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Date: 20020131 |
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Docket: CA027488 |
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CA027500 |
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Registry: Vancouver |
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COURT OF APPEAL FOR BRITISH COLUMBIA |
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NO. CA027488 |
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BETWEEN: |
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THE TAKU RIVER TLINGIT FIRST NATION and MELVIN JACK, on behalf of himself and all other members of the Taku River Tlingit First Nation |
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PETITIONERS (RESPONDENTS) (APPELLANTS ON CROSS APPEAL) |
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AND: |
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NORM RINGSTAD, in his capacity as the Project Assessment Director for the Tulsequah Chief Mine Project, SHEILA WYNN, in her capacity as the Executive Director, Environmental Assessment Office, THE MINISTER OF ENVIRONMENT, LANDS AND PARKS and THE MINISTER OF ENERGY AND MINES AND MINISTER RESPONSIBLE FOR NORTHERN DEVELOPMENT |
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RESPONDENTS (APPELLANTS) (RESPONDENTS ON CROSS APPEAL) |
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AND: |
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REDFERN RESOURCES LTD. |
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RESPONDENT (RESPONDENT) (RESPONDENT ON CROSS APPEAL) |
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- AND - NO. CA027500 |
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BETWEEN: |
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THE TAKU RIVER TLINGIT FIRST NATION and MELVIN JACK, on behalf of himself and all other members of the Taku River Tlingit First Nation |
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PETITIONERS (RESPONDENTS) (APPELLANTS ON CROSS APPEAL) |
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AND: |
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REDFERN RESOURCES LTD. |
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RESPONDENT (APPELLANT) (RESPONDENT ON CROSS APPEAL) |
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AND: |
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NORM RINGSTAD, in his capacity as the Project Assessment Director for the Tulsequah Chief Mine Project, SHEILA WYNN, in her capacity as the Executive Director, Environmental Assessment Office, THE MINISTER OF ENVIRONMENT, LANDS AND PARKS and THE MINISTER OF ENERGY AND MINES AND MINISTER RESPONSIBLE FOR NORTHERN DEVELOPMENT |
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RESPONDENTS (RESPONDENTS) (RESPONDENTS ON CROSS APPEAL) |
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Before: |
The Honourable Madam Justice Southin |
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The Honourable Madam Justice Rowles |
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The Honourable Madam Justice Huddart |
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Paul J. Pearlman, Q.C. |
Counsel for the Appellants, Norm Ringstad, Sheila Wynn, The Minister of Environment, Lands and Parks and the Minister of Energy and Mines and Minister Responsible for Northern Development and the Attorney General for British Columbia |
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Randal J. Kaardal and Lisa D. Hynes |
Counsel for the Appellant, Redfern Resources Ltd. |
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Arthur C. Pape and Beverley-Jean M. Teillet |
Counsel for the Respondents, Taku River Tlingit First Nation and Melvin Jack |
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Place and Date of Hearing: |
Vancouver, British Columbia |
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25th, 26th and 27th September, 2001 |
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Place and Date of Judgment: |
Vancouver, British Columbia |
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31st January, 2002 |
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Dissenting Reasons by:
The Honourable Madam Justice Southin
Written Reasons by:
The Honourable Madam Justice Rowles (P. 77, para. 104)
Concurred in by:
The Honourable Madam Justice Huddart
(Appendices from pp. 139-158)
Reasons for Judgment of the Honourable Madam Justice Southin:
I. INTRODUCTION
[1] In this appeal and cross-appeal from the judgment of the Honourable Madam Justice Kirkpatrick pronounced the 28th June, 2000, the root question, although it is not the question as put either by the learned trial judge or by counsel before us, is this: Who has the power to decide whether natural resources on Crown land lying within an area to which an Indian band (I use that term rather than "First Nation" because in legal matters it behoves judges to use the terminology adopted by Parliament) makes claim shall be turned to account?
[2] Does the power of decision rest with the Legislature of British Columbia under s. 92, especially head 5, and s. 92A of the Constitution Acts, 1867-1982; with the Parliament of Canada under s. 91(24) of the Constitution Act, 1867; or with the Indian band under s. 35 of Part II of the Constitution Act of 1982; or some combination, and if so, what? These are the relevant provisions:
The Legislature -
92. In each Province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of Subject next hereinafter enumerated; that is to say,-
* * *
5. The Management and Sale of the Public Lands belonging to the Province and of the Timber and Wood thereon.
* * *
92A. (1) In each province, the legislature may exclusively make laws in relation to
(a) exploration for non-renewable natural resources in the province;
(b) development, conservation and management of non-renewable natural resources and forestry resources in the province, including laws in relation to the rate of primary production therefrom; and
(c) development, conservation and management of sites and facilities in the province for the generation and production of electrical energy.
* * *
(6) Nothing in subsections (1) to (5) derogates from any powers or rights that a legislature or government of a province had immediately before the coming into force of this section.
The Parliament of Canada -
91. It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces; and for greater Certainty, but not so as to restrict the Generality of the foregoing Terms of this Section, it is hereby declared that (notwithstanding anything in this Act) the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say,-
* * *
24. Indians, and Lands reserved for the Indians.
The Indian Band -
35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.
(2) In this Act, "aboriginal peoples of Canada" includes the Indian, Inuit and Métis peoples of Canada.
Sections 92A and 35 were both enacted in 1982.
[3] The petitioners below, now the respondents, Taku River Tlingit First Nation, who numbered some 303 in 1997, most of whom resided in and about Atlin, which lies almost on the Yukon/British Columbia border, and are referred to in some of the documents as TRTFN, and to whom I shall refer, I trust acceptably, as the Tlingit, have advanced a claim of aboriginal title to a substantial area of north western British Columbia.
[4] The appellant, Redfern Resources Ltd., seeks to reopen the Tulsequah Chief Mine, which lies hard by the Alaska Panhandle. In the proceedings in issue below, it sought, under the Environmental Assessment Act, R.S.B.C. 1996, c. 119, (the "Act"), first enacted in 1994, a certificate which would permit it, among other things, to build a road from the mine to Atlin, a distance of some 108 km. The Tlingit assert this road would be detrimental to them.
[5] The Act sets out an elaborate process of information gathering and consultation for projects within its purview. The Tulsequah Chief Mine reopening is indisputably such a project.
[6] I attach as Appendix "A" the critical sections of the Act with which, I am sorry to say, the reader will have to become, to some extent, familiar if he or she has any interest in the administrative law questions which have been argued in this Court.
[7] This is the judgment under appeal [28th June, 2000]:
THIS COURT ORDERS AND DIRECTS THAT:
1. The application for a Declaration that the Report and Recommendations (the "Recommendations Report") of the Tulsequah Chief Project Committee with respect to: A Decision on a Project Approval Certificate by the Minister of Environment, Lands and Parks and the Minister of Energy and Mines and Minister Responsible for Northern Development (the "Ministers"), prepared by the Project Assessment Director and submitted to the Executive Director, Environmental Assessment Office in or about March, 1998, pursuant to s. 29 of the Environmental Assessment Act, R.S.B.C. 1996, c. 119, (the "Act") did not conform to legal requirements, is dismissed;
2. The application for a Declaration that the referral (the "Referral") by the Executive Director to the Ministers of the Application (the "Application") by Redfern Resources Ltd. ("Redfern") for a Project Approval Certificate for the Tulsequah Chief Mine Project (the "Project"), in or about March, 1998, pursuant to s. 29 of the Act did not conform to legal requirements, is dismissed;
3. The Project Approval Certificate M98-02 ("the Certificate") issued by the Ministers to Redfern for the Project, on or about March 19, 1998, pursuant to s. 30 of the Act is quashed and set aside;
4. The Certificate is referred back to the Ministers for reconsideration, after a revised project committee report, which meaningfully addresses the concerns of the Taku River Tlingit First Nation, has been delivered to the Ministers;
5. Counsel for the parties are invited to make further submission with respect to directions as to the basis on which the Certificate should be referred back to the Ministers for reconsideration.
[8] This is the judgment giving directions [27th July, 2000]:
THIS COURT ORDERS AND DIRECTS that the reconsideration proceed as follows:
1. The Executive Director, Environmental Assessment Office, or her designate, shall reconvene the Tulsequah Chief Mine Project Committee (the "Project Committee"). Before the Project Committee meets, the Executive Director or her designate will provide each member of the Project Committee with this Court's reasons for decision of June 28, 2000 and this Court's directions for the reconsideration, and request that the members review the reasons for decision and directions, the Staples' Addendum, as well as the TRTFN Recommendations Report, and refamiliarize themselves with the issues;
2. No later than September 20, 2000, the Project Committee will meet to discuss and meaningfully address the concerns of the Taku River Tlingit First Nation regarding the Tulsequah Chief mine access road and its impacts;
3. A revised draft recommendations report shall be prepared and circulated to all members of the Project Committee for their review and comment. Subject to paragraph 5 of these directions, the Project Committee may determine time lines for the receipt and circulation of comments from its members on the revised draft recommendations report, and may determine whether a further meeting of the Project Committee is required in order to ensure that the concerns of the Taku River Tlingit First Nation are adequately reflected in the revised recommendations report, before the referral to the Respondent Ministers;
4. The revised recommendations report in final form will be prepared and circulated to all members of the Project Committee;
5. Unless the Project Committee considers it necessary and appropriate to extend the time, the Executive Director, Environmental Assessment Office, will refer the application of the Respondent Redfern Resources Ltd. for a project approval certificate and the revised recommendations report to the Ministers for reconsideration by November 28, 2000. The Executive Director, Environmental Assessment Office, will also provide the Ministers with the Court's reasons for judgment of June 28, 2000 and directions for reconsideration.
From what the Court was told at the hearing of this appeal, I understand these directions, by assent of the parties, have not been carried out.
[9] The Ministers and the Attorney General, as appellants, seek to have clauses 3, 4, and 5 of the judgment of 28th June, 2000 set aside; the Taku River Tlingit First Nation, as cross-appellant, seeks to have the declarations in clauses 1 and 2 reversed and the referral in clause 4 deleted.
[10] It is convenient to mention now that the declarations in clauses 1 and 2 do not reflect a conclusion of the learned trial judge that all was properly done under the Act up to the exercise of the ministerial power under s. 29.
[11] Those declarations reflect this paragraph of her reasons:
[31] It is clear that under s. 10 of the EAA, the purpose of a project committee is to provide, inter alia, advice and recommendations to the executive director and the ministers. The recommendations, which in this case took the form of a report, were an integral part of the exercise of the Project Committee's advisory function. It is clear, however, that the role of the project committee and the executive director is merely advisory and does not amount to a power to order or determine as defined in s. 1 of the Judicial Review Procedure Act: see Save Richmond Farmland Society Western Can. Wilderness Committee v. Richmond (Township) (1988), 36 Admin. L.R. 45 (B.C.S.C.). I therefore conclude that the Recommendations Report and the Referral to the Ministers, standing alone, do not fall within the definition of statutory power and are not subject to judicial review. As noted in the Save Richmond Farmland Society decision, at 53:
For the Judicial Review Procedure Act to apply, there must be a power to decide in respect of a legal right or duty. To enable a review by the Court there must first be an exercise of the statutory power of decision.
See also Benias v. Vancouver (1983), 23 M.P.L.R. 269, 3 D.L.R. (4th) 511 (B.C.S.C.) at 272 (M.P.L.R.); and Thames Jockey Club v. N.Z. Racing Authority, [1974] 2 N.Z.L.R. 609 (S.C.) at 616.
[12] I shall address this point hereafter.
[13] As against the question in paragraph 1 which goes to the very heart of British Columbia's place in Confederation, the many administrative law questions canvassed before us are mere quillits and quiddities.
[14] Since first preparing draft reasons in this appeal, I have had the privilege of reading in draft the reasons for judgment of my colleague, Madam Justice Rowles, who does not differ, as I understand her, from me on the issues of administrative law raised before us. Our difference is in the constitutional questions.
[15] I take that from this passage of her reasons:
[108] It is on the question of whether the chambers judge erred in deciding that the Ministers of the Crown were under a duty or obligation to take into account the Tlingits' aboriginal rights before deciding to issue the Project Approval Certificate that I respectfully disagree with my colleague, Madam Justice Southin, whose draft reasons I have had the advantage of reading.
II. THE ADMINISTRATIVE LAW ISSUES
[16] It is right to consider these issues as if the objector was not aboriginal but was a "municipality in the vicinity" (see the Act, s. 9(2)(c)) who objected to this mine and all its works on the ground that, in the opinion of the inhabitants, the economic benefits from a mine were less than the economic benefits from a nascent tourism industry which would not flourish, in their opinion, if the wilderness were invaded by monstrous trucks transporting ore to Atlin.
[17] As issues of administrative law turn on a close examination of the statute in issue and of the acts of omission and commission asserted to warrant an order under the Judicial Review Procedure Act, first enacted 30th June, 1976 (S.B.C. 1976, c. 25) which came into force by proclamation on the 1st February, 1977, I must set out at dreary length the proceedings in issue.
[18] It cannot be stressed too often that the Judicial Review Procedure Act was a procedural Act. It did not make, as the respondents appear to me to be submitting, a sea change in the substantive law upon which the prerogative writs of certiorari, mandamus, and prohibition rested. That substantive law, although by no means always easy of application, essentially because of difficulties of statutory interpretation (what powers did the Legislature, by this or that phrase or word, intend to confer?), was founded upon a simple proposition: It is the duty of the Queen's judges to ensure that all those upon whom, by enactment of the Legislature (Her Majesty by and with the advice and consent of the Legislative Assembly of the Province of British Columbia), powers of decision have been conferred, remain within the powers thus conferred. In other words, those persons (tribunals) upon whom powers have been conferred, must be prevented by orders in the nature of certiorari and prohibition from arrogating to themselves powers which were not conferred and required by orders in the nature of mandamus to exercise their powers as the Legislature intended.
[19] In this context, it is useful to remember that certiorari means literally "to be more fully informed". This is illustrated by the general form of writ of certiorari to be found in the Supreme Court Rules, 1961, Appendix O, No. 1:
ELIZABETH THE SECOND, by the grace of God, of the United Kingdom, Canada and Her other Realms and Territories, QUEEN, Head of the Commonwealth, Defender of the Faith.
To [here insert directions] A. B. (and C. D. and E. F.), and to every of them, Greeting:
We being willing for certain reasons that [here insert description of order or other proceeding to be removed from the order for the certiorari] (as is said) be sent by you before Us, do command you, and every of you, that you or one of you do send forthwith under your hands [or seals], or the hand [or seal] of one of you, before Us, in the Supreme Court of British Columbia, at the Courthouse at , all and singular the said orders.
[20] The Queen's judges did not have, before the enactment of the Judicial Review Procedure Act, and were not given by it, a roving commission to find fault with decisions within the scope of the powers conferred. A judge conducting a judicial review is not sitting in appeal. He or she is deciding whether the tribunal acted within its jurisdiction.
[21] In exercising the jurisdiction of judicial review, the courts have developed some tools of statutory interpretation. As I put it in MacMillan Bloedel Ltd. v. Galiano Island Trust Committee (1995), 10 B.C.L.R. (3d) 121 at 163-64:
[93] I think it useful to recall and keep in mind certain fundamental principles....
[94] The second such principle is that the Legislature is presumed not to confer certain powers or means of exercising power, unless the contrary clearly appears from the legislation. Thus, we presume that the Legislature does not intend to confer a power to act contrary to the rules of procedural fairness or to act corruptly. We also presume that the Legislature intends a power conferred to be used only for the purposes of the power as those powers are found in the legislation (see, for instance, Roncarelli v. Duplessis (1958), [1959] S.C.R. 121). We also presume that the Legislature does not intend to confer a power to expropriate without compensation (see, for instance, British Columbia v. Tener, [1985] 1 S.C.R. 533 [28 B.C.L.R. (2d) 241, [1985] 3 W.W.R. 673]). But, by the combined effect of ss. 960 and 972, at p. 20 [p. 137], and s. 963, at p. 19 [p. 137], the Legislature of British Columbia authorizes a municipality to "downzone", an exercise of power many persons would consider equivalent to expropriation, and to do so without paying compensation. We also presume that the Legislature does not intend to confer a power to discriminate (see Kruse v. Johnson, [1898] 2 Q.B. 91), although that is a somewhat vague proposition....
[95] But the Legislature, by the terms of the enactment, may oust any or all of these principles, so long as it itself does not contravene the Constitution Acts. The presumptions are not immutable.
[22] To this I would add, after the word "corruptly", the words "or to make an unreasonable decision". In this context, "unreasonable" does not mean, in the eyes of a judge hearing an application for judicial review, "wrong". It means lacking in reason.
[23] As Lord Russell of Killowen put it in Secretary of State for Education and Science v. Tameside Metropolitan Borough, [1976] 3 All E.R. 665 at 703, "History is replete with genuine accusations of unreasonableness when all that is involved is disagreement, perhaps passionate, between reasonable people."
[24] There was what might be called a further presumption over which much judicial ink has been expended - a presumption that the Legislature did not intend to confer a power to commit errors of law. Hence, the concept of errors in law on the face of the record, a concept which requires, when the issue arises (no counsel directly addressed it here although it does seem to be lurking in the arguments), a consideration of what for the purpose of the exercise of the supervisory power is the "record".
[25] In recent years, Canada has seen a plethora of cases addressing what is broadly called "the standard of review". For me, in this case, to take a passage from this authority or from that authority would, I think, serve no useful purpose. What I must do is focus on the statute in issue. The issue to be addressed is whether the tribunal (the Minister and the responsible Minister) whose decision was quashed below, acted outside the powers conferred upon it (the Administrative Law question).
[26] That decision was the granting to the respondent, Redfern Resources Ltd. ("Redfern"), on 19th March, 1998, after a process which began three and one-half years before, of a certificate under the Act to authorize the opening of the Tulsequah Chief Mine.
[27] In addition to the principal issue, there is the issue mentioned in paragraph 11, supra, which is raised in the cross-appeal.
[28] Because the pursuit by Redfern of the certificate necessary to its commercial purpose has now been in progress seven years - as I remarked to counsel, the Second World War lasted not quite six years - I think it helpful to give a summary of events as a framework for the lengthy recital of events which this case requires.
September 1994
Redfern applies for a mine development certificate pursuant to the Mine Development Assessment Act, S.B.C. 1990, c. 55.
8th July 1994
The Act, S.B.C. 1994, c. 35, receives Royal Assent.
June 1995
The Act and B.C. Regulation 276/95 come into force.
30th June 1995
Pursuant to s. 93(5) of the Act, the responsible Minister specifies that the Redfern application should be dealt with as if it were at the stage, Draft Project Report Specifications (The Act, Part 2, Div. 7, ss. 21-24).
Project Committee undertakes its work.
October 1995
Draft Project Report Specifications.
February 1996
Final Project Report Specifications.
26th November, 1996
Redfern submits Tulsequah Chief Project Report (five volumes) to Environmental Assessment Office.
13th December, 1996
Project Committee recommends withholding acceptance for public review, citing deficiencies in the report submitted by Redfern.
18th June, 1997
Executive Director grants order allowing amendment of proposal to delete barging as a means of transporting concentrate to tidewater.
8th July, 1997
Redfern submits revised report.
1st August, 1997
Environmental Assessment Office accepts the report (s. 26) and gives required notice under s. 16 fixing the period for public submissions as 8th September, 1997, to 6th November, 1997.
Responses received are tabulated.
December 1997 to early March 1998
What occurred or, from the respondents' point of view, more importantly, what did not occur during this period, I shall set out more fully hereafter.
March 1998
Project Committee (s. 10) submits report. Not all members are in agreement. The majority recommend the granting of the certificate. The Tlingit oppose it, writing a report of their own.
19th March, 1998
Tribunal grants certificate.
11th February, 1999
Tlingit bring this petition for judicial review seeking inter alia determination of claims of aboriginal right and title.
24th June, 1999
Kirkpatrick J. orders those claims referred to trial list.
13th to 23rd March, 2000
Petition heard.
28th June, 2000
Kirkpatrick J. pronounces judgment dismissing part of petitioner's claims, quashing certificate, and inviting certain submissions.
27th July, 2000
Kirkpatrick J. delivers further reasons.
27th July, 2000
Respondents other than Redfern give notice of appeal from the judgment of 28th June, 2000.
28th July, 2000
Redfern gives notice of appeal from that judgment.
1st August, 2000
Tlingit give notice of cross-appeal from that judgment.
(a) Position of the Parties Here and Below
[29] The appellants' position is that the statute was observed in every respect and thus there was no want of jurisdiction in the tribunal when it granted the certificate.
[30] For their part, the respondents say that there were flaws in the process up to the referral. It is that attack which makes necessary a detailed account of the events.
[31] Not wishing to misstate the grounds of their attack, I set them out in their own words as contained in their outline presented to the learned judge below:
The Applicants submit that the application should be granted on the following grounds:
1. The environmental review did not conform to the purposes or satisfy the requirements of the Act, because:
[1] It was not an open, accountable and neutrally administered process;
[2] The project committee established under the Act did not carry out a thorough, timely and integrated assessment of the environmental, economic, social, cultural, heritage and health effects of the Project; and
[3] The project committee were wrong or exceeded their statutory mandate when they developed aspects of Redfern's Project themselves, including wildlife monitoring programs and access control measures, instead of reviewing the Project as proposed by Redfern.
2. The Recommendations Report did not conform to the purposes or satisfy the requirements of the Act because:
[4] For the reasons in (1), it was not the product of an environmental review process within the contemplation of the Act;
[5] It did not make the substantive decisions required by the Act, because it did not analyse and advise on the potential effects of the Project or on the prevention or mitigation of the adverse effects that would be caused by the Project;
[6] The recommendations were not based on the decision required by the Act, viz., whether the Project would promote sustainability by protecting the environment and fostering a sound economy and social well-being; and
[7] The analyses and recommendations were decided by a few government officials rather than by the project committee.
3. The Referral of Redfern's application to the Ministers did not conform to the purposes or satisfy the requirements of the Act because, for the reasons in (1) and (2), the environmental review of the Project and the Recommendations Report did not provide the Ministers with the information required for the proper exercise of their discretion under the Act.
4. The Certificate did not conform to the purposes or satisfy the requirements of the Act because:
[8] The Project will not promote sustainability by protecting the environment and fostering a sound economy and social well-being; and
[9] It was not based on an environmental review and Recommendations Report within the contemplation of and required by the Act.
5. The Ministers erred in law when they decided to issue the Certificate because:
[10] They considered irrelevant matters, viz., what they thought were the majority views of the project committee, rather than the substance of the issues raised by the review and relevant to the decision whether to issue the Certificate;
[11] They did not consider all relevant matters, viz., the matters raised in the Recommendations Report prepared for them by the Tlingit member of the project committee;
[12] They reached patently unreasonable conclusions that are not supported by the information and analyses gathered through the environmental review process; and
[13] The Certificate approves a Project that will undermine rather than achieve the dominant purpose of the Act, viz., the promotion of sustainability by protecting the environment and fostering a sound economy and social well-being.
6. The Tlingits' hunting, fishing, gathering and other traditional land use activities in the portion of their traditional territory that will be traversed and impacted by the proposed road are the exercise of aboriginal rights within s. 35 of the Constitution Act, 1982. The Certificate approves a Project that will unjustifiably infringe on the Tlingits' exercise of those rights.
7. The Tlingits have aboriginal rights within s. 35 of the Constitution Act, 1982, based on their aboriginal title to the site of Redfern's proposed mine and the portions of their territory that would be traversed and impacted by the road. The title of the Crown in right of British Columbia to the lands and resources in those areas, including mineral rights, is subject to the Tlingits' aboriginal title. The Certificate approves a Project that will unjustifiably infringe on the Tlingits' rights based on aboriginal title.
8. The base line data and analyses on wildlife and habitat provided by Redfern for the environmental review did not meet the standards required to inform the decisions the Ministers were required to make pursuant to the Act and their fiduciary obligations to the Tlingits.
9. In the circumstances of this case, when the Ministers issued the Certificate they breached fiduciary obligations owed to the Tlingits by the Crown in right of British Columbia, because:
[14] They did not substantially address the concerns raised by the Tlingits concerning the Project and its adverse impacts on their rights;
[15] They did not ensure effective protection for the Tlingits' aboriginal rights pending the conclusion of a treaty;
[16] They did not obtain the consent of the Tlingits to issue the Certificate approving the Project.
[32] They sought in the court below this relief:
1. A Declaration that the Report and Recommendations (the "Recommendations Report") of the Tulsequah Chief Project Committee With Respect To: A Decision on a Project Approval Certificate by the Minister of Environment, Lands and Parks and the Minister of Energy and Mines and Minister Responsible for Northern Development (the "Ministers"), prepared by the Project Assessment Director and submitted to the Executive Director, Environmental Assessment Office in or about March, 1998, pursuant to s. 29 of the Environmental Assessment Act, RSBC 1996, c. 119, (the "Act") did not conform to legal requirements.
2. A Declaration that the referral (the "referral") by the Executive Director to the Ministers of the Application (the "Application") by Redfern Resources Ltd. ("Redfern") for a Project Approval Certificate for the Tulsequah Chief Mine Project (the "Project"), in or about March 1998, pursuant to s. 29 of the Act did not conform to legal requirements.
3. Relief in the nature of certiorari, quashing and setting aside the Project Approval Certificate M98-02 ("the Certificate") issued by the Ministers to Redfern for the Project, on or about March 19, 1998, pursuant to s. 30 of the Act.
4. Such further and other relief as this Honourable Court may deem just.
[33] In their factum on the cross-appeal, they allege that Kirkpatrick J. erred:
1. ... in holding that the Recommendations Report and the Referral to the Ministers were not the exercise of a statutory power and therefore not subject to judicial review in their own right.
2. ... in holding that the conduct of the EAO and the Project Committee did not raise a reasonable apprehension of bias;
3. ... in referring Redfern's application back to the Ministers for their reconsideration, or in the alternative, that she erred in referring the matter back without ordering steps to correct the problems that gave rise to a reasonable apprehension of bias.
[34] The learned judge summarized her understanding of what was before her in these words [see (2000), 77 B.C.L.R. (3d) 310 (B.C.S.C.) at 319]:
[13] The petitioners' arguments for judicial review focused on four broad issues:
(a) substantive issues in the environmental review;
(b) procedural errors in the environmental review process and the production of the Recommendations Report;
(c) substantive errors in the Recommendations Report; and
(d) constitutional and fiduciary obligations;
all of which, the petitioners say, give rise to errors in the Recommendations Report, the Referral, as well as errors in the decision to grant the Certificate.
(b) The Certificate and Reasons
[35] Project Approval Certificate M98-02 was, in part, this:
WHEREAS:
A. In September 1994 Redfern submitted an application for a mine development certificate for the Tulsequah Chief mine project pursuant to the Mine Development Assessment Act S.B.C. 1990 c. 55;
B. On June 30, 1995, pursuant to s. 93(5) of the Act, the Project was transferred to the environmental assessment process at a step known as "Draft Project Report Specifications".
C. The Project Committee established pursuant to s. 9 of the Act has made recommendations to the Executive Director of the Environmental Assessment Office; and,
D. The Executive Director has referred the Application for the Project for a decision under s. 30 of the Act.
NOW THEREFORE:
The Minister of Environment, Lands and Parks, (the "Minister") with the concurrence of the Minister of Energy and Mines (the "Responsible Minster") pursuant to section 30(1)(b)(i) of the Act, hereby issues this Project Approval Certificate (the "Certificate") to Redfern subject to the following Conditions:
A. CONDITIONS
1(1) Redfern must cause the Project to be designed, located, constructed, operated, dismantled and abandoned substantially in accordance with the documents and commitments listed in Schedule A to this Certificate.
1(2) This Condition is subject to the rule of interpretation that the contents of later-dated documents listed in Schedule A to this Certificate shall vary, rescind, repeal or supersede, as the case may be, the contents of earlier-dated documents listed in Schedule A, where in the reasonable opinion of the Minister, there is a conflict or inconsistency between, or among, any of those documents.
2(1) Despite Condition 1(1), if Redfern proposes a change prior to the start of production to the design, location or construction of the Project as described in the documents listed in Schedule A, that in the reasonable opinion of the Executive Director may have the potential for significant adverse effects, and despite that the change is not a project modification subject to the provisions of the Environmental Assessment Reviewable Projects Regulation (B.C. Reg. 276/95), Redfern must provide [to] the Executive Director:
(a) notice of the proposed change; and
(b) plans, analyses, records and other information necessary for an effective assessment by the Executive Director of the proposed change.
2(2) The Executive Director, following receipt of and evaluation of information requested from Redfern under Condition 2(1), may:
(a) make a recommendation to the Minister and the Responsible Minister as to a review process, if in the opinion of the Executive Director one is necessary for an effective assessment of the change, and if the effects are potentially adverse, whether those effects may be mitigated;
(b) on approval by the Minister and the Responsible Minister of the proposed review process, establish that review process and cause it to be conducted; and
(c) on conclusion of the review process, make a recommendation to the Minister and the Responsible Minister regarding the proposed change to the Project.
2(3) On receipt of the recommendation of the Executive Director, the Minister, with the concurrence of the Responsible Minister, may approve the change to the Project in accordance with this Condition and amend this Certificate.
3 Redfern must, in the reasonable opinion of the Minister, have substantially started the Project within five years of the issue date of this Certificate.
4 This Certificate is of no force or effect until validly executed by Redfern, and signed by the Minister and Responsible Minister.
5(1) This Certificate does not constitute a permit, licence, approval or any other authority required under any other enactment.
5(2) Redfern must comply with all applicable orders, directions and conditions, and obtain and comply with all applicable tenures, licences, regulations, approvals, standards and permits, or other authorities, which may include or result from, but are not necessarily limited to, the following provincial enactments:
[Here followed a list of 26 statutes with which Redfern was obliged to comply.]
6 Redfern must:
a) implement the environmental management commitments described in the documents listed in Schedule A, to the reasonable satisfaction of the Skeena Regional Director, Ministry of Environment, Lands and Parks, Smithers.
b) implement to the satisfaction of the Skeena Regional Director, Ministry of Environment, Lands and Parks, Redfern's component of the Environmental Follow-up and Monitoring Program, contained in Appendix 11 of the Project Committee Recommendation report.
c) implement the Fish and Fish Habitat Mitigation and Compensation plan, outlined in the Environmental Follow-up and Monitoring Program referred to in Condition 6(b) to the satisfaction of the Chief Major Projects Review Unit, Habitat and Enhancement Branch, Department of Fisheries and Oceans.
d) ensure that the firearms, hunting, fishing and vehicle use policy listed in Schedule A is actively enforced and complied with by Redfern employees.
e) implement the access management plan for the Tulsequah access road, south of the O'Donnel River crossing included in Volume IV of the project report listed in Schedule A, to the satisfaction of the Skeena Regional Director, Ministry of Environment, Lands and Parks.
f) participate with the Province, First Nations and third parties in a joint management process, if established by the Province, to oversee and monitor the construction, operation, decommissioning and abandonment phases of the Project, including the monitoring and management of the potential for Project related community impacts.
g) to the satisfaction of the Regional Director, North West Region, Ministry of Transportation and Highways (MOTH), reach an agreement regarding responsibility for the additional costs that would be incurred beyond the existing MOTH Atlin highway improvement program, to meet the required specifications identified in the project committee recommendations report for the Project ore transportation on the British Columbia portion of the Atlin highway.
7 Redfern must, except in connection with granting security to Project lenders or other financing entities or financing facilities, obtain the written consent of the Minister, such consent not to be unreasonably withheld prior to disposing, whether legally, beneficially or otherwise, of:
a) this Certificate, or any right, title or interest conferred by this Certificate, or
b) the Project.
B. SUSPENSION AND CANCELLATION OF CERTIFICATE
This Certificate may be subject to cancellation, suspension in whole or in part, amendment, or the attachment of new Conditions, for any of the following reasons:
(a) the Project is not, in the reasonable opinion of the Minister, substantially started within 5 years of the date of issue of this Certificate;
(b) the Minister has reasonable and probable grounds to believe that Redfern is in default of:
i. an Order of the Supreme Court under Section 69(2), 80 or 82 of the Act,
ii. an Order of the Minister made under section 68 or 70 of the Act, or
iii. one or more requirements or Conditions of this Certificate;
(c) Redfern, or its officers or employees when acting on behalf of Redfern, have been convicted of an offence under the Act, with respect to the Project; or
(d) An Order is made, or a resolution is passed, for the winding up, or dissolution of Redfern, or Redfern is in receivership or bankruptcy proceedings.
The Conditions of this Certificate are agreed to by Redfern Resources Ltd. this 9 day of March , 1998.
[Signed]
Terry Chandler
President and Chief Executive Officer
Redfern Resources Ltd.
[Signed][Signed]
Honourable Dan Miller Honourable Cathy McGregor
Minister of Energy and Mines Minister of Environment,
and Minister Responsible Lands and Parks
for Northern Development
Issued this 19th day of March , 1998.
[36] Schedule A, which was "List of Documents Comprising the Tulsequah Chief Application and Project Report", is three pages long and, by my count, comprises some 39 documents, some obviously long and some short. I have attached to these reasons, as Appendix "B", that schedule with the pages in the appeal book at which such of the documents as were in the various affidavits may be found.
[37] I do so because no complete version of the certificate is found in one place in any of the affidavits. Whatever else the "record" consists of in a matter of this kind, all the documents incorporated in the instrument sought to be quashed are an integral part of it.
[38] By the Act, the Ministers were required to give reasons for decision and this is the document so described, dated 19th March, 1998:
REASONS FOR MINISTERS' DECISION
UNDER SECTION 30(1)(c) OF THE ACT
The Minister of Environment, Lands and Parks (the "Minister") and the Minister of Energy and Mines and Minister Responsible for Northern Development (the "Responsible Minister") considered Redfern's application and the Project Committee's recommendations. The Minister, with the concurrence of the Responsible Minister, issued Project Approval Certificate M98-02 (the "Certificate") approving the Project, subject to conditions.
The following are the Ministers' reasons for issuing the Certificate:
The majority of the members of the Project Committee consider that:
[1] all major technical and policy issues related to the Project have been identified and are manageable to acceptable levels with the implementation of the mitigation strategies identified in the documents listed in Schedule A to the referral from the Executive Director and through subsequent compliance with statutory permit, licence, approval and other authorization requirements;
[2] the development of the Project, with the successful implementation and compliance of the identified impact management and compensation strategies and the follow-up and monitoring program, is not expected to cause significant adverse environmental effects; and
[3] measures with respect to distribution of information about the Project were adequate under the Act.
It is convenient to note now that each of the parties has a bone to pick arising from this document. The Tlingit say that, although it is entitled "Reasons", it does not constitute "Reasons" at all within the meaning of the word in the Act. The appellants say that the learned trial judge improperly drew an inference from the brief period which elapsed between the Recommendations Report and the issuance of this document of a failure of duty on the part of the tribunal. I address these points hereafter.
(c) The Course of Proceedings under the Environmental Review Process
[39] What had happened before 30th June, 1995 (see recital B in the certificate) is described thus in a document, "Draft Project Report Specifications" (see s. 21 of the Act) dated October 1995. As it occupies some 58 pages of the appeal book, I shall not quote it in full, but it said this:
Project Committee
In keeping with the spirit of the new Environmental Assessment Act, the MDAP [Mine Development Assessment Process], in November 1994, set up the Tulsequah Chief Project Committee to coordinate the overall review of the project proposal. The Committee is chaired by a Project Director for the British Columbia Environmental Assessment Office, acting on behalf of the Executive Director of that office. Representatives of the British Columbia and Canadian federal governments, Taku River, Tlingit First Nation, and the Atlin Advisory Planning Commission were invited to participate in the work of the Committee. As well, because of the proximity of the project to the United States border, the Alaska State and the United States federal review agencies were invited to sit as full members on the Committee to consider potential transboundary effects. U.S. participation on the project Committee was also sought to maintain a coordinated review of any proposed Alaskan portions of transportation routes that lie outside Canadian jurisdiction, and which would require U.S. and Alaskan permits and/or approvals. Appendix 13 to this document contains guidelines for project committees under the EA process.
Application Review
The original two volume submission was distributed for review and comment to the following review participants. In addition, the three volumes revising the project plans were provided to agencies participating in a February 1995 Review Workshop held in Vancouver (see Appendix 2), and to additional participants identified at that workshop.
[40] There followed a two page list of government agencies - provincial, federal and foreign (i.e. Alaskan), First Nations, and persons thought to be "interested parties" including the Sierra Club, the Taku River Recreation Association, the local Member of Parliament, and so forth.
[41] In February 1996, the Final Project Report Specifications were issued pursuant to s. 24(a). This document is some 80 pages long. As to First Nations consultation, it says, in part:
3.5 First Nations Consultation
The project is located in an area of Northwestern British Columbia which is currently the subject of treaty negotiations between the provincial government and the Taku River Tlingit First Nation (TRTFN). Because of its direct interest in the land and resources of the area, TRTFN is participating as a project committee member as legislated by the Environmental Assessment Act. Presence on the committee ensures that First Nations have an arena to identify their interests, are provided with all information, and can contribute valuable local knowledge to project design and planning. Additionally, "sidebar" meetings are held with First Nations in their own communities, with review agency staff and company representatives, to ensure direct community-based communication.
The proponent first met with TRTFN representatives on June 16, 1993 to discuss their exploration activities, issues of concern to TRTFN and information requirements. Since that time the proponent has met with TRTFN representatives on a number of occasions to discuss various aspects regarding project development and involvement of the TRTFN.
The proponent has met directly with TRTFN representatives in Atlin on several occasions, and hired TRTFN members to assist with summer exploration activities. The proponent has expressed the commitment to include the TRTFN in the benefits of the project to the maximum extent possible, including sharing in project planning, training, jobs and contracting opportunities. The proponent held an open house and meeting with the TRTFN in Atlin on February 15, 1995 to present its Pre-Application and elicit response. As required by the review process, the proponent has contracted an independent consultant to conduct archaeology and ethnographic studies, with the input of the TRTFN, to identify potential impacts on the TRTFN traditional way of life.
In a document dated 29 September, 1995 entitled "What We Need to Know" Information Requirements for Redfern Resources' Project Report for Tulsequah Chief Mine, TRTFN submitted its list of information requirements for the proponent's Project Report (see Appendix 5). In general, TRTFN requires information on wildlife impact, terrain sensitivity, barging impacts, mine development activities and plans (including abandonment), and the effects of a new road into the Taku. These issues have also been raised by review agencies and have been incorporated into the final Project Report Specifications. TRTFN also requests that the proponent conduct a community impact assessment of the project on Atlin.
Additionally, at various meetings held during the initial stages of review, the TRTFN has provided the following verbal comments:
[1] Impacts on fishery: Although the TRTFN is supportive of genetic diversity, discussions surrounding the protection of fisheries should recognize that King and Sockeye salmon are of commercial significance to the Tlingits. There is not a commercial market for Dolly Varden.
[2] The TRTFN is especially concerned with protection of wildlife, and requests the review to ensure that all necessary baseline studies have been conducted, and that stringent protection and/or enhancement strategies will be required as a condition of approval.
[3] The TRTFN does not consider that it has sufficient information on the barging option to provide a considered response. The TRTFN advises that it is concerned regarding:
- wake/erosion effects on homes and waterfronts;
- safety issues and damage to fishing nets; and
- impact on the commercial fishery;
The TRTFN has clearly articulated that uppermost in their concerns is the proposal for a new road. Issues regarding new access are shared by the community as a whole, and are indeed appearing to emerge as contentious in relation to the project. Accordingly, the project committee is requiring the proponent to address the access question in depth, as evidenced by line agency comments and information requirements expressed in Section 4 of this document.
The overall TRTFN response is provided for the proponents information. Further requirements of the TRTFN are incorporated into the body of this report and detailed under the appropriate heading of Section 4.
[42] Thus, by February 1996, what has always been, and still is, the Tlingit's main sticking point - the location of the road from the mine to Atlin - had become clear.
[43] Under the statute, by s. 24(b), the proponent is required, once the specifications are at hand, to prepare a "project report". What happened thereafter is described thus in a Time Limit Order - the validity of which is not disputed - not made until March 1998:
C. The proponent prepared and submitted a five volume project report, entitled "Redfern Resources Ltd. - Tulsequah Chief Project Report" to the Environmental Assessment Office on November 26, 1996, and copies were also distributed to Project Committee members. On December 13, 1996, the Project Committee recommended withholding acceptance of the project report for review, as the project report had a number of deficiencies that required revision prior to accepting the project report for public review.
D. On July 4, 1997, the proponent resubmitted a revised project report to the Environmental Assessment Office which was accepted for public review on August 1, 1997. Notice was given to the public inviting comments about the potential effects of the project, with the period for submission of comments set at 60 days, commencing September 8, 1997, and ending November 6, 1997.
[44] The substance of the comments received from the public concerning this project was not addressed at the hearing of this appeal.
[45] In March 1998, the Recommendations Report, which consists of 110 pages of "recommendations" and report and some 268 pages of appendices was submitted. Because of its length, it is not feasible to set it out in full, but it ends at page 103 with "Project Committee Recommendations and Reasons" which continue to page 108 and which I attach as Appendix "C" to this judgment.
[46] Appendix "C" discloses that the Tlingit were opposed to the recommendation of the majority for it ends with this note:
* - March 6, 1998, [Tlingit] requested more detailed information regarding wildlife, aquatic resources and access to the Taku River Valley
- requested an extension of the review to provide this and full project committee meetings to discuss.
** - TRTFN indicated by letter July 25, 1997, that the project report met the project specifications provided that a report pertaining to traditional land use was completed. This report was completed in August 1997 and the project report was accepted at that time. At a later date (March 6, 1998) the TRTFN indicated there were certain information deficiencies in the assessment.
[47] The minority report (whether the Ministers were given it, we do not know) is of some 65 pages. Its introduction sums up the position of the Tlingit on the alleged flaws in the process:
INTRODUCTION
At the beginning of this week we received the draft report prepared by the B.C. Environmental Assessment Office respecting a recommendation to be made under Sec.29 of the province's Environmental Assessment Act regarding the proposed Tulsequah Chief mine re-opening project. We have reviewed the EAO report and have found it fundamentally flawed, both in terms of content and the process used to create it. As a result, we have prepared this alternate report which we believe more accurately reflects a number of key issues that should be considered by the Project Committee members prior to formulating a recommendation to the government. It has always been our understanding, and we have in the past so requested of the EAO, that there would be an opportunity at the end of the day for the Project Committee to convene as a team of assessors, without the proponent present, to deliberate on the findings of the assessment process and to formulate in an integrated fashion our ultimate recommendation.
It is our contention that, contrary to the picture portrayed in the EAO report, the information before us is not adequate to conclude that the impacts of the project are properly understood. Additionally, we cannot affirm that we have in place the necessary mitigation measures, including monitoring programs, that will ensure sound environmental management of the project. In the text that follows we will elaborate fully on the reasons why we hold this position. The outstanding issues as this review draws to completion are, as we shall demonstrate, substantive, far-reaching, and range in duration far beyond the lifetime of this project.
We shall note here, but not pursue further, our dismay with the abuse of the environmental review process in the last few weeks prior to completion of this report. When it became apparent that substantive deficiencies existed with the information presented by the proponent, Redfern Resources, the Project Committee under the direction of the EAO engaged in a bizarre exercise of attempting to complete the work the proponent failed to do. This activity was primarily in the area of designing a number of environmental monitoring programs stipulated by the Project Report Specifications (but not provided) that the Project Committee rightly saw would be required to ensure the environmental soundness of the project. The effect of this was to greatly intensify the work assumed by committee members and to impose substantial cost burdens on the review. It also meant that we had to go significantly beyond our regulated timeline for review in order to complete the work. As it turns out, much of the work still falls short of what is required to assure us prior to approving the project that the programs being proposed will be workable, meaningful, and effective.
More importantly, doing the work of the proponent, we contend, is beyond the mandate set out in the Environmental Assessment Act and strains our independence as objective assessors of the project. If we do the work, how can we objectively evaluate it? Who shall bear the liability if the programs fail in the long-term? This whole exercise has resulted in both a delay for completing the review which has frustrated the proponent and the Project Committee, and a general abuse of the process which sets a harmful precedent for future reviews.
This report will focus on those areas where a rigorous and honest assessment of the issues has led clearly to conclusions and recommendations which differ from those set out in the EAO Recommendations Report. As we will argue below, to approve the project at this time will be done in the face of great uncertainty about potentially significant impacts and at the risk of destroying the credibility of the environmental review process.
* * *
The problem is that the Project Committee has never met to discuss the results of the various sub-committees which have been reviewing the complex and technical issues to assist in the assessment. There has been a one hour or so meeting of the full Committee in January of this year to receive a presentation from the Northwest Institute for Bioregional Studies, but nothing more. The Project Committee has not had an opportunity to consider all the information now available for the application, and has not had an opportunity to deliberate as a team of assessors and formulate its recommendation.
* * *
It is unconscionable that this conclusion, one with far-reaching and irreversible consequences for northwestern British Columbia, should be formulated unilaterally behind the scenes and circulated to the Project Committee members - individually and without benefit of even a teleconference - for their approval. It is for that reason that we have found it necessary to write this report
* * *
The issues relating to the road are numerous and complex. There is, first of all, the strategic issue of building a 160 km road into the pristine wilderness of the Taku drainage. The region represents the last major Pacific drainage in Canada that has to date escaped the effects of major industrial development. True, small-scale historic mining has taken place in the Tulsequah valley, but movement into and out of the area was by river barge, and the effects of much of this development have long been removed by natural erosional processes. The small waste rock dumps and mine water currently discharging acid drainage into the river at the old Tulsequah Chief operation remain as impacts scars on the landscape.
The strategic issue surfaces not only because of the national and provincial significance of the affected landscape, but also because the area in question is the subject of treaty negotiations between the Crown and the Taku River Tlingit First Nation. Additionally, the area is proposed as a candidate in the near future for land use planning by, respectively, TRTFN and the Province. These issues, key to the stated intent of the Act, have not been addressed as part of the EAO Recommendations Report, and we discuss this problem below.
Beyond the question of whether or not the road should be built, now or ever, lies the issue of whether or not the most environmentally acceptable route has been chosen. Has the necessary work been conducted to allow us to choose the optimum route? Are plans for construction sufficiently developed so that assessors can feel comfortable that the road can and will be constructed in an environmentally sound fashion?
[48] They then go on to discuss all the various issues, all of which I think can fairly be said to be related to a fear of environmental degradation from this project, at least as it was proposed by the proponent. Whether this fear is justified is not an issue which as a matter of law can arise in these proceedings for judicial review. The power of judicial review is not a power to be exercised by the judge asking himself or herself, "Would I, if I had been the tribunal, have done what the tribunal did?"
[49] What the Tlingit say are the facts as to the events which occurred between the end of the public process and the making of the report is set out in their petition under the heading, "The facts upon which this Petition is based are as follows":
17. Redfern re-submitted its project report on July 8, 1997. The Executive Director accepted it for review on August 1, but asked Redfern to delay distribution until Staples finished his report, which he did later that month. The statutory public review period for Redfern's project report was scheduled for September 8 to November 6, 1997. It was later agreed, at the urging of the Tlingits, that Staples' report did not adequately address the impacts issue. He was given an extension to complete that work, and his amended chapter on socio-economic impacts was submitted on December 23, 1997.
18. Meetings of the wildlife/access sub-committee were held in December, January and February, in which it was agreed that a number of issues were still unresolved, including:
[1] a modified route (Warm Bay) had emerged as an alternative for the northern third of the Redfern road, but no study had been done to compare its impacts to Redfern's preferred route;
[2] Redfern had not provided adequate multi-year base-line data on wildlife and habitat;
[3] Redfern's habitat information and analyses were not adequate;
[4] Redfern had provided inadequate information on the Shazah Pass goat population and the Southern Lakes caribou.
No new information or reports were developed on those issues, nor were they resolved in the sub-committee.
19. However the summary of issues prepared for the committee by Ringstad at the end of February said that B.C. government departments were satisfied on all these issues, and that only the Tlingits considered that they were still unresolved. These problems were never discussed in the committee as a whole.
20. Ringstad and B.C. government members of the committee appeared to agree, at the end of the review process, that Redfern's project report contained unacceptable proposals in two important areas: programs to monitor the Project's impacts on wildlife, and mechanisms for controlling the increased access to wildlife populations that would be caused by the northern third of the proposed road, from Atlin to the O'Donnel River. Rather than require Redfern to remedy these serious deficiencies, government officials on the wildlife/access sub-committee undertook the design of monitoring and access control programs for the Project. The Tlingits objected to this shift away from the committee's mandated role as reviewer of Redfern's project report. Nonetheless sub-committee members worked through February to design the Project's monitoring plans, and an official from the Ministry of Environment, Lands and Parks ("MELP") wrote a letter on March 2, setting out the Project's access management plan.
21. As a result of a number of expert reports and the many discussions in sub-committees, several fundamental problems with the Project had emerged, particularly with respect to the serious impacts the proposed road would have on wildlife and the Tlingits' economy and culture, and the inability of the proponent or government to mitigate those. The Tlingits requested meetings of the committee as a whole, so that reasoned collective decisions could be made about the conclusions and recommendations the committee was required to provide to the Executive Director and the Ministers, based on all the information and analyses that had been gathered.
22. Ringstad and other EAO staff had repeatedly assured the Tlingits that such meetings would be held. The entire committee was scheduled to meet together for a week from January 12-16, 1998, to review the work of the sub-committees and work out the substance of the committee's Recommendations Report. But no such meetings were ever held.
23. Instead, the EAO informed members of the committee on February 26, 1998, that a draft of the Recommendations Report was being prepared by the EAO, and would be sent out for review on March 2, for a final sign-off by March 4. The Tlingits protested this decision to both Ringstad and the Executive Director, but received no response from either. The draft of the committee's report was sent out on March 3. It contained a conclusion that there was no reason not to grant Redfern a project approval certificate.
* * *
28. In his report commissioned by the EAO, Staples said these losses would be cumulative, because placer mining in the Atlin area had already caused land-use adjustments and the loss of animal populations and habitat. He concluded that the proposed road would impact on resources harvested by the Tlingits and interfere with their land use and cultural activities. He reported that this traditional land use, including hunting, fishing and gathering, is still the critical pillar of community stability, household economies and well-being and cultural identity for the Tlingits, that these activities have been the bedrock for maintaining their culture and values up to the present, and are the basis for them building a sustainable future.
29. Most important for an assessment process under the Act, Staples concluded that neither the proponent, the province nor the Tlingits would be able to mitigate these impacts, and that the proposed road would preclude the Tlingits from having the opportunity to shape their own vision for land use and a treaty settlement for a large part of their traditional territory.
30. No report disagreed with these very serious conclusions. No report suggested any way that the Tlingits would be able to successfully adapt their land use or harvesting patterns in the face of these predicted impacts in the heartland of their territory. The substance of the issues raised by Staples report was never discussed in sub-committee or committee meetings, and was avoided in the Recommendations Report published by the EAO in the name of the committee. The Ministers' reasons for decision, required by s. 30(d) of the Act, do not discuss the issue. The Certificate contains no terms or conditions that address it.
31. From the beginning to the end of the process, the Tlingits criticized the quality of the data and analysis on wildlife populations and habitat provided by Redfern. They continuously raised the issue, because of their people's heavy reliance on those resources. Solid expert reports provided to the process by Joanne Siderius, Rick Farnell, Norm Barichello and Alejandro Frid supported the view that Redfern's data and analyses did not satisfy accepted professional standards, or make possible the reliable assessment of potential impacts of the proposed road, or provide a base-line for effective monitoring of impacts if the road is constructed, or serve as a foundation for effective planning, mitigation measures or adaptive management strategies.
[50] Because the Rules of Court in this Province do not require an answer to the statement of facts asserted in a petition, one must go to the affidavits filed both in support and in response to ascertain whether the facts asserted are established or no.
[51] By recounting hereafter passages from the affidavits, I am not implicitly deciding that all that is in them was admissible for all purposes. In applications for orders in the nature of certiorari, evidence outside the record can only properly go to questions of want of jurisdiction on grounds, for instance, of bias, corruption, and lack of procedural fairness, when those questions are open on a proper reading of the statute in issue.
[52] In their amended petition, the Tlingit listed twenty affidavits to be read in support. I think it is fair to say that the principal affidavit on the issues before the learned trial judge (some of them refer to the issues which were sent to the trial list) was that of Tony Pearse, which occupies, including exhibits, some 1,000 pages of the appeal book.
[53] The text is simply this:
I, Tony Pearse, of Mayne Island in the Province of British Columbia, MAKE OATH AND SAY THAT:
1. I am a resource planner, and as such I have personal knowledge of the matters to which I hereinafter depose, except where stated to be on information and belief, and as to those last said matters, I verily believe them to be true.
2. Attached to this Affidavit and marked as Exhibit "A" is a copy of my Curriculum Vitae, setting out my professional and academic experience and qualifications.
3. Attached to this Affidavit and marked as Exhibit "B" is a copy of the Report that I prepared at the request of the Applicants, respecting the environmental assessment and approval process for the Tulsequah Chief Mine Proposal ("my Report").
4. The matters addressed in my Report are within fields in which I have expertise, as shown by my Curriculum Vitae.
5. The facts stated in my Report are based on my personal knowledge or information and belief, and I verily believe that they are all true.
6. My Report and the opinions in it are based on my professional and academic experience and work.
[54] The report Exhibit "B" began thus:
INTRODUCTION
1. From February of 1995 to March 1998 I consulted to the Taku River Tlingit First Nation (TRTFN or Tlingits, hereafter) as technical advisor on the Tulsequah Chief mine re-opening project being proposed by Redfern Resources Ltd.
2. During this period my principal task was to provide technical support to the Tlingit member of the Tulsequah Chief project committee, a committee established under the B.C. Environmental Assessment Act to review and make recommendations to the Minister of Environment, Lands and Parks and Minister responsible for the project being considered, about the environmental acceptability of the project and any terms and conditions that should accompany approval.
3. In this report I do two things. In Part One I provide a chronological overview of the process that was administered by the Environmental Assessment Office (EAO) to review the Tulsequah project as proposed by Redfern Resources Ltd., the proponent. This overview is provided from the perspective of the Tlingits' position as a member of the project committee. In Part Two I explain more fully how several of the issues of paramount concern to the Tlingits were dealt with during the environmental assessment process.
[Emphasis mine.]
[55] In those emphasized words lies the root of the difficulty here. The principal deponents, Mr. Pearse, for the Tlingit, and Mr. Ringstad, for the appellants, have a different perspective. This is not surprising, nor do I mention it by way of criticism. It is simply the way things are.
[56] On the footing that paragraphs expressly mentioned in the affidavit in reply of Mr. Ringstad are considered critical, I quote those paragraphs [of Exhibit "B" to Mr. Pearse's affidavit of 9th February, 1999]:
16. Release of the draft Project Report Specifications from the EAO happened on November 28, 1995. A review of the draft document revealed that the information requirements submitted by the Tlingit had been treated differently than the requirements from other government agencies. That is, the Tlingit comments were attached as an appendix to the main document, and referenced only in a prefatory section of the main document entitled "First Nations Consultation", where it was stated:
"The overall TRTFN response is provided for the information of the proponent." [p.xvii]
51. On May 28, 1997, the first meeting of an "Aboriginal Study Steering Group" was held to define the terms of reference for a new traditional land use study that would be conducted by Lindsay Staples and funded by the EAO. A second meeting was held June 21 to further refine the terms of reference and to establish timelines for draft and final reports.
52. Redfern submitted its revised Project Report on July 8, 1997. The project director requested project committee members to submit their recommendations by July 30 as to whether the report had met the form of the Project Report Specifications and could be accepted for review. Since at this point Staples' study was not finished, the project director noted that until this study had been received and distributed along with the Project Report, the public review period would not commence.
63. During this same meeting, Karen Diemert, who had replaced Lorne McIntosh as the lead wildlife reviewer for MELP Skeena Region, stated that the proponent had not satisfied the Project Report Specifications on wildlife matters. She also stated at one point that the ministry did not consider gated roads as an effective mitigation option for wildlife impacts. This caused an immediate reaction by Ringstad who bolted from his seat and left the room. He told me a few minutes later in the hall that he had placed a call on his cellular phone to the executive director, Sheila Wynn, to report Karen's remarks. He also told me that Karen had no right to make that statement. He was obviously upset. At a later point during the meeting while Karen was absent, Garry Alexander made a comment that Karen's position did not reflect the ministry's position.
70. What turned out to be the last wildlife subcommittee meeting took place on February 12th and 13th by teleconference. Susan Carlick and I attended this meeting on behalf of the Tlingits. Norm Ringstad stated that he expected to distribute a draft EAO Recommendations Report to the project committee members the following week for their review. This was a surprise to the Tlingits since there remained many issues yet to be resolved. Susan Carlick expressed concerns about this and reiterated the Tlingits' expectation that the project committee would still meet together, in person, once the work of the subcommittees had been completed. She expressed the Tlingits' position that the subcommittee was spending too much time doing the work of the proponent (primarily designing wildlife monitoring programs) that should have been done long ago, and we had yet to discuss important issues of concern to the Tlingits. In response to this Ringstad was vague about what would happen next, but said that he thought our suggestion for a teleconference with the full committee at the beginning of the following week to talk about how to bring this all to a conclusion, was a good one. However, he did not commit to this (or any other plan), and the teleconference never happened.
[57] The appellant Ringstad filed an affidavit sworn 30th April, 1999, which, with exhibits, is some 600 pages. It includes minutes of meetings, committee summary of conference calls, minutes of workshops, as well as such documents as to which I have already referred as the Project Approval Certificate and so on. As to what happened, he deposed as follows:
42. To assist in its review of the project report, the Project Committee established technical subcommittees to provide arenas within which participants with overlapping mandates, or areas of interest, could discuss issues of mutual concern, identify, and clarify outstanding issues, and further assessment requirements with Redfern, and to seek consensus on which issues were not of a strategic nature, and could be adequately dealt with at the statutory permitting level.
43. Technical subcommittees were established, or continued, from the previous Mine Development Assessment Process for Acid Rock Drainage (ARD)/metal leaching and water quality, wildlife/ aquatic resources and access related issues, and cumulative effects.
44. The key Project Committee members, including the TRTFN, Ministry of Environment, Lands and Parks, Department of Fisheries and Oceans, Environment Canada, Ministry of Forests, and the United States representatives in some instances, participated actively in the work of the subcommittees.
45. In order to facilitate the identification and resolution of all issues raised by the public, review agencies and Project Committee members, I developed and implemented an "issue tracking" document which the technical subcommittees used to guide their discussions. The issue tracking process incorporated and took into consideration all issues raised by government review agencies, Project Committee members, including the TRTFN, the public and stakeholders. In particular, the following studies commissioned by the Northwest Institute for Bioregional Studies provided to the Project Committee during the public comment period were also fully incorporated and considered in the issue tracking process and considered in the overall project assessment:
[1] Technical Analysis of Proposed Tulsequah Chief Mine, prepared by Glenda Ferris, November 3, 1997
[2] Proposed Avalanche Assessment of the Proposed Tulsequah Road, prepared by Hector MacKenzie and Christoph Dietzfelbinger, October 31, 1997
[3] An Evaluation of Wildlife Research Related to the Proposed Tulsequah Chief Mine, prepared by Alejandro Frid, October 31, 1997 (Exhibit "B" to the Affidavit of Alejandro Frid)
[4] An evaluation of Rescan's Wildlife Sections of the Environmental Assessment for the Proposed Tulsequah Chief Mine, prepared by Norman Barichello, October 31, 1997 (Exhibit "B" to the Affidavit of Norman Barichello)
46. The final version of the issue tracking document is Appendix 6 of the Appendices to the Project Committee Recommendations Report, which is marked as Exhibit "B" to my Affidavit. I directed my staff to provide drafts and updates of the issue tracking document to subcommittee members on November 13 and December 17, 1997; January 27, February 27, and March 2, 1998, to record the results of subcommittee meetings and progress on issues as they were addressed.
47. The Project Committee Recommendations Report was provided to Project Committee members for their review and sign-off on March 3, 1998.
48. Prior to that time, I had my staff provide to all Project Committee members on January 6, 1998, the materials which were ultimately incorporated as the first [31] pages of the Project Committee Recommendations Report, which contain the Table of Contents, an outline of the purpose of the document, a summary of the review processes, the provincial/ federal co-operation agreement, and relationships with neighbouring jurisdictions, site history, project description, scope of project and project review, and a summary of the project review process, including public and First Nations consultation undertaken.
49. Section 5 of the Project Committee Recommendations Report consists of alternatives considered, consideration of potential for effects and means of preventing or mitigating adverse effects, and makes up the next [61] pages. Section 5 also includes a summary of the results of the issue tracking process. As I have stated in paragraph 45 of my Affidavit, drafts of the issue tracking document, as it was revised from time to time during the EAA process were provided to the subcommittee members, including the TRTFN representatives.
50. Sections 6 and 7 of the Project Committee Recommendations Report, consisting of [18] pages, were first provided to Project Committee members as part of the complete Project Committee Recommendations Report on March 3, 1998.
51. The majority of Project Committee members agreed to refer the application to the ministers and also agreed to recommend approval for the project subject to recommendations and conditions which are outlined on pages 6-9 of Exhibit "B".
* * *
70. Between mid January 1998 and March 12, 1998, Mr. Tony Pearse, on behalf of the TRTFN made numerous requests for technical information relating to wildlife/access issues, including route selection, road design, route construction feasibility, ungulate monitoring and Forest Practices Code requirements for approval of the mine access road by Special Use Permit.
71. As chair of the Project Committee, I requested that the responsible provincial or federal agencies respond to each of these requests.
72. The requests made by Mr. Pearse and the responses provided to him included the following correspondence, all of which is collectively marked as Exhibit "K" to my Affidavit:
[1] Jan. 22, 1998 Tony Pearse to Karen Diemert, re Ungulate Monitoring Program
[2] Jan. 29, 1998 J. Schwab, L.M. Kelly, Milt Moore, MoF, to Norm Ringstad, re Access Road
[3] Feb. 9, 1998 L.M. Kelly, MoF, to Norm Ringstad, re Winter Access Construction to Sloko River
[4] Feb. 9, 1998 L.M. Kelly, MoF, to Norm Ringstad, re Access Road, with Forest Practices Code material
[5] Feb. 9, 1998 L.M. Kelly, MoF, to Norm Ringstad, re Winter Access Construction to Sloko River
[6] Feb. 14, 1998 Tony Pearse to Loren Kelly, re Winter Road
[7] Feb. 14, 1998 Tony Pearse to Terry Chandler, Redfern, re Access Road Construction
[8] Feb. 15, 1998 Tony Pearse to Norm Ringstad, re Wildlife Monitoring
[9] Feb. 15, 1998 Tony Pearse to Terry Chandler, Redfern, re Environmental Monitoring
[10] Feb. 17, 1998 Tony Pearse to Wally Bergen, Ministry of Energy and Mines (MEM), re Mine Access Road
[11] Feb. 17, 1998 Terry Chandler, Redfern, to Tony Pearse, re Response
[12] Feb. 18, 1998 T.D. Pearse to Garry Alexander, MELP, re Access Route Selection
[13] Feb. 26, 1998 L.M. Kelly to Norm Ringstad, re Final Comments
[14] Mar. 2, 1998 Tim Eaton, Ministry of Energy and Mines, to T.D. Pearse, re Geotechnical Review
[15] Mar. 2, 1998 Garry Alexander, MELP, to Tony Pearse, re Access Route
[16] Mar. 2, 1998 Jim Yardley, MELP, to Tony Pearse, re Wildlife Access Management Plan
[17] Mar. 2, 1998 L.M. Kelly, MoF, to Tony Pearse, re Winter Road, with excerpts of Forest Practices Board Audit Report
[18] Mar. 9, 1998 L.M. Kelly, MoF to Norm Ringstad, re Response to Environment Canada
[19] Mar. 9, 1998 Wally Bergen, MEM, to Norm Ringstad, re Commitment to Monitoring
[20] Mar. 10, 1998 Garry Alexander, MELP, to Norm Ringstad, re Environment Canada letter
[21] Mar. 10, 1998 L.M. Kelly, MoF, to Norm Ringstad, re Environmental Monitoring
[22] Mar. 11, 1998 L.M. Kelly, MoF, to Norm Ringstad, re Potential Heritage Trail Conflicts
[23] Mar. 12, 1998 L.M. Kelly, MoF, to Norm Ringstad, re TRTFN - Heritage Trail Conflicts
73. I have read the Affidavit of Tony Pearse filed in these proceedings and wish to reply to a number of points he raised, which I have not addressed elsewhere in this Affidavit.
74. In paragraph 16 of his Affidavit, Mr. Pearse asserts that in the draft project report specifications of November 28, 1995, the information requirements of the TRTFN were treated differently than the requirements of other government agencies. In fact, throughout the environmental review process for the Tulsequah Chief Project, the Project Committee followed the practice of collecting information and comments on any given issue, and then having the responsible agency, that is the agency primarily responsible for the particular subject (for example, MELP in the case of wildlife or the Ministry of Forests in the case of geotechnical and engineering design for the access road) determine the type and level of information needed to ensure that the strategic, technical, and policy issues relating to that particular topic were resolved, or would be resolved, at the permitting stage.
[The reference, "In paragraph 16 of his Affidavit" is not precisely correct. The reference should be to "paragraph 16 of Exhibit "B" to his Affidavit". The same is true of all the other paragraphs of Mr. Pearse's "Affidavit" specifically referred to by Mr. Ringstad.]
75. The TRTFN frequently sought information at the level of detail which would be required at the permitting stage of the process, rather than at the level required to enable the Ministers to make a decision regarding the issuance of a project approval certificate.
76. When a responsible agency, such as MELP, made a decision on the level of information required for project certification, it did so after taking into account the views expressed and comments made by the TRTFN, and other members of the Project Committee.
77. In paragraph 51 of his Affidavit, Mr. Pearse refers to the May 28, 1997, meeting of the "Aboriginal Study Steering Group", which was held to define the terms of reference for a new traditional land use study following TRTFN criticism of the work performed for Redfern by Mr. John Dewhirst. The members of that Group agreed that the work done by Redfern on TRTFN traditional and current land use was not adequate, and I recognized that the TRTFN had a particular interest in traditional and current land use. The Aboriginal Study Steering Group was established on my initiative, and I arranged to have the Environmental Assessment Office pay for the land use study performed by Mr. Lindsay Staples. When Mr. Staples' report went to the TRTFN, they had some criticism of aspects of his work, and I agreed with the TRTFN that Mr. Staples should perform additional work, and arranged for further provincial funding to pay for that work. That work resulted in Mr. Staples' Addendum. I believed that it was reasonable and appropriate in this case for the province to commission the traditional and current land use studies carried out by Lindsay Staples in order to advance the environmental review process, and to meet the information requirements of the TRTFN.
78. Again, in response to paragraph 52 of Mr. Pearse's Affidavit, I made the decision that the public review period would not commence until Lindsay Staples' study had been received, and was available for distribution as part of the project report in order to meet the TRTFN's concern that their interests regarding traditional and current land use were adequately identified in the project report.
79. In reply to paragraph 63 of Mr. Pearse's Affidavit, at the January 13, 1998, wildlife subcommittee meeting, Karen Diemert did make a statement to the effect that MELP could not support the Spruce Wilson Access Route. It was this comment which caused me to call for a short adjournment of the meeting in order for me to clarify whether Ms. Diemert was indeed speaking for MELP. I did not bolt from my seat, as Mr. Pearse suggests. I spoke with Garry Alexander, the MELP Project Committee representative, outside. We then returned to the subcommittee meeting room, where Mr. Alexander stated that Ms. Diemert's views did not reflect the Ministry's position.
80. In reply to paragraph 70 of the Pearse Affidavit, by mid February 1998, the TRTFN had clearly articulated their concerns regarding the potential impacts of the access road on wildlife and their use of the affected lands. Those concerns were identified in the Project Committee Recommendations Report, and were addressed through a range of measures including Redfern's Access Management Plan and the Environmental Monitoring and Follow-up Program which I have previously described, as well as in the recommendations of the majority of the Project Committee for increased wildlife management and enforcement.
81. Other concerns raised by the TRTFN included matters such as TRTFN jurisdiction to approve permits for the project, revenue sharing, and TRTFN control of use of the access road by third parties. As chair of the Project Committee, I believed that these matters were outside the ambit of the EAA process and were more appropriately the subject for negotiation between the TRTFN and government in a forum other than the EAA process.
82. By late February 1998, the positions of all of the Project Committee members, including the TRTFN had crystallized. There had been extensive discussion and consideration of the wildlife and access issues through the subcommittee deliberations in which the TRTFN had fully participated. By March 3, 1998, when the Environmental Assessment Office circulated the Project Committee Recommendations Report, in my view the time had come, after a three and a half year review process, for the Ministers to make a decision.
83. The Project Committee Recommendations Report, which went forward to the Ministers on March 12, 1998, included each Project Committee member's position on the referral, as well as the recommendations of the majority of the Project Committee.
[Emphasis mine.]
[58] In a supplemental affidavit sworn the 6th March, 2000, Mr. Ringstad deposed as follows:
3. In response to paragraph 8 of Mr. Pearse's Affidavit of February 20, 2000, the environmental review process was not "abruptly stopped" by the circulation of the draft project committee recommendations report. In paragraphs 46-51 of my Affidavit sworn April 30, 1999, and paragraph 3 of my Affidavit filed May 6, 1999, I described the iterative process followed in providing project committee members with drafts and updates of the issue tracking document during the period November 13, 1997 through March 2, 1998 as a means of recording the results of subcommittee meetings and progress on issues as they were addressed. I also described the distribution of the segments of what became the project committee recommendations report between January 6, 1998 and March 3, 1998. As well, I sought and obtained an extension of the normal 70 day time limit for the project review committee to provide recommendations of the Executive Director. On March 13, 1998, the Minister of Environment, Lands and Parks approved the Time Limit Order T4, a copy of which included in Appendix 1 the project committee recommendations report, Exhibit "B" to my Affidavit of April 30, 1999. That Order extended the time for the project committee to make its recommendations to the Executive Director from January 21, 1998 to March 13, 1998. This was the fourth time limit extension which I or Mike Kent had sought, and the Minister had granted, during the environmental assessment process for the Tulsequah Chief Project.
4. In response to paragraph 10 of Mr. Pearse's Affidavit of February 20, 2000, it is true that the project committee did not meet after January 15, 1998. However, as a result of the request of the TRTFN, and some other project committee members for more time to consider the work and results of the subcommittees, I sought and obtained the Minister's approval for an extension of the review period. During the period from January 15 to March 2, 1998, various subcommittees continued to meet. The results of the work of the subcommittees were recorded in the issue tracking documentation. I arranged for drafts of the issue tracking documents to be circulated to subcommittee members on the dates set out in paragraph 46 of my Affidavit of April 30, 1999. Throughout this process, subcommittee members commented upon the drafts, and, as the work of the subcommittees proceeded, further drafts of the issue tracking document were prepared and circulated.
[59] He then goes on and explains how the various reports, including the Staples' report, were dealt with.
(d) The Reasons Below
[60] As I am not sure I have completely grasped the purport of the learned judge's reasons, I set out what I take to be the critical passages:
As to what the Ministers did or did not do and ought to have done (at 325-327):
[34] It is plain from the decision that the Ministers relied on the conclusions of "the majority of the members of the Project Committee." That is clearly a reference to the Recommendations Report. There is no indication that the Ministers made an independent assessment of the merits of the issues raised by the proponents' application. Further, the time lapse between the filing of the Recommendations Report and the decision of the first minister (one day) strongly suggests that there could not have been an independent assessment. In my view, it is therefore reasonable to infer that the Recommendations Report was the only basis on which the Ministers decided to issue the Project Certificate.
[35] Accordingly, it is, in my view, necessary to determine whether the Recommendations Report fulfilled the statutory mandate of the Project Committee under s. 10 and whether it provided lawful reasons for the exercise of the Ministers' statutory powers of decision to issue the Certificate. In other words, because the Ministers' decision refers only to the Recommendations Report, the court must assume that the Ministers' decision was founded on that Report and did not consider, for instance, the Tlingits' Recommendation Report prepared by them in opposition to the approval of the Certificate. It is critical that the Project Committee fulfilled its statutory mandate so that the Ministers could be assured that the environmental review process envisioned in the EAA was met.
[36] In undertaking this review I am mindful that the court is not substituting its view on substantive matters for discretionary decisions of administrative bodies:
* * *
[37] The fundamental question, therefore, is whether the Ministers' decision to issue the Certificate, resting as it does on the Recommendations Report of the Project Committee, satisfies the statutory purposes of the EAA enumerated in s. 2:
(a) to promote sustainability by protecting the environment and fostering a sound economy and social well-being,
(b) to provide for the thorough, timely and integrated assessment of the environmental, economic, social, cultural, heritage and health effects of reviewable projects,
(c) to prevent or mitigate adverse effects of reviewable projects,
(d) to provide an open, accountable and neutrally administered process for the assessment
(i) of reviewable projects, and
(ii) ...
(e) to provide for participation, in an assessment under this Act, by the public, proponents, first nations, municipalities and regional districts, the government and its agencies, the government of Canada and its agencies and British Columbia's neighbouring jurisdictions.
[38] As well, the Tlingits emphasize the purposes of the Project Committee as set out in s. 10 of the EAA (and set out at para. 21).
[39] The Tlingits submit, and I agree, that the provisions of s. 10 must be construed in light of the broad public purposes that underlie statutory schemes mandating environmental assessment. For instance, in Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3, 88 D.L.R. (4th) 1 (S.C.C.) at 71 [S.C.R.], La Forest J. held:
Environmental impact assessment is, in its simplest form, a planning tool that is now generally regarded as an integral component of sound decision-making. Its fundamental purpose is summarized by R. Cotton and D.P. Emond in "Environmental Impact Assessment", in J. Swaigen, ed., Assignment Environmental Rights in Canada, (Toronto: Butterworths, 1981), at p. 247:
The basic concepts behind environmental assessment are simply stated: (1) early identification and evaluation of all potential environmental consequences of a proposed undertaking; (2) decision making that both guarantees the adequacy of this process and reconciles, to the greatest extent possible, the proponent's development desires with environmental protection and preservation.
As a planning tool it has both an information-gathering and a decision-making component which provide the decision-maker with an objective basis for granting or denying approval for a proposed development: see M.I. Jeffery, Environmental Approvals in Canada (Toronto: Butterworths, 1989), at p. 1.2, § 1.4; D.P. Emond, Environmental Assessment Law in Canada (Toronto: Emond-Montgomery Ltd., 1978), at p. 5. In short, environmental impact assessment is simply descriptive of a process of decision-making.
As to the "standard of review" (at 332):
[54] Balancing all of these factors, including the absence of a privative clause; the fact specific nature of the statutory scheme; the fact specific nature of the decision; and the fact that the decision-makers are Ministers without any special expertise, I conclude that considerable deference should be accorded to the decision of the Minister. I conclude that the decision of the Minister should be subject to review on a reasonableness standard. I consider this standard appropriate in light of the complexity of the environmental issues addressed, the need for effective regulation of environmental matters, and the acknowledgement that effective regulation is best administered by those most knowledgeable and informed about what is being regulated. Nevertheless, the standard I have chosen permits recourse to the courts for judicial intervention in cases in which the Minister has been shown to have acted unreasonably. See Southam at para. 61.
As to the Administrative Law issue (at 345):
[107] There can be no question that the overall scheme of the EAA is premised upon an open, accountable and neutrally administered process. There is a natural tension which prevails between the advocates of sustainability and those of industrial projects. The EAA was evidently designed to ensure that the tensions between those competing views be dealt with in an open way. In order that the ministers called upon to make decisions under the EAA do so in the open, accountable and neutral manner mandated by the EAA, it is necessary that they be exposed to minority views. The difficulty posed by the Recommendations Report is that the Ministers were insulated from those views by the failure of the Recommendations Report to fairly and fully advise the Ministers of the disputes which form the core of the Tlingits' concerns. In that respect, I consider that the Ministers' decision failed to take into account a relevant factor. Furthermore, the failure goes to the heart of the environmental review process and, as such, renders the Ministers' decision unreasonable.
[108] I would therefore conclude that there was, in this regard, a breach of the rules of procedural fairness. I find that the failure of the Project Committee to finally meet and discuss with the Tlingits their concerns gave rise to the failure on the part of the Project Committee to report to the Ministers the final concerns of the Tlingits and the various reports reflecting those concerns. As noted, that was information which ought to have been considered by the Ministers, and by reason of its absence from the recommendations of the Project Committee, was not considered. That failure was sufficiently egregious as to result in a finding that the Ministers' decision was unreasonable.
[Emphasis mine.]
As to the Tlingit assertion of apprehension of bias, she concluded that the process used to produce the Recommendations Report did not give rise to a reasonable apprehension of bias.
(e) The Refusal of the Declarations
[61] As the Tlingit understand the learned judge's reasons, she held that there could be no remedy against what is done by a Project Committee or the executive director under the statute because neither exercises a "statutory power of decision".
[62] I am not certain that the learned judge went so far. Her reasons are open to the construction that the nature of the attacks being made against the process were such as could only arise against a tribunal with a statutory power of decision. If, however, the Tlingit's understanding is correct, then, with respect, the learned judge erred because judicial review under the statute is not limited to tribunals with "powers of decision".
[63] By s. 2(2) of the Judicial Review Procedure Act, R.S.B.C. 1996, c. 241:
2(2) On an application for judicial review, the court may grant any relief that the applicant would be entitled to in any one or more of the proceedings for:
(a) relief in the nature of mandamus, prohibition or certiorari;
(b) a declaration or injunction, or both, in relation to the exercise, refusal to exercise, or proposed or purported exercise, of a statutory power.
[64] Thus, subsection (a) embodies all the substantive remedies of the prerogative writs.
[65] Subsection (2) is the statutory embodiment of Dyson v. Attorney-General, [1911] 1 K.B. 410 (C.A.) in which the plaintiff sued for a declaration that certain demands made upon him, purportedly under the Finance (1909-1910) Act, 1910 (10 Edw. 7, c. 8) were not authorized by the statute.
[66] In the course of his judgment, Farwell L.J. remarked, at 423:
3. The next argument on the Attorney-General's behalf was "ab inconvenienti"; it was said that if an action of this sort would lie there would be innumerable actions for declarations as to the meaning of numerous Acts, adding greatly to the labours of the law officers. But the Court is not bound to make declaratory orders and would refuse to do so unless in proper cases, and would punish with costs persons who might bring unnecessary actions: there is no substance in the apprehension, but if inconvenience is a legitimate consideration at all, the convenience in the public interest is all in favour of providing a speedy and easy access to the Courts for any of His Majesty's subjects who have any real cause of complaint against the exercise of statutory powers by Government departments and Government officials, having regard to their growing tendency to claim the right to act without regard to legal principles and without appeal to any Court.
[67] If, therefore, at any stage of the process laid down in the Act there was a failure on the part of the Project Committee or the executive director to observe a statutory requirement or a claim to do something not authorized by the Act, the Court could so declare. If, for instance, the executive director failed to observe the requirement of s. 16(1)(c) to give notice to the public of a project report accepted for review, the court could so declare and prevent further action until this step was observed.
[68] At the outset of this judgment, I referred to certain principles of statutory interpretation which in appropriate cases can found judicial review in the nature of a prerogative writ. I see no reason in theory why these principles, if there is a proper factual foundation and the statutory scheme does not exclude them, should not apply in judicial review by way of a claim for a declaration against a person exercising a statutory power simpliciter. I know of no impediment, in either reason or authority if fraud had occurred in the review process, to the court declaring a Recommendations Report of no force and effect on the simple footing that the Legislature could not have intended a fraudulent process to have legal force.
[69] Insofar as relief is sought against the exercise of a statutory power not of decision, it is simply a question of whether the statute has been observed.
[70] What the Tlingit say is, as I understand it, that the committee did not give appropriate weight to the various factors laid down in s. 2 of the statute.
[71] But a reading of the evidence in this case indicates to me that during the whole process weight was given to all the considerations laid down in s. 2. The real complaints of the Tlingit are that the committee did not give as much weight to some considerations as the Tlingit considered they should have; the executive director, because the Tlingit wanted more studies and so forth, perhaps should have rejected the report and not made the referral, and the Ministers ought not to have granted the certificate because of these acts of omission and commission. But under the statute, in my opinion, these are not matters for judicial review.
[72] To put it another way, I am of the opinion that the two declarations made in the judgment below were properly made, albeit my reasons may differ from those of the learned trial judge.
[73] The next ground of cross-appeal is an assertion that the learned judge ought to have held that the conduct of the Environmental Assessment Office and the Project Committee gave rise to a reasonable apprehension of bias.
[74] As I understand the submission of the Tlingit, it founds this assertion on the conduct of the appellant Ringstad.
[75] Thus, Mr. Pape says in his factum:
37. In the end, Mr. Ringstad and the EAO usurped the authority of the Project Committee to determine its own process, with respect to the scheduling and arrangements for producing the Recommendations Report that would issue in its name. In doing so he was not acting in simply a co-ordinating fashion, as would have been proper in his capacity as chairman of the Committee. (In this respect, it is respectfully submitted that Kirkpatrick, J. did not deal with the real substance of this issue, in paragraph 113 of her Reasons.) By using his position as he did, to determine procedural matters, Mr. Ringstad actually dominated the substance of the Recommendations Report. He did not do so in an open, accountable or neutral way. Rather, he did this in a way that
[1] adopted, as recommendations, the final positions taken by government members of the Committee on disputed matters;
[2] did not fully or fairly explain the dissenting evidence, analyses and recommendations that were developed by and on behalf of the Tlingits; and
[3] did not explain the way that the Report had actually been prepared.
[76] In making this argument, counsel for the Tlingit did not assert that there was any particular breach of s. 9 nor is it argued that the Recommendations Report in its final form did not conform in its content to s. 10.
[77] In my opinion, what happened in early 1998 bears a very different construction. This process had gone on and on at very considerable expense. It was clear that nothing short of changing the route of the road from the mine to Atlin would satisfy the Tlingit. They had made their points. The majority did not accept them. The executive director and the chairman of the committee had a duty (whether it was a duty enforceable by mandamus, I need not address) to bring the matter to an end and put the issue before the Ministers for their determination. Carrying out that duty cannot be characterized as bias or demonstrating a lack of "neutrality".
(f) The Quashing of the Certificate
[78] I proceed on the footing that the learned judge found as a fact that the Ministers were not fully informed of the Tlingit's position on various questions and could not therefore have made their decision in accordance with s. 2, and thus acted unreasonably.
[79] I have a number of difficulties with this finding:
1. It reads into the statute something which is not there. If s. 30 was to this effect:
The Ministers may, if
(a) the project promotes sustainability;
(b) there has been a thorough, timely and integrated assessment of the environmental, etc., effects of the project;
(c) the proposal prevents or mitigates adverse effects of the project;
(d) there has been an open, accountable and neutrally administered process for the assessment of the project;
(e) all the various persons named in s. 2 participated in the project;
issue a certificate, etc.
I would understand the learned judge's reasoning, for the Legislature would then have made the power to issue a certificate exercisable only if the conditions specified existed. The Act does not say anything like that. If it did, we would then have to embark on a consideration of whether the standard of review is correctness or reasonableness. One might, I suppose, by a long stretch, construe the Act as meaning "if in the opinion of the Ministers" (a), (b), etc., or "if the Ministers, on reasonable grounds, believe" (a), (b), etc. But even if one or the other is a proper construction of the statute, the evidence does not disclose that the Ministers did not hold those opinions and it does not disclose a lack of reason. For the profound difference in meaning between such formulations as "if X", "if A believes X", and "if A on reasonable grounds believes X", see Liversidge v. Anderson, [1941] 3 All E.R. 338 (H.L.).
2. There is no basis in the evidence for concluding that the Ministers were ignorant of what had been going on since 1994. The learned judge appears to be assuming that the Ministers were living in some kind of splendid isolation, ignorant of the controversy, and thus knew nothing at all about the Tulsequah Chief Project until the report was on their respective desks, rather like a Court of Appeal judge who knows nothing of a case until the papers are in his or her chambers. There is no evidence that that was so and no constitutional reason why it should be so.
3. In coming to this conclusion of "fact", if it should be so described, the learned trial judge drew an adverse inference from the short time lag between the referral and the decision. In my opinion, no such inference should have been drawn. To quote Broom's Legal Maxims, 10th ed. (London: Sweet & Maxwell, 1939) at 642:
Again, where acts are of an official nature, or require the concurrence of official persons, a presumption arises in favour of their due execution. In these cases the ordinary rule is, omnia proesumuntur rite et solenniter esse acta donec probetur in contrarium - everything is presumed to be rightly and duly performed until the contrary is shown. The following may be mentioned as general presumptions of law illustrating this maxim: -That a man, in fact acting in a public capacity, was properly appointed and is duly authorised so to act; that in the absence of proof to the contrary, credit should be given to public officers who have acted, prima facie, within the limits of their authority, for having done so with honesty and discretion;.....
[Footnotes omitted; emphasis mine.]
4. Not only does the Act not contain any such words as those I have constructed above, but also it contains no obligation on the Ministers to be "fully informed" before deciding what to do. If it contained such a requirement, we should have to decide what the word "fully" means in the context.
[80] Earlier I addressed what I perceive to be the fundamental nature of judicial review. The learned judge, as I read her reasons, did not ask herself what the Legislature in this statute, either expressly or by necessary intendment, required of the tribunal in order for its decision to be lawful. She committed the fundamental error identified in Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control Licensing Branch), 2001 SCC 52, of not asking whether the Legislature has made its own determination of what procedures are necessary in the administration of the statute in issue. There is good reason for this legislative scheme: a decision as to whether a project shall or shall not proceed engages the tribunal in weighing many considerations put forward by competing interests - indeed sometimes those most concerned are at loggerheads. The decision in the end must be "political", using the word in its non-pejorative sense.
[81] The Tlingit, as I indicated earlier, attack the certificate on the ground that the "reasons" are no reasons. To my mind, they are as much reasons as reasons of a judge who says, as judges sometimes do, "I accept th