is that an accurate statement in relation to the Indian people of the
Northwest Territories?
Oh, yes.
49 On the evidence before me I have no difficulty finding as fact that the area embraced by the
caveat has been used and occupied by an indigenous people, Athapascan-speaking Indians, from
time immemorial, that this land has been occupied by distinct groups of these same Indians,
organized in societies and using the land as their forefathers had done for centuries, and that those
persons who signed the caveat are chiefs representing the present-day descendants of these distinct
Indian groups.
3.
An indigenous population have a legal title to land if they were in occupation of
that land prior to colonial entry into the area
Page 14
50 In addressing the standing Committee on Indian Affairs and Northern Development on 5th
July 1973 Kenneth M. Lysyk, Deputy Attorney General of the Province of Saskatchewan and a
recognized student of Indian law, discussed "Aboriginal Title" or "Indian Title". His opening
remarks contain as clear-cut a definition of legal Indian title as can be found and bear repeating (p.
2315):
In many parts of this country, the United States and the Commonwealth a native
interest in the land has been said to exist and to remain in existence until cession
or surrender or some other means of extinguishment of the native interest has
been effected. Presumably it was this native interest in the land that this
Committee was interested in when it decided to look into aboriginal rights, and
this same interest is variously described as 'Indian Title', Oboriginal Title',
'Original Title', 'Native Title', 'Right of Occupancy', 'Right of Possession' and so
on. These terms have been used more or less interchangeably. I will speak of
Indian Title simply because that is the most common form of reference in
Canadian enactments and official usage.
As to defining Indian Title ... For present purposes, I might simply refer to the
reasons of Mr. Justice Judson in the Calder decision handed down on January 31
of this year. He said, and two other members of the court concurred with him:
Although I think it is clear that Indian title in British Columbia cannot owe
its origin to the Prolamation of 1763, the fact is that when the settlers
came, the Indians were there, organized in societies and occupying the land
as their forefathers had done for centuries. This is what Indian title means
...
That is not a bad working definition of Indian Title. It identifies the claim of an
unorganized community -- whether it be called a tribe, a nation, a band, or
whatever -- which occupied a defined territory at the time of the coming of the
Europeans, and which had occupied that territory into the indefinite past or, if
you like that terminology, since time immemorial.
51 I do not think that the nature of this application before me makes it necessary for me to make a
complete review of the case law, historical authorities and other discussions of Indian title or
aboriginal rights. These are all carefully discussed in the more recent decisions dealing with this
subject. The Milirrpum case, supra, contains such a review. In particular the Calder case, supra,
carries a full and complete examination of such authorities. I propose only to examine here such of
these authorities as may have a more direct bearing on the particular circumstances of the present
Page 15
inquiry.
52 What has been referred to by counsel in the present hearings as the "first land freeze" is the
Royal Proclamation of 1763. Of particular interest here is the phrase:
We do, with the advice of our Privy Council strictly enjoin and require, that no
private Person do presume to make any Purchase from the said Indians of any
Lands reserved to the said Indians, within those parts of our Colonies where, We
have thought proper to allow Settlement; but that, if at any Time any of the said
Indians should be inclined to dispose of the said Lands, the same shall be
Purchased only for Us, in our Name, at some public Meeting or Assembly of the
said Indians, to be held for that Purpose by the Governor or Commander in Chief
of our Colony ...
53
Of particular interest to the present area is that portion of the Royal Proclamation stating:
And We do further declare it to be Our Royal Will and Pleasure, for the present
as aforesaid, to reserve under our Sovereignty, Protection, and Dominion, for the
use of the said Indians, all the Lands and Territories not included within the
Limits of Our Said Three New Governments, or within the Limits of the
Territory granted to the Hudson's Bay Company, as also all the Lands and
Territories lying to the Westward of the Sources of the Rivers which fall into the
Sea from the West and North West as aforesaid;
And We do hereby strictly forbid, on Pain of our Displeasure, all our loving
Subjects from making any Purchases or Settlements whatever, or taking
Possession of any of the Lands above reserved, without our especial leave and
Licence for the Purpose first obtained.
54 Examination of the source material before me during this inquiry leads me to believe that the
area covered by the proposed caveat was known to the framers of the Proclamation and could easily
have been those "Lands and Territories lying to the Westward of the Sources of the Rivers" referred
to above. I am not however unmindful of the remarks of Johnson J.A. in Regina v. Sikyea, 46
W.W.R. 65 at 66-7, 43 C.R. 83, [1964] 2 C.C.C. 325, 43 D.L.R. (2d) 150, affirmed [1964] S.C.R.
642, 49 W.W.R. 306, 44 C.R. 266, [1965] 2 C.C.C. 129, 50 D.L.R. (2d) 80, wherein he holds these
same lands to be terra incognita. I would observe here that Johnson J.A. did not have as full
information before him in the Sikyea case as appears to have been before the Court in the Calder
case and as is now before me.
55 Perhaps one of the most important expressions of how common-law courts should and have
treated the subject of aboriginal rights is that of Marshall C.J. of the United States Supreme Court in
Johnson v. McIntosh (1823), 21 U.S. 8 Wheat. 543, 5 L. ed. 681. To quote from pp. 572-4 in part:
Page 16
On the discovery of this immense continent, the great nations of Europe were
eager to appropriate to themselves so much of it as they could respectively
acquire. Its vast extent offered an ample field to the ambition and enterprise of
all; and the character and religion of its inhabitants afforded an apology for
considering them as a people over whom the superior genius of Europe might
claim an ascendency. The potentates of the old world found no difficulty in
convincing themselves that they made ample compensation to the inhabitants of
the new, by bestowing on them civilization and Christianity, in exchange for
unlimited independence. But, as they were all in pursuit of nearly the some
object, it was necessary, in order to avoid conflicting settlements, and consequent
war with each other, to establish a principle which all should acknowledge as the
law by which the right of acquisition, which they all asserted, should be regulated
as between themselves. This principle was that discovery gave title to the
government by whose subjects, or by whose authority, it was made, against all
other European governments, which title might be consummated by possession.
The exclusion of all other Europeans, necessarily gave to the nation making the
discovery the sole right of acquiring the soil from the natives, and establishing
settlements upon it. It was a right with which no Europeans could interfere. It
was a right which all asserted for themselves, and to the assertion of which, by
others, all assented.
Those relations which were to exist between the discoverer and the natives, were
to be regulated by themselves. The rights thus acquired being exclusive, no other
power could interpose between them.
In the establishment of these relations, the rights of the original inhabitants were,
in no instance, entirely disregarded; but were necessarily, to a considerable
extent, impaired. They were admitted to be the rightful occupants of the soil,
with a legal as well as just claim to retain possession of it, and to use it according
to their own discretion; but their rights to complete sovereignty, as independent
nations, were necessarily diminished, and their power to dispose of the soil at
their own will, to whomsoever they pleased, was denied by the original
fundamental principle, that discovery gave exclusive title to those who made it.
While the different nations of Europe respected the right of the natives, as
occupants, they asserted the ultimate dominion to be in themselves; and claimed
and exercised, as a consequence of this ultimate dominion, a power to grant the
Page 17
soil, while yet in possession of the natives. These grants have been understood by
all to convey a title to the grantees, subject only to the Indian right of occupancy.
56 One of the earliest decisions in respect of Indian title is that of the Judicial Committee of the
Privy Council in St. Catharines Milling & Lumber Co. v. The Queen (1888), 14 App. Cas. 46 at
54-5, 4 Cart. 107, where Lord Watson stated:
The territory in dispute has been in Indian occupation from the date of the
proclamation until 1873. During that interval of time Indian affairs have been
administered successively by the Crown, by the Provincial Governments, and
(since the passing of the British North America Act, 1867), by the Government
of the Dominion. The policy of these administrations has been all along the same
in this respect, that the Indian inhabitants have been precluded from entering into
any transaction with a subject for the sale or transfer of their interest in the land,
and have only been permitted to surrender their rights to the Crown by a formal
contract, duly ratified in a meeting of their chiefs or head men convened for the
purpose. Whilst there have been changes in the administrative authority, there
has been no change since the year 1763 in the character of the interest which its
Indian inhabitants had in the lands surrendered by the treaty. Their possession,
such as it was, can only be ascribed to the general provisions made by the royal
proclamation in favour of all Indian tribes then living under the sovereignty and
protection of the British Crown. It was suggested in the course of the argument
for the Dominion, that inasmuch as the proclamation recites that the territories
thereby reserved for the Indians had never 'been ceded to or purchased by' the
Crown, the entire property of the land remained with them. That inference is,
however, at variance with the terms of the instrument, which shew that the tenure
of the Indians was a personal and usufructuary right, dependent upon the good
will of the Sovereign. The lands reserved are expressly stated to be 'parts of Our
dominions and territories;' and it is declared to be the will and pleasure of the
sovereign that, 'for the present,' they shall be reserved for the use of the Indians,
as their hunting grounds, under his protection and dominion. There was a great
deal of learned discussion at the Bar with respect to the precise quality of the
Indian right, but their Lordships do not consider it necessary to express any
opinion upon the point. It appears to them to be sufficient for the purposes of this
case that there has been all along vested in the Crown a substantial and
paramount estate, underlying the Indian title, which became a plenum dominium
whenever that title was surrendered or otherwise extinguished.
57 In the Calder case it would appear that both Judson J. and Hall J., in writing the two opposing
judgments, agree that even without the Royal Proclamation there can be such a legal concept as
Indian title or aboriginal rights in Canadian law.
Page 18
58 Judson J.'s remarks have already been set forth in the quotation from Kenneth M. Lysyk.
While Judson J. went on in his judgment to find that general land legislation in the colony
constituted a termination of the Indian title, his remarks can still be taken as authoritative on the
question of title.
59 One reference only is necessary from the judgment of Hall J., although I would observe that
the full judgment is a most comprehensive review and consideration of the authorities. At p. 49 he
states (referring to possession as proof of ownership):
Prima facie, therefore, the Nishgas are the owners of the lands that have been in
their possession from time immemorial and, therefore, the burden of establishing
that their right has been extinguished rests squarely on the respondent.
60 Among the many other reported decisions read under this heading are: Regina v. Sikyea,
supra; Worcester v. Georgia (1832), 31 U.S. (6 Pet.) 515, 8 L. ed. 483; Regina v. Symonds, [1847]
N.Z.P.C.C. 387; Re Southern Rhodesia , [1919] A.C. 211; Amodu Tijani v. Secretary of Southern
Nigeria, [1921] 2 A.C. 399; U.S. v. Santa Fe Pacific Ry. Co. (1941), 314 U.S. 339, 62 S. Ct. 248, 86
L. ed. 260; Lipan Apache v. U.S. (1967), 180 Ct. Cl. 487; U.S. v. Klamath Indians (1937), 304 U.S.
119, 82 L. ed. 1219; Shoshone Indians v. U.S. (1944), 324 U.S. 335, 89 L. ed. 985; U.S. v. Alcea
Band of Tillamooks (1946), 329 U.S. 40, 91 L. ed. 29; U.S. v. Alcea Band of Tillamooks (1951),
341 U.S. 48, 95 L. ed. 739; Tee-Hit-Ton Indians v. U.S. (1955), 348 U.S. 272, 75 S. Ct. 31, 99 L.
ed. 314; Tlingit and Haida Indians of Alaska v. U.S. (1959), 147 Ct. Cl. 315.
61 From these authorities I conclude that there are certain well-established characteristics of
Indian legal title if the Indians or aborigines were in occupation of the land prior to colonial entry.
These are.
(1)
(2)
(3)
(4)
Possessory right -- right to use and exploit the land.
It is a communal right.
There is a Crown interest underlying this title -- it being an estate held of the
Crown.
It is inalienable -- it cannot be transferred but can only be terminated by
reversion to the Crown.
62 I am satisfied on my view of the facts that the indigenous people who have been occupying
the area covered by the proposed caveat come fully within these criteria and that, in the terms of the
language of Hall J. in the Calder case, may therefore be "prima facie the owners of the lands".
4.
The land rights of the caveators have been confirmed or recognized by the Royal
Proclamation of 1763, the Imperial Order in Council of 1870 transferring the
Northwestern Territory to Canada, the early Dominion Lands Act and by the
Government actions relating to Treaty 8 and Treaty 11
Page 19
63 Once it is established, as concluded under heading 3 above, that the Indians may be owners of
their lands, it is perhaps unnecessary to examine as to whether this prima facie ownership has
enjoyed acceptance from the various levels of Government down through the years. None the less,
such an examination may be reassuring, especially when the question of whether such ownership
has been extinguished or not has to be looked into as well.
64 It has been suggested that the Royal Proclamation of 1763 provides some confirmation of
these rights. I do not propose adding to my remarks already set forth in respect of the Proclamation
under heading 3 other than to point out that, in any event, this famous document would at the least,
according to Hall J. (Calder case, p. 67) be declaratory of Imperial policy. This policy as far back as
1763 was not one to deny Indians title, but it rather recognized its existence and laid down the
procedures for extinguishment, which appear to have been adopted and followed down through the
years by the Canadian Government, at least up to the signing of Treaties Nos. 8 and 11.
65 In 1821 there is a reference to "Indian Territories' 'in an enactment relating to the regulating of
the fur trade and establishing a criminal and civil jurisdiction: 1 & 2 Geo. IV, c. 66. It is interesting
to note that the statute includes the caveat area as "Indian Territories" and provides for the law
applicable to be the law of England.
66 Following Confederation and the passing of the B.N.A. Act, 1867, arrangements for the
transfer of Rupert's Land and the North-Western Territories of Canada, already contemplated by s.
146 of that Act, became finalized.
67 In an address to the Queen by the Senate and House of Commons of Canada made in
December 1867, praying for the transfer of these two land areas, it was stated that upon transference
of the Territories the "claims of the Indian tribes to compensation for lands required for purposes of
settlement will be considered and settled in conformity with the equitable principles which have
uniformly governed the British Crown in its dealing with the aborigines": (Sched. A, Order in
Council of 1870.)
68 Essentially the same assurance is made in 1870: see Sched. B to the Order in Council of 1870.
The burden of how such claims for compensation are to be met is assumed by the Canadian
Government under s. 8 of the actual agreement between Canada and the Hudson's Bay Company.
69
The latter part of s. 146 of the B.N.A. Act contains the language:
146. ... and the Provisions of any Order in Council in that Behalf shall have effect as if
they were enacted by the Parliament of the United Kingdom of Great Britain and
Ireland.
70 It would seem to me from the above that the assurances made by the Canadian Government to
pay compensation and the recognition of Indian claims in respect thereof did, by virtue of s. 146
above, become part of the Canadian Constitution and could not be removed or altered except by
Page 20
Imperial statute. To the extent, therefore, that the above assurances represent a recognition of Indian
title or aboriginal rights, it may be that the Indians living within that part of Canada covered by the
proposed caveat may have a constitutional guarantee that no other Canadian Indians have.
71 While the memory of parliamentarians still retained the above matters freshly in their minds,
presumably the legislation more closely following Confederation, and the executive acts as well,
appear to show a greater appreciation of Indian rights and title than perhaps has been the case in
more recent times.
72 It is not necessary to examine this aspect in depth but in passing it is to be noted, for example,
that the Dominion Lands Act, 1872, contains a protection to the effect:
42.
None of the provisions of this Act respecting the settlement of agricultural lands,
or the lease of timber lands, or the purchase and sale of mineral lands, shall be
held to apply to territory the Indian title which shall not at the time have been
extinguished.
73 An Order in Council of 26th January 1891 (never acted upon, apparently, according to Father
Fumoleau's evidence), contained the following paragraph:
On a Report dated 7th of January 1891, from the Superintendent General of
Indian Affairs stating that the discovery in the District of Athabaska and in the
Mackenzie River Country that immense quantities of petroleum exist within
certain areas of those regions as well as the belief that other minerals and
substances of economic value, such as sulphur on the South Coast of Great Slave
Lake and Salt on the Mackenzie and Slave Rivers, are to be found therein, the
development of which may add materially to the public weal, and the further
consideration that several Railway projects in connection with this portion of the
Dominion may be given effect to at no such remote date as might be supposed,
appear to render it advisable that a treaty or treaties should be made with the
Indians who claim those regions as their hunting grounds, with a view to the
extinguishment of the Indian title in such portions of the same as it may be
considered in the interest of the public to open up for settlement.
74 A second Order in Council enacted 27th June 1898 contains pretty much the same language in
respect of "aboriginal title", and as to how the inhabitants "should be treated with for the
relinquishment of their claim to territorial ownership".
75 The above language is repeated in the Order in Council of 6th December 1898, which deals
with the extension of Treaty No. 8 into British Columbia. Finally, on 3rd March 1921, the Order in
Council which authorized the negotiation of Treaty No. 11 contains the paragraph:
The early development of this territory is anticipated and it is advisable to follow
Page 21
the usual policy and obtain from the Indians cession of their aboriginal title and
thereby bring them into closer relation with the Government and establish
securely their legal position.
76 Unless, therefore, the negotiations of Treaty No. 8 and Treaty No. 11 legally terminated or
extinguished the Indian land rights or aboriginal rights, it would appear that there was a clear
constitutional obligation to protect the legal rights of the indigenous people in the area covered by
the proposed caveat, and a clear recognition of such rights.
5.
Treaty No. 8 and Treaty No. 11 could not legally terminate Indian land rights.
The Indian people did not understand or agree to the terms appearing in the
written version of the treaties; only the mutually understood promises relating to
wild life, annuities, relief and friendship became legally effective commitments
77 Treaty No. 8 contains several recitals of particular significance to the issues under the present
heading:
And Whereas, the said Indians have been notified and informed by Her Majesty's
said Commission that it is Her desire to open for settlement, immigration, trade,
travel, mining, lumbering, and such other purposes as to Her Majesty may seem
meet, a tract of country bounded and described as hereinafter mentioned, and to
obtain the consent thereto of Her Indian subjects inhabiting the said tract, and to
make a treaty, and arrange with them so that there may be peace and good will
between them and Her Majesty's other subjects, and that Her Indian people may
know and be assured of what allowances they are to count upon and receive from
Her Majesty's bounty and benevolence;
And Whereas, the said Commissioners have proceeded to negotiate a treaty with
the Cree, Beaver, Chipewyan and other Indians, inhabiting the district hereinafter
defined and described, and the same has been agreed upon and concluded by the
respective bands at the dates mentioned hereunder, the said Indians Do Hereby
Cede, Release, Surrender and Yield Up to the Government of the Dominion of
Canada, for Her Majesty the Queen and Her successors for ever, all their rights,
titles and privileges whatsoever, to the lands included within the following limits,
that is to say: --
And Also the said Indian rights, titles and privileges whatsoever to all other lands
wherever situated in the Northwest Territories, British Columbia, or in any other
portion of the Dominion of Canada.
Page 22
To Have and To Hold the same to Her Majesty the Queen and Her successors for
ever.
And Her Majesty the Queen Hereby Agrees with the said Indians that they shall
have right to pursue their usual vocations of hunting, trapping and fishing
throughout the tract surrendered as heretofore described, subject to such
regulations as may from time to time be made by the Government of the country,
acting under the authority of Her Majesty, and saving and excepting such tracts
as may be required or taken up from time to time for settlement, mining,
lumbering, trading or other purposes.
And Her Majesty the Queen hereby agrees and undertakes to lay aside reserves
for such bands as desire reserves, the same not to exceed in all one square mile
for each family of five for such number of families as may elect to reside on
reserves, or in that proportion for larger or smaller families; and for such families
or individual Indians as may prefer to live apart from band reserves; Her Majesty
undertakes to provide land in severalty to the extent of 160 acres to each Indian,
the land to be conveyed with a proviso as to non-alienation without the consent
of the Governor General in Council of Canada, the selection of such reserves,
and lands in everalty, to be made in the manner following, namely, the
Superintendent General of Indian Affairs shall depute and send a suitable person
to determine and set apart such reserves and lands, after consulting with the
Indians concerned as to the locality which may be found suitable and open for
selection.
Provided, however, that Her Majesty reserves the right to deal with any settlers
within the bounds of any lands reserved for any band as She may see fit; and also
that the aforesaid reserves of land, or any interest therein, may be sold or
otherwise disposed of by Her Majesty's Government for the use and benefit of
the said Indians entitled thereto, with their consent first had and obtained.
And the undersigned Cree, Beaver, Chipewyan and other Indian Chiefs and
Headsmen, on their own behalf and on behalf of all the Indians whom they
represent, Do Hereby Solemnly Promise and engage to strictly observe this
Treaty, and also to conduct and behave themselves as good and loyal subjects of
Her Majesty the Queen.
Page 23
They Promise and Engage that they will, in all respects, obey and abide by the
law; that they will maintain peace between each other, and between themselves
and other tribes of Indians, and between themselves and others of Her Majesty's
subjects, whether Indians, half-breeds or whites, this year inhabiting and
hereafter to inhabit any part of the said ceded territory; and that they will not
molest the person or property of any inhabitant of such ceded tract, or of any
other district or country, or interfere with or trouble any person passing or
travelling through the said tract or any part thereof, and that they will assist the
officers of Her Majesty in bringing to justice and punishment any Indian
offending against the stipulations of this Treaty or infringing the law in force in
the country so ceded.
78 It is not necessary to repeat the equivalent paragraphs contained in Treaty No. 11. It is to be
observed that this treaty, which covered all that part of the caveat area not covered by Treaty No. 8,
by far the larger part, contained language almost identical in wording.
79 Treaty No. 8 was negotiated by a Commission made up of three, Treaty No. 11 by a
Commission of one.
80 In the light of the evidence which was adduced during the present hearing it is perhaps of
interest to quote H. A. Conroy, the Treaty No. 11 Commissioner, where in his report to his Deputy
Superintendent General, Department of Indian Affairs, he said:
They were very apt in asking questions, and here, as in all the other posts where
the treaty was signed, the questions asked and the difficulties encountered were
much the same. The Indians seemed afraid, for one thing, that their liberty to
hunt, trap and fish would be taken away or curtailed, but were assured by me that
this would not be the case.
81 While the important phrase in respect of surrender of the land is in each case camouflaged to
some extent by being included in one of the preambles, none the less the clear intention would seem
to be to obtain from the Indians "all their rights, titles and privileges whatsoever, to the lands". The
actual words are: "the said Indians Do Hereby Cede, Release, Surrender and Yield Up". Read in
conjunction with "all their rights, titles and privileges" it is about as complete and all-embracing
language as can be imagined. If one was to stop there, of course, the Indians were left nothing.
82
It seems to me that there are two possible qualifications:
(1)
That really all the Government did was confirm its paramount title and, by
assuring the Indians that "their liberty to hunt, trap and fish" was not to be taken
away or curtailed, was in effect a form of declaration by the Government of
continuing aboriginal rights in the Indians.
Page 24
83 In the present proceedings, I do not have to go so far as to decide whether this is the case or
not. In my role as "inquirer" under the Land Titles Act, as I see it, I merely have to ascertain if there
is some chance of success by the caveators in this respect.
84 I am satisfied here that the caveators have an arguable case under this heading and have at
least the possibility of persuading the Federal Court, or whichever other court may be called upon to
rule, that the two treaties are not effective instruments to terminate their aboriginal rights for the
above reason. In other words, the Federal Government sought these treaties to reassure their
dominant title only.
(2)
That, unlike perhaps the previous treaties, the manner of negotiation, the
"ultimatum" effect of the discussions between the parties in the Northwest
Territories was such as to make it possible for the caveators to succeed in
persuading a court exercising the final say on these matters that there was either a
failure in the meeting of the minds or that the treaties were mere "peace" treaties
and did not effectively terminate Indian title -- certainly to the extent that it
covered what is normally referred to as surface rights -- the use of the land for
hunting, trapping and fishing.
85 Under this subheading it is necessary to examine the evidence in somewhat closer detail than
has been done heretofore in this judgment.
86 Throughout the hearings before me there was a common thread in the testimony -- that the
Indians were repeatedly assured they were not to be deprived of their hunting, fishing and trapping
rights. To me, hearing the witnesses at first hand as I did, many of whom were there at the signing,
some of them having been directly involved in the treaty-making, it is almost unbelievable that the
Government party could have ever returned from their efforts with any impression but that they had
given an assurance in perpetuity to the Indians in the Territories that their traditional use of the
lands was not affected.
87
Ted Trindle, present at the signing of Treaty No. 11 at Fort Simpson, said:
"Well, they talked about land and the Indians were scared that by taking treaty
they would lose all of their rights but the Indians were told not, but if they were
taking treaty they would get protection. They were told it was not to get the land
but they would still be free to hunt and roam as usual, no interference."
88 At Fort Wrigley, Phillip Moses remembers that the Commissioner said "nothing would be
changed, everything would be the same as way back, and everything would be the same in the
future".
89 Pretty much the same assurance came at Fort Resolution. When Chief Snuff appeared to be
holding out, according to Johnny Jean-Marie Beaulieu, who was there, he was told by the treaty
Page 25
party: "We will pay out the treaty to you here and it has no binding on your land or country at all. It
has nothing to do with this land."
90 Almost each Indian witness affirmed how the Indian representatives only signed after being
reassured that, as one expressed it, "If you don't change anything, we will take treaty."
91 As if the above was not enough, further examination of the evidence, including the material
from the archives put in through Father Fumoleau, certainly leaves an impression of haste, almost
an "ultimatum", as Bishop Breynat later reported. The uneasy feeling that the negotiations were not
all as above board as one would have hoped for is enhanced by statements like that of Pierre
Michel, who reported that at Fort Providence the Commissioner said, "if didn't take money, there
going to be some sort of trouble for the Indian people."
92 The comments of Mr. Harris in his report in 1925 for the Simpson Agency lend some
credence to the anxiety. He reports:
I believe it to be my duty to inform you that I know that certain promises were
made these Indians at the first Treaty which in my opinion never should have
been made. The Indians at Fort Simpson did not wish to accept the Treaty at first,
and I think the wisest course would have been to let them alone till they asked for
it themselves, though I do not in any way wish to criticise the action of my
superiors in the Department.
93 Confirmation of haste and perhaps irregularities is easy to find from the suggestion put forth
during the hearing that at Fort Simpson, when the Indians led by Old Norwegian (their recognized
spokesman) refused to sign and left, the treaty party then appointed Antoine as chief and treaty was
signed. Again there is the testimony of Chief Yendo, who is shown as having signed for Fort
Wrigley, but who has no memory of having signed and swears that he cannot read or write.
94 The impracticability of expecting the indigenous peoples with whom the treaties were
concerned here to be able to sustain themselves on the area of land each was to receive when
reserves came to be allocated and set aside offers one more reason to suspect the bona fides of the
negotiations. Perhaps the extreme southwestern area might permit a bare subsistence living to be
grubbed from the soil, but most of the area embraced by the treaties is as already described -- rock,
lake and tundra -- with hunting, trapping and fishing offering the only viable method of maintaining
life.
95 In examining agreements such as treaties where, as in the present case, one side, the Indians,
were in such an inferior bargaining position, it is perhaps well to remember the cautionary words of
Matthews J. in Choctaw Nation v. U.S. (1886), 119 U.S. 1, 7 S. Ct. 75, 30 L. ed. 306 at 315, where
he said:
The recognized relation between the parties to this controversy, therefore, is that
Page 26
between a superior and an inferior, whereby the latter is placed under the care
and control of the former, and which, while it authorizes the adoption on the part
of the United States of such policy as their own public interests may dictate,
recognizes, on the other hand, such an interpretation of their acts and promises as
justice and reason demand in all cases where power is exerted by the strong over
those to whom they owe care and protection. The parties are not on an equal
footing, and that inequality is to be made good by the superior justice which
looks only to the substance of the right, without regard to technical rules framed
under a system of municipal jurisprudence, formulating the rights and obligations
of private persons, equally subject to the same laws.
96
Hall J., at p. 73 of the report in the Calder case, in discussing onus states:
It would, accordingly, appear to be beyond question that the onus of proving that
the Sovereign intended to extinguish the Indian title lies on the respondent and
that intention must be 'clear and plain'. There is no such proof in the case at bar;
no legislation to that effect.
97 With the above principle in mind I conclude under this heading that there is enough doubt as
to whether the full aboriginal title had been extinguished, certainly in the minds of the Indians, to
justify the caveators attempting to protect the Indian position until a final adjudication can be
obtained.
6.
The caveators have a legal title and interest in the lands described in the caveat,
which title and interest can be protected by the filing of the caveat in the Land
Titles Registry of the Northwest Territories
98 This heading of argument was mentioned in my 14th June judgment, supra, but reserved until
now. There are two heads of argument here:
(a)
(b)
99
Are aboriginal rights an interest in land that can be protected by caveat?
Can the Land Titles Act have application to lands for which no certificate of title
has been issued or where no application to register under the Act has been made?
Provision for lodging or registration of a caveat is made in s. 132 of the Land Titles Act:
132. Any person claiming to be interested in any land under any will, settlement or
trust deed, or under any instrument of transfer or transmission, or under any
unregistered instrument, or under an execution, where the execution creditor
seeks to affect land in which the execution debtor is interested beneficially but
the title to which is registered in the name of some other person, or otherwise,
may lodge a caveat with the registrar to the effect that no registration of any
transfer or other instrument affecting the said land shall be made, and that no
Page 27
certificate of title therefor shall be granted, until such caveat has been withdrawn
or has lapsed as hereinafter provided, unless such instrument or certificate of title
is expressed to be subject to the claim of the caveator as stated in such caveat.
100 It seems clear to me that aboriginal rights are an interest in land: cf. St. Catherines Milling &
Lumber Co. v. The Queen (1888), 14 App. Cas. 46, 4 Cart. 107; and Calder v. Attorney General of
British Columbia, [1973] 4 W.W.R. 1, 34 D.L.R. (3d) 145 (Can.). The phrase "or otherwise" is
certainly broad enough to include such an interest as aboriginal rights or Indian title: see Re
MacCullough and Graham (1912), 5 Alta. L.R. 45, 2 W.W.R. 311, 21 W.L.R. 349, 5 D.L.R. 834.
101 It was submitted on behalf of the Crown under this heading, (b), that the Land Titles Act
cannot have any application to lands for which neither a certificate of title has issued nor an
application to have his title registered has been made: s. 54(1).
102 The argument was presented on the basis that four types of title only form the basis for title
in the Northwest Territories vis à vis the Land Titles Act:
(a)
(b)
(c)
(d)
Crown grants prior to 1887 for which no application to register has yet been
made.
Land to which Crown grants have been issued and where application has been
made under s. 54(1) and a certificate of title has already issued.
Ungranted Crown lands for which no certificate of title has issued.
Transfer of notification in respect of territorial lands.
103 Before examining the question in its broader sense I should mention that the evidence before
me in respect of the territorial lands under type (d) above convinces me that a caveat can be clearly
registered against these lands: see ss. 3 and 5 of the Territorial Lands Act, R.S.C. 1970, c. T-6,
where a notification has the same effect as a grant of land made by letters patent under the Great
Seal.
104 The practice followed in the Land Titles Office located at Yellowknife, from the testimony
that came out before me, belies the position here taken by the Crown lawyers in the initial hearings.
As I have already mentioned, however, while such practice may be persuasive it is not conclusive.
105 Counsel for the Crown under this heading proceeded to examine the 1886, the 1894 and the
present Land Titles Acts. His submission briefly is that, referring to the 1886 statute first, s. 44
provides for issuing a certificate of title upon receipt of a grant, s. 45 permits the holder of any
letters patent already issued to make application to have his title registered, s. 100 lays down the
procedure to follow in filing a caveat, and s. 38 provides for a register (made up of duplicates of all
certificates of tit

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