contact information removed - Province of British Columbia
Transcription
contact information removed - Province of British Columbia
<contact information removed> <contact information removed> <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 <contact information removed> 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 (i) health and socio-economic conditions, 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). Ibid p. 29 (at Adobe 49). 17 Ibid p. 32 (at Adobe 52). 18 Ibid p. 34 (at Adobe 54). 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. Ibid p. 37 (at Adobe 57). 21 Ibid p. 34 (at Adobe 54). 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). Ibid p. 36 (at Adobe 56). 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: Ibid p. 73 (at Adobe 93). Ibid p. 74 (at Adobe 94). 26 Ibid p. 104 (at Adobe 124). 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 p. 106 (at Adobe 126). Ibid. 29 Ibid p. 106-107 (at Adobe 126-127). 30 Ibid p. 107 (at Adobe 127). 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 Ibid p. 112 (at Adobe 132). 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). Ibid, s 2.3 (at Adobe 17). 37 Ibid, s 2.4 (at Adobe 17). 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 2.6 (at Adobe 18). Ibid, s 3.13 (at Adobe 20-21). 40 Ibid, s 3.14 (at Adobe 21). 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 Ibid p. 187 (at Adobe 7). 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. 189 (at Adobe 9). Ibid p. 188, 190 (at Adobe 8, 10). 50 Ibid p. 188 (at Adobe 8). 51 Ibid p. 190 (at Adobe 10). 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 Ibid p. 193 (at Adobe 13). 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 Ibid p. 11 (at Adobe 25). 60 Ibid p. 12 (at Adobe 26). 61 Ibid p. 14 (at Adobe 28). 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). Ibid p. 19 (at Adobe 33). 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 Ibid p. 29 (at Adobe 43). Ibid p. 30 (at Adobe 44). 67 Ibid p. 38 (at Adobe 52). 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. 39 (at Adobe 53). Ibid p. 42 (atAdobe 56). 70 Ibid. 71 Ibid p. 46 (at Adobe 60). 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 Ibid p. 48 (at Adobe 62). 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 Transcript Vol. 23 (January 17, 2014) CEAR 2530, p. 143, L 16-23. 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 Ibid p. 14 (at Adobe 17). 127 Ibid p. 19 (at Adobe 22). 128 Ibid p. 11 (at Adobe 14). 129 Ibid p. 2, 11, 18 (at Adobe 5, 14, 21). 130 Ibid p. 22 (at Adobe 25). 131 Ibid p. 17 (at Adobe 20). 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). Ibid p. 13 (at Adobe 16). 134 EIS, Vol. 1, s. 4, p. 19. 135 Supplemental Traditional Land Use Report, supra note 122, p. 3. 136 Traditional Land Use Report, supra note 120, p. 17 (at Adobe 20). 137 Ibid p. 18 (at Adobe 21). 138 Ibid p. 15 (at Adobe 18). 139 Ibid p. 22 (at Adobe 25). 140 Ibid p. 17 (at Adobe 20). 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). Ibid p. 24 (at Adobe 27). 144 Supplemental Traditional Land Use Report, supra note 122, p. 3. 145 Ibid p. 3. 146 Traditional Land Use Report, supra note 120, p. 18 (at Adobe 21). 147 Supplemental Traditional Land Use Report, supra note 122, p. 3. 148 Traditional Land Use Report, supra note 120, p. 17 (at Adobe 20). 149 Supplemental Traditional Land Use Report, supra note 122, p. 3. 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 Ibid p. 19 (at Adobe 22). Ibid p. 27 (at Adobe 30). 153 Supplemental Traditional Land Use Report, supra note 122, p. 4. 154 Traditional Land Use Report, supra note 120, p. 27 (at Adobe 30). 155 Supplemental Traditional Land Use Report, supra note 122, p. 4. 156 Traditional Land Use Report, supra note 120, p. 27 (at Adobe 30). 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 Transcript Vol. 19 (January 13, 2014) CEAR 2438, p. 157, L 5-14. 172 Transcript Vol. 19 (January 13, 2014) CEAR 2438, p. 157, L 16-18. 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. Transcript Vol. 21 (January 15, 2014) CEAR 2697, p. 143, L 6-12. 181 Transcript Vol. 21 (January 15, 2014) CEAR 2697, p. 144, L 1-3. 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 EIS Guidelines, supra note 13, p. 106 (at Adobe 126). Transcript Vol. 23 (January 17, 2014) CEAR 2530, p. 143, L 15-23. 256 CEAA, 2012, supra note 1, s 5(1)(c). 257 EIS Guidelines, supra note 13, p. 107 (at Adobe 127). 258 Ibid p. 106 (at Adobe 126). 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. 2 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. 3 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. 4 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) 6 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 (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. 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 (i) health and socio-economic conditions, (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. 8 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. 9 181 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 0 0 0 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 182 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, 183 (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: 0 0 0 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 a 0 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: l 0 0 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 185 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. 186 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 187 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. 188 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). 189 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: l l 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, 190 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 and Moderate or High M M M H Long-term and Low M M H H Long-term and Moderate or High 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 KEY TASKS: Mitigation 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 KEY TASKS: Mitigation 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 KEY TASKS: Mitigation 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 KEY TASKS: Significance 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 KEY TASKS: Significance • • • • • • • • 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 KEY TASKS: Significance • 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 KEY TASKS: Significance 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 KEY TASKS: Significance 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 KEY TASKS: Significance 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 PREPARING/COMPLETING CEAs • 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. PREPARING/COMPLETING CEAs • 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 PREPARING/COMPLETING CEAs 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 PREPARING/COMPLETING CEAs 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 PREPARING/COMPLETING CEAs ; ; 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? PREPARING/COMPLETING CEAs 67 BIBLIOGRAPHY 6.0 BIBLIOGRAPHY Alberta Energy and Utilities Board (AEUB). 1997. Decision D-97-13: Application by Syncrude for the 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. 68 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. 69 BIBLIOGRAPHY 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 Assessment Agency. National Energy Board, Calgary, Alberta. p. 98 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 Change (LAC) System for Wilderness Planning. United States Department of Agriculture, Forest Service. General Technical Report INT-176. Suncor Inc. Oil Sands Group. 1996. Steepbank Mine Project Application. Fort McMurray, Alberta. Syncrude. 1997. Aurora Mine, Regional Development Update, May 28, 1997. Syncrude, Fort McMurray, Alberta. Wight, P.A. 1994. Limits of Acceptable Change: A Recreational Tourism Tool 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. Edited by A.J. Kennedy, Alberta Society of Professional Biologists, pp. 159-178. Yarranton, G.A. and R.E. Rowell. 1991. Highwood River Riparian Vegetation Study, Volume II: Instream Flow Needs. Prepared for Alberta Environment. Concord Environmental Corporation, Calgary, Alberta. 70 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 Case Study Highlights 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 Case Study Highlights 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 Case Study Highlights 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 Case Study Highlights 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 Case Study Highlights 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 Case Study Highlights 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 Case Study Highlights 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 Case Study Highlights 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 Case Study Highlights 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 Case Study Highlights 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 Case Study Highlights 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: • • • • • • • • • • • • • • Analytical Approaches Assessment History Canadian Environmental Assessment Act Case Studies CEA Primers Definitions and Concepts Frameworks Indicators Regional Planning and Studies: Approaches Regional Planning and Studies: Case Studies Significance Setting Boundaries Thresholds Valued Ecosystem Components 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 Analytical Approaches 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 Beanlands, G.E. and P.N. Duinker. 1983. An Ecological Framework for Environmental Impact Assessment 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 Study in CEARC Cumulative Effects Assessment: Wetlands of the Boreal Agricultural Fringe of 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 Environmental Assessment Act. Discussion Paper Prepared for the Federal Environmental 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 REFERENCES 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. Hegmann, G. L. and G. A. Yarranton. 1994. Cumulative Effects and the Energy Resources Conservation 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. Definitions and Concepts 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. Peterson, E.B., et al. 1987. Cumulative Effects Assessment in Canada: An Agenda for Action and Research. Canadian Environmental Assessment Research Council, Hull, Quebec. 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. Hegmann, G. L. and G. A. Yarranton. 1994. Cumulative Effects and the Energy Resources Conservation 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. Peterson, E.B., et al. 1987. Cumulative Effects Assessment in Canada: An Agenda for Action and Research. Canadian Environmental Assessment Research Council, 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. Regional Planning and Studies: Approaches 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. Regional Planning and Studies: Case Studies 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. Valued Ecosystem Components Also see the references under “CEA Primers”, “Definitions and Concepts”, and “Analytical Approaches”. Beanlands, G.E. and P.N. Duinker. 1983. An Ecological Framework for Environmental Impact Assessment 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 Page: 34 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. Page: 48 [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 Barristers & Solicitors Calgary, Alberta FOR THE RESPONDENT, JOINT REVIEW PANEL FOR THE MACKENZIE GAS PROJECT 2006 FC 1354 (CanLII) Cook Roberts LLP Barristers & Solicitors 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. NATION HAÏDA c. C.-B. (MINISTRE DES FORÊTS) 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 HAIDA NATION v. B.C. (MINISTER OF FORESTS) [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. NATION HAÏDA c. C.-B. (MINISTRE DES FORÊTS) 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. Constitution Act, 1982, s. 35. 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. Loi constitutionnelle de 1982, art. 35. 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 HAIDA NATION v. B.C. (MINISTER OF FORESTS) [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. NATION HAÏDA c. C.-B. (MINISTRE DES FORÊTS) 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 HAIDA NATION v. B.C. (MINISTER OF FORESTS) 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. NATION HAÏDA c. C.-B. (MINISTRE DES FORÊTS) 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 HAIDA NATION v. B.C. (MINISTER OF FORESTS) 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. NATION HAÏDA c. C.-B. (MINISTRE DES FORÊTS) 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 HAIDA NATION v. B.C. (MINISTER OF FORESTS) 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. NATION HAÏDA c. C.-B. (MINISTRE DES FORÊTS) 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 HAIDA NATION v. B.C. (MINISTER OF FORESTS) 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. NATION HAÏDA c. C.-B. (MINISTRE DES FORÊTS) 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 HAIDA NATION v. B.C. (MINISTER OF FORESTS) 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. NATION HAÏDA c. C.-B. (MINISTRE DES FORÊTS) 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 HAIDA NATION v. B.C. (MINISTER OF FORESTS) 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. NATION HAÏDA c. C.-B. (MINISTRE DES FORÊTS) 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 HAIDA NATION v. B.C. (MINISTER OF FORESTS) 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. NATION HAÏDA c. C.-B. (MINISTRE DES FORÊTS) 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 HAIDA NATION v. B.C. (MINISTER OF FORESTS) 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. NATION HAÏDA c. C.-B. (MINISTRE DES FORÊTS) 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 HAIDA NATION v. B.C. (MINISTER OF FORESTS) 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. NATION HAÏDA c. C.-B. (MINISTRE DES FORÊTS) 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 HAIDA NATION v. B.C. (MINISTER OF FORESTS) 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. NATION HAÏDA c. C.-B. (MINISTRE DES FORÊTS) 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 HAIDA NATION v. B.C. (MINISTER OF FORESTS) 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. NATION HAÏDA c. C.-B. (MINISTRE DES FORÊTS) 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 HAIDA NATION v. B.C. (MINISTER OF FORESTS) 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. NATION HAÏDA c. C.-B. (MINISTRE DES FORÊTS) 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 HAIDA NATION v. B.C. (MINISTER OF FORESTS) 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. NATION HAÏDA c. C.-B. (MINISTRE DES FORÊTS) 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 HAIDA NATION v. B.C. (MINISTER OF FORESTS) 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. NATION HAÏDA c. C.-B. (MINISTRE DES FORÊTS) (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 HAIDA NATION v. B.C. (MINISTER OF FORESTS) 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. NATION HAÏDA c. C.-B. (MINISTRE DES FORÊTS) (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 HAIDA NATION v. B.C. (MINISTER OF FORESTS) [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. Solicitor for the intervener the Attorney General of Ontario: Attorney General of Ontario, Toronto. Procureur de l’intervenant le procureur général de l’Ontario : Procureur général de l’Ontario, Toronto. Solicitor for the intervener the Attorney General of Quebec: Department of Justice, Sainte-Foy. Procureur de l’intervenant le procureur général du Québec : Ministère de la Justice, Sainte-Foy. Solicitor for the intervener the Attorney General of Nova Scotia: Department of Justice, Halifax. Procureur de l’intervenant le procureur général de la Nouvelle-Écosse : Ministère de la Justice, Halifax. Solicitor for the intervener the Attorney General for Saskatchewan: Deputy Attorney General for Saskatchewan, Regina. Procureur de l’intervenant le procureur général de la Saskatchewan : Sous-procureur général de la Saskatchewan, Regina. Solicitor for the intervener the Attorney General of Alberta: Department of Justice, Edmonton. Procureur de l’intervenant le procureur général 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. NATION HAÏDA c. C.-B. (MINISTRE DES FORÊTS) 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 SCC 69 (CanLII) [2005] 3 R.C.S. mikisew cree first nation v. canada [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 2005 SCC 69 (CanLII) 390 première nation crie mikisew 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 SCC 69 (CanLII) [2005] 3 R.C.S. mikisew cree first nation v. canada [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 Constitution Act, 1982, s. 35. 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. Loi constitutionnelle de 1982, art. 35. 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 Narrative of the Athabasca and Peace River Treaty 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. 2005 SCC 69 (CanLII) 392 [2005] 3 R.C.S. première nation crie mikisew 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 2005 SCC 69 (CanLII) 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 2005 SCC 69 (CanLII) 394 première nation crie mikisew c. canada Le juge Binnie 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 SCC 69 (CanLII) [2005] 3 R.C.S. 4 5 mikisew cree first nation v. canada Binnie 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 2005 SCC 69 (CanLII) 396 [2005] 3 R.C.S. première nation crie mikisew c. canada Le juge Binnie 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 2005 SCC 69 (CanLII) 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”. mikisew cree first nation v. canada Binnie 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). 2005 SCC 69 (CanLII) 398 première nation crie mikisew c. canada Le juge Binnie 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 SCC 69 (CanLII) [2005] 3 R.C.S. 21 22 mikisew cree first nation v. canada Binnie 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. 2005 SCC 69 (CanLII) 400 première nation crie mikisew c. canada Le juge Binnie 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 SCC 69 (CanLII) [2005] 3 R.C.S. 25 26 mikisew cree first nation v. canada Binnie 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 Narrative of the Athabasca and Peace River Treaty Expedition of 1899, at p. 61) (C. Mair, Through the Mackenzie Basin : A Narrative of the Athabasca and Peace River Treaty 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 : 2005 SCC 69 (CanLII) 402 première nation crie mikisew c. canada Le juge Binnie 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 SCC 69 (CanLII) [2005] 3 R.C.S. mikisew cree first nation v. canada Binnie 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 2005 SCC 69 (CanLII) 404 première nation crie mikisew c. canada Le juge Binnie 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 SCC 69 (CanLII) [2005] 3 R.C.S. 33 34 35 mikisew cree first nation v. canada Binnie [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 2005 SCC 69 (CanLII) 406 première nation crie mikisew c. canada Le juge Binnie 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 SCC 69 (CanLII) [2005] 3 R.C.S. 36 37 mikisew cree first nation v. canada Binnie 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 2005 SCC 69 (CanLII) 408 première nation crie mikisew c. canada Le juge Binnie 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 SCC 69 (CanLII) [2005] 3 R.C.S. 41 mikisew cree first nation v. canada Binnie (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 2005 SCC 69 (CanLII) 410 première nation crie mikisew c. canada Le juge Binnie 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 SCC 69 (CanLII) [2005] 3 R.C.S. mikisew cree first nation v. canada Binnie 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 2005 SCC 69 (CanLII) 412 première nation crie mikisew c. canada Le juge Binnie 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 SCC 69 (CanLII) [2005] 3 R.C.S. 48 mikisew cree first nation v. canada Binnie 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 : 2005 SCC 69 (CanLII) 414 première nation crie mikisew c. canada Le juge Binnie 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 SCC 69 (CanLII) [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 mikisew cree first nation v. canada Binnie 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 2005 SCC 69 (CanLII) 416 [2005] 3 R.C.S. première nation crie mikisew c. canada Le juge Binnie 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 2005 SCC 69 (CanLII) 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. mikisew cree first nation v. canada Binnie 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 2005 SCC 69 (CanLII) 418 première nation crie mikisew c. canada Le juge Binnie 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 SCC 69 (CanLII) [2005] 3 R.C.S. 63 mikisew cree first nation v. canada Binnie 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 2005 SCC 69 (CanLII) 420 première nation crie mikisew c. canada Le juge Binnie 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 SCC 69 (CanLII) [2005] 3 R.C.S. mikisew cree first nation v. canada Binnie 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 2005 SCC 69 (CanLII) 422 première nation crie mikisew c. canada Le juge Binnie 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. Procureur de l’intervenant le procureur général 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 SCC 69 (CanLII) [2005] 3 R.C.S. mikisew cree first nation v. canada [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. 2005 SCC 69 (CanLII) 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