Court File and Parties

COURT FILE NO.: CV-17-567115 DATE: 20180730 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

AROLAND FIRST NATION and GINOOGAMING FIRST NATION Plaintiffs/Moving Parties – and – TRANSCANADA PIPELINES LIMITED, THE ATTORNEY GENERAL OF CANADA and the NATIONAL ENERGY BOARD Defendants/Respondents CANADIAN ENERGY PIPELINE ASSOCIATION Intervenor

COUNSEL: Kate Kempton and Corey Shefman, for the Plaintiffs David Rankin, for the Defendant Transcanada Pipelines Limited Gail Sinclair and Dan Luxat, for the Defendant Attorney General of Canada Audrey Boctor and Olga Redko, for the Defendant National Energy Board D. Aaron Stephenson, for the Intervenor Canadian Energy Pipeline Association

HEARD: June 6, 7 and 8, 2018

REASONS FOR DECISION

W. MATHESON J.

[1] Aroland First Nation and Ginoogaming First Nation move for partial summary judgment, seeking a declaration of law regarding one aspect of the duty to consult under s. 35 of the Constitution Act, 1982, Sch. B to the Canada Act 1982 (UK), 1982, c. 11. These First Nations seek the recognition of a duty to consult in relation to ongoing invasive testing on established natural gas pipelines that traverse the First Nations’ traditional territories in northern Ontario. Other relief is also sought. Success on this motion for partial summary judgment would not remove a party or remove the need for a trial.

[2] For the reasons set out below, I conclude that the issue raised on this motion cannot be fairly and justly decided using the partial summary judgment process.

The parties and their positions

[3] There are four natural gas pipelines implicated by this action, running largely in parallel, called Mainline 100-1 through 100-4. These pipelines are owned by the defendant TransCanada Pipelines Limited (“TCP”).

[4] These pipelines were approved between 1956 and 1998 and traverse a vast area in northern Ontario. The Mainline consists of approximately 14,000 km of pipelines transporting natural gas from the Alberta/Saskatchewan border to the Quebec/Vermont border, connecting with other natural gas pipelines in Canada and the United States. Lines 100-1, 100-2 and 100-3 run across all of Northern Ontario and Line 100-4 runs in parallel intermittently across Northern Ontario. All of these pipelines are currently in operation to transport natural gas. For the most part, the pipelines are buried underground.

[5] The Aroland First Nation and Ginoogaming First Nation (collectively, the “First Nations”) are located in northwestern Ontario. Their traditional territories extend north of Lakes Superior and Nipigon. [1] The First Nations hold rights pursuant to Treaty 9 and hold and assert Aboriginal rights. These rights include hunting, trapping, fishing, harvesting plants for food and medicine, conducting spiritual ceremonies, constructing shelters, using and maintaining travel routes, and protecting burial grounds and other cultural heritage areas, values and sites. The First Nations’ evidence shows that members of the First Nations exercise these rights including in the area affected by the tests at issue in this action.

[6] On this motion, the First Nations seek a declaration that the Crown’s duty to consult, in s. 35 of the Constitution Act, 1982, is triggered in the circumstances of this case. They do not, however, seek a determination of the other elements of that duty, specifically the scope of the duty and whether or not the duty has been satisfied in this case. Thus, even if this motion was successful, the remaining issues would still need to be determined.

[7] In addition to TCP, the defendants are the Attorney General of Canada and the National Energy Board. The duty to consult is a duty of the Crown, hence the inclusion of the Attorney General of Canada (“Canada”). The National Energy Board (“NEB”) plays an important role in the Crown’s discharge of its duty to consult when a duty does arise in relation to pipelines.

[8] As originally conceived, this motion also included a challenge against the legislative regime under which the NEB does its work. However, that challenge was withdrawn at the hearing of the motion, where it was accepted that the legislative regime does not, itself, constrain the recognition of a duty to consult in this case. The legislative regime also does not impose the duty, but it need not do so for there to be a duty.

[9] On this motion, the defendants seek a finding that there is no duty to consult. Alternatively, all but Canada submits that this matter should not be decided within the process of a motion for partial summary judgment. Canada submits that it may be appropriate to do so but only if the issue is kept narrow, and that a number of other issues would remain to be determined that are not suitable for summary judgment.

[10] Lastly, the Canadian Energy Pipeline Association was given leave to intervene on this motion. The Association is an industry association that represents Canada’s transmission pipeline companies. It generally supports the respondents’ position on the duty to consult.

Authorization of these pipelines

[11] The construction of the above pipelines was authorized before the constitutional duty to consult was definitively recognized in Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511, although the later authorizations did overlap with the first cases where a duty was imposed: see, e.g., R. v. Sparrow, [1990] 1 S.C.R. 1075.

[12] The process began in 1954. TCP applied for a permit to construct 3,520 km of gas pipeline from the Alberta/Saskatchewan border, through Manitoba and Ontario, to Montreal. The application was overseen by the Board of Transport Commissioners for Canada, which approved the application. In 1956, Parliament created the Northern Ontario Pipe Line Crown Corporation to construct the section of the pipeline in Northern Ontario, from the Manitoba/Ontario border to a point near Kapuskasing, Ontario. That Crown corporation constructed the Northern Ontario section between 1957 and 1958, and leased it to TCP.

[13] In 1959, Parliament enacted the National Energy Board Act, S.C. 1959, c. 40, under which the NEB assumed responsibility for interprovincial pipelines including the issuance of what were called “Certificates of Public Convenience and Necessity” authorizing the construction of pipelines falling within its jurisdiction. In 1960, the NEB issued such a certificate authorizing the then existing pipeline now known as Line 100-1. That year, a certificate was also issued to the above Crown corporation with respect to the Northern Ontario Section. In 1963, that section was purchased by TCP.

[14] In 1970, TCP applied to the NEB for a Certificate to expand the pipeline by constructing parallel pipelines. Further expansions to the pipeline were the subject of applications in 1980, 1988, 1990, 1991, 1992 and 1998. In each case, there was a public hearing followed by a decision approving the sought for expansion and a Certificate of Public Convenience and Necessity with various terms.

[15] Over the years, the process became more elaborate and began to consider more issues, such as environmental impact. As well, the process began to incorporate some public notice prior to the hearings. The hearings involved an increasing number of interveners as well. However, there was no notice to the First Nations in particular, nor were the First Nations present at these hearings as interveners, nor were subjects like Treaty and Aboriginal rights expressly addressed in either the Board decisions or the Certificates. In the later years, there were occasional references to topics like cultural, archaeological and heritage issues, which were not a major focus of attention nor tied to First Nations’ concerns, and there was increased attention on environmental issues.

[16] There was no Crown consultation with the First Nations prior to issuance of any of the Certificates of Public Convenience and Necessity, which is not surprising given that the duty to consult was not recognized until 2004/2005: Haida Nation; Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69, [2005] 3 S.C.R. 388.

[17] None of the above Certificates of Public Convenience and Necessity are time limited or require periodic renewals. All continue in perpetuity.

[18] The early Certificates of Public Convenience and Necessity did not specify the activities that were being authorized by the Certificates. The later Certificates used words such as causing the pipeline to be “designed, manufactured, constructed and installed”. The Certificates did not expressly refer to “maintenance”. [2] That function is referred to in the legislation. The National Energy Board Act, since its inception in 1959, provided that once a company obtained a Certificate of Public Convenience and Necessity, the company may do all acts “necessary for the construction, maintenance and operation of its line”: National Energy Board Act, S.C. 1959, c. 46, s. 62(1)(i). That provision is largely the same today: R.S.C. 1985, c. N-7, s. 73(i).

[19] Subsection 48(2) of the National Energy Board Act authorizes the NEB to make regulations, with the Governor in Council’s approval, governing the design, construction, operation of a pipeline and providing for the protection of property and the environment and the safety and security of the public in that regard. Although maintenance is not specifically mentioned in s. 48(2), the National Energy Board Onshore Pipeline Regulations, SOR/99-294, in conjunction with the Canadian Standards Association Standard Z662 and the Operations and Maintenance Activities on Pipelines Regulated Under the National Energy Board Act: Guidance Notes (“O & M Guidelines”) provide a framework that includes maintenance, among other things.

[20] The O & M Guidelines set out detailed processes for operations and maintenance work. The Guidelines distinguish between routine maintenance activities, where companies holding a Certificate of Public Convenience and Necessity are not required to apply for additional approval for the work, and non-routine work where additional approval is required. No one takes the position on this motion that additional approval was required for the tests at issue.

[21] Nonetheless, the NEB has the power to oversee, inspect, audit and make orders regarding routine maintenance work. As put by the NEB in its factum, it has full jurisdiction over the ongoing operation and maintenance of these pipelines. [3]

Tests at issue

[22] Two tests are the main focus of this motion:

(1) Integrity digs: Integrity digs involve exposing buried segments of pipeline to inspect and, if indicated by the inspection, repair the pipeline. A typical integrity dig is approximately 8 to 18 m in length (and may be longer) and takes approximately 23 days to complete. Excavation of the pipeline is a necessary step. In turn, heavy equipment must be taken on site to perform the excavation, and the site must be backfilled once the test is complete. Integrity digs are conducted in response to known or suspected defects, usually following the analysis of pipeline data. Normally these tests are planned about one year in advance.

(2) Hydrostatic testing: Hydrostatic testing tests pipeline strength and identifies any defects that might threaten the pipeline’s ability to sustain its maximum operating pressure. The testing uses water as a medium to pressure the length of pipeline to a chosen pressure level for a period of time. An enormous amount of water is required for these tests and must be drawn from local water bodies. The testing may be of a significant length of pipeline (e.g. 30 km) but it typically only involves ground disturbance at the start and end points of the test. Typically, a 16 to 18 meter length of pipeline is excavated to install the test pumps and plugs on the pipeline but otherwise the pipeline is in place under the ground. These tests usually take approximately 55 days to complete, and include the use of heavy equipment.

[23] Over the many years since these pipelines were constructed, there have been approximately 247 integrity digs and 47 hydrostatic tests within the First Nations’ traditional territory.

[24] Obviously, both of these tests are very invasive insofar as they require extensive disruption of the land. The defendants seek to downplay the invasive nature of the tests by emphasizing that they mainly occur on “previously disturbed lands”, in other words, lands that were already disturbed when the pipelines were constructed. This distinction does not have as much significance as it would for a recently constructed pipeline, where steps would have been taken during construction to ensure that sites of cultural significance were identified and properly handled, among other issues. Much of the pipeline at issue in this case was constructed long before there were any such requirements. In addition, it is accepted that these tests also extend to undisturbed lands, to some degree.

[25] Also obviously, pipeline safety is the important concern that motivates these tests. However, the First Nations are not advocating for an unsafe pipeline running through their traditional territory. They seek the recognition of a Crown duty to consult, providing the First Nations with meaningful input into the planned testing process, rather than being left to attempt to address their concerns under the NEB complaints process or through a third party process with TCP.

NEB complaints process

[26] Where maintenance may have an impact on third parties, the NEB’s O & M Guidelines include notice requirements on and engagement by the company, here TCP, with those third parties. Once TCP became aware of the First Nations’ asserted rights and interest, it was obliged to give them notice of these tests.

[27] Briefly, commencing in about 2015, the First Nations began communicating with the NEB regarding concerns in relation to planned O & M work on the above pipelines. For example, by letter of March 9, 2015, the Chief of the Aroland First Nation wrote to the NEB about maintenance activities generally and integrity digs specifically, after raising concerns with TCP as well. The concerns focused on maintenance work that requires soil disturbance and related construction activities that could damage or destroy cultural heritage resources or have negative impacts on the natural environment in the First Nation’s traditional territory. Later that year, a similar letter was sent by the Ginoogaming First Nation.

[28] After these issues were raised with the NEB, it facilitated engagement between the First Nations and TCP as contemplated by the O & E Guidelines. When that engagement did not result in a resolution of the issues, the NEB treated the First Nations’ continued expressions of concern as a formal complaint. There then ensued further attempted dialogue on the issues.

[29] In December 2016, the NEB indicated that it was of the view that “there is the possibility that heritage resources could exist in the locations where the integrity digs will occur”. Therefore, to mitigate this possible risk, the NEB indicated that it was considering requiring TCP to have a licensed archaeologist present at the three planned integrity dig sites located within the First Nations’ traditional territories.

[30] After further submissions, and over the objection of TCP, the NEB issued directions requiring that TCP have a licensed archaeologist on site to ensure heritage resources were protected, even though it was of the view that there was a low risk that such resources were still buried along the pipeline right-of-way. The NEB has the authority to make such orders under s. 12(1)(b) and s. 48(1.1) of the National Energy Board Act. Other requests made by the First Nations in the complaints process were not the subject of orders by the NEB. For example, the First Nations asked to be involved in the selection of the archaeologist to ensure that the person selected had the expertise needed to do the appropriate archeological testing with due respect for the First Nations’ cultural heritage, including recognition of the First Nations’ artifacts. The integrity digs proceeded with an archaeologist selected without the First Nations’ input and ultimately heritage resources were not located in those areas.

[31] This action was commenced in January 2017. The amended amended statement of claim seeks various declaratory and other relief, including damages. Only one of the requested declarations is sought on this motion, specifically whether the duty to consult is triggered in the circumstances of this case. The claim alleges that the duty to consult arose at least in January 2016 and therefore is focused on conduct since that time.

Issues

[32] The issues on this motion are as follows:

(1) whether the issue raised regarding the Crown duty to consult can be fairly and justly decided, for or against the First Nations, on this motion for partial summary judgment;

(2) if so, with what result; and,

(3) whether the Busmann affidavit delivered by TCP in response to this motion should be struck out.

Partial summary judgment

[33] Subrule 20.04(2) of the Rules of Civil Procedure provides that the court shall grant summary judgment if the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or a defence. Under subrule 20.04(4), where the court is satisfied that the only genuine issue is a question of law, the court may determine the question and grant judgment accordingly.

[34] As set out in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 49, there will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits using the summary judgment process. This will be the case when the process: “(1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.”

[35] Where the motion is for partial summary judgment, the court must also consider the risk of duplicative or inconsistent findings, and consider the litigation as a whole and whether partial summary judgment would serve the objectives of proportionality, efficiency and cost effectiveness: Butera v. Chown, Cairns LLP, 2017 ONCA 783, 137 O.R. (3d) 561, at para. 38.

[36] In Butera, the Court of Appeal observed that motions for partial summary judgment should be rare.

[37] In order to determine whether this process is appropriate, it is important to consider how the legal issue put forward for decision – that is, whether the circumstances of this case may trigger a duty to consult – fits within the broader legal context placed at issue in the action.

[38] In this case, only Canada agrees that the issue raised by the First Nations could be determined on this motion, and only if the issue is kept narrow. Canada submits that there is no duty. The other respondents dispute the suitability of this process except that some submit that the legal issue could be decided against the First Nations using this process.

Duty to consult

[39] The Crown’s duty to consult with Aboriginal peoples and accommodate their interests is grounded in the honour of the Crown, which is always at stake in government dealings with Aboriginal peoples: Haida Nation, at para. 16. In its dealings with Aboriginal peoples, the Crown must act honourably – nothing less is required: Haida Nation, at para. 17.

[40] A framework for the analysis of the duty to consult under s. 35 of the Constitution Act, 1982 was first set out by the Supreme Court of Canada in 2004 in Haida Nation. That case arose in the context of logging on, and unresolved land claims regarding, what was then known as the Queen Charlotte Islands in British Columbia, now known as Haida Gwaii. In Haida Nation, the Chief Justice of Canada, for the Court, began what the later Supreme Court cases also show is a careful, incremental approach to the development of the law in this area. As put in para. 11 of Haida Nation:

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. [Emphasis added.]

[41] A generous, purposive approach must be brought to the duty to consult: Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43, [2010] 2 S.C.R. 650 (“Carrier Sekani”), at para. 43.

[42] In Haida Nation, at paras. 39 and 45, the Court emphasized that the content of the duty varies with the circumstances and that every case must be approached individually and flexibly.

[43] As recognized in Carrier Sekani, at para. 38, the duty to consult embodies a “generative” constitutional order that sees “section 35 as serving a dynamic and not simply static function”.

[44] The post-Haida Nation case law confirms that “consultation is “[c]oncerned with an ethic of ongoing relationships” and seeks to further an ongoing process of reconciliation by articulating a preference for remedies “that promote ongoing negotiations””: Carrier Sekani, at para. 38. Absent this duty, “Aboriginal groups seeking to protect their interests pending a final settlement would need to commence litigation and seek interlocutory injunctions to halt the threatening activity. These remedies have proven time-consuming, expensive and are often ineffective.”: Carrier Sekani, at para. 33. As put in Clyde River (Hamlet) v. Petroleum Geo-Services Inc., 2017 SCC 40, [2017] 1 S.C.R. 1069 (“Clyde River”), at para. 24, “true reconciliation is rarely, if ever, achieved in courtrooms. Judicial remedies may seek to undo past infringements of Aboriginal and treaty rights, but adequate Crown consultation before project approval is always preferable to after-the-fact judicial remonstration following an adversarial process.”

[45] The “concern is for adverse impacts, however made, upon Aboriginal and treaty rights and, indeed, a goal of consultation is to identify, minimize and address those adverse impacts where possible”: Clyde River, at para. 25.

[46] There is no issue that where authorization for a new pipeline is being sought, the Crown has a duty to consult under s. 35 of the Constitution Act, 1982. That duty would include the maintenance of the new pipeline. It therefore cannot be said that the duty to consult is fundamentally incompatible with maintenance activities. Much of the argument from the respondents was nonetheless focused on submissions suggesting that the recognition of a duty to consult was problematic when considering the objectives of maintenance, especially safety.

[47] The nature and scope of the duty varies according to the circumstances. It 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 effects upon the right or title claimed: Haida Nation, at para 39. At one end of the spectrum, the duty to consult may consist of the duty to give notice, disclose information and discuss any issues raised in response to the notice. At the other end of the spectrum there is deep consultation, which may require finding a satisfactory solution: Haida Nation, at paras. 43-45.

[48] The determination of the content of the duty to consult is governed by context: Mikisew Cree First Nation, at para. 63.

[49] Once the nature and scope of the duty is determined, the next issue is the adequacy of the consultation process and more specifically whether the duty was breached. There is also the issue of remedy. All of these issues are raised in the underlying action.

[50] On this motion, the First Nations seek a determination of the first issue only: whether the Crown has a duty to consult in the circumstances of this case. The First Nations submit that the Crown does have a duty to consult and counsel frankly submits that this is a test case regarding that issue. The remaining components of a successful action based on a breach of the duty are not at issue on this motion. Much of the evidence put forward by the defendants in response to this motion relates to aspects of the action beyond the issue for determination on this motion. Since those issues are not directly engaged, I cannot assume that I have a complete evidentiary record on the other issues.

[51] In Haida Nation, at para. 35, the Court set out the framework for the determination of whether there is a duty to consult. As set out in Carrier Sekani, at para. 31, that framework can be broken down into three elements:

(i) the Crown’s knowledge, actual or constructive, of a potential Aboriginal claim or right;

(ii) contemplated Crown conduct; and

(iii) the potential that the contemplated conduct may adversely affect an Aboriginal claim or right.

[52] The issues before me did not particularly focus on the first element of the test, Crown knowledge, and the threshold for that element is not high: Carrier Sekani, at para. 40. The main focus was on the contemplated Crown conduct in the remaining two elements of the test. In this case, the defendants submit that the only Crown conduct took place back in the period from the 1950s to 1998, when the various Certificates of Public Convenience and Necessity were granted. No further authorizations are needed to conduct these tests.

[53] However, the jurisprudence does not support the submission that the duty only arises when the Crown is contemplating a decision or formal approval of some kind. Crown conduct that would trigger the duty is not confined to the exercise of statutory powers (or the royal prerogative), by or on behalf of the Crown, nor is it limited to decisions: Clyde River, at para. 25; Carrier Sekani, at para. 43; Huu-Ay-Aht First Nation v. British Columbia (Minister of Forests), 2005 BCSC 697, [2005] 3 C.N.L.R. 74, at paras. 94 and 104; Wii’litswx v. British Columbia (Minister of Forests), 2008 BCSC 1139, [2008] 4 C.N.L.R. 315, at paras. 11-15.

[54] Post-Haida Nation decisions have shown a disinclination to interpret the above framework restrictively, which is in keeping with a generous and purposive approach. This is underscored by the use of the word “conduct” rather than “decision” in the above test and by the test requiring only contemplated Crown conduct, not actual Crown conduct. Further, ordinary dictionary definitions of “conduct” suggest that it may include both acts and omissions.

[55] Although the existence of the duty to consult is a legal question in the sense that it defines a legal duty, it is typically premised on an an assessment of the facts: Haida Nation, at para. 61.

[56] The First Nations submit that the particular constellation of facts in this case constitutes sufficient Crown conduct for the purpose of triggering the duty to consult. The First Nations do not assert that there is a duty to consult in relation to all maintenance activities that may take place. They are focused on only integrity digs, hydrostatic tests and analogous activity. These tests are highly invasive from the standpoint of Aboriginal rights inasmuch as they require extensive disturbance of the lands within the traditional territories of the First Nations. This engages the asserted Aboriginal rights such as hunting, fishing and protecting burial grounds and other cultural heritage areas. The First Nations submit that the Crown has actual knowledge of the Aboriginal rights implicated by these tests, and is permitting those tests by acquiescence, tacitly approving of the testing. The First Nations submit that the tests adversely affect their Aboriginal rights. The First Nations submit that this is sufficient current Crown conduct to trigger the duty to consult, especially in this case where there was no duty to consult when these pipelines were built.

[57] The defendants submit that this is really an attack on the original pipelines approvals, which were granted before there was a recognized duty to consult. They rely on Carrier Sekani to argue against the proposed Crown duty, submitting that Carrier Sekani is the same as this case in all material respects.

[58] Carrier Sekani was a challenge to a decision of the British Columbia Utilities Commission, by which that tribunal approved a 2007 energy purchase agreement (the “2007 EPA”) for the sale of excess electricity generated by a dam. The dam itself was built in the 1950s. When the government of British Columbia authorized the building of the dam and its reservoir, which altered the amount and timing of water flows in the Nechako River, there was no recognized duty to consult. Since 1961, excess power generated by the dam was sold to BC Hydro under energy purchase agreements.

[59] The Carrier Sekani First Nation claimed the Nechako Valley as their ancestral homeland, and the right to fish in the Nechako River. They asserted that the 2007 EPA should be subject to consultation under s. 35 of the Constitution Act, 1982.

[60] In Carrier Sekani, at para. 81, the Supreme Court made short work of the question of whether the requested approval of the 2007 EPA was sufficient Crown conduct to trigger a duty to consult, holding that it clearly was proposed Crown conduct. More attention was required to deal with whether or not that conduct fulfilled the third element of the test – the possible adverse impact on Aboriginal claims or rights. The 2007 EPA was solely about selling excess power. There were no physical ramifications. Ultimately, the Court concluded that the Commission’s decision that the EPA did not adversely affect the claims or rights of the First Nation was reasonable and therefore should be upheld.

[61] Thus, Carrier Sekani is mainly about the adverse impact component of the test, rather than Crown conduct.

[62] In Carrier Sekani, the First Nation did seek to raise the impact of the dam itself on its traditional territories, in support of its position that there was an adverse impact. It argued that even if the 2007 EPA would have no impact on the Nechako River and its fisheries, the duty to consult may be triggered because the 2007 EPA was part of the larger hydro-electric project that continued to have an impact on its Aboriginal rights.

[63] The Court did not accept the above argument. It held, at para. 53, that the adverse impacts at issue were the impacts of the current decision under consideration, specifically the approval of the 2007 EPA, not the dam. There must be current Crown conduct with an adverse impact. As put in para. 54: “An order compelling consultation is only appropriate where the proposed Crown conduct, immediate or prospective, may adversely impact on established or claimed rights.” As later put in Chippewas of the Thames First Nation v. Enbridge Pipelines Inc., 2017 SCC 41, [2017] 1 S.C.R. 1099, at para. 41: “The duty to consult is not triggered by historical impacts. It is not the vehicle to address historical grievances.”

[64] However, in contrast to the facts in Carrier Sekani, in the case before me it is the invasive tests themselves that found the alleged adverse impact on Aboriginal rights. The First Nations are not relying on the impact of the construction of these pipelines in the first place.

[65] In Carrier Sekani, the Court also discussed the issue of ongoing and continuing breaches arising from the dam and electricity production powerhouse, with their impacts on the Nechako River. The issue was the extent to which prior or continuing conduct could trigger the duty to consult. However, the Court declined to decide that issue, at para. 84:

The question was whether the 2007 EPA could adversely impact the claim or rights advanced by the [Carrier Sekani] First Nation in the ongoing claims process. The issue of ongoing and continuing breach was not before the Commission, given its limited mandate, and is therefore not before this Court. [Underlining emphasis added.]

[66] However, in Carrier Sekani, at para. 49, the Court noted that prior and continuing breaches, including prior failures to consult, would only trigger a duty to consult where the present decision had the potential of causing a novel adverse impact on a present claim or existing right. This statement is relied upon by the defendants.

[67] On the defendants’ theory of the case, the maintenance work is factually part of the same potentially adverse impact to the First Nations’ rights and land as the initial approval of the pipelines themselves. It is all part of the same disturbance. However, from the First Nations’ perspective, each dig is a new disturbance to the land. It is a new adverse impact.

[68] While I accept the defendants’ suggestion that only in unusual circumstances will historic government conduct such as approving a pipeline trigger a fresh duty to consult, their theory of the case also relies on there being no new Crown conduct. It is that second question that is at issue on this motion. I do not read Carrier Sekani or any of the other cases provided as standing for the general proposition that Crown conduct only engages the duty to consult if there is a novel adverse impact. To require a novel adverse impact in every case where the impact has happened before would narrow the duty to a degree that is not consistent with the above principles.

[69] I therefore do not conclude that Carrier Sekani is the same as this case in all material respects. In summary, it was an appeal from a judicial review of administrative action and necessarily constrained by the scope of the administrative decision itself. It arose in a situation where an approval was required, there was clear Crown conduct and the determining issue was the lack of an adverse impact. The 2007 EPA had no adverse impact on the lands in question and the argument based on ongoing and continuing breach was left open at least to some extent. In contrast to Carrier Sekani, the testing at issue in this case is itself very invasive, involving extensive disturbance to land within the traditional territories of the First Nations. Further, Carrier Sekani, like the cases that came before it, shows a cautious and incremental approach, and a fact-specific approach, mandated by the Supreme Court in Haida Nation.

[70] The defendants also challenge the First Nations’ position that there is the potential that the contemplated conduct may adversely affect an Aboriginal claim or right. In the evidence put forward by TCP, the conclusion is drawn that the impact of these tests will be “negligible” “temporary” and “reversible”. This is strongly contested, which is not surprising given the extensive digging and use of heavy equipment required to conduct these tests. On its motion, the First Nations have put forward evidence of their concerns, including, for examples, destruction of sacred sites, including burial sites, disruption of wildlife feeding areas and migration routes, loss of local flora and other matters of importance to the First Nations.

[71] Various issues are also raised in response to this motion regarding the role of the NEB. The NEB submits that the First Nations ought to have sought leave to challenge its directions arising from the complaints process, although it accepts that there was no automatic right to challenge that decision. The intervenor suggests that steps should have been taken to bring the duty to consult issue before the NEB in some fashion.

[72] Submissions were also made that the involvement of the NEB itself is an indicator of Crown conduct. There is no doubt that the NEB process may constitute Crown conduct: Chippewas of the Thames First Nation; Clyde River. Further, Clyde River made it clear that an approval or decision is not required to show proposed Crown conduct.

[73] The NEB has a substantial ongoing supervisory role. As put in the NEB factum, the Board plays an ongoing regulatory role throughout the life of a project, including project applications, construction, operation and maintenance. The National Energy Board Act permits the NEB to take any measures in respect of a pipeline that are necessary for the safety and security of the public or the protection of property or the environment. Moreover, the NEB has a broad authority to make orders that it considers to be in the public interest, which can encapsulate a wide range of circumstances.

[74] Thus, the NEB has a broad ongoing role in relation to pre-existing pipelines, which extends to the circumstances of this case. That role can result in orders being made, as was done in response to the position of the First Nations in the complaints process. That role may found proposed Crown conduct.

[75] There is a continuing and significant theme in the defendants’ submissions to the effect that the NEB Guidelines and complaints process are more than sufficient to discharge any duty to consult. This gives rise to a significant issue in the context of a motion for partial summary judgment. Although there is a specific declaration sought in the statement of claim regarding the issue on this motion, the relief sought in the action goes well beyond that narrow issue and there is apparent significant overlap between the issues. The issue of whether any duty has been satisfied is not before the court, but would have to be addressed in the action even if the First Nations’ motion is successful. Similarly, there is the issue of the scope of the duty itself, which is highly fact specific, and the various relief sought. To this list, certain defendants would add other matters such as whether a duty to consult is triggered with respect to the particular land and integrity digs that give rise to this action, or any previous maintenance activities, which they submit would require an extensive evidentiary record currently not before the court. The overlap is such that the extended powers in Rule 20 would not efficiently address the issue raised on this motion separate from the other matters at issue in the action.

[76] The first issue before me is whether or not the issue raised on this motion should be decided within the process of a motion for partial summary judgment. In this case, I conclude that it would not be fair or just to either side to do so. In summary,

(i) the Supreme Court of Canada jurisprudence mandates a careful, incremental approach to the development of the law in this area, in which every case must be approached individually, and there is a continuing theme through the jurisprudence that the framework first set out in Haida Nation should be applied having significant regard for the particular factual circumstances of each case;

(ii) there are disputed facts in relation to at least the adverse impact component of the test, which is an important issue when considering whether or not there is a duty to consult and tends to inform the other components of the test;

(iii) there is also significant overlap between the factual substratum that is relevant to the issue raised on this motion and the other components of the duty to consult that must be addressed to decide the action such as scope and breach, giving rise to a significant risk of conflicting findings of fact;

(iv) the existing case law, and more specifically Carrier Sekani, is not the same as this case in all material respects and does not determine the issue of whether there is a Crown duty here – this does appear to be a novel case; and,

(v) the use of the extended fact finding powers in Rule 20 will not efficiently address the single issue on this motion and, instead, would require evidence substantially overlapping with the other issues raised in the action.

[77] Most importantly, I am not persuaded that the seemingly narrow issue raised on this motion can be fairly and justly decided using this process. It is too thin a slice of the duty to consult analysis to do justice to the position of either side within the partial summary judgment process. To bifurcate the single issue raised on this motion could result in a failure of justice. The motion for partial summary judgment is therefore dismissed.

Request to strike out Busmann affidavit

[78] The First Nations seek to strike out the affidavit of Ms. Busmann, which is one of the affidavits delivered by TCP in response to this summary judgment motion. Ms. Busmann is the Senior Manager of Indigenous Relations, Governance and U.S. with TCP. Her affidavit mainly recounts the engagement between TCP and the First Nations.

[79] The First Nations rely on Rule 25.11 of the Rules of Civil Procedure, which allows for this court to strike out all or part of any document because it is scandalous, frivolous or vexatious (subrule 25.11(b)) or an abuse of process (subrule 25.11(c)). The First Nations submit that the Busmann affidavit is irrelevant and attempts to paint the plaintiff First Nations in a negative light. Alternatively, the First Nations submit that this affidavit should be given no weight.

[80] The Busmann affidavit overlaps significantly with evidence put forward by the NEB describing the engagement between TCP and the First Nations and the ensuing complaints process at the NEB. The bulk of the affidavit seeks to demonstrate that TCP has made substantial efforts to engage with the First Nations while not necessarily receiving the expected responses and participation from the First Nations. It is apparent from other evidence, especially exhibits that appear elsewhere in the record as well, that the First Nations sought consultation with the Crown as their priority, although still participating to some degree in this third-party process.

[81] I do not see it as necessary to strike out this affidavit. To the extent that it includes negative rhetoric, it is not helpful and I have given it no weight. Further, much of the affidavit is either duplicative or irrelevant. This motion was not about whether TCP met its obligations to engage with the First Nations, nor was it about this third-party engagement process more generally. Even within the relevant context of the Crown’s duty to consult, the scope or discharge of the Crown’s duty, if there is such a duty, was also not at issue on this motion. I can and have taken all of this into account on this motion without the need to formally strike out the affidavit.

Order

[82] This motion is therefore dismissed. In accordance with Skunk v. Ketash, 2016 ONCA 841, 135 O.R. (3d) 180 at para. 62, I have specifically considered to what extent I have made determinations of law that are intended to be binding on the parties at trial. I do not intend to make any such determinations. I therefore do not invoke subrule 20.04(4). In accordance with Hryniak, at para. 78, I seize myself of this matter subject to my availability on the civil list, which may be determined through the Toronto civil motion/trial office as needed.

[83] Both the Attorney General of Canada and the NEB have already advised that regardless of the outcome of this motion they are not seeking costs. The intervenor is not entitled to seek costs. If the remaining parties are unable to agree on costs, they shall make their costs submissions in writing as follows: any party seeking costs shall deliver brief written submissions plus a costs outline by August 24, 2018 and any party from whom costs are sought shall deliver brief written responding submissions by September 21, 2018. These parties may agree on a different schedule provided that it is on consent and I am notified of it before August 24, 2018.

Justice W. Matheson

Released: July 30, 2018

Footnotes

[1] The defendants describe these lands as “alleged” or “claimed” traditional territories. The determination of those matters is not part of this motion. For this motion, I have adopted the First Nations’ terminology.

[2] The respondents repeatedly rely on statements from the affidavit of Mr. Chittick put forward by TCP that imply that the Certificates themselves refer to maintenance. This affidavit contains inadmissible evidence of domestic law and I have therefore approached it with caution.

[3] NEB factum, para 34.