IN THE MATTER OF THE ENERGY RESOURCES CONSERVATION ACT R.S.A. 2000, C. E-10;

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1 IN THE MATTER OF THE ENERGY RESOURCES CONSERVATION ACT R.S.A. 2000, C. E-10; AND THE OIL SANDS CONSERVATION ACT, R.S.A. 2000, C. 0-7; AND IN THE MATTER OF THE CANADIAN ENVIRONMENTAL ASSESSMENT ACT, S.C. 1992, c.37; AND IN THE MATTER OF A JOINT PANEL REVIEW BY THE ALBERTA ENERGY RESOURCES CONSERVATION PANEL AND THE GOVERNMENT OF CANADA; AND IN THE MATTER OF ERCB APPLICATION No and CEAR No , JACKPINE MINE EXPANSION, FORT MCKAY, ALBERTA SUBMISSION BY ATHABASCA CHIPEWYAN FIRST NATION AS REPRESENTED BY WOODWARD & CO. LAWYERS LLP in response to the October 12, 2012 letter from Counsel to the Joint Review Panel to Shell Canada Energy and the Parties Submitted to: Joint Review Panel Energy Resources Conservation Board 160 Elgin Street, 22 nd Floor Place Bell Canada Ottawa, Ontario K1A 0H3 Attention : Jill Adams, Panel Manager shell.reviews@ceaa-acee.gc.ca Per: Gary Perkins & Meighan LaCasse Counsel for the Joint Review Panel Submitted by: Athabasca Chipewyan First Nation Woodward & Co. Lawyers LLP 2 nd Floor, 844 Courtney Street Victoria, BC V8W 1C4 Per: Jenny Biem & Eamon Murphy Counsel for Athabasca Chipewyan First Nation

2 Jurisdiction of the Panel to determine the questions in the NQCL I. Introduction 1. The Athabasca Chipewyan First Nation ( ACFN ) submitted to the Joint Review Panel (the Panel ) on October 1, 2012 its Notice of Question of Constitutional Law (the NQCL ). In the NQCL, the ACFN asked the Panel to determine whether each of the Crown in right of Alberta, and the Crown in right of Canada, have discharged the duty to consult and accommodate ACFN with respect to the potential adverse effects of Shell s Jackpine Mine Expansion (the Project ) on ACFN s treaty rights. 2. Alberta applied to the Panel, by letter dated October 9, 2012, for an order dismissing ACFN s NQCL. Shell wrote to the Panel on October 11, 2012 in support of Alberta s application. 3. The Panel, by way of correspondence to all parties dated October 12, 2012, requested submissions on matters relating to the NQCLs that may bear on the Panel s jurisdiction. Alberta and Shell provided additional submissions on jurisdiction on October 15, 2012 and Canada provided submissions on October 15, ACFN s submissions herein are in response to Alberta s letter of October 9, 2012, Shell s letter dated October 11, 2012, the Panel s letter dated October 12, 2012, Alberta s additional submissions, particularly paragraphs and 62-63, Shell s additional submissions and Canada s submissions of October 15, ACFN submits that the governing legislation, the Panel s mandate, and the relevant Supreme Court of Canada s decisions, all make it clear that the Board has the jurisdiction and the responsibility to assess the adequacy of Crown consultation and accommodation in determining Shell s application for approval of the Project. [ 1 ]

3 Table of Contents I. Introduction... 1 II. Jurisdiction of the Board... 2 a) According to the Panel s mandate, the governing legislation and the Supreme Court of Canada... 2 b) With reference to the Public Interest... 8 c) Panel Jurisdiction over Alberta i) Taking a supervisory role ii) Irrelevant whether the Crown is a party to application iii) Panel is a Crown entity III. The Panel is the Proper Forum to Decide Consultation Questions IV. It is not premature to assess the adequacy of the Crown s consultation V. Judicial Comity and Stare Decisis VI. Summary of submissions as they relate to the Panel request of October 12, i) Adequacy of the NQCL ii) Extent to which the reasoning in the Osum decision should apply in this case 27 iii) Whether the Panel should assess the adequacy of consultation at the outset of the hearing iv) Whether the Court of Queen s Bench is the more appropriate forum for some or all of the issues VII. List of Authorities... 29

4 II. Jurisdiction of the Board a) According to the Panel s mandate, the governing legislation and the Supreme Court of Canada 6. To determine the Panel s mandate and jurisdiction in this matter, reference must be made to three sources: the Amended Agreement To Establish a Joint Review Panel for the Jackpine Mine Expansion Project (the Terms of Reference ); the Administrative Procedures and Jurisdiction Act ( APJA ), and; the Designation Of Constitutional Decision Makers Regulation (Alberta Regulation 69/2006) (the Regulation ). 7. The Terms of Reference, which the ERCB agreed to, provide: 6.1 The Joint Review Panel may receive information from Aboriginal groups related to the nature and scope of asserted or established Aboriginal and treaty rights in the area of the project, as well as information on the potential adverse environmental effects that the project may have on asserted or established Aboriginal and treaty rights. The Joint Review Panel may also receive information provided in this regard by other participants, federal authorities or government, and provincial departments or government. 6.2 The Joint Review Panel shall reference in its report: a. the information provided by participants regarding the manner in which the project may adversely affect asserted or established Aboriginal and treaty rights; and b. the information provided by participants regarding the strength of claim in respect of Aboriginal and treaty rights asserted by a participant, including information about the location, extent, bases and exercise of those asserted Aboriginal and treaty rights in the area of the project. For the purposes of its report, the Joint Review Panel shall document claims of Aboriginal and treaty rights as presented by participants and consider the effects of the project on the Aboriginal and treaty rights so presented. The Joint Review Panel may use this information to make recommendations that relate to the manner in which the project may adversely affect the Aboriginal and treaty rights asserted by participants. 6.3 Notwithstanding articles 6.1 and 6.2, the Joint Review Panel is not required by this agreement to make any determinations as to: a. the validity of Aboriginal or treaty rights asserted by a participant or the strength of such claims; b. the scope of the Crown s duty to consult an Aboriginal group; or c. whether the Crown has met its respective duties to consult or accommodate in respect of rights recognized and affirmed by section 35 of the Constitution Act, [ 2 ]

5 6.4 Nothing in this article 6 limits the application of Part 2 of the Administrative Procedures and Jurisdiction Act to the ERCB, and the Joint Review Panel (in its capacity as a division of the ERCB) remains at all times subject to the requirements of, and entitled to exercise the powers under Part 2 of the Administrative Procedures and Jurisdiction Act, including but not limited to section 13 thereof. (emphasis added) 8. Alberta s submissions omit any reference, at all, to the Terms of Reference. Canada s submissions quote section 6 (see paragraphs 6 and 88) but omit any reference to subsection 6.4. Subsection 6.4 is fundamental to determining whether the Panel can assess the adequacy of the Crown s duty to consult; any restrictions that may have been placed on the jurisdiction of the Panel are removed. 9. The APJA provides, under Part 2: 10 (d) question of constitutional law means (ii) a determination of any right under the Constitution of Canada or the Alberta Bill of Rights. Lack of jurisdiction 11 Notwithstanding any other enactment, a decision maker has no jurisdiction to determine a question of constitutional law unless a regulation made under section 16 has conferred jurisdiction on that decision maker to do so. (emphasis added) 10. The Regulation provides: Authorization 2 The decision makers listed in column 1 of the Schedule have jurisdiction to determine the questions of constitutional law set out opposite them in column 2. Schedule 1: Workers Compensation Board Energy Resources Conservation Board questions of constitutional law arising from the federal or provincial distribution of powers under the Constitution of Canada all questions of constitutional law [ 3 ]

6 11. The Alberta Hansard proceedings 1 dated March 21, 2005 set out the rationale for amendments to the APJA, in part arising out of the Supreme Court of Canada decision Paul v. British Columbia (Forest Appeals Commission), a case centered on section 35 rights. In Hansard, during second reading, the Minister of Justice and Attorney General said the following at page 355: Bill 23 is designed to clarify which Alberta tribunals and boards have the jurisdiction to determine which constitutional questions.... the major boards were also asked by our team to indicate and itemize the type and kind of jurisdiction required by them to discharge their statutory functions....many boards have demonstrated the clear need and capacity to determine constitutional issues; for example, the Energy and Utilities Board and the Labour Relations Board routinely are asked to consider constitutional issues and have a demonstrated capacity in handling them. The Workers Compensation Board and appeal tribunal did not wish to have jurisdiction over the Charter and aboriginal law issues, as these issues simply did not arise very often... And at page 356: It will allow boards, such as the Energy and Utilities Board, to decide constitutional questions when appropriate, but it will allow the very same board to refer issues that it believes may be beyond its capacity to the court for determination. And on April 20, 2005, at third reading, the Minster of Advanced Education and Government House Leader, on behalf of the Minister of Justice and Attorney General, said at page 942: To conclude, Mr. Speaker, Bill 23 is a necessary piece of legislation that will greatly enhance the administration of justice by clarifying the roles of our boards and tribunals while at the same time maximizing meaningful access to justice. 12. Consistent with the description of board jurisdiction provided in Hansard by the Minister of Justice and Attorney General, the Workers Compensation Board s jurisdiction is limited to questions of constitutional law arising from the federal or 1 Alberta Hansard, March 21, 2005, pages 355 and 356, and April 20, 2005 at p. 942 [ 4 ]

7 provincial distribution of powers under the Constitution of Canada whereas the jurisdiction of the ERCB is not limited at all. 13. In the present case, the Panel is mandated to conduct a review that discharges all the responsibilities of the Board under the Energy Resources Conservation Act (the ERCA ) 2 and the Oil Sands Conservation Act (the OSCA ) 3. The Panel has all of the powers and duties of a division of the ERCB under the ERCA. 4 Therefore, in keeping with its mandate, and despite the Panel including a federal component, the Panel can and must determine all questions of constitutional law, including whether the Province of Alberta has discharged its duty to consult and accommodate. 14. The Supreme Court of Canada in Rio Tinto Alcan v. Carrier Sekani Tribal Council confirmed that the duty of a tribunal to consider consultation and the scope of that inquiry depends on the duties and powers the legislature has conferred on it Both the powers of the tribunal to consider questions of law and the remedial powers granted to it by the legislature are relevant considerations in determining the contours of a tribunal's jurisdiction and whether the tribunal has a duty to consult, a duty to consider consultation, or no duty at all. 6 The Supreme Court of Canada has repeatedly held that the power [of a tribunal] to decide questions of law implies a power to decide constitutional issues that are properly before it, absent a clear demonstration that the legislature intended to exclude such jurisdiction from the tribunal s power Amended Agreement to Establish a Joint Panel for the Jackpine Mine Expansion Project, CEAA Registry Doc. # 271, s. 4.1 [Amended Agreement]; and Energy Resources Conservation Act, RSA 2000, c. E-10 [ERCA]. 3 Oil Sands Conservation Act, RSA 2000, c. 0-7 [OSCA]. 4 Amended Agreement, s Rio Tinto Alcan v. Carrier Sekani Tribal Council, 2010 SCC 43, [2010] 2 S.C.R. 650 at para. 55 [Rio Tinto]. 6 Rio Tinto, at paras Rio Tinto, at para. 69. See also: R. v. Conway, 2010 SCC 22, [2010] 1 S.C.R. 765 at paras. 78, 81 [Conway]; and Paul v. British Columbia (Forest Appeals Commission), [2003] 2 S.C.R. 585, 2003 SCC 55 at para. 39 [Paul]. [ 5 ]

8 16. The Supreme Court of Canada in Paul v. British Columbia (Forest Appeals Commission), which the 2005 amendments to the APJA were based upon, prescribed the following test for determining the jurisdiction of tribunals to consider s. 35 questions: As a preliminary issue, I note that there is no basis for requiring an express empowerment that an administrative tribunal be able to apply s. 35 of the Constitution Act, There is no persuasive basis for distinguishing the power to determine s. 35 questions from the power to determine other constitutional questions, such as the division of powers under the Constitution Act, 1867 or a right under the Charter The essential question is whether the empowering legislation implicitly or explicitly grants to the tribunal the jurisdiction to interpret or decide any question of law. If it does, the tribunal will be presumed to have the concomitant jurisdiction to interpret or decide that question in light of s. 35 or any other relevant constitutional provision. Practical considerations will generally not suffice to rebut the presumption that arises from authority to decide questions of law In Rio Tinto, the Supreme Court of Canada stated the following about the power conferred on the Utilities Commission to consider consultation: It is common ground that the Utilities Commission Act empowers the Commission to decide questions of law in the course of determining whether the 2007 EPA is in the public interest. The power to decide questions of law implies a power to decide constitutional issues that are properly before it, absent a clear demonstration that the legislature intended to exclude such jurisdiction from the tribunal's power... Beyond its general power to consider questions of law, the factors the Commission is required to consider under s. 71 of the Utilities Commission Act, while focused mainly on economic issues, are broad enough to include the issue of Crown consultation with Aboriginal groups. At the time, s. 71(2)(e) required the Commission to consider "any other factor that the Commission considers relevant to the public interest". The constitutional dimension of the duty to consult gives rise to a special public interest, surpassing the dominantly economic focus of the consultation under the Utilities Commission Act. As Donald J.A. asked, "How can a contract formed by a Crown agent in breach of a constitutional duty be in the public interest?" This conclusion is not altered by the Administrative Tribunals Act, which provides that a tribunal does not have jurisdiction over constitutional matters. Section 2(4) of the Utilities Commission Act makes certain sections of the Administrative Tribunals Act applicable to the Commission. This includes s. 44(1) which provides that "[t]he tribunal does not have jurisdiction over constitutional questions". However, "constitutional question" is defined narrowly in s. 1 of the Administrative Tribunals Act as "any question that requires notice to be given under section 8 of the Constitutional Question Act" In broad terms, consultation under s. 35 of the Constitution Act, 1982 is a constitutional question: Paul, para. 38. However, the provisions of the Administrative Tribunals Act and the Constitutional Question Act do not indicate a clear intention on the part of the legislature to 8 Paul, paras. 37, 39 [underscore added]. See also: Nova Scotia (Workers' Compensation Board) v. Martin; Nova Scotia (Workers' Compensation Board) v. Laseur, 2003 SCC 54, [2003] 2 S.C.R. 504 at para. 28 [Martin]. [ 6 ]

9 exclude from the Commission's jurisdiction the duty to consider whether the Crown has discharged its duty to consult with holders of relevant Aboriginal interests. It follows that, in applying the test articulated in Paul and Conway, the Commission has the constitutional jurisdiction to consider the adequacy of Crown consultation in relation to matters properly before it. For these reasons, I conclude that the Commission had the power to consider whether adequate consultation with concerned Aboriginal peoples had taken place The decision in Rio Tinto, that the Commission had the power to consider the adequacy of consultation, was based upon legislation with much narrower wording of what constitutes a question of constitutional law than is found in the APJA. 10 Further, as here, the governing legislation did not exclude the tribunal s jurisdiction to consider whether the Crown discharged its duty to consult. 19. Finally, the Panel is also given broad powers under s. 16 of the ERCA: The Board, in the performance of the duties and functions imposed on it by this Act and by any other Act, may do all things that are necessary for or incidental to the performance of any of those duties or functions. 11 And under s. 6 of the OSCA: The Board, with the approval of the Lieutenant Governor in Council, may make any just and reasonable orders or directions that it considers to be necessary to effect the purposes of this Act and that are not otherwise specifically authorized by this Act. 20. The relief sought by ACFN is specific and falls squarely within the powers of the Panel. Under the Oil Sands Conservation Act, this Panel can decide to refuse to grant an approval or defer consideration of the application on any terms and conditions the Board may prescribe In sum, in discharging the duties and responsibilities of the ERCB, the Panel has the jurisdiction under the APJA and the Regulation to decide all questions of constitutional law. Such jurisdiction is presumed to include the concomitant jurisdiction 9 Rio Tinto, at paras Contrast the Constitutional Question Act, RSBC 1996, c. 68, s. 8 with APJA s. 10(d). 11 ERCA, s OSCA, s. 10(3). [ 7 ]

10 to interpret or decide that question in light of s. 35 or any other relevant constitutional provision (Paul) absent a clear legislative intention otherwise (Rio Tinto). b) With reference to the Public Interest 22. Further, resolving disputes about the adequacy of Crown consultation with respect to potential Project impacts falls squarely within the mandate of the Panel as it discharges the responsibilities and duties of the ERCB. In this capacity, the Panel has an overarching responsibility to consider whether the Project is in the public interest : Where by any other enactment the Board is charged with the conduct of a hearing, inquiry or other investigation in respect of a proposed energy resource project, it shall, in addition to any other matters it may or must consider in conducting the hearing, inquiry or investigation, give consideration to whether the project is in the public interest, having regard to the social and economic effects of the project and the effects of the project on the environment This public interest determination imposes on the Panel a duty to decide 14 consultation disputes where the adequacy of Crown consultation with respect to the Project is raised as an issue. As outlined above, the Supreme Court, in relation to a tribunal with a much narrower public interest mandate than the ERCB, held that an approval cannot be considered in the public interest if it is made in contravention of the Crown s duty to consult and accommodate First Nations. 15 In the words of the Court, [t]he constitutional dimension of the duty to consult gives rise to a special public interest Before it certifies the Project as in the public interest, the Panel is required to determine when the Crown's duty to consult with regard to that project arose, the scope of that duty, and whether it was fulfilled ERCA, s. 3 [underscore added]. See also: OSCA, s. 10(3)(a). 14 Carrier Sekani Tribal Council v. British Columbia (Utilities Commission), 2009 BCCA 67 at para. 51 [Carrier Sekani]. 15 Rio Tinto, at paras See also: Carrier Sekani, at para. 42; and Kwikwetlem First Nation v. British Columbia (Utilities Commission), 2009 BCCA 68 at paras. 13, 60, [Kwikwetlem]. 16 Rio Tinto, at para Kwikwetlem, at para. 13. [ 8 ]

11 25. The Legislature has expressly empowered the ERCB (and therefore the Panel) to hear and decide all questions of constitutional law that arise within the course of discharging its mandate. 18 Rio Tinto and Paul made it clear that such jurisdiction extends to questions concerning consultation and rights under s. 35 of the Constitution Act, There is no need for an express statutory grant of authority to the Panel to decide such issues 19, though such an express grant exists in the present case. 26. The Crown s duty to consult Aboriginal groups about potential impacts on their Aboriginal and Treaty rights is a constitutional duty invoking the honour of the Crown. 20 The adequacy of Crown consultation is a constitutional question of law. 21 It is a matter that falls squarely within the Panel s mandate to make a public interest determination, as the Crown s consultation duties give rise to a special public interest. 22 Treaty 8 provides ACFN with a procedural right to consultation, and the Panel must consider the adequacy of the Crown s actions The Panel has the jurisdiction to decide the consultation issues before it absent a clear intention on the part of the legislature to exclude such jurisdiction. 24 Far from excluding such jurisdiction, it is clear that the Legislature intended s. 35 matters to fall within the mandate of the ERCB; where it intended to limit a tribunal s authority with respect to certain constitutional matters, it did so expressly in the Regulation, as in the case of the Worker s Compensation Board. Indeed, we note that Canada has not taken the position that the Panel has no jurisdiction to assess the adequacy of consultation (see Canada s submissions, October 15, 2012). 18 Designation of Constitutional Decision Makers Regulation, Alta. Reg. 69/2006, s. 2, Sch Paul, at paras. 37, 39. See also: Rio Tinto, at paras. 69, 71-72; and Conway, at para R. v. Kapp, 2008 SCC 41 at para. 6 [Kapp]; and Rio Tinto, at paras. 34, See, e.g., Kwikwetlem, at para. 8; and Rio Tinto, at para Rio Tinto, at paras See also: Carrier Sekani at para. 42; and Kwikwetlem, at paras. 13, 60, Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69 at para Rio Tinto, at paras ; and Carrier Sekani, at paras See also: Conway, at para. 81; and Paul, at para. 39. [ 9 ]

12 28. Further, the object of the ERCA includes controlling pollution and ensuring environmental conservation, and the Panel s mandate here is to consider whether the project applied for is in the public interest. 25 ACFN s constitutional question arises from the anticipated impacts of the Project on the environment, upon which ACFN depends for the exercise of its section 35 rights. Approval of a project that would impact such rights would not be in the public interest, and approval cannot be made by the Panel without first considering whether the Crown has adequately consulted and accommodated ACFN with respect to the potential adverse impacts. 29. In summary, given the Panel s mandate found in the Terms of Reference, the plain wording of the Regulation and the clear decisions of the Supreme Court of Canada, there is no legal basis to find that the Panel has the power to decide only some constitutional questions but not the NQCL submitted by ACFN in this matter. 30. On point, the Alberta Court of Appeal has confirmed that the ERCB has the jurisdiction to hear and decide Charter issues raised in the course of its proceedings. 26 As the Supreme Court of Canada held in Paul, [t]here is no persuasive basis for distinguishing the power to determine s. 35 questions from the power to determine other constitutional questions, such as a right under the Charter. 27 c) Panel Jurisdiction over Alberta i) Taking a supervisory role 31. In Osum, the Board cited the Alberta Court of Appeal in Dene Tha First Nation v. Energy and Utilities Board (Alta.) 28 ( Dene Tha ) for the proposition that the Board s predecessor, the Alberta Energy & Utilities Board, had no supervisory role over Alberta 25 ERCA, ss. 2(d), Kelly v. Alberta (Energy and Utilities Board), 2008 ABCA 52 at paras [Kelly]. 27 Paul, at para ABCA 68. [ 10 ]

13 and its duty to consult on aboriginal or treaty rights. 29 argument in its submissions. Alberta has reiterated that 32. In Dene Tha, the Court of Appeal said the following 30 : [28] A suggestion made to us in argument, but not made to the Board, was that the Board had some supervisory role over the Crown and its duty to consult on aboriginal or treaty rights. No specific section of any legislation was pointed out, and we cannot see where the Board would get such a duty. We will now elaborate on that. [29] There is no evidence here to tell the Board whether the Crown had consulted or not, and that fact is not conceded in argument. It seems to be disputed. Still less is there an evidentiary record which shows that there was no time or chance to consult. The little evidence there is suggests the contrary, but it is woefully inadequate to decide that question. Nor was anyone put on notice that that issue would be before the Board. (emphasis added) 33. It is clear from the Alberta Court of Appeal s decision that the issue of Board jurisdiction was not fully argued before it and the submission made to the Court of Appeal was not supported by references to legislation, case law or other authority. Further, there clearly was no evidence filed before the Board about whether the Crown had consulted or not and no notice (i.e. Constitutional Notice) to the Crown that the issue would be before the Board. At most, what can be taken from the Court of Appeal s decision is that they were not provided with authority for the Board having a supervisory role over the Crown. 34. Indeed, the B.C. Court of Appeal in Carrier Sekani Tribal Council v. British Columbia (Utilities Commission) noted that the obiter remarks of the Alberta Court of Appeal in Dene Tha were made en passant in an oral judgment rather than a definitive judicial opinion made with the benefit of full argument. 31 The Court s obiter remarks in Dene Tha were also made nearly 5 years before the Supreme Court of Canada s decision in Rio Tinto. 29 ERCB, Reasons for July 17, 2012 Decision on Notice of Question of Constitutional Law, dated August 24, 2012, at p Dene Tha, at paras. 28, Carrier Sekani, at para. 47. [ 11 ]

14 35. It must also be noted that not providing any authority ( no specific section of any legislation was pointed out 32 ) is much different from there being no legal basis for the proposition that the ERCB has a supervisory role. 36. In any event, an important distinction must be made. There is a marked difference between the Panel assessing the Crown s consultation record and the Panel supervising Crown consultation. The former requires that the Panel review the adequacy of Crown consultation and make a ruling on whether the Crown has discharged its duty to consult and accommodate the ACFN. The latter proposition denotes an ongoing role for the Panel in supervising the Crown. ACFN is asking for the former. The Panel can certainly rule that the Crown has not discharged its duty to consult and accommodate ACFN. The Panel can also determine that the proposed Project is not in the public interest unless and until the Crown has remedied any failures in its duties to consult and accommodate First Nations. Whether the Crown remedies any deficiencies is up to the Crown; the Panel need not play any further role. ii) Irrelevant whether the Crown is a party to application 37. In Osum, as here, Alberta argued that the Board had no authority to determine the adequacy of Crown consultation as it had no jurisdiction over the Crown because the Crown was not a party to Osum s application. 33 The Board accepted this argument and, in so doing, distinguished Rio Tinto on the basis that the proponent in Rio Tinto was accepted by the parties as being the Crown or a Crown agent With respect, ACFN submits that it is legally irrelevant whether or not the proponent is the Crown or its agent as the duty to consult is always owed by the 32 Dene Tha, at para ERCB, Reasons for July 17, 2012 Decision on Notice of Question of Constitutional Law, dated August 24, 2012, at p. 2. See also: Preliminary Submissions by the Minister of Justice and the Attorney General of Alberta Respecting the Jurisdiction of the Energy Resources Conservation Board dated June 14, 2012 at paras. 4, ERCB, Reasons for July 17, 2012 Decision on Notice of Question of Constitutional Law, dated August 24, 2012, at p. 7. [ 12 ]

15 Crown. 35 Regardless of whether the proponent is the Crown or not, it is the adequacy of the Crown s consultation that stands to be assessed and the Panel s jurisdiction to determine the adequacy of consultation must remain the same. The special public interest that must be considered in the Panel s public interest determination is whether affected First Nations have been properly consulted and accommodated in advance of the decision regardless of who the proponent might be. 39. In this respect, it is analogous to the ERCB s recognized jurisdiction to determine Charter issues in the course of its proceedings. 36 The question is whether the process and decisions are consistent with the Charter rights of affected persons, and this question arises without regard to whether the proponent is the government or a private company. In both cases, the focus is ensuring that the decision of the tribunal is consistent with the constitutional rights of affected parties. 40. It is worth noting that the Crown does not dispute the existence of the duty to consult in the present case. 37 It would be absurd if the adequacy of the Crown s consultation could only be assessed where the Crown itself is the proponent. The logical conclusion of this reasoning is that all tribunals before which the Crown is not the proponent would be exempt from considering the adequacy of Crown consultation. Absent a clear indication in the governing legislation, this conclusion does not hold. 41. In addition, an assessment of whether a third party who has been delegated procedural aspects of consultation by the Crown has adequately discharged the Crown s duty to consult would be meaningless because third parties cannot be held liable for failing to discharge the Crown s duty to consult and accommodate Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511, 2004 SCC 73 at para. 53 [Haida]. 36 Kelly, at paras See: Letter from Alberta Justice and Solicitor General (19 October 2012) Preliminary Submissions in Response to the Notice of Question of Constitutional Law and Written Submission of the Athabasca Chipewyan First Nation, CEAA Registry Doc. # 536. See also ACFN Submissions, Appendix F, Tab 13, Letter from Minister Renner To N. Nicholls 24 August Haida, at paras. 53, 56. [ 13 ]

16 42. Furthermore, the core purpose of a Notice of Question of Constitutional Law is to alert the Crown to a challenge to the constitutionality of a provision or enactment, and to ensure that the Crown has a full opportunity to understand the questions raised in the NQCL and to respond appropriately. 39 In some instances, the Crown is not yet a party to the proceeding and only becomes a party upon receipt of the Notice. 40 To deny jurisdiction on the basis that a Crown is not a proponent would render numerous Notices without effect. This clearly undermines the intent and purpose of the Notice of Question of Constitutional Law and the related provisions of the APJA. 43. Finally, there is nothing in the Supreme Court of Canada s decision in Rio Tinto that suggests the Commission would not have had the jurisdiction to assess the adequacy of the Crown s consultation if the proponent had been a third party. Indeed, in determining whether a duty to consult existed, the Commission was required to consider the test from Haida, which arose from forestry authorizations sought by a private proponent not the Crown. iii) Panel is a Crown entity 44. The ERCB s reasoning and decision in Osum overlooks the fact that the Panel itself is a Crown entity. Like the tribunal in Carrier Sekani Tribal Council v. British Columbia (Utilities Commission), while the Panel is a quasi-judicial tribunal bound to observe the duty of fairness and to act impartially, it is also a creature of government, subject to government direction on energy policy. Consequently, [t]he honour of the Crown requires not only that the Crown actor consult, but also that the regulatory tribunal decide any consultation dispute which arises within the scheme of its regulation In Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch), the Supreme Court of Canada contrasted the ordinary courts with administrative tribunals. The Court explained that administrative tribunals, unlike 39 Administrative Procedures and Jurisdiction Act, R.S.A. 2000, c. A-3, ss. 10(d)(i)-(ii), 12 [APJA]; and Imperial Oil Resources Ventures Ltd., EUB Decision at s , p APJA, s Carrier Sekani, at para. 54 [underscore added]. [ 14 ]

17 the courts, lack constitutional distinction from the executive and are, in fact, created precisely for the purpose of implementing government policy The Government of Alberta has developed The Government of Alberta s First Nations Consultation Policy on Land Management and Resource Development (the Policy ) 43 and has put in place guidelines to support the Policy - Alberta s First Nations Consultation Guidelines on Land Management and Resource Development (the Guidelines ) The Policy and Guidelines state that Alberta expects project proponents to consult with First Nations on proposed projects but that Alberta is ultimately responsible for ensuring that the performance of delegated consultation activities has been adequate in the circumstances Given the consultation scheme created under the Policy and Guidelines and the role of the Panel as a Crown entity, the Panel must have the jurisdiction, and indeed the constitutional duty, to determine whether Alberta has met its obligations under the Policy of ensuring that performance of the delegated consultation activities has been adequate. 46 As was stated by the BC Court of Appeal in Carrier Sekani Tribal Council v. British Columbia (Utilities Commission), [t]he obligation arising from its [the Board s] status as a Crown entity is to grasp the nettle and decide the consultation dispute Additionally, the Panel is a creature of statute, and derives its powers from statute. The Constitution is the supreme law of Canada, and it is impossible to interpret legislation conferring discretion as conferring a power to infringe the Constitution. The 42 Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch), 2001 SCC 52 at para The Government of Alberta s First Nations Consultation Policy on Land Management and Resource Development, pdf [the Policy ]. 44 Alberta s First Nations Consultation Guidelines on Land Management and Resource Development, on_guidelines_lm_rd.pdf [the Guidelines ]. 45 Policy, at pp. 4-5; and Guidelines, at pp See also Directive 056 of the ERCB, at 47 Carrier Sekani, at para. 56. [ 15 ]

18 Panel must not make a decision that would run afoul of section 35 of the Constitution, i.e. issuing an authorization in the absence of adequate consultation and accommodation of Treaty Rights. The issue of whether consultation has been adequate must be decided prior to any Panel decision in relation to the Project 48. III. The Panel is the Proper Forum to Decide Consultation Questions 50. Canada argues that the Panel should decline to address the adequacy of Crown consultation, which will effectively force First Nations to go to court for a remedy. Canada suggestion that the Panel not consider the adequacy of consultation at this time implies the Panel could consider the issue at some later date, which is absurd. Canada s position is not helpful in ensuring a timely resolution, nor does it meet the object of consultation, with is to foster reconciliation between Aboriginal peoples and the Crown: Rather than pitting Aboriginal peoples against the Crown in the litigation process, the duty recognizes that both must work together to reconcile their interests Alberta, and the ERCB in Osum, state that the Supreme Court of Canada says that it is appropriate for First Nations to pursue the issue of Crown consultation in the courts, rather than before a tribunal. With respect, this is a misstatement of the significant jurisprudence on this issue. 52. The Panel has the authority and the duty to decide constitutional issues that arise in the course of discharging its mandate, including the consultation issues raised by ACFN in its NQCL. This authority resonates with the paramount reason for empowering tribunals, like the Panel, with the power to determine constitutional questions: The most important rationale for permitting administrative tribunals to determine constitutional questions is that the Constitution must be respected and upheld. The citizen, when appearing 48 Slaight Communications v. Davidson, [1989] 1 SCR 1038, S.C.J. no 45 at para Rio Tinto, at para. 34. [ 16 ]

19 before decision-making bodies set up to determine his or her rights and duties, should be entitled to assert the rights and freedoms guaranteed by the Constitution As the Supreme Court of Canada stated in its decision in Nova Scotia (Workers' Compensation Board) v. Martin; Nova Scotia (Workers' Compensation Board) v. Laseur: The Charter is not some holy grail which only judicial initiates of the superior courts may touch. The Charter belongs to the people. All law and law-makers that touch the people must conform to it. Tribunals and commissions charged with deciding legal issues are no exception. Many more citizens have their rights determined by these tribunals than by the courts. If the Charter is to be meaningful to ordinary people, then it must find its expression in the decisions of these tribunals The Supreme Court of Canada in Paul recognized these same concerns apply with equal force to s. 35 of the Constitution Act, : Section 35 is not, any more than the Charter, "some holy grail which only judicial initiates of the superior courts may touch" (Cooper, supra, at para. 70, per McLachlin J. (as she then was), dissenting). This Court has rejected the theory that Indian reserves are federal "enclaves" from which provincial laws are excluded: Hogg, supra, at p , discussing Francis, supra; Four B, supra. Similarly, aboriginal rights do not constitute an enclave that excludes a provincially created administrative tribunal from ruling, at first instance, on the border between those aboriginal rights and a provincial law of general application. The arguments that s. 35 rights are qualitatively different -- that they are more complex, and require greater expertise in relation to the evidence adduced -- have little merit It would raise grave concerns about Aboriginal access to justice, and frustrate the basic principles of reconciliation, if Aboriginal peoples were barred from asserting their consultation rights before tribunals, like this Panel, that are rendering decisions with potentially profound impacts on their constitutionally protected rights and interests. 56. The Supreme Court of Canada has repeatedly and consistently expressed its preference for determination of constitutional questions by competent tribunals: 50 Guy Régimbald, Canadian Administrative Law (Markham, ON: LexisNexis Canada Inc., 2008) at [underscore added]. 51 Martin, at para. 29, quoting with approval from the dissent of McLachlin J. (as she then was) in Cooper v. Canada (Human Rights Commission), [1996] 3 S.C.R. 854 [underscore added]. 52 The Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c Paul, at para. 36. [ 17 ]

20 Over two decades of jurisprudence has confirmed the practical advantages and constitutional basis for allowing Canadians to assert their Charter rights in the most accessible forum available, without the need for bifurcated proceedings between superior courts and administrative tribunals (Douglas College, at pp ; Weber, at para. 60; Cooper, at para. 70; Martin, at para. 29). The denial of early access to remedies is a denial of an appropriate and just remedy, as Lamer J. pointed out in Mills, at p And a scheme that favours bifurcating claims is inconsistent with the well-established principle that an administrative tribunal is to decide all matters, including constitutional questions, whose essential factual character falls within the tribunal's specialized statutory jurisdiction (Weber; Regina Police Assn.; Québec (Commission des droits de la personne et des droits de la jeunesse); Québec (Human Rights Tribunal); Vaughan; Okwuobi. See also Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 49) Canada s suggestion that this Panel can exercise its discretion not to assess the adequacy of Crown consultation is contrary, as above, to the well-established principle that an administrative tribunal is to decide all matters. In that regard, Canada s fresh approach is contrary to a significant weight of authority; indeed, Canada provides no authority for the notion that the Panel can avoid the decision squarely before it. In ACFN s submission, the Panel must decide whether it has jurisdiction or not. It cannot avoid this determination, as suggested by Canada. 58. It is difficult to conceive of a situation where a decision in respect of energy resources on land vested in the provincial Crown can be made without the possibility of the assertion of an Aboriginal right to consultation. 55 If the Panel denies, or declines to exercise, its jurisdiction to hear and decide such issues, the province s ability to effectively manage energy resources in a manner that is consistent with the rights of all interested parties could be thwarted by the mere assertion of an Aboriginal/Treaty right as the issues would be bifurcated. A separate proceeding would be required in each case to determine the nature, extent and applicability of the Aboriginal/Treaty right and whether the Aboriginal party was adequately consulted. 56 Separate proceedings are costly, time-consuming and unnecessary as the ERCA already provides a comprehensive and effective adjudicative process and the Panel s decisions on questions of law are subject to appeal Conway, at para. 79 [underscore added]. See also: Martin, supra note 4 at para Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69, [2005] 3 SCR 388 at para Paul v. British Columbia (Forest Appeals Commission), [2000] 1 C.N.L.R. 176, [1999] B.C.J. No. 129 (BCSC) at para See: Ibid., at paras ; and ERCA, ss. 41(1). See also: Conway, at paras. 66, 79. [ 18 ]

21 59. In support of its decision in Paul, the Supreme Court of Canada observed that it would be most convenient for aboriginal persons to seek the relief afforded by their constitutionally protected rights as early as possible within the mechanisms of the administrative and judicial apparatus. 58 The Court in Paul also stated the more relaxed evidentiary rules of tribunals may in fact be more conducive than courts for deciding Aboriginal rights claims This comports with the purpose of empowering tribunals, like the Panel, to decide constitutional issues. Tribunals are empowered to decide constitutional questions in part to provide an informal, fast, and efficient forum to adjudicate and decide complex issues. 60 Regulatory tribunals typically offer fast and accessible relief. Many advantages associated with empowering tribunals to decide constitutional questions apply with particular force in the context of Crown consultation disputes: Other advantages [of permitting administrative tribunals to determine constitutional questions] include the possibility to adjudicate the constitutionality of the enabling statute in an avenue outside the regular court process, the narrow expertise and the speed with which administrative decision makers deal with sometimes very complex matters including Charter issues and the relative accessibility of administrative tribunals Moreover there are clear advantages for the administrative decision-making process in allowing the speedy and inexpensive processes of administrative agencies to sift the facts and compile a record for the benefit of a reviewing court. In prompt and informal administrative tribunals, the issue may be raised at an early stage which permits the citizen to adjudicate his claim in a less expensive and time-consuming avenue than a judicial court The constitutional issues raised by the NQCLs require an extensive fact-finding inquiry for which the Panel s expertise and experience is particularly suited. These issues include questions about likely Project impacts, cumulative effects, the efficacy of proposed mitigation measures and government programs and initiatives to reduce or eliminate Project impacts. It makes eminent practical sense for the Panel, with its expertise, to decide these issues and to make factual findings at first instance. And 58 Paul, at para. 32 [bolding added]. 59 Ibid. at para Guy Régimbald, Halsbury s Laws of Canada: Administrative Law (Markham, ON: LexisNexis Canada Inc., 2008) at Guy Régimbald, Canadian Administrative Law (Markham, ON: LexisNexis Canada Inc., 2008) at 64 [underscore added]. [ 19 ]

22 contrary to Canada s submission, the Panel should not place any weight on prior consultation on other projects, including the original Jackpine application, as evidence that Aboriginal groups have been, or will be consulted. The Panel must consider each case separately and should not use past dealings as a reason to avoid assessing the adequacy of consultation at this time. IV. It is not premature to assess the adequacy of the Crown s consultation 62. It does not matter that consultation may not yet be complete or is still ongoing. The Panel s constitutional duty is to consider whether the Crown s constitutional duty of consultation has been fulfilled with respect to the subject matter of the application before it. 62 That is, whether the Crown s duty to consult and accommodate has been met up to the point of the Panel s decision The Panel cannot avoid the duty to consider the adequacy of the Crown s consultation on the basis that Alberta has put in place the Policy and Guidelines under which it claims to retain the responsibility for making such determinations. 64 To suggest that ACFN and other First Nations are free to put evidence before the Board as to the adverse impacts of the Project on their rights and interests and then state the Crown s consultation efforts with regard to those impacts can be evaluated by Alberta at some future date, is to miss the point of the duty to consult Alberta, following the ERCB decision in Osum, says that it would be premature for the Panel to determine the adequacy of Crown consultation when a) this is all part of a broader consultation process and there is more consultation on the way; and b) the Panel process will provide the Crown with an opportunity to assess what further consultation is required. Canada takes a different approach to the prematurity argument, arguing that the Panel process is a planning tool which guides and informs 62 Kwikwetlem, at para Ibid. at paras. 15, Ibid. at paras , Ibid. at para. 67. [ 20 ]

23 the Crown, and is still underway, and therefore the Panel should not assess consultation at this time. Much of Canada s argument relies on the notion that the Panel performs a planning function (see paragraphs 74-92). 65. There are several fundamental flaws in Canada and Alberta reasoning. 66. First, as noted by Canada at paragraph 12 of its argument, Shell s application is an application under section 13 of the Oil Sands Conservation Act (OSCA), which states: Amendment of approvals 13(1) The Board may, on application or its own motion, amend an approval granted under section 10 or 11. (2) The prior authorization of the Lieutenant Governor in Council is not required in respect of (a) an amendment to an approval referred to in subsection (1), or (b) a consolidation of an approval referred to in subsection (1) and one or more amendments to that approval. 67. Section 13 is a different provision than in Osum, which was an application under section 10. Further, as Canada notes, Shell s original Jackpine application was made under sections 10 and 11 of OSCA. The key difference is that the matter does not require the authorization of the Lieutenant Governor in Council see section 13(2)(a). Unlike in Osum and the original Jackpine application, it is the Panel in this application that will render the final decision as to whether approval for the amendment should issue under s Prior to 2009, section 13 required the Lieutenant Governor in Council s approval. However, amendments in 2009 did away with that requirement, making the ERCB the final stop on amendment applications of this nature. The Hansard proceedings are informative: In turn, Bill 28 makes amendments to three different acts: the Coal Conservation Act, the Oil and Gas Conservation Act, and the Oil Sands Conservation Act. Those amendments will streamline the regulatory process without affecting the ability of the ERCB to act independently to regulate [ 21 ]

24 safe, responsible, and efficient developments of the energy resources. I m speaking of the amendment to not require an order in council for ERCB-approved amendments to project approvals. Mr. Speaker, this doesn t change the application process; it simply eliminates the final sign-off. In other words, the substantial rule remains the same, but the process is streamlined. 66 (emphasis added) 69. If the Panel makes a final decision to grant the amendment, any subsequent consultation by the Crown will be focused on regulatory permitting and not the fundamental issue as to whether the amendment should issue in the first place. The Crown s duty to consult and accommodate First Nations in advance of this critical and final decision by the Panel as to whether to grant the amendment cannot be deferred to later permitting stages, where the focus is on how and not whether to allow the Project to proceed. 70. As the BC Court of Appeal explained in Carrier Sekani Tribal Council v. British Columbia (Utilities Commission): Not only has the Commission the ability to decide the consultation issue, it is the only appropriate forum to decide the issue in a timely way. Furthermore, the honour of the Crown obliges it to do so. As a body to which powers have been delegated by the Crown, it must not deny the appellant timely access to a decision-maker with authority over the subject matter. The process of consultation envisaged in Haida requires discussion at an early stage of a government plan that may impact Aboriginal interests, before matters crystallize, so that First Nations do not have to deal with a plan that has become an accomplished fact. If First Nations are entitled to early consultation, it logically follows that the tribunal with the power to approve the plan must accept the responsibility to assess the adequacy of consultation. Otherwise, the First Nations are driven to seek an interlocutory injunction, which, according to Haida at para. 14, is often an unsatisfactory route Second, as evidenced by section 13 of OSCA above, the Panel s role includes decision making and is therefore not simply limited to planning and recommendations to the Crown, as suggested by Canada. Canada s chart at paragraph 86 of its argument 66 Alberta Hansard, April 22, 2009, second reading of Bill 28, Energy Statutes Amendment Act, 2009, page Carrier Sekani, at paras [underscore added]. [ 22 ]

25 shows that this Panel and the Commission in Rio Tinto are both decision making entities. 72. Third, the s. 13 approval in form and substance constitutes approval of the Project as a whole and the associated land disturbances. While there are other incidental approvals being sought from other decision makers, these decisions are being vetted by the Panel, which then makes recommendations to the decision makers out of a desire to ensure uniformity and consistency in decision making. Thus, while it may ultimately be the Director under the Water Act who will issue an amendment to the water license, to view the Director as also the principle decision maker in this context would be for form to triumph over substance. 73. Fourth, both Canada and Alberta make broad, sweeping statements that consultation is not complete, but do not point to any particular consultation process that each of them will carry out with respect to the particular application before the Panel. Indeed, Alberta acknowledges that the only matter before the Panel is Shell s ERCB Application No As above, once the Panel makes its decision, the matter is moot and Alberta will have nothing to consult about. For those decisions not within the Panel s scope, once the Panel has completed its hearing, there will be a clear momentum to issue any remaining approvals Fifth, Alberta has stated that it will rely upon the Panel process as part of determining the adequacy consultation (see para 48, October 15), yet Alberta does not intend to be present or participate in the hearing beyond providing written responses to Panel questions regarding its policy interests and preferred outcomes. 69 Further, there is no evidence before the Panel that Alberta does in fact consult with, or accommodate, First Nations post-hearing as a matter of course, nor that it will consult with or accommodate ACFN in this instance. 68 If it is to be meaningful, consultation cannot be postponed until the last and final point in a series of decisions. Once important preliminary decisions have been made there may well be "a clear momentum" to move forward with a particular course of action: see Squamish Indian Band v. British Columbia (Minister of Sustainable Resource Management), 2004 BCSC 1320, 34 B.C.L.R. (4th) 280 at para CEAR Registry Doc 166,online: [ 23 ]

26 75. In ACFN s submission, even if one accepts the Crown s position on the informative nature of the proceeding, the Panel process can also be helpful to the Crown by pointing out to it the manner in which consultation has been inadequate. If, as Alberta argues, the Crown intends to rely upon the Panel as having an essential role (para 44) in the consultation process, ACFN s request that the Panel assess the adequacy of Crown consultation to date is consistent with that objective. 76. Finally, as held by Iacobucci J. in Quebec (Attorney General) v. Canada (National Energy Board), the power to decide questions of constitutional law implies the obligation to ensure that decisions do not offend the constitution. In that case, the Supreme Court of Canada considered whether the National Energy Board had any fiduciary duty or consultation duty vis-à-vis First Nations in relation to its functions. The Court held that the NEB, as a quasi-judicial decision maker, is obliged to ensure that its decisions do not offend s. 35 of the Constitution Act, 1982: It is obvious that the Board must exercise its decision-making function, including the interpretation and application of its governing legislation, in accordance with the dictates of the Constitution, including s. 35(1) of the Constitution Act, Therefore, it must first be determined whether this particular decision of the Board, made pursuant to s (1) of the National Energy Board Act, could have the effect of interfering with the existing aboriginal rights of the appellants so as to amount to a prima facie infringement of s. 35(1). [emphasis added] This reasoning is directly applicable to ACFN s constitutional question: the ERCB must satisfy itself that any decision made under the OSCA or the ERCA does not offend s. 35 of the Constitution Act 1982, by facilitating adverse impacts upon ACFN s Treaty rights, in the absence of adequate consultation and accommodation. 70 Quebec (Attorney General) v. Canada (National Energy Board), [1994] 1 S.C.R. 159, [1994] S.C.J. No. 13 at para. 40. [ 24 ]

27 V. Judicial Comity and Stare Decisis 78. Alberta suggests that the Panel should follow the Osum decision. It is well established law that the doctrine of stare decisis is not applicable to administrative tribunals 71. As such, this Panel is not bound by prior decisions made by the ERCB. Not only are tribunals not at liberty to treat earlier decisions as precedent, they are positively obligated not to 72. Tribunals are obligated to make an independent decision based on the merits of each case. Prior decisions may be a factor in a tribunals decision, but the tribunal cannot treat it as binding or conclusive; decision-makers who acted as if they were bound by an earlier decision have been held to have unlawfully fettered their discretion 73. It is appropriate for a tribunal to depart from a previous decision whenever the tribunal feels it is necessary to do so, this would include when the precedent is old, distinguishable, or was wrongly decided. 79. Regardless, the ERCB s decision in Osum cannot apply here for a number of reasons. 80. First, Shell s application is under section 13 of the Oil Sands Conservation Act, and need not be referred to the Lieutenant Governor in Council. This is a fundamentally different situation from Osum. ACFN and others in the instant application are facing a final decision from the Panel as to whether to grant or deny the amendment application, with no possibility of further consultation on this critical issue at later stages. 81. Second, the ERCB and Minister of Environment have agreed to Terms of Reference that set out a substantive mandate relating to considerations of Treaty and Aboriginal rights. The Panel must reference in its report information regarding the adverse effects of the Project upon asserted or established Aboriginal and treaty rights, 71 See, for example, Big Loop Cattle Co. v. Alberta (Energy Resources Conservation Board), 2010 ABCA 328 at para. 10 and Atco Gas (a Division of ATCO Gas and Pipelines Ltd.) (Re), [2012] A.E.U.B.D. No. 159, Decision No at para Robert W. MacCaulay & James L.H. Sprague, Practice and Procedure before Administrative Tribunals, looseleaf (Toronto: Thomson Canada Ltd., 2004) at p Ibid.; and Donald J.M. Brown and John M. Evans, Judicial Review of Administrative Action in Canada, looseleaf Vol. 3 (Toronto: Canvasback Publishing) p [ 25 ]

28 must consider evidence concerning these effects, and measures to manage, mitigate and compensate identified effects on same. Evidence of Aboriginal and Treaty rights, and adverse impacts on same, is at the heart of the scope of the duty to consult. While the Panel Agreement does not require a determination regarding consultation, the foundation for such a determination has been well laid. Subsection 6.3 of the Agreement cannot reasonably be interpreted as excluding jurisdiction over such questions, particularly in light of subsection 6.4. No such provisions were referenced in the Osum decision. 82. Third, on the application by Cold Lake First Nation for leave to appeal the Osum decision to the Court of Appeal, Alberta has argued that leave should be denied because the issue is now moot. The ERCB similarly argued that the issue is no longer significant because Cold Lake First Nation reached an agreement with the proponent, removed its objection, and the Project has been approved. A decision from the Court of Appeal on leave is still pending With respect, it is troubling that Alberta is encouraging the Panel to follow the Osum decision while actively seeking to avoid judicial scrutiny of that decision by arguing against leave to appeal the Osum decision not on its merits, but based on mootness. 84. The mandate, or otherwise, of the ERCB and Joint Review Panels to assess Crown consultation is a matter of paramount importance to First Nations and the public generally. The Osum decision is a departure from previous ERCB and Panel decisions, which acknowledged the ERCB s jurisdiction to determine section 35 based questions of constitutional law, including questions related to adequate consultation. 75 As reviewed above, the soundness of the reasoning in Osum is subject to debate. To date, the Court of Appeal has not considered this issue squarely or on the basis of full 74 Alberta and ERCB submissions to the Court of Appeal. 75 Imperial Oil Resources Ventures Ltd., EUB Decision at s ; see also ERCB Decision Letter dated November 25, 2011 re MEG Energy Corporation Application No Re. Christina Lake Phase 3 Project. [ 26 ]

29 argument, and certainly not since the direction of the Supreme Court of Canada in Rio Tinto. 85. We respectfully submit that the Panel is not bound by the Osum decision; it can and should render its own decision, unfettered by Osum, concerning its mandate to assess the adequacy of Crown consultation. This decision should be based on the Panel s review of its Terms of Reference and its role as a final decision-maker for the purposes of s. 13 of the OSCA. VI. Summary of submissions as they relate to the Panel request of October 12, i) Adequacy of the NQCL 86. The NQCL submitted by ACFN satisfies all of the regulatory requirements and should be deemed adequate. ii) Extent to which the reasoning in the Osum decision should apply in this case 87. The reasoning in the Osum decision is incorrect and should not be applied in this case for the reasons set out above. iii) Whether the Panel should assess the adequacy of consultation at the outset of the hearing 88. ACFN submits that the Panel should make its assessment of the adequacy of consultation and accommodation at the conclusion of the hearing, with the benefit of a full evidentiary record. It would be unworkable and impractical to attempt to assess the adequacy of consultation and accommodation at the outset of the hearing before the record before the Panel is complete or tested through questioning. The adequacy of consultation and, in particular, accommodation depends on such factors as the severity of the potential impacts, the degree to which they will be mitigated and the accommodations made available to affected First Nations. The Panel will only be in a [ 27 ]

30

31 VII. List of Authorities Caselaw TAB Atco Gas (a Division of ATCO Gas and Pipelines Ltd.) (Re), [2012] A.E.U.B.D. No. 159, Decision No Big Loop Cattle Co. v. Alberta (Energy Resources Conservation Board), 2010 ABCA Carrier Sekani Tribal Council v. British Columbia (Utilities Commission), 2009 BCCA 67 3 Cooper v. Canada (Human Rights Commission), [1996] 3 S.C.R Dene Tha' First Nation v. Alberta (Energy and Utilities Board) and Penn West Petroleum Limited 2005 ABCA 68 5 Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511, 2004 SCC 73 6 Imperial Oil Resources Ventures Ltd., EUB Decision Kelly v. Alberta (Energy and Utilities Board), 2008 ABCA Kwikwetlem First Nation v. British Columbia (Utilities Commission), 2009 BCCA 68 9 Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC Nova Scotia (Workers' Compensation Board) v. Martin; Nova Scotia (Workers' Compensation Board) v. Laseur, 2003 SCC 54, [2003] 2 S.C.R [ 29 ]

32 Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch), 2001 SCC Paul v. British Columbia (Forest Appeals Commission), [2000] 1 C.N.L.R. 176 (BCSC) 13 Paul v. British Columbia (Forest Appeals Commission), [2003] 2 S.C.R. 585, 2003 SCC Quebec (Attorney General) v. Canada (National Energy Board), 112 D.L.R. (4th) 129 (S.C.C.) 15 R. v. Conway, 2010 SCC 22, [2010] 1 S.C.R R. v. Kapp, 2008 SCC Rio Tinto Alcan v. Carrier Sekani Tribal Council, 2010 SCC 43, [2010] 2 S.C.R Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R Squamish Indian Band v. British Columbia (Minister of Sustainable Resource Management), 2004 BCSC 1320, 34 B.C.L.R. (4th) Statutes & Regulations Administrative Procedures and Jurisdiction Act, R.S.A. 2000, c. A-3 21 Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c Designation of Constitutional Decision Makers Regulation, Alta. Reg. 69/ Energy Resources Conservation Act, RSA 2000 c. E Oil Sands Conservation Act, RSA 2000, c [ 30 ]

33 Other Authorities Alberta Hansard, March 21, 2005, second reading of Bill 23, Administrative Procedures and Jurisdiction Act, Alberta Hansard. April 20, 2005, third reading of Bill 23, Administrative Procedures and Jurisdiction Act, Alberta Hansard, April 22, 2009, second reading of Bill 28, Energy Statutes Amendment Act, Brown and Evans, Judicial Review of Administrative Action in Canada, looseleaf Vol Guy Régimbald, Canadian Administrative Law (Markham, ON: LexisNexis Canada Inc., 2008) 30 Guy Régimbald, Halsbury s Laws of Canada: Administrative Law (Markham, ON: LexisNexis Canada Inc., 2008) 31 Robert W. MacCaulay & James L.H. Sprague, Practice and Procedure before Administrative Tribunals, looseleaf (Toronto: Thomson Canada Ltd., 2004) 32 [ 31 ]

34 Page 1 Case Name: ATCO Gas (a Division of ATCO Gas and Pipelines Ltd.) (Re) ATCO Gas (A Division of ATCO Gas and Pipelines Ltd.) Decision on Request for Review and Variance of AUC Decision General Rate Application Phase I [2012] A.E.U.B.D. No. 159 Decision No Application No Proceeding ID No Alberta Utilities Commission Panel: Willie Grieve, QC Chair; Tudor Beattie, QC, Commission Member; Anne Michaud, Commission Member Decision: June 8, (113 paras.) DECISION

35 Page 13 (AUC-AG-43(b)) which was the same information that had been filed in previous proceedings where approval was granted. As well, ATCO Electric provided similar information for Customer Information System enhancements in its GRA and these costs were approved Decision regarding Customer Information System enhancements 42 In Decision , the hearing panel stated: [...] Decision requires that all major capital projects should include a detailed justification including demand, energy and supply information, a breakdown of project costs, the options considered and their economics, and a discussion of the need for the project. The Commission continues to consider that these requirements are still in effect for the analysis of utility business cases Commission findings AG has forecast costs for the general CIS enhancement program of $1 million in 2011 and $0.6 million in This program and the related benefits are not clearly described. The Commission finds the explanation in paragraph 129 of the application does not justify the requested capital expenditure for this project. Therefore, the Commission denies this proposed enhancement and directs that related costs be removed from the revenue requirement in the compliance filing to this decision AG indicated in its response to intervener submissions that it saw the doctrine of legitimate expectation as an aspect of procedural fairness and an entitlement to fair process. 25 AG stated that "the utility must know the case it must meet in order to discharge it" 26 and that it was not provided with "notice that it could not rely on approval of similar or identical program costs for other utilities." The review panel concurs with the parties' submissions that the doctrine of legitimate expectation as interpreted in Canadian law affords procedural rights in cases where past procedural practice was clear, unambiguous and unequivocal. In Moreau-Bérubé v. New Brunswick (Judicial Council), the Supreme Court of Canada stated the following regarding the doctrine of legitimate expectation: The doctrine can give rise to a right to make representations, a right to be consulted or perhaps, if circumstances require, more extensive procedural rights. But it does not fetter the discretion of a statutory decision-maker in order to mandate any particular result (...) In this instance, although it does not make the argument explicitly, AG appears to be arguing that it should have been afforded more extensive procedural rights - such as notice that it could not rely on other approvals - because other utilities have received Commission approval of similar costs. 46 The review panel does not agree that the circumstances of AG's application warrant such an extension of procedural rights. AG is a highly sophisticated party and aware that the concept of

36 Page 14 stare decisis does not apply to the Commission's decisions and that different outcomes are possible because every panel bases its decision on the record before it. 47 AG is also aware that it has the burden of proof under the provisions of the Gas Utilities Act to show that any requested relief is just and reasonable. AG has full control over what evidence it chooses to provide throughout the process to support its application and its burden of proof. The review panel notes that AG raised this concept of legitimate expectation throughout its R&V Application. Rather than reiterate this finding throughout this decision, the Commission confirms that this finding applies in each instance where AG has raised this issue. 48 Notwithstanding its finding on AG's submissions regarding the doctrine of legitimate expectation, with respect to Customer Information System enhancements, the review panel considers it is unclear whether the hearing panel considered AG's response to AUC-AG-43(b) in coming to its conclusion that "paragraph 129 of the application does not justify the requested capital expenditure for this project." Given that AG's response to AUC-AG-43(b) could be relevant to the matter at issue, the review panel considers that this raises an error of law and a substantial doubt has been raised as to the correctness of the decision. Therefore, the review panel grants a review of the decision to deny AG's Customer Information System enhancement forecast costs. 4.2 Head Office Advertising Costs Views of the parties 49 With respect to head office advertising costs, AG submitted that in Decision , ATCO Electric received approval for all of its head office costs. AG's forecasts were based on the identical total head office cost forecast for ATCO Electric, however, in Decision , the hearing panel denied AG its head office advertising costs without any explanation of the different circumstances between AG and ATCO Electric Decision regarding Head Office Advertising Costs 50 In Decision the hearing panel stated: The Commission relies on the approval of the corporate cost allocation methodology in Decision for The Commission has reviewed the corporate costs in Table 42, Administrative expense and notes that actual costs for 2008, 2009 and 2010 exceeded forecasts. However, for 2008 an explanation of the variance is provided. The Commission accepts AG's explanation and considers that the increase, which was with respect to HRX, would be a recurring cost. A comparison of actual 2008 costs to forecast 2011 costs is an increase of 10.5 per cent over a three-year period. The Commission considers an increase of approximately 3.5 per cent per year to be reasonable. However, the Commission agrees that the $73,000 for 2011 and $75,000 for 2012 of allocated corporate advertising, as noted above by the UCA, should not have been included in the corporate costs and directs that this amount should be removed. The Commission is satisfied that except as noted above for advertising, AG's forecast corporate office costs for 2011 are reasonable. The Commission notes that the same costs formed part of the 2011 revenue requirement for ATCO Electric in Decision

37 In the Court of Appeal of Alberta Citation: Big Loop Cattle Co. Ltd. v. Alberta (Energy Resources Conservation Board), 2010 ABCA 328 Date: Docket: AC AC AC Registry: Calgary Between: Docket: AC Big Loop Cattle Co. Ltd., E.P. Ranch Limited, High Lonesome Ranch Limited, Pekisko Creek Ranch & Cattle Co. Ltd., Alec C. Burke and Municipal District of Ranchland No. 66 The Pekisko Group Applicants (Appellants on Appeal) - and - The Energy Resources Conservation Board and Suncor Energy Inc. (formerly Petro-Canada) Respondents (Respondents on Appeal) Between: Docket: AC Royal Adderson and Bar Ad Ranches Ltd. - and - Applicants (Appellants on Appeal) The Energy Resources Conservation Board and Suncor Energy Inc. (formerly Petro-Canada Oil & Gas Ltd.) Respondents (Respondents on Appeal)

38 Docket: AC Between: Keith Lefthand, The Stoney Indian Band, and Development Ltd. - and - Applicant (Appellant on Appeal) The Energy Resources Conservation Board Respondent (Respondent on Appeal) - and - Suncor Energy Inc. (formerly Petro-Canada) Respondent (Respondent on Appeal) Reasons for Decision of The Honourable Madam Justice Patricia Rowbotham Application for Leave to Appeal ERCB Decision

39 Page: 4 in Ketch Resources Ltd.: ERCB Decision In that decision, the Board said, at 7 and 8, that applicants must provide complete and credible alternatives for consideration by the local community, affected residents and the Board and that where applicants claim that a proposed course of action will provide significant benefit over another, the board expects substantiating evidence. [10] Although the alleged difference in the Board s positions might be of interest to the practice, I note that the doctrine of stare decisis is not applicable to administrative tribunals: see Ontario (Minister of Municipal Affairs and Housing) v Transcanada Pipelines Ltd (2000),186 DLR (4th) 403, 137 OAC 201 (Ont CA). [11] The Board heard considerable evidence relating to trunkline routing and possible routing alternatives: ERCB Decision : The amount of information and thoroughness of analysis that must be provided in relation to reasonable alternatives is an important aspect of preparing a Board application. Here, the Board considered some evidence relative to alternate routes and found that it was sufficient to show that they were unworkable. The Board accepted Suncor s evidence that the proposed route was, in fact, the only reasonable possible route if the Sullivan field were to be developed. This is a question of mixed fact and law, and there is no pure legal question which can be extricated. Moreover, the Board s decision was a discretionary decision within its expertise and would attract considerable deference on appeal. Accordingly, the applicants have not satisfied the requirements for leave to appeal on this ground. B. Adequacy of Consultation Regarding Alternate Routes [12] The Big Loop and Pekisko groups submit that Suncor failed to adequately consult with other stakeholders. They say that failing to provide more detailed information concerning alternate routes left the interveners at a disadvantage in being able to contest Suncor s preferred route. They contend that this violated their right to be informed of facts or allegations contrary to their interests, and the right to cross-examine on those allegations, under sections 4 and 5 of the Administrative Procedures and Jurisdiction Act, RSA 2000, c A-3 (APJA). They further submit that Suncor failed to meet the requirement of a thorough and effective public consultation program that goes well beyond the normal consultation process because of the potential sensitivity of the eastern slopes area as set out in Informational Letter IL 93-9 (IL 93-9). [13] The Board found that Suncor conducted a thorough and accessible public consultation program that met the requirements of Directive 056 and IL However, the Board recognized that there was a lack of consultation prior to the hearing and that consultation about alternatives in advance of the hearing might have made the hearing more efficient and clarified the issues: ERCB Decision :10. It is not uncommon that defects in consultation are addressed at the hearing itself. Suncor submits that in this case there was a complete exchange of views about alternative routes at the hearing, where the parties fully canvassed the issues relevant to routing, and had ample opportunity to state their concerns.

40 Page 1 Case Name: Carrier Sekani Tribal Council v. British Columbia (Utilities Commission) Between The Carrier Sekani Tribal Council, Appellant (Applicant/Intervenor), and The British Columbia Utilities Commission and British Columbia Hydro and Power Authority and Alcan Inc. and The Attorney General of British Columbia, Respondents (Respondents) [2009] B.C.J. No BCCA 67 [2009] 4 W.W.R R.P.R. (4th) CarswellBC B.C.L.R. (4th) 298 [2009] 2 C.N.L.R B.C.A.C. 228 Dockets: CA and CA British Columbia Court of Appeal Vancouver, British Columbia I.T. Donald, C.M. Huddart and R.J. Bauman JJ.A. Heard: November 24 and 25, Judgment: February 18, (69 paras.)

41 Page 2 Aboriginal law -- Aboriginal status and rights -- Duties of the Crown -- Fair dealing and reconciliation -- Consultation and accommodation -- Honour of the Crown -- Constitutional issues -- Recognition of existing aboriginal and treaty rights -- Appeal by Carrier Sekani Tribal Council from British Columbia Utilities Commission's dismissal of its motion for reconsideration of B.C. Hydro's decision to buy electricity from Alcan in accordance with an Energy Purchase Agreement (EPA) made in 2007 allowed and matter remitted to Commission for rehearing -- Honour of the Crown required not only that B.C. Hydro consult, but also that the Commission decide any consultation dispute which arose within the scheme of its regulation -- Commission unreasonably refused to include consultation issue in scope of a full hearing when the circumstances demanded an inquiry. Environmental law -- Jurisdictional and constitutional issues -- Aboriginal lands -- Duty to consult -- Appeal by Carrier Sekani Tribal Council from British Columbia Utilities Commission's dismissal of its motion for reconsideration of B.C. Hydro's decision to buy electricity from Alcan in accordance with an Energy Purchase Agreement (EPA) made in 2007 allowed and matter remitted to Commission for rehearing -- Honour of the Crown required not only that B.C. Hydro consult, but also that the Commission decide any consultation dispute which arose within the scheme of its regulation -- Commission unreasonably refused to include consultation issue in scope of a full hearing when the circumstances demanded an inquiry. Natural resources law -- Public utilities -- Regulatory tribunals -- Practice and procedure -- Interveners -- Provincial boards, tribunals and commissions -- British Columbia -- Electricity -- Generation -- Hydro -- Appeal by Carrier Sekani Tribal Council from British Columbia Utilities Commission's dismissal of its motion for reconsideration of B.C. Hydro's decision to buy electricity from Alcan in accordance with an Energy Purchase Agreement (EPA) made in 2007 allowed and matter remitted to Commission for rehearing -- Honour of the Crown required not only that B.C. Hydro consult, but also that the Commission decide any consultation dispute which arose within the scheme of its regulation -- Commission unreasonably refused to include consultation issue in scope of a full hearing when the circumstances demanded an inquiry. Appeal by Carrier Sekani Tribal Council from the British Columbia Utilities Commission's dismissal of its motion for reconsideration of B.C. Hydro's decision to buy electricity from Alcan in accordance with an Energy Purchase Agreement (EPA) made in For the EPA to be enforceable, B.C. Hydro required the approval of the Commission. The Tribal Council sought to be heard in the proceeding before the Commission on the issue of whether the Crown had fulfilled its duty to consult before B.C. Hydro entered into the EPA. The Tribal Council claimed that the diversion of water for Alcan's use was an infringement of its rights and title and that no consultation had ever taken place. The Commission found that since there were no new physical impacts created by the EPA, the duty to consult was not triggered. The Commission did not decide whether B.C. Hydro had a duty to consult. It decided that it did not need to address that question because of its conclusion on the triggering issue.

42 Page 3 HELD: Appeal allowed and matter remitted to Commission for hearing on the duty- to-consult issue. The Commission unreasonably refused to include the consultation issue in the scope of the proceeding. B.C. Hydro, as a Crown corporation, was taking commercial advantage of an assumed infringement on a massive scale, without consultation. This fact was sufficient to put the Commission on inquiry whether the honour of the Crown was upheld in the making of the EPA. The Commission was a quasi-judicial tribunal with authority to decide questions of law. As such, it had the jurisdiction and obligation to decide the constitutional question of whether the duty to consult existed and, if so, whether it had been discharged. That obligation was not met by deciding, as a preliminary question, an adverse impact issue that properly belonged within an inquiry into whether a duty was owed and had been fulfilled. As a body to which powers had been delegated by the Crown, the Commission could not deny the Tribal Council timely access to a decision-maker with authority over the subject matter. The honour of the Crown required not only that B.C. Hydro consult, but also that the Commission decide any consultation dispute which arose within the scheme of its regulation. The Commission erred in not entertaining the issue of consultation within the scope of a full hearing when the circumstances demanded an inquiry. Whether the EPA triggered a duty to consult was to be determined in a hearing on the merits. Statutes, Regulations and Rules Cited: Constitution Act, R.S.C. 1985, App. II, No. 44, Schedule B, s. 35, s Hydro and Power Authority Act, RSBC 1996, CHAPTER 212, s. 12(1) (m) Utilities Commission Act, RSBC 1996, CHAPTER 473, s. 71 Utilities Commission Act, S.B.C. 1980, c. 60, Counsel: G.J. McDade, Q.C.: Counsel for the Appellant. C.W. Sanderson, Q.C. and K.B. Bergner: Counsel for the Respondent, British Columbia Hydro and Power Authority. D.W. Bursey and R.D.W. Dalziel: Counsel for the Respondent, Rio Tinto Alcan Inc. P.E. Yearwood and J.J. Oliphant: Counsel for the Respondent, Attorney General of British Columbia. Reasons for Judgment

43 Page 4 The judgment of the Court was delivered by I.T. DONALD J.A.:-- Introduction 1 This is one of those cases foreseen by the Supreme Court of Canada in Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511, where the broad general principles of the Crown's duty to consult and, if necessary, accommodate Aboriginal interests are to be applied to a concrete set of circumstances. 2 Consultation arises here in relation to the decision of British Columbia Hydro and Power Authority (B.C. Hydro) to buy electricity from Rio Tinto Alcan Inc. (Alcan) which is surplus to its smelter requirements, in accordance with an Energy Purchase Agreement (EPA) made in For the EPA to be enforceable, B.C. Hydro needs the approval of the British Columbia Utilities Commission (Commission) under s. 71 of the Utilities Commission Act, R.S.B.C. 1996, c The Carrier Sekani Tribal Council (the appellant) sought to be heard in the s. 71 proceeding before the Commission on the issue of whether the Crown fulfilled its duty to consult before B.C. Hydro entered into the EPA. 5 The appellant's interest (asserted both in a pending action for Aboriginal title and within the treaty process) is in the water and related resources east of the discharge of the Nechako Reservoir created by Alcan in the early 1950s to drive its generators in Kemano for use at the Kitimat aluminum smelter. 6 The appellant claims that the diversion of water for Alcan's use is an infringement of its rights and title and that no consultation has ever taken place. 7 The Commission considered the appellant's request as a reconsideration of its decision, made prior to the appellant's involvement, that consultation was not relevant and, thus, not within the scope of its proceeding and oral hearing (the Scoping Order). It was held not to be relevant then because the only First Nations groups involved at that point were the Haisla First Nation and the Haisla Hereditary Chiefs, who did not press the issue of consultation. 8 The Commission addressed the reconsideration in two phases. At Phase I, the Commission "concluded that the CSTC [Carrier Sekani Tribal Council] established a prima facie case sufficient to warrant a reconsideration of the Scoping Order", and that the ground for reconsideration was "the impacts on the water flows arising from the 2007 EPA": Reasons for Decision, "Impacts on Water Flows", 29 November 2007 (Letter No. L-95-07). Within Phase I, the Commission conducted a fact-finding hearing into water flow impacts and concluded as follows: The Commission Panel accepts the submissions of counsel for B.C. Hydro

44 Page 19 (c) Crown in its dealings with Aboriginal peoples. The Commission has the capacity to address the adequacy of consultation. (a) Competency 36 The Commission has not explicitly declared that it has no jurisdiction to decide a consultation issue. But since the Commission has shown a disinclination to grapple with the issue, and the proponents of the EPA have questioned whether it lies within the Commission's statutory mandate, I think the court should settle the point. 37 In Paul v. British Columbia (Forest Appeals Commission), the Supreme Court of Canada decided, at para. 38, "there is no principled basis for distinguishing s. 35 rights from other constitutional questions." 38 Moving on to whether administrative tribunals have the power to decide constitutional law questions, the Court in Paul stated, at para. 39: The essential question is whether the empowering legislation implicitly or explicitly grants to the tribunal the jurisdiction to interpret or decide any question of law. If it does, the tribunal will be presumed to have the concomitant jurisdiction to interpret or decide that question in light of s. 35 or any other relevant constitutional provision. 39 I take those statements to be of broad application and not limited to the facts particular to Paul. In my opinion, they apply to the instant case, notwithstanding that the determination for the Forest Appeals Commission would have had a more direct effect on Mr. Paul's use of the forest resource than would the effects of B.C. Hydro's involvement in the EPA on the appellant's interests in the water resource. 40 It can be inferred from the Utilities Commission Act that the Commission has the authority to decide relevant questions of law. Section 79, "findings of fact conclusive", implies that the right to appeal under s. 101 is restricted to questions of law or jurisdiction. Further, consideration of the exclusive jurisdiction clause in s. 105 indicates that the Legislature must have empowered the Commission to decide questions of law, otherwise the appellate review would be meaningless. 41 The Commission is therefore presumed to have the jurisdiction to decide relevant constitutional questions, including whether the Crown has a duty to consult and whether it has fulfilled the duty. These are issues of law arising from Part II of the Constitution Act, 1982, ss. 35 and 35.1 that the Commission is competent to decide. (b) Construction of Section 71

45 Page Section 71 of the Utilities Commission Act focuses on whether the EPA is in the public interest. I think the respondents advance too narrow a construction of public interest when they define it solely in economic terms. How can a contract formed by a Crown agent in breach of a constitutional duty be in the public interest? The existence of such a duty and the allegation of the breach must form part and parcel of the public interest inquiry. In saying that, I do not lose sight of the fact that the regulatory scheme revolves around the economics of energy: ATCO Gas & Pipelines Ltd. v. Alberta (Energy & Utilities Board), 2006 SCC 4, [2006] 1 S.C.R. 140, and that Aboriginal law is not in the steady diet of the Commission. But there is no other forum more appropriate to decide consultation issues in a timely and effective manner. As I will develop later, the rationale for the duty to consult, explained in Haida Nation v. British Columbia (Minister of Forests), discourages resort to the ordinary courts for injunctive relief and encourages less contentious measures while reconciliation is pursued. It would seem to follow that the appropriate forum for enforcement of the duty to consult is in the first instance the tribunal with jurisdiction over the subject-matter - here the Commission in relation to the EPA. 43 B.C. Hydro cites this Court's decision in British Columbia Hydro & Power Authority v. British Columbia (Utilities Commission) (1996), 20 B.C.L.R. (3d) 106, as support for the argument that s. 71 should not be interpreted to include the power to assess adequacy of consultation. It was held in that case that the governing statute, then the Utilities Commission Act, S.B.C. 1980, c. 60, did not confer jurisdiction on the Commission to enforce as mandatory the guidelines it developed on resource planning. One of the guidelines required public consultation, the inadequacy of which, as perceived by the Commission, led it to issue directions to B.C. Hydro in connection with an application for a certificate of public convenience and necessity. The Court examined the contested power to enforce guidelines against the language of the Act, its purpose and object, and found that no explicit provision enabled the Commission to promulgate mandatory guidelines which intruded on the management of the utility and none should be implied. 44 On the strength of that case, B.C. Hydro turns to Dunsmuir v. New Brunswick, 2008 SCC 9, 291 D.L.R. (4th) 577, for the following general proposition that it says applies to the present matter: [28] By virtue of the rule of law principle, all exercises of public authority must find their source in law. All decision-making powers have legal limits, derived from the enabling statute itself, the common or civil law or the Constitution. Judicial review is the means by which the courts supervise those who exercise statutory powers, to ensure that they do not overstep their legal authority. The function of judicial review is therefore to ensure the legality, the reasonableness and the fairness of the administrative process and its outcomes. [29] Administrative powers are exercised by decision makers according to statutory regimes that are themselves confined. A decision maker may not exercise authority not specifically assigned to him or her. By acting in the

46 Page 21 absence of legal authority, the decision maker transgresses the principle of the rule of law. Thus, when a reviewing court considers the scope of a decision-making power or the jurisdiction conferred by a statute, the standard of review analysis strives to determine what authority was intended to be given to the body in relation to the subject matter. This is done within the context of the courts' constitutional duty to ensure that public authorities do not overreach their lawful powers: Crevier v. Attorney General of Quebec, [1981] 2 S.C.R. 220, at p. 234, 127 D.L.R. (3d) 1; also Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, 2003 SCC 19, 223 D.L.R. (4th) 599, at para. 21. [Emphasis added.] 45 I do not accept B.C. Hydro's argument. The rule in question sought to be enforced through proceedings before the Commission arises not as an internal prescription, as in the B.C. Hydro v. British Columbia (Utilities Commission) decision just discussed, but from the Constitution itself. Haida, at paras , contemplates review of consultation by administrative tribunals. It is not necessary to find an explicit grant of power in the statute to consider constitutional questions; so long as the Legislature intended that the tribunal decide questions of law, that is sufficient. 46 It is necessary to address a case cited by all the respondents as standing for the proposition that a tribunal's power to decide the adequacy of consultation requires an explicit provision in the constituent statute. In Dene Tha' First Nation v. Energy and Utilities Board (Alta.), 2005 ABCA 68, 363 A.R. 234, the Alberta Court of Appeal held that the Board's refusal to accept an intervention in the matter of licences for well drilling and access roads was not reviewable as it was based on a factual finding that the First Nation seeking to intervene had not demonstrated an adverse impact. The court said it had no jurisdiction to review findings of fact. Therein lies the ratio decidendi of the judgment. The court noted at para. 24 that it was common ground that neither the Utility nor the Board had a duty to consult. As to the duty on the Crown, the court said, obiter dicta: [28] A suggestion made to us in argument, but not made to the Board, was that the Board had some supervisory role over the Crown and its duty to consult on aboriginal or treaty rights. No specific section of any legislation was pointed out, and we cannot see where the Board would get such a duty. We will now elaborate on that. 47 The court went on to record that consultation was not addressed at the Board level. I regard the above quoted remarks as having been made en passant in an oral judgment rather than a definitive judicial opinion made with the benefit of full argument. With respect, I do not find it persuasive authority for the proposition advanced by the respondents in the present case.

47 Page 22 (c) Capacity to decide 48 I turn to consider the Commission's capacity to decide. As I understand Alcan's submission, the issues surrounding the consultation duty are so remote from the Commission's usual terms of reference that the Commission should not be expected to decide them. Alcan argues that the appellant should go to court for redress. I quote from paras. 88 and 89 of Alcan's factum: to accept the CSTC's invitation [to entertain the consultation issue] would mire the Commission in complex questions of fact and law to which its mandate, statutory powers and remedies are ill-suited. 89. In the end, the argument comes full circle: the CSTC are seeking redress for their grievances in the wrong forum. 49 Paul rejected the argument that Aboriginal law issues may be too complex and burdensome for an administrative tribunal, at para. 36: To the extent that aboriginal rights are unwritten, communal or subject to extinguishment, and thus a factual inquiry is required, it is worth noting that administrative tribunals, like courts, have fact-finding functions. Boards are not necessarily in an inferior position to undertake such tasks. Indeed, the more relaxed evidentiary rules of administrative tribunals may in fact be more conducive than a superior court to the airing of an aboriginal rights claim. 50 I heard nothing in the appeal which causes me to doubt the capacity of the Commission to hear and decide the consultation issue. Expressed in more positive terms, I am confident that the Commission has the skill, expertise and resources to carry out the task. 2. The Duty to Decide 51 Not only has the Commission the ability to decide the consultation issue, it is the only appropriate forum to decide the issue in a timely way. Furthermore, the honour of the Crown obliges it to do so. As a body to which powers have been delegated by the Crown, it must not deny the appellant timely access to a decision-maker with authority over the subject matter. 52 The process of consultation envisaged in Haida requires discussion at an early stage of a government plan that may impact Aboriginal interests, before matters crystallize, so that First Nations do not have to deal with a plan that has become an accomplished fact. Haida said this on the question of timing, at para. 35: But, when precisely does a duty to consult arise? The foundation of the duty in the Crown's honour and the goal of reconciliation suggest that the duty arises when the Crown has knowledge, real or constructive, of the potential existence of the Aboriginal right or title and contemplates conduct that might

48 Page 23 adversely affect it: see Halfway River First Nation v. British Columbia (Ministry of Forests), [1997] 4 C.N.L.R. 45 (BCSC), at p. 71, per Dorgan J. As to timing, see also Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69, [2005] 3 S.C.R. 388 at para. 3:... the principle of consultation in advance of interference with existing treaty rights is a matter of broad general importance to the relations between aboriginal and non-aboriginal peoples. 53 If First Nations are entitled to early consultation, it logically follows that the tribunal with the power to approve the plan must accept the responsibility to assess the adequacy of consultation. Otherwise, the First Nations are driven to seek an interlocutory injunction, which, according to Haida at para. 14, is often an unsatisfactory route: Interlocutory injunctions may offer only partial imperfect relief. First, as mentioned, they may not capture the full obligation on the government alleged by the Haida. Second, they typically represent an all-or-nothing solution. Either the project goes ahead or it halts. By contrast, the alleged duty to consult and accommodate by its very nature entails balancing of Aboriginal and other interests and thus lies closer to the aim of reconciliation at the heart of Crown-Aboriginal relations, as set out in R. v. Van der Peet, [1996] 2 S.C.R. 507, at para. 31, and Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010, at para Third, the balance of convenience test tips the scales in favour of protecting jobs and government revenues, with the result that Aboriginal interests tend to "lose" outright pending a final determination of the issue, instead of being balanced appropriately against conflicting concerns: J.J.L. Hunter, "Advancing Aboriginal Title Claims after Delgamuukw: The Role of the Injunction" (June 2000). Fourth, interlocutory injunctions are designed as a stop-gap remedy pending litigation of the underlying issue. Aboriginal claims litigation can be very complex and require years and even decades to resolve in the courts. An interlocutory injunction over such a long period of time might work unnecessary prejudice and may diminish incentives on the part of the successful party to compromise. While Aboriginal claims can be and are pursued through litigation, negotiation is a preferable way of reconciling state and Aboriginal interests. For all these reasons, interlocutory injunctions may fail to adequately take account of Aboriginal interests prior to their final determination. 54 While the Commission is a quasi-judicial tribunal bound to observe the duty of fairness and to act impartially, it is a creature of government, subject to government direction on energy policy. The honour of the Crown requires not only that the Crown actor consult, but also that the regulatory tribunal decide any consultation dispute which arises within the scheme of its regulation. It is useful

49 Page 24 to remember the relationship between government and administrative tribunals generally. 55 In Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch), 2001 SCC 52, [2001] 2 S.C.R. 781, the issue was the independence of members of the Liquor Appeal Board given their terms of appointment. The Court contrasted the ordinary courts with administrative tribunals in the following analysis at para. 24: Administrative tribunals, by contrast, lack this constitutional distinction from the executive. They are, in fact, created precisely for the purpose of implementing government policy. Implementation of that policy may require them to make quasi-judicial decisions. They thus may be seen as spanning the constitutional divide between the executive and judicial branches of government. However, given their primary policy-making function, it is properly the role and responsibility of Parliament and the legislatures to determine the composition and structure required by a tribunal to discharge the responsibilities bestowed upon it. While tribunals may sometimes attract Charter requirements of independence, as a general rule they do not. Thus, the degree of independence required of a particular tribunal is a matter of discerning the intention of Parliament or the legislature and, absent constitutional constraints, this choice must be respected. 56 No one suggests the Commission has a duty itself to consult: Quebec (Attorney General) v. Canada (National Energy Board), [1994] 1 S.C.R. 159 at 183. The obligation arising from its status as a Crown entity is to grasp the nettle and decide the consultation dispute. 57 The honour of the Crown as a basis for the duty to decide is compelling on the facts here: one Crown entity, the responsible Ministry, granted the water licence, allegedly infringing Aboriginal interests without prior consultation; another Crown entity, B.C. Hydro, purchases electricity generated by the alleged infringement on a long-term contract; and a third, the tribunal, dismisses the appellant's claim for consultation on a preliminary point. B. Did the Commission commit a reviewable error in disposing of the consultation issue on a preliminary or threshold question? 58 In this part, I identify the appropriate standard of review and apply the standard to the decision under appeal. I conclude that (1) the standard is reasonableness; (2) the Commission set an unreasonably high threshold for the appellant to meet; and (3) it took too narrow a view of the Aboriginal interests asserted. 1. Standard of Review 59 The appellant argues that the Commission has to be correct in disposing of constitutional issues such as those that arise here. The respondents submit the standard is reasonableness.

50 Page 1 Indexed as: Bell v. Canada (Canadian Human Rights Commission); Cooper v. Canada (Canadian Human Rights Commission) David John Cooper, appellant; v. Canadian Human Rights Commission, respondent, and Canadian Airlines International Ltd., respondent. And between Noel Edwin Bell, appellant; v. Canadian Human Rights Commission, respondent, and Canadian Airlines International Ltd., respondent. [1996] 3 S.C.R. 854 [1996] S.C.J. No. 115 File Nos.: 24135, Supreme Court of Canada 1996: June 18 / 1996: November 21. Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, McLachlin and Iacobucci JJ. ON APPEAL FROM THE FEDERAL COURT OF APPEAL Administrative law -- Commissions and tribunals -- Right to decide issues of law, including constitutional issues -- Human Rights Commission considering allegation of discrimination based on age -- Act providing that no age discrimination occurring if mandatory retirement set at industry standard -- Investigator appointed by Commission recommending that complaint not proceed to tribunal -- Whether provision excusing age discrimination contrary to equality provisions of s. 15 of the Canadian Charter of Rights and Freedoms -- Whether Commission implicitly empowered to refer the matter to a tribunal and so in essence rule on constitutionality of the provision -- Canadian Charter of Rights and Freedoms, ss. 1, 15, 24(1) -- Constitution Act, 1982, s

51 Page 2 Canadian Human Rights Act, R.S.C., 1985, c. H-6, s. 15(c). The appellants, who were being retired as airline pilots at age 60 pursuant to their collective agreement, alleged age discrimination, given that most employees in Canada are required to retire only at age 65. They filed complaints with the Canadian Human Rights Commission in April and July 1990 and an investigator was appointed. The employer submitted that no discrimination occurred in that the employment policy was a bona fide occupational requirement. The investigator recommended that the Commission dismiss the appellants' complaints. Section 15(c) of the Canadian Human Rights Act (the Act), which provided that no discrimination would occur if persons were retired at a normative industrially determined age, would effectively be struck by the Commission as being contrary to the Charter if it were to refer the matter to a tribunal for determination. The appellants applied for judicial review in the Federal Court Trial Division, seeking an order to quash the Commission's decision and to direct it to request the President of the Human Rights Tribunal Panel to appoint a tribunal to inquire into their complaints. The motion was dismissed and that finding was upheld on appeal. The employer was granted party status after leave to appeal was granted. After hearing oral submissions from the parties, who were all of the view that the Commission had at least a limited jurisdiction to question the constitutionality of the Act, the Court appointed an amicus curiae to present the argument against such a jurisdiction. At issue was whether the Canadian Human Rights Commission or a tribunal appointed by it to investigate a complaint has power to determine the constitutionality of a provision of their enabling statute. In particular, could the Commission ignore s. 15(c) of the Act? Held (L'Heureux-Dubé and McLachlin JJ. dissenting): The appeals should be dismissed. Per La Forest, Sopinka, Gonthier and Iacobucci JJ.: The Canadian Human Rights Commission has no jurisdiction under the Act to subject the Act's provisions to constitutional scrutiny. The Commission is limited in its jurisdiction by the dictates of the Act. Similarly, a tribunal appointed at the request of the Commission is also without jurisdiction to determine the constitutional validity of a limiting provision of the Act. No administrative tribunal has an independent source of jurisdiction pursuant to s. 52(1) of the Constitution Act, A court must, therefore, as a matter of statutory interpretation determine whether Parliament has granted the administrative tribunal through its enabling statute, either explicitly or implicitly, the power to determine questions of law. If so, the administrative tribunal by the operation of s. 52(1) must be able to address constitutional issues, including the constitutional validity of its enabling statute. There is no need to determine if either the Commission or a tribunal under the Act is a court of competent jurisdiction under s. 24(1) of the Charter. In considering whether an administrative tribunal has the power to determine questions of law, various practical matters such as the composition and structure of the tribunal, the procedure before the tribunal, the appeal route from the tribunal, and the expertise of the tribunal can appropriately be taken into account. These practical considerations, in so far as they reflect the scheme of the

52 Page 3 enabling statute, provide an insight into the mandate given to the administrative tribunal by the legislature. At the same time there may be pragmatic and functional policy concerns that argue for or against the tribunal's having constitutional competence, though such concerns can never supplant the intention of the legislature. The Act sets out a complete mechanism for dealing with human rights complaints. Central to this mechanism is the Commission. There is no provision in the Act which explicitly gives the Commission power to determine questions of law and nothing in the scheme of the Act implies that the Commission has this power. Looking at the Act as a whole, the role of the Commission is to deal with the intake of complaints and to screen them for proper disposition. The Commission is not an adjudicative body; that is the role of a tribunal appointed under the Act. The Commission's striking down s. 15(c) of the Act (which is what a referral to a tribunal would amount to) would be an assumption by the Commission of an adjudicative role for which it has no mandate. Administrative bodies and tribunals are creatures of statute; the will of the legislature as it appears in that statute must be respected. The role of the Commission as an administrative and screening body, with no appreciable adjudicative role, is a clear indication that Parliament did not intend the Commission to have the power to consider questions of law. Sections 27, 40 and 41 of the Act do no more than enable the Commission to interpret and apply its enabling statute. It does not follow that it then has a jurisdiction to address general questions of law. Every administrative body, to one degree or another, must have the power to interpret and apply its own enabling statute. Determining jurisdiction over a given complaint through reference to the provisions of the Act is conceptually different from its subjecting the same provisions to Charter scrutiny. The former represents an application of Parliament's intent as reflected in the Act while the latter involves ignoring that intent. The practical advantages in having the Commission consider the constitutionality of its own statute are limited. First, since the Commission is not an adjudicative body it cannot be considered a proper forum in which to address fundamental constitutional issues. Allowing the parties to raise such issues would of necessity require a more involved and lengthy process that would interfere with the Commission's screening process. Second, the Commission has no special expertise with respect to questions of law. Having the complainant seek a declaration of constitutional invalidity in either the Federal Court or a provincial superior court would be more efficient, both to the parties and to the system in general, given that any ruling of the Commission on the constitutional validity of a provision of the Act would be the subject of judicial review proceedings. In such a setting, the question can be debated in the fullness it requires in such a setting and the proper expertise can be brought to bear on its resolution. Given the limited jurisdiction of the Commission it logically follows that a tribunal appointed under the Act must also lack the jurisdiction to declare unconstitutional a limited provision of the Act. It could not have been the intent of Parliament to grant a tribunal a jurisdiction that could never be exercised.

53 Page 4 Sections 50(1) and 53(2) of the Act empower a tribunal appointed under the Act to inquire into a complaint referred by the Commission. This is primarily and essentially a fact-finding inquiry. In the course of such an inquiry a tribunal has the jurisdiction to consider questions of law, including questions of statutory interpretation and constitutional questions. Where a tribunal does make legal findings it is not entitled to deference by a reviewing court. Per Lamer C.J.: Judicial review, while necessary to preserve important constitutional values, is inherently controversial in a democracy like Canada because it confers on unelected officials the power to question decisions arrived at through the democratic process. As a matter of constitutional principle that power must accordingly be reserved to the courts and should not be given over to bodies that are mere creatures of the legislature, whose members are usually vulnerable to removal with every change of government, and whose decisions in some circumstances are made within the parameters of guidelines established by the executive branch of government. The previous judgments of this Court may have misunderstood and distorted the web of institutional relationships between the legislature, the executive and the judiciary by giving administrative tribunals access to s. 52 of the Constitution Act, The application of this section should be reserved to the courts because the task of declaring invalid legislation enacted by a democratically elected legislature is within the exclusive domain of the judiciary. (The role of administrative tribunals in relation to s. 24(1) was not addressed.) The premise relied on by the other members of the Court -- that the intent to confer a power to interpret general law on tribunals implies an intent to confer on tribunals a power to refuse systematically to apply laws which violate the Charter -- is suspect. Firstly, this inference is artificial. Many, if not most of the tribunals which have been set up by Parliament and the provincial legislatures were created before the enactment of the Charter in Granting the power to tribunals to refuse systematically to apply laws which violate the Charter could not have possibly been within the contemplation of Canada's legislatures. Secondly, this inference is profoundly illogical. A legislature could only intend to confer on a tribunal the power to judge the constitutionality of that tribunal's enabling legislation if the legislature had knowingly passed a constitutionally suspect law; otherwise, the conferral of the power would be unnecessary. A legislature would not knowingly pass constitutionally suspect legislation. The presumption of constitutionality suggests that legislatures assume the constitutionality of their enactments. In any event, if the legislature did know that a piece of legislation was constitutionally suspect, and nonetheless enacted it into law, it is not readily apparent why the legislature would also confer on the tribunal to which the legislature assigns the responsibility of giving effect to the legislation the power to hold various provisions of the legislation inoperative. First principles of the Constitution must be revisited in order to comprehend properly the relationship between s. 52 and administrative tribunals. Douglas College, Cuddy Chicks and Tétreault-Gadoury offend the constitutional principle of separation of powers which is one of the defining features of the Canadian Constitution. Although

54 Page 5 the separation of powers under the Canadian Constitution is not strict, Canadian constitutional law recognizes some notion of the separation of powers. The existence of courts flows from the separation of powers as is evidenced from the jurisprudence on s. 96 of the Constitution Act, 1867 and from the case law interpreting the preamble of the Constitution Act, 1867 which states that Canada is to have "a Constitution similar in Principle to that of the United Kingdom". The constitutional status of the judiciary, flowing as it does from the separation of powers, requires that certain functions be exclusively exercised by judicial bodies. The judiciary, while it does not have an interpretive monopoly over questions of law, must nevertheless have exclusive jurisdiction over challenges to the validity of legislation under the Constitution of Canada, and particularly the Charter. Only courts have the requisite independence to be entrusted with the constitutional scrutiny of legislation when that scrutiny leads a court to declare invalid an enactment of the legislature. Mere creatures of the legislature, whose very existence can be terminated at the stroke of a legislative pen, whose members usually serve at the pleasure of the government of the day and whose decisions in some circumstances are properly governed by guidelines established by the executive branch of government, are not suited to this task. Security of tenure, financial security, and independence with respect to matters of administration bearing directly on the exercise of the courts' judicial function define judicial independence. In the context of Charter adjudication, these features help to insulate the courts from interference, inter alia, by elected legislatures, and thus ensure that courts can safeguard the supremacy of Charter rights through the vehicle of s. 52. The case law relies on a distinction between refusals to apply legislation and declarations of invalidity in order to claim that tribunals are not encroaching upon the judicial role. Many tribunals, however, operate according to an informal doctrine of precedent. The de facto equivalence between refusals to apply legislation and declarations of invalidity decisively demonstrates that tribunals, when they refuse to apply their enabling legislation under s. 52 of the Constitution Act, 1982, are improperly exercising the role of the courts. This Court's decisions authorizing tribunals to overstep their constitutional role are, accordingly, in serious need of revision. And for the same reasons, tribunals cannot be expressly given the power to consider the constitutionality of their enabling legislation. This conclusion does not detract from the power of the Commission to determine whether complaints fall within federal jurisdiction according to the division of powers. An important conceptual difference exists between the Commission's interpreting its enabling legislation in light of the division of powers, and the Commission's questioning the validity of that legislation in light of the Charter. When it performs the former role, the Commission is merely determining whether it has jurisdiction over a matter, because the clear intent of Parliament was that the Commission should only operate within the confines of federal jurisdiction. As well, these comments should not to be construed as detracting from the general duty to interpret statutes in light of Charter values. Douglas College, Cuddy Chicks and Tétreault-Gadoury also offend a second defining feature of the Canadian Constitution, its commitment to Parliamentary democracy. The Constitution Act, 1867

55 Page 6 incorporated those aspects of Parliamentary democracy that have taken legal form. One of those aspects is the legal relationship between the executive and the legislature. The role of the executive is to effectuate legislative intent. The justification for this hierarchical relationship, in present-day Canada, is a respect for democracy because legislatures are representative institutions accountable to the electorate. The assumption by administrative tribunals of jurisdiction over the Charter, however, inverts this hierarchical relationship. Instead of putting the intent of the legislature into effect, the case law of this Court enables tribunals to challenge the decisions of the democratically elected legislature. A tribunal has, in these circumstances, unconstitutionally usurped power which it did not have. The framers of the Charter did not intend to alter so fundamentally the nature of the relationship between the executive and the legislature. Per L'Heureux-Dubé and McLachlin JJ. (dissenting): Every tribunal charged with the duty of deciding issues of law has the concomitant power to decide those issues. The fact that the question of law concerns the effect of the Charter does not change the matter. Two related principles of general application apply. First, all decision-making tribunals, whether courts or administrative tribunals, are bound to apply the law, including the Charter. Second, a tribunal's ruling that a law is inconsistent with the Charter is nothing more than a case of applying the law. Douglas College, Tetréault-Gadoury and Cuddy Chicks stand for two related propositions. First, an administrative tribunal which has the power to decide questions of law has the power to decide the validity of particular laws under the Charter. Second, an administrative tribunal provided that it is discharging a function assigned to it by its legislation may, in the course of doing so, consider and decide Charter issues. As a corollary, the cases affirm a third proposition: no express term is required for the tribunal to apply the Charter. The power of the Commission to consider legal questions, while not expressly stated, may be inferred from the Act. Many of its duties could not be accomplished without the power to consider issues of law generally and the effect of the Charter on human rights law more particularly. Parliament did not intend that the Commission, which was required to interpret the law for the purposes of Part I of the Act (Proscribed Discrimination), should be forbidden from making legal interpretation in discharging its Part III (Discriminatory Practices and General Provisions) duties. The Commission accordingly has the power to interpret the law in determining whether to refer a complaint to a tribunal or dismiss it. The Act confers the same power to consider and decide issues of law on the tribunals appointed to investigate and decide particular complaints. A tribunal may consider the Charter in carrying out the mandate conferred upon it by Parliament or the legislature. Several provisions of the Act support the conclusion that not only is the Commission empowered to consider questions of law but also that it is obliged to do so. This obligation extends to permitting boards and tribunals appointed under human rights legislation to hold that provisions of the law are invalid. Often this has been assumed without challenge. The Commission functions as

56 Page 7 gatekeeper to the tribunal process and accordingly cannot be barred from considering questions of law which the tribunal is permitted to consider for the Commission must first consider that question. The Commission accordingly has the power to consider the issue of whether the Charter renders invalid the "normal age of retirement" defence. Given that the Commission's only duty is to screen the complaint, it need not decide the question finally but only determine whether it has a reasonable chance of success. In the context of its duties under the Act, the Commission has the expertise to carry out its duty in this regard. The Commission should refer the matter to a tribunal which can hear full representations on the matter and make its decision accordingly if it decides that the complaint has a reasonable chance of success. The tribunal's decision on the issue of law may in turn be reviewed by the review tribunal. The review tribunal's decision in turn may be filed as a decision of the Federal Court, from which appeal lies to the Federal Court of Appeal. The argument that McKinney v. University of Guelph (which held a provision setting mandatory retirement at age 65 to be contrary to s. 15 of the Charter but saved under s. 1) was based on the conclusion of the Court that age 65 was the "normal" age of retirement for the occupation at issue and that, similarly, a statute providing for retirement at the normal age for the occupation in question must also be saved under s. 1, oversimplifies the process envisaged under s. 1 of the Charter. Section 1 is about much more than what is usual or "normal". The usual practice may be unjustifiable, having regard to the egregiousness of the infringement or the insubstantiality of the objective alleged to support it. Each case must be looked at on its own circumstances. Cases Cited By La Forest J. Applied: Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570; Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), [1991] 2 S.C.R. 5; Tétreault-Gadoury v. Canada (Employment and Immigration Commission), [1991] 2 S.C.R. 22; referred to: McKinney v. University of Guelph, [1990] 3 S.C.R. 229; Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; Syndicat des employés de production du Québec et de L'Acadie v. Canada (Canadian Human Rights Commission), [1989] 2 S.C.R. 879; Gould v. Yukon Order of Pioneers, [1996] 1 S.C.R. 571; Canada (Attorney General) v. Druken, [1989] 2 F.C. 24; Public Service Alliance of Canada v. Qu'Appelle Indian Residential Council (1986), 7 C.H.R.R. D/3600; Nealy v. Johnston (1989), 10 C.H.R.R. D/6450; Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R By Lamer C.J. Disapproved: Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), [1991] 2 S.C.R. 5; Tétreault-Gadoury v. Canada (Employment and Immigration Commission), [1991] 2 S.C.R. 22; Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570; referred to: Fraser v. Public Service Staff Relations Board, [1985] 2 S.C.R. 455; R. v. Power, [1994] 1 S.C.R. 601; Re Residential Tenancies Act, 1979, [1981] 1 S.C.R. 714; MacMillan Bloedel Ltd. v. Simpson, [1995]

57 Page 8 4 S.C.R. 725; Crevier v. Attorney General of Quebec, [1981] 2 S.C.R. 220; Beauregard v. Canada, [1986] 2 S.C.R 56; Valente v. The Queen, [1985] 2 S.C.R. 673; Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; Hills v. Canada (Attorney General), [1988] 1 S.C.R. 513; R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606; Re Resolution to Amend the Constitution, [1981] 1 S.C.R. 753; Harvey v. New Brunswick (Attorney General), [1996] 2 S.C.R. 876; New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), [1993] 1 S.C.R By McLachlin J. (dissenting) Re Rosen, [1987] 3 F.C. 238; Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570; Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), [1991] 2 S.C.R. 5; Tétreault-Gadoury v. Canada (Employment and Immigration Commission), [1991] 2 S.C.R. 22; Weber v. Ontario Hydro, [1995] 2 S.C.R. 929; Mills v. The Queen, [1986] 1 S.C.R. 863; Insurance Corporation of British Columbia v. Heerspink, [1982] 2 S.C.R. 145; Re Shewchuk and Ricard (1986), 28 D.L.R. (4th) 429; Canada (Attorney General) v. Druken, [1989] 2 F.C. 24; McKinney v. University of Guelph, [1990] 3 S.C.R Statutes and Regulations Cited Canadian Charter of Rights and Freedoms, ss. 1, 11(d), 15, 24(1), (2). Canadian Human Rights Act, R.S.C., 1985, c. H-6, ss. 7, 10, 15(a), (c), 26, 27(1)(e), (f), (g), (2), 40, 41(c), 43 [subs. (2) rep. & sub. R.S.C., 1985, c. 31 (1st Supp.), s. 63], 44(1), (2), (3)(a), (b) [rep. & sub. ibid., s. 64], 47(1), 49 [subs. (1) rep. & sub. ibid., s. 66], 50, 50(1), (3), 53(1), (2)(c), 55, 56(2), (3). Constitution Act, 1867, ss. 96, 97, 98, 99, 100. Constitution Act, 1982, s. 52. Federal Court Act, R.S.C., 1985, c. F-7, ss. 18 [rep. & sub. 1990, c. 8, s. 4], 18.1 [ad. ibid., s. 5], 57 [rep. & sub. ibid., s. 19]. Human Rights Code, 1981, S.O. 1981, c. 53, s. 9(a). Labour Code, R.S.B.C. 1979, c Labour Relations Act, R.S.O. 1980, c Unemployment Insurance Act, 1971, S.C , c. 48. Authors Cited Anisman, Philip. "Jurisdiction of Administrative Tribunals to Apply the Canadian Charter of Rights and Freedoms". In Special Lectures of the Law Society of Upper Canada 1992: Administrative Law: Principles, Practice and Pluralism. Scarborough, Ont.: Carswell, Evans, J. M. "Administrative Tribunals and Charter Challenges" (1989), 2 C.J.A.L.P. 13. Hogg, Peter W. Constitutional Law of Canada (3rd ed. 1992). Scarborough, Ont.: Carswell, Kuttner, Thomas. "Courts, Labour Tribunals and the Charter" (1990), 39 U.N.B. L.J. 85. Macaulay, Robert W. and James L. H. Sprague. Practice and Procedure Before Administrative

58 Page 9 Tribunals, vol. 2. Toronto: Carswell, 1995 (loose-leaf). McAllister, Debra M. "Administrative Tribunals and the Charter: A Tale of Form Conquering Substance". In Special Lectures of the Law Society of Upper Canada 1992: Administrative Law: Principles, Practice and Pluralism. Scarborough, Ont.: Carswell, Priest, Margot. "Charter Procedure in Administrative Cases: The Tribunal's Perspective" (1994), 7 C.J.A.L.P Roman, Andrew J. "Tribunals Deciding Charter of Rights Questions: The Trilogy of the Supreme Court of Canada - Douglas College, Cuddy Chicks, and Tétreault-Gadoury" (1992), 1 Admin. L.R. (2d) 243. Taman, Larry. "Jurisdiction of Administrative Tribunals to Consider Charter Arguments". In Neil R. Finkelstein and Brian MacLeod Rogers, eds., Administrative Tribunals and the Charter. Toronto: Carswell, APPEALS from a judgment of the Federal Court of Appeal (1994), 22 C.H.R.R. D/90, 167 N.R. 17, 25 Admin. L.R. (2d) 275, dismissing appeals from judgments of the Trial Division (1992), 22 C.H.R.R. D/87, 54 F.T.R. 96, dismissing applications for judicial review. Appeals dismissed, L'Heureux-Dubé and McLachlin JJ. dissenting. David John Cooper, appearing on his own behalf. Noel Edwin Bell, appearing on his own behalf. René Duval and William F. Pentney, for the respondent Canadian Human Rights Commission. Rhys Davies and Jennifer Duprey, for the respondent Canadian Airlines International Ltd. Andrew Raven and David Yazbeck, for the Amicus Curiae. David John Cooper, on his own behalf. Noel Edwin Bell, on his own behalf. Solicitor for the respondent Canadian Human Rights Commission: Canadian Human Rights Commission, Ottawa. Solicitors for the respondent Canadian Airlines International Ltd.: Davis & Company, Vancouver. Solicitors for the Amicus Curiae: Raven, Jewitt & Allen, Ottawa. The following are the reasons delivered by LAMER C.J.:-- Introduction 1 These appeals are the latest in a series of decisions from this Court which have examined the

59 Page 10 ability of administrative tribunals to determine the constitutionality of their enabling legislation. Although my colleagues disagree on the outcome of these appeals, they nevertheless agree on the governing legal proposition: that tribunals which have jurisdiction over the general law, have jurisdiction to refuse to apply - and hence effectively to render inoperative - laws that they find to be unconstitutional, since through the operation of s. 52 of the Constitution Act, 1982, the Constitution is the supreme law of Canada. I agree with them that this proposition emerges from previous decisions of this Court and that it binds us today. However, I hope that a full bench of this Court will eventually be afforded the opportunity to revisit this proposition. 2 Although there are pragmatic reasons for reconsidering that proposition, my concerns mainly emerge from a consideration of some of the fundamental features of the Canadian constitutional order. Canada is a Parliamentary democracy, and is hence based on the belief that those who exercise public power should be held accountable to the electorate. Legislation is the ultimate embodiment of that public power, because it reflects the measured and considered judgment of the legislature itself on a matter of public policy. In Canada, the decisions of our democratic institutions are subject to judicial review, which allows courts to strike down the enactments of those legislatures when those enactments contradict constitutional norms. Although judicial review is necessary to preserve important constitutional values, in a democracy like Canada it is inherently controversial, because it confers on unelected officials the power to question decisions which are arrived at through the democratic process. For this reason, in my view, as a matter of constitutional principle that power must be reserved to the courts and should not be given over to bodies that are mere creatures of the legislature, whose members are usually vulnerable to removal with every change of government, and whose decisions in some circumstances are made within the parameters of guidelines established by the executive branch of government. 3 I fear that in seeking to give the fullest possible effect to the Charter's promise of rights-protection, the previous judgments of this Court may have misunderstood and distorted the web of institutional relationships between the legislature, the executive and the judiciary which continue to form the backbone of our constitutional system, even in the post-charter era. This distortion has been achieved by giving administrative tribunals access to s. 52. But in my opinion, s. 52 can only be used by the courts of this country, because the task of declaring invalid legislation enacted by a democratically elected legislature is within the exclusive domain of the judiciary. I should make it very clear at the outset of my reasons that I am not addressing the role of administrative tribunals in relation to s. 24(1) of the Canadian Charter of Rights and Freedoms. 4 I am cognizant that this conclusion not only stands against the established jurisprudence of this Court, but also that I concurred in two of those earlier decisions, Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), [1991] 2 S.C.R. 5, and Tétreault-Gadoury v. Canada (Employment and Immigration Commission), [1991] 2 S.C.R. 22. However, I want to make it very clear why I took the position I did, and why I wish to reconsider that position today. 5 The central principles governing the relationship between s. 52 and administrative tribunals

60 Page 11 were laid down by this Court in Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R The primacy of Douglas College was emphasized by the Court in Cuddy Chicks, where Justice La Forest stated, at p. 13, that Douglas College:... articulated the basic principle that an administrative tribunal which has been conferred the power to interpret law holds a concomitant power to determine whether that law is constitutionally valid. [Emphasis added.] I did not participate in this Court's decision in Douglas College. When the time came to consider the application of Douglas College in Cuddy Chicks and Tétreault-Gadoury, I felt bound by that earlier decision, as was proper. Likewise, in the case at bar, I am too of the opinion that La Forest J. is correct in his interpretation and application of Douglas College. However, I have always believed, and continue to believe that those judgments are at odds with some of the fundamental principles of the Canadian constitution. I speak out today because this Court has had the benefit of six years of experience to consider the implications of those judgments and to reflect upon the rationale underlying them. In my opinion, that experience strongly suggests that the time has come for this Court to revisit the issue. The Issue in this Case 6 I approach this conceptual problem by reference to the practical question which my colleagues address in this case - did Parliament intend to confer on the Canadian Human Rights Commission, and on tribunals which adjudicate upon the Canadian Human Rights Act, R.S.C., 1985, c. H-6, the power to decide general questions of law? Justices La Forest and McLachlin agree that the bodies in question have not been expressly granted this power. Where they disagree is whether those bodies have the implied jurisdiction to consider the general law. La Forest J. relies on the non-adjudicatory nature of the Commission to deny it jurisdiction over the general law, and hence over the Charter. He infers as a matter of logic that tribunals appointed by the Commission cannot consider Charter challenges to the Canadian Human Rights Act, because Charter challenges will not get past the Commission. As well, he fails to find in the provisions of the Act the basis for implying a legislative intent that tribunals have jurisdiction over the general law. McLachlin J., by contrast, focuses on specific provisions in the Act which govern the Commission and tribunals, to infer the intent by Parliament that these bodies can consider the general law, and hence Charter challenges to their enabling legislation. 7 But in my respectful opinion, this exercise is deeply flawed because the premise upon which my colleagues rely - that the intent to confer on tribunals a power to interpret general law in turn implies an intent to confer on tribunals a power to refuse systematically to apply laws which violate the Charter - is suspect. I say that for two reasons. One is that such an inference is artificial. Many, if not most of the tribunals which have been set up by Parliament and the provincial legislatures were created before the enactment of the Charter in Granting the power to tribunals to refuse systemically to apply laws which violate the Charter could not have possibly been within the

61 Page 12 contemplation of Canada's legislatures. As Andrew J. Roman has written in his article, "Tribunals Deciding Charter of Rights Questions: The Trilogy of the Supreme Court of Canada - Douglas College, Cuddy Chicks, and Tétreault-Gadoury" (1992), 1 Admin. L.R. (2d) 243, at p. 254: An inquiry of this sort is likely to be an after-the-fact rationalization for almost every tribunal, since most were created well before the passage of the Charter. How could the legislature have had any intention with respect to the Charter? Clearly, any such ex post finding of a "legislative intention" is speculative and fictitious. [Emphasis in original.] (Also see Debra M. McAllister, "Administrative Tribunals and the Charter: A Tale of Form Conquering Substance", in Special Lectures of the Law Society of Upper Canada 1992: Administrative Law: Principles, Practice and Pluralism, at p. 150; Margot Priest, "Charter Procedure in Administrative Cases: The Tribunal's Perspective" (1994), 7 C.J.A.L.P. 151, at p. 154.) 8 Moreover, inferring the power to refuse systematically to apply laws which violate the Charter from the power to interpret and apply the general law strikes me as profoundly illogical. A legislature could only intend to confer on a tribunal the power to judge the constitutionality of that tribunal's enabling legislation if the legislature had knowingly passed a constitutionally suspect law; otherwise, the conferral of the power would be unnecessary. But it is very hard to imagine a situation in which a legislature would know that it was passing constitutionally suspect legislation. If anything, the presumption of constitutionality seems to suggest that legislatures assume the constitutionality of their enactments. In any event, if the legislature did know that a piece of legislation was constitutionally suspect, and nonetheless enacted it into law, it is not readily apparent why the legislature would also confer on the tribunal to which the legislature assigns the responsibility of giving effect to that legislation the power to hold various provisions of the legislation inoperative. Surely, a legislature intent on passing a constitutionally suspect law would not plant within that law the seeds of its own demise. 9 The suspect nature of the inference that jurisdiction over the general law in turn leads to jurisdiction over the Charter requires us to return to the first principles of the Constitution, in order to comprehend properly the relationship between s. 52 and administrative tribunals. I will discuss two of these principles here. These are the separation of powers and Parliamentary democracy. The Separation of Powers 10 One of the defining features of the Canadian Constitution, in my opinion, is the separation of powers. This point was made by Dickson C.J. in Fraser v. Public Service Staff Relations Board, [1985] 2 S.C.R. 455, at pp , where he explained that: There is in Canada a separation of powers among the three branches of government - the legislature, the executive and the judiciary. In broad terms, the role of the judiciary is, of course, to interpret and apply the law; the role of the

62 Page 13 legislature is to decide upon and enunciate policy; the role of the executive is to administer and implement that policy. (Also see R. v. Power, [1994] 1 S.C.R. 601, at p. 620.) I am well aware that this Court has held that the separation of powers under the Canadian Constitution is not strict, in that judicial functions, including the interpretation of law, may be vested in non-judicial bodies such as tribunals, and that conversely the judiciary may be vested with non-judicial functions: Re Residential Tenancies Act, 1979, [1981] 1 S.C.R. 714, at p. 728; Douglas College, supra, at p Indeed, the rise of the administrative state has been marked by the creation of institutions other than the courts on whom the legislature has conferred the power to interpret law, a function who had hitherto been performed by the judiciary. 11 However, the absence of a strict separation of powers does not mean that Canadian constitutional law does not recognize and sustain some notion of the separation of powers. This is most evident in this Court's jurisprudence on s. 96 of the Constitution Act, Although the wording of this provision suggests that it is solely concerned with the appointment of judges, through judicial interpretation - an important element of which has been the recognition that s. 96 must be read along with ss as part of an integrated whole - s. 96 has come to guarantee the core jurisdiction of the superior courts against legislative encroachment. As I recently noted in MacMillan Bloedel Ltd. v. Simpson, [1995] 4 S.C.R. 725, at p. 753: Governance by rule of law requires a judicial system that can ensure its orders are enforced and its process respected. [Emphasis added.] As this passage makes clear, the existence of courts is definitional to the Canadian understanding of constitutionalism. Thus, although some commentators had suggested that s. 96 was concerned as much with the division of powers as with safeguarding the role of the courts, because it was intended to prevent the provinces from undermining a unitary judicial system (e.g., J. M. Evans, "Administrative Tribunals and Charter Challenges" (1989), 2 C.J.A.L.P. 13), the fact that s. 96 binds Parliament as well as the provincial legislatures (MacMillan Bloedel, supra, at p. 737) demonstrates that the central concern of the provision is with the preservation of the judicial role. Similarly, s. 96 has also been relied on to constitutionalize judicial review of administrative decision-makers. The Court has applied s. 96 to strike down legislation which sought to grant the power to make final decisions on questions of jurisdiction to an appeal tribunal: Crevier v. Attorney General of Quebec, [1981] 2 S.C.R The constitutional foundations of the role of the judiciary, however, are not only found in ss As this Court recognized in Beauregard v. Canada, [1986] 2 S.C.R. 56, judicial independence was incorporated into the Canadian constitution through the operation of the preamble of the Constitution Act, That preamble states that Canada is to have "a Constitution similar in Principle to that of the United Kingdom". As Dickson C.J. said for the Court in Beauregard, at p. 72:

63 Page 14 Since judicial independence has been for centuries an important principle of the Constitution of the United Kingdom, it is fair to infer that it was transferred to Canada by the constitutional language of the preamble. Although the comments of the Court in Beauregard were addressed to the issue of judicial independence, it is clear that a constitutional commitment to judicial independence must entail a more fundamental constitutional commitment to the existence of a judiciary. 13 The constitutional status of the judiciary, flowing as it does from the separation of powers, requires that certain functions be exclusively exercised by judicial bodies. Although the judiciary certainly does not have an interpretive monopoly over questions of law, in my opinion, it must have exclusive jurisdiction over challenges to the validity of legislation under the Constitution of Canada, and particularly the Charter. The reason is that only courts have the requisite independence to be entrusted with the constitutional scrutiny of legislation when that scrutiny leads a court to declare invalid an enactment of the legislature. Mere creatures of the legislature, whose very existence can be terminated at the stroke of a legislative pen, whose members, while the tribunal is in existence, usually serve at the pleasure of the government of the day, and whose decisions in some circumstances are properly governed by guidelines established by the executive branch of government, are not suited to this task. I must stress again, however, that questions of this sort relate to s. 52 of the Constitution Act, 1982; I do not address s. 24(1) of the Charter. 14 This Court has previously given texture to the meaning of judicial independence in Valente v. The Queen, [1985] 2 S.C.R. 673, in the context of the interpretation of s. 11(d) of the Charter. That provision guarantees to "[a]ny person charged with an offence" the right: (d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.... By its terms, s. 11(d) only relates to judges who adjudicate upon criminal matters. However, I am of the opinion that the definition given there by the Court to judicial independence indicates the features of courts which make them well-suited to adjudication on the Charter. 15 The Court (per Le Dain J.) identified three features of courts which made them independent security of tenure, financial security, and independence "with respect to matters of administration bearing directly on the exercise of its [i.e., the courts'] judicial function" (Valente, supra, at p. 708). In the context of Charter adjudication, these features help to insulate the courts from interference, inter alia, by elected legislatures, and thus ensure that the courts can safeguard the supremacy of Charter rights through the vehicle of s. 52 of the Constitution Act, Conversely, the absence of these features in tribunals makes them unsuited to measuring legislative provisions against the requirements of the Charter and to overturning the will of the democratically elected representatives

64 Page 15 of the Canadian people. 16 The link between the protection of constitutional rights and an independent judiciary has been recognized by a number of commentators. Professor Thomas Kuttner, in "Courts, Labour Tribunals and the Charter" (1990), 39 U.N.B. L.J. 85, has written at p. 95 that "the logic of entrenched rights and freedoms" requires an independent judiciary. Similarly, Professor Hogg has described the importance of an independent judiciary to the protection of individual freedoms in these terms (Peter W. Hogg, Constitutional Law of Canada (3rd ed. 1992), at p. 168): The independence of the judge from the other branches of government is especially significant, because it provides an assurance that the state will be subjected to the rule of law. If the state could count on the courts to ratify all legislative and executive actions, even if unauthorized by law, the individual would have no protection against tyranny. [Emphasis added.] Dickson C.J. arrived at the same conclusion in Beauregard, when he discussed the intimate relationship between judicial independence and the Charter. Although, as I noted above, he located one of the constitutional foundations of judicial independence in the preamble of the Constitution Act, 1867, he also said at p. 71 that judicial independence "is derived from many sources". One of these sources is the Charter (at p. 72):... the enactment of the Canadian Charter of Rights and Freedoms... conferred on the courts another truly crucial role: the defense of basic individual liberties and human rights against intrusions by all levels and branches of government. Once again, in order to play this deeply constitutional role, judicial independence is essential. 17 The centrality of courts to determinations of constitutional validity suggests that no other bodies should exercise this function. Indeed, this Court openly acknowledged in Cuddy Chicks that a tribunal could not make a declaration of invalidity, because it was not a court: Cuddy Chicks, supra, at p. 17. Thus, even in that decision, there was a recognition of the fundamental constitutional difference between courts and tribunals. However, despite the Court's awareness of this difference, the Court in that case rejected the view that when a tribunal refuses to apply its enabling legislation for the purposes of the proceeding before it, it effectively makes a declaration of invalidity: Cuddy Chicks, at p. 17; also see Douglas College, supra, at p However, the distinction between declarations of invalidity and refusals to apply is hard to sustain. The distinction relies on the assumption that decisions of one tribunal do not bind another tribunal operating under the same statutory regime. 18 However, a number of authors have recognized that many tribunals operate according to an informal doctrine of precedent: Philip Anisman, "Jurisdiction of Administrative Tribunals to Apply the Canadian Charter of Rights and Freedoms", in Special Lectures of the Law Society of Upper Canada 1992: Administrative Law: Principles, Practice and Pluralism, at pp ; Larry Taman,

65 Page 16 "Jurisdiction of Administrative Tribunals to Consider Charter Arguments", in Neil R. Finkelstein and Brian MacLeod Rogers, eds., Administrative Tribunals and the Charter (1990), at p. 11; Roman, supra, at p The reality of administrative justice is best put by Robert W. Macaulay and James L. H. Sprague, in Practice and Procedure Before Administrative Tribunals (1995), at p :... there is a widely held view amongst many competent and experienced agencies in Canada, that although one panel of an agency is not bound by the decision of any other panel of the same agency, nevertheless every agency ought to be consistent in its decisions, and where it departs from some previous decision of the same agency, that it ought to give its reasons in writing for so doing. 19 The de facto equivalence between refusals to apply and declarations of invalidity decisively demonstrates that tribunals, when they refuse to apply their enabling legislation under s. 52 of the Constitution Act, 1982, are improperly exercising the role of the courts. As a result, the decisions of this Court which authorize tribunals to overstep their constitutional role, in my opinion, are in serious need of revision. Furthermore, although the case at bar concerns the implied power to decide Charter questions, I would even go so far as to say that tribunals cannot be expressly given the power to consider the constitutionality of their enabling legislation, for the same reasons. 20 However, I must emphasize that this conclusion does not detract from the power of the Commission to determine whether complaints fall within federal jurisdiction according to the division of powers. As my colleague La Forest J. notes in his separate reasons, there is an important conceptual difference between the Commission's interpreting its enabling legislation in light of the division of powers, and the Commission's questioning the validity of that legislation in light of the Charter. When it performs the former role, the Commission is merely determining whether it has jurisdiction over a matter, because the clear intent of Parliament was that the Commission should only operate within the confines of federal jurisdiction. 21 As well, nothing I have said should be construed as detracting from the general duty to interpret statutes in light of Charter values. As I stated in Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554, at pp , if there is some ambiguity with respect to the meaning or scope of a statutory provision, then it should be interpreted in the manner which is most consistent with the Charter and the values underlying that document; also see, for example: Hills v. Canada (Attorney General), [1988] 1 S.C.R. 513, at p. 558; R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606, at p Parliamentary democracy 22 The separation of powers is not the only aspect of the Canadian constitution which is subverted by Douglas College, Cuddy Chicks, and Tétreault-Gadoury. Those decisions also offend a second defining feature of the Canadian Constitution, its commitment to Parliamentary

66 Page 17 democracy. As with the separation of powers, the commitment to Parliamentary democracy was incorporated into the Canadian Constitution by the Constitution Act, 1867, through that provision's reference to a constitution "similar in Principle to that of the United Kingdom". Admittedly, much of the content of Parliamentary democracy is governed by convention, and it is clear that the conventions of the British constitution do not have the force of law in Canada: Re Resolution to Amend the Constitution, [1981] 1 S.C.R Rather, my position is that the Constitution Act, 1867, incorporated those aspects of Parliamentary democracy that have taken legal form. 23 One of those aspects is the legal relationship between the executive and the legislature. A central principle of that relationship is that the executive must execute and implement the policies which have been enacted by the legislature in statutory form. The role of the executive, in other words, is to effectuate legislative intent. Admittedly, at times, that intent may be so broad and general that it becomes difficult to speak of any legislative intent at all; the legislature may in fact have been deliberately vague in order to leave a broad berth for the executive to develop and shape the contours of a particular regulatory regime. But the ultimate truth remains that fundamental matters of political choice are left to the legislature, and the executive is bound to adhere to those choices. 24 The justification for this hierarchical relationship, in present-day Canada, is a respect for democracy, because legislatures are representative institutions accountable to the electorate. A respect for democracy is also at the heart of those aspects of administrative judicial review which seek to ensure that administrative bodies do not exceed the boundaries of the powers granted to them by the legislature. The hierarchical relationship between the executive and the legislature is also another aspect of the separation of powers, since the separation of powers inheres in Parliamentary democracy: Harvey v. New Brunswick (Attorney General), [1996] 2 S.C.R. 876, at para The assumption by administrative tribunals of jurisdiction over the Charter does no less than to invert this hierarchical relationship. Instead of putting the intent of the legislature into effect, the case law of this Court enables tribunals to challenge the decisions of the democratically elected legislature "by the assertion of overriding constitutional norm" (Kuttner, supra, at p. 97). Instead of being subject to the laws of the legislature, the executive can defeat the laws of the legislature. On each occasion that this occurs, a tribunal has disrupted the proper constitutional relationship between it and the legislature. Indeed, I would go so far as to say that a tribunal has, in these circumstances, unconstitutionally usurped power which it did not have. 26 The unconstitutional usurpation of power by tribunals can be illustrated by the decision of this Court in Cuddy Chicks. In that case, the Ontario Labour Relations Board (O.L.R.B.) held that a provision of its enabling legislation which barred agricultural workers from access to collective bargaining violated the equality rights guaranteed by s. 15 of the Charter. That decision was upheld by this Court. The effect of the decision, of course, was to expand the jurisdiction of the O.L.R.B. to cover a class of persons whom the legislature had decided should not have the right to collectively

67 Page 18 bargain. Instead of the legislature's determining the jurisdiction of the O.L.R.B., the O.L.R.B. determined its own jurisdiction. 27 I cannot imagine that the intent of the framers of the Charter was to alter so fundamentally the nature of the relationship between the executive and the legislature. In this respect, I adopt the views expressed by McLachlin J. in New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), [1993] 1 S.C.R. 319, where she described the impact of the Charter on the separation of powers in a Parliamentary democracy in the following terms, at p. 389: The Charter has changed the balance of power between the legislative branch and the executive on the one hand, and the courts on the other hand, by requiring that all laws and government action must conform to the fundamental principles laid down in the Charter. [Emphasis added.] Although I did not concur with McLachlin J. in that case, I did not disapprove of this passage in her judgment. What is critical about this passage is that McLachlin J. at no point says that the Charter has altered the relationship between the executive and the legislature. The obvious implication is that this particular relationship was intended to remain the same after Patriation. Conclusion 28 In my respectful view, the decisions of this Court in Douglas College, Cuddy Chicks, and Tétreault-Gadoury stand in contradiction to two fundamental principles of the Canadian constitution - the separation of powers and Parliamentary democracy. By authorizing tribunals to declare provisions of their enabling legislation inoperative for the purposes of the proceedings before them, this Court has effectively allowed those bodies to make declarations of invalidity. Furthermore, this power also permits tribunals to invert the hierarchical relationship between the executive and legislative branches which is fundamental in a Parliamentary democracy. 29 By limiting the operation of s. 52 to the courts, we may avoid the complicated jurisprudence which is in full evidence in this decision. Although we are bound by the prior decisions of this Court, I strongly urge my colleagues to revisit those decisions in order to ensure that the Charter does not distort the deep structure of the Canadian Constitution. Disposition 30 For the reasons stated above, I concur with La Forest J. in his disposition of these appeals. The judgment of La Forest, Sopinka, Gonthier and Iacobucci JJ. was delivered by 31 LA FOREST J.:-- At issue in these appeals is whether the Canadian Human Rights Commission or a tribunal appointed by it to investigate a complaint has power to determine the constitutionality of a provision of their enabling statute, the Canadian Human Rights Act, R.S.C.,

68 Page , c. H-6. In particular, is it open to the Commission to ignore s. 15(c) of the Act, which provides that it is not a discriminatory practice for an individual to be terminated from employment because that individual has reached the normal age of retirement for employees in similar positions? Facts 32 The appellants Bell and Cooper were airline pilots employed by the respondent Canadian Airlines International Ltd. ("Canadian"). Upon reaching the age of 60 they were informed by Canadian that they would be retired in accordance with the provisions of the collective agreement between the pilots and the company. To this the applicants objected; in their view, it constituted discrimination on the basis of age since the vast majority of employees in Canada are not obliged to retire before the age of 65. Accordingly, in April and July of 1990 respectively, they filed complaints under the Act with the respondent Commission alleging discrimination on the basis of age in violation of ss. 7 and 10 of the Act. Following receipt of the complaints the Commission appointed an investigator pursuant to the Act. As part of the investigative process, Canadian made submissions to the investigator claiming there was no discrimination as the retirement policy was a bona fide occupational requirement under s. 15(a) of the Act and because 60 was the normal age of retirement for airline pilots by virtue of s. 15(c) of the Act. Paragraph 15(c) reads as follows: 15. It is not a discriminatory practice if... (c) an individual's employment is terminated because that individual has reached the normal age of retirement for employees working in positions similar to the position of that individual; 33 In December, 1990, this Court issued its decision in McKinney v. University of Guelph, [1990] 3 S.C.R. 229, where it held that s. 9(a) of the Ontario Human Rights Code, 1981, S.O. 1981, c. 53, which provided that a mandatory retirement policy did not amount to discrimination on the basis of age, violated s. 15 of the Canadian Charter of Rights and Freedoms but was nevertheless justified under s. 1. In the spring of 1991 the appellants wrote the investigator a letter in which they argued that s. 15(c) of the Act violated the Charter and that the McKinney decision was inapplicable. However the investigator recommended to the Commission that the appellants' complaints be dismissed and by letter dated October 23, 1991, the Commission informed the appellants that an inquiry was not warranted and that it was bound by the McKinney decision. 34 The appellants applied for judicial review in the Federal Court Trial Division, seeking an order to quash the Commission's decision and to direct it to request the President of the Human Rights Tribunal Panel to appoint a tribunal to inquire into their complaints. The motion was dismissed by Joyal J. and his finding was upheld by the Federal Court of Appeal. 35 Leave to appeal was granted by this Court on October 13, 1994, [1994] 3 S.C.R. vi,

69 Page 20 subsequent to which the Chief Justice ordered that Canadian be granted party status in the proceedings. After hearing oral submissions from the parties, who were all of the view that the Commission had at least a limited jurisdiction to question the constitutionality of the Act, the Court took the step of appointing an amicus curiae to present the argument against such a jurisdiction. Judicial History Federal Court Trial Division (1992), 22 C.H.R.R. D/87 36 Joyal J. held, at p. D/87, that this Court's decision in McKinney stood for the proposition that no Court interference, either under human rights provisions or on Charter grounds, was warranted when dealing with a "well-founded, historically respected and presumably reasonable scheme for mandatory retirement". He concluded, at p. D/88, that by endorsing s. 9(a) of the Ontario Human Rights Code, 1981, the Court had "effectively endorsed the legality of s. 15(c) of the Canadian Human Rights Act". As a result, Joyal J. held that the Commission had not exceeded its jurisdiction, denied the appellants any aspect of procedural fairness, or come to a perverse or absurd decision in deciding not to refer the complaints to a tribunal. The Commission had thus not committed any reviewable error and he denied the appellants' application. Federal Court of Appeal (1994), 22 C.H.R.R. D/90 37 Though concurring in the result, Pratte J.A. and Marceau J.A. wrote separate reasons dismissing the appellants' appeals. McDonald J.A. concurred with the reasons of both of his colleagues. Pratte J.A. 38 Pratte J.A. noted that the main ground of the appellants' motion before the Trial Division was that s. 15(c) of the Act was unconstitutional but that no notice of a constitutional question had been given pursuant to s. 57 of the Federal Court Act, R.S.C., 1985, c. F-7. Though it was not argued before the Court of Appeal that s. 15(c) was unconstitutional, the appellants would be barred from doing so because of the failure to give notice both in the Court of Appeal and in the Trial Division. 39 Pratte J.A. understood the appellants' argument as being that because of the differences between s. 15(c) of the Act and s. 9(a) of the Ontario Human Rights Code, 1981, McKinney did not establish the constitutionality of the former. If the Commission had not erroneously applied McKinney they would have necessarily concluded that the constitutionality of s. 15(c) was an open question and referred the complaints to a tribunal. Pratte J.A. disagreed with the appellants' argument for the following reasons, at p. D/94: This is, in my view, a fallacious argument. In order to succeed, the appellant must show that the decision appealed from is wrong. And as that decision confirmed the decision of the Canadian Human Rights Commission, he

70 Page 21 Marceau J.A. must show that the decision of the Commission was wrong. That decision dismissed the appellant's complaint, the Commission being satisfied that an inquiry was not warranted since the complaint was clearly directed against a practice that para. 15(c) declares not to be discriminatory. It is common ground that para. 15(c), if valid, would justify the Commission's decision. It follows that, in order to succeed, it was not sufficient for the appellant to show that para. 15(c) is in some respects different from para. 9(c) [sic] of the Human Rights Code, The appellant had to establish the unconstitutionality of that provision and ask the Court to adjudge it to be invalid. This, in view of his failure to comply with s. 57 of the Federal Court Act, he did not and could not do. 40 Marceau J.A. agreed with Pratte J.A. that the appellants' appeals should be dismissed, but for different reasons. Marceau J.A. believed that the Commission had no choice but to dismiss the complaints as the Commission was bound by the provisions of s. 15(c) of the Act. The Commission was bound by the Act because neither the Commission, nor a tribunal appointed by the Commission, had the power to consider the constitutionality of their enabling statute. 41 Marceau J.A. noted that in Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570; Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), [1991] 2 S.C.R. 5; and Tétreault-Gadoury v. Canada (Employment and Immigration Commission), [1991] 2 S.C.R. 22, this Court established two propositions. First, that the power of an administrative tribunal to refuse to apply a law of Parliament on the basis that such law was unconstitutional had to be found in its enabling statute. Second, that the intention of Parliament to confer this power on a tribunal could be given in express terms or could be inferred from the mandate assigned to the tribunal and particularly, from a requirement that it deal with all necessary questions of law. Applying these propositions to the Act, Marceau J.A. stated, at p. D/95: It is clear to me that the terms used in the Canadian Human Rights Act contain nothing that could even remotely suggest an intention on the part of Parliament of allowing the Human Rights Commission -- whose role is purely administrative (cf. Syndicat des employés de production du Québec et de l'acadie v. Canadian Human Rights Commission, [1989] 2 S.C.R. 879)... or the Human Rights tribunals -- which do not have to be presided by people trained in law and whose mandate is strictly "to inquire into the complaint" (cf. s. 39 of the Act) -- to dispute the constitutional validity of legislative provisions governing their activity. It can even be said, in the case of the particular provision in question, that the wording of the statute indicates the exact contrary: for the Commission to hold to be discriminatory and subject to its sanction a practice that Parliament has formally declared non-discriminatory and outside the ambit of the mandate given to it, would be for the tribunal to go directly against the will of Parliament. To

71 Page 22 pretend that Parliament still intended to make its pronouncement subject to some value judgment by the Commission or its tribunal appears to me totally untenable. Issues 42 The issues before the Court are the following: Analysis 1. Has Parliament granted to the Commission the jurisdiction to consider the constitutional validity of a provision of its enabling statute? 2. Has Parliament granted to a tribunal, appointed by the Commission pursuant to s. 49 of the Act, the jurisdiction to consider the constitutional validity of its enabling statute? 43 All the parties to these appeals, with the exception of the amicus curiae, are of the view that the Commission has, at the very least, a limited power to consider the constitutional validity of its enabling statute. The appellants, along with counsel for the Commission, argue that at a minimum the Commission has the power to decide if there is a triable issue with respect to the constitutional status of a provision of the Act, and on this basis to send it to a tribunal for a full hearing. Inherent in this position, of course, is the assumption that such a tribunal has the power to decide constitutional questions. The respondent Canadian took a somewhat different approach, arguing that if the Commission found there was a triable constitutional issue, it should refer the constitutional question to a superior court for determination. 44 There was considerable argument by the parties to the effect that this sort of screening function by the Commission with respect to the constitutionality of a provision of its enabling statute would not amount to an actual determination of the constitutional question, that it would be no more than an opinion. This is quite simply not the case. If the Commission had found that there was some uncertainty regarding the constitutionality of s. 15(c) of the Act, and as a result sent the matter to a tribunal, the Commission would have effectively found s. 15(c) to be inoperative. For, if s. 15(c) is valid, it operates to deny the Commission jurisdiction to refer the appellants' complaint to a tribunal; it is trite law that the Commission has no other jurisdiction than that granted to it by Parliament. There is no middle ground: either s. 15(c) is operative and the Commission has no jurisdiction, there being no discriminatory practice; or the section is inoperative and the Commission does have jurisdiction. Therefore the question before this Court is a straightforward one: does the Commission, and in turn a tribunal appointed under the Act, have the power to find a provision of the Act unconstitutional and treat it as inoperative? 45 In three previous cases, Douglas College, supra, Cuddy Chicks, supra, and Tétreault-Gadoury, supra, this Court has had the opportunity to address the principles underlying an administrative tribunal's jurisdiction to consider the constitutionality of its enabling statute. These authorities make

72 Page 23 it clear that no administrative tribunal has an independent source of jurisdiction pursuant to s. 52(1) of the Constitution Act, Rather, the essential question facing a court is one of statutory interpretation -- has the legislature, in this case Parliament, granted the administrative tribunal through its enabling statute the power to determine questions of law? As noted by the majority in Tétreault-Gadoury, supra, at p. 32: As I have stressed in both Douglas College and Cuddy Chicks, supra, s. 52(1) does not, in itself, confer the power to an administrative tribunal to find a legislative provision to be inconsistent with the Charter. Rather, the inquiry must begin with an examination of the mandate given to the particular tribunal by the legislature. 46 If a tribunal does have the power to consider questions of law, then it follows by the operation of s. 52(1) that it must be able to address constitutional issues, including the constitutional validity of its enabling statute. This principle was clearly enunciated by this Court in Cuddy Chicks, supra, at pp , referring to the earlier decision in Douglas College, supra, in the following passage: The power of an administrative tribunal to consider Charter issues was addressed recently by this Court in Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R That case concerned the jurisdiction of an arbitration board, appointed by the parties under a collective agreement in conjunction with the British Columbia Labour Code, to determine the constitutionality of a mandatory retirement provision in the collective agreement. In ruling that the arbitrator did have such jurisdiction, this Court articulated the basic principle that an administrative tribunal which has been conferred the power to interpret law holds a concomitant power to determine whether that law is constitutionally valid. This conclusion ensues from the principle of supremacy of the Constitution, which is confirmed by s. 52(1) of the Constitution Act, 1982: 52. (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect. Distilled to its basics, the rationale for recognizing jurisdiction in the arbitrator in the Douglas College case is that the Constitution, as the supreme law, must be respected by an administrative tribunal called upon to interpret law. It should be emphasized that there is no need to determine if either the Commission or a tribunal under the Act is a court of competent jurisdiction under s. 24(1) of the Charter. That is not the inquiry before us. Rather, what must be scrutinized is the mandate given under the Act to the Commission and the tribunals. There is no doubt that the power to consider questions of law can be

73 Page 24 bestowed on an administrative tribunal either explicitly or implicitly by the legislature. All the parties agree that there is no provision in the Act that expressly confers on the Commission a general power to consider questions of law. There being no such express authority, it becomes necessary to determine whether Parliament has granted it implicit jurisdiction to consider such questions. As stated in Cuddy Chicks, supra, at p. 14: [J]urisdiction must have expressly or impliedly been conferred on the tribunal by its enabling statute or otherwise. This fundamental principle holds true regardless of the nature of the issue before the administrative body. Thus, a tribunal prepared to address a Charter issue must already have jurisdiction over the whole of the matter before it, namely, the parties, subject matter and remedy sought. 47 In considering whether a tribunal has jurisdiction over the parties, the subject matter before it, and the remedy sought by the parties, it is appropriate to take into account various practical matters such as the composition and structure of the tribunal, the procedure before the tribunal, the appeal route from the tribunal, and the expertise of the tribunal. These practical considerations, in so far as they reflect the scheme of the enabling statute, provide an insight into the mandate given to the administrative tribunal by the legislature. At the same time there may be pragmatic and functional policy concerns that argue for or against the tribunal having constitutional competence, though such concerns can never supplant the intention of the legislature. The Scheme of the Act 48 The Act sets out a complete mechanism for dealing with human rights complaints. Central to this mechanism is the Commission. Its powers and duties are set forth in ss. 26 and 27, and Part III of the Act. Briefly put, the Commission is empowered to administer the Act, which includes among other things fostering compliance with the Act through public activities, research programs, and the review of legislation. It is also the statutory body entrusted with accepting, managing and processing complaints of discriminatory practices. It is this latter duty which is provided for in Part III of the Act. 49 A complaint of a discriminatory practice may, under s. 40, be initiated by an individual, a group, or the Commission itself. On receiving a complaint the Commission appoints an investigator to investigate and prepare a report of its findings for the Commission (ss. 43 and 44(1)). On receiving the investigator's report, the Commission may, after inviting comments on the report by the parties involved, take steps to appoint a tribunal to inquire into the complaint if having regard to all the circumstances of the complaint it believes an inquiry is warranted (ss. 44(3)(a)). Alternatively the Commission can dismiss the complaint, appoint a conciliator, or refer the complainant to the appropriate authority (ss. 44(3)(b), 47(1) and 44(2) respectively). 50 If the Commission decides that a tribunal should be appointed, then, pursuant to the Commission's request, the President of the Human Rights Tribunal Panel appoints a tribunal (s. 49). This tribunal then proceeds to inquire into the complaint and to offer each party the opportunity to

74 Page 25 appear in person or through counsel before the tribunal (s. 50). At the conclusion of its inquiry the tribunal either dismisses the complaint pursuant to s. 53(1) or, if it finds the complaint to be substantiated, it may invoke one of the various remedies found in s. 53 of the Act. These remedies include an order that a person cease a discriminatory practice; that a right, opportunity or privilege denied the victim be made available to him or her; and that the person engaged in the discriminatory practice compensate the victim of the practice for lost wages and expenses resulting from the practice and, where it is warranted, pay a fine to the victim. Finally, if the tribunal was composed of less than three members, it is open to a party to appeal the tribunal's decision to a three-member Review Tribunal on any question of law or fact or mixed law and fact (ss. 55 and 56). 51 Not included in the Act, but also available to any party, is the right to judicial review of a decision of the Commission or tribunal. Under ss. 18 and 18.1 of the Federal Court Act, an application for judicial review is to be brought in the Federal Court, Trial Division, from which a further appeal lies to the Federal Court of Appeal. It is by this route that the instant appeals are before us. The Jurisdiction of the Commission 52 With the exception to be noted later, there is no explicit provision in the Act giving to the Commission power to determine questions of law. Nor is there anything in the scheme of the Act to imply that the Commission has this power. Looking at the Act as a whole it is evident that the role of the Commission is to deal with the intake of complaints and to screen them for proper disposition. In Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554, at p. 584, I described the powers and the limits of the Commission in the following way: The Human Rights Commission undoubtedly serves many useful functions that help to educate, inform, and advise the government, the public and the courts on matters of human rights (s. 27). It also provides a procedure for initiating, investigating, and seeking voluntary settlement of human rights complaints. 53 The Commission is not an adjudicative body; that is the role of a tribunal appointed under the Act. When deciding whether a complaint should proceed to be inquired into by a tribunal, the Commission fulfills a screening analysis somewhat analogous to that of a judge at a preliminary inquiry. It is not the job of the Commission to determine if the complaint is made out. Rather its duty is to decide if, under the provisions of the Act, an inquiry is warranted having regard to all the facts. The central component of the Commission's role, then, is that of assessing the sufficiency of the evidence before it. Justice Sopinka emphasized this point in Syndicat des employés de production du Québec et de L'Acadie v. Canada (Canadian Human Rights Commission), [1989] 2 S.C.R. 879, at p. 899: The other course of action is to dismiss the complaint. In my opinion, it is the intention of s. 36(3)(b) that this occur where there is insufficient evidence to warrant appointment of a tribunal under s. 39. It is not intended that this be a

75 Page 26 determination where the evidence is weighed as in a judicial proceeding but rather the Commission must determine whether there is a reasonable basis in the evidence for proceeding to the next stage. 54 The striking down of s. 15(c) by the Commission, which is what a referral to a tribunal in the present case would amount to, would be an assumption by the Commission of an adjudicative role for which it has no mandate. When Parliament has failed to vest an administrative body with such a jurisdiction (which is the case here), then it is not the role of a court to create such jurisdiction. Administrative bodies and tribunals are creatures of statute; the will of the legislature as it appears therein must be respected. 55 Notwithstanding the general scheme of the Act, there are specific provisions, notably ss. 27, 40 and 41, that both the appellants and the Commission fastened upon as indicating an intent by Parliament to have the Commission determine questions of law. However, these sections amount to no more than that the Commission has power to interpret and apply its enabling statute. It does not follow that it then has a jurisdiction to address general questions of law. Every administrative body, to one degree or another, must have the power to interpret and apply its own enabling statute. If this were not the case, it would be at the mercy of the parties before it and would never be the master of its own proceedings. The power to refuse to accept a complaint, or to turn down an application, or to refuse to do one of the countless duties that administrative bodies are charged with, does not amount to a power to determine questions of law as envisaged in Douglas/Kwantlen, Cuddy Chicks and Tétreault-Gadoury. To decide otherwise would be to accept that all administrative bodies and tribunals are competent to question the constitutional validity of their enabling statutes, a position this Court has consistently rejected. 56 In his argument, counsel for the Commission focused on the obligation and power granted to the Commission in s. 41(c) of the Act to refuse to deal with a complaint beyond its jurisdiction. In particular he argued that because in exercising this power the Commission often determines whether a given complaint falls within the federal sphere pursuant to the constitutional division of powers, then it followed that the Commission had jurisdiction to consider constitutional questions in general. 57 I am unable to accept this. When deciding whether a complaint falls within its jurisdiction the Commission is bound to look to its enabling statute for the limits of that jurisdiction. Thus it is well accepted that the Commission only has jurisdiction over a complaint when it is in respect to an activity or undertaking within the federal sphere. In making such a determination the Commission must obviously make reference to the constitutional division of powers. Similarly, pursuant to s. 40(1) of the Act the Commission only has jurisdiction over complaints of alleged discriminatory practices. In determining what is a discriminatory practice the Commission is bound by s. 15(c) which states that job termination at the normal age of retirement is not a discriminatory practice. The process of the Commission in determining its jurisdiction over a given complaint through reference to the provisions of the Act is conceptually different from subjecting the same provisions

76 Page 27 to Charter scrutiny. The former represents an application of Parliament's intent as reflected in the Act while the latter involves ignoring that intent. 58 The role of the Commission as an administrative and screening body, with no appreciable and adjudicative role, is a clear indication that Parliament did not intend the Commission to have the power to consider questions of law. There is simply nothing in the Act indicating that the Commission has the mandate which the appellants and the Commission would wish it to have. This point was succinctly and directly addressed by Marceau J.A. in his reasons. He stated, at p. D/95: Practical Considerations It is clear to me that the terms used in the Canadian Human Rights Act contain nothing that could even remotely suggest an intention on the part of Parliament of allowing the Human Rights Commission, whose role is purely administrative,... to dispute the constitutional validity of legislative provisions governing their activity. 59 It must be recognized at the outset that practical considerations cannot dictate the outcome of the issue presently before this Court. As I have already emphasized, the focus of the Court's inquiry must be the mandate given to the Commission by Parliament. In such an endeavour practical considerations may be of assistance in determining the intention of Parliament, but they are not determinative. Thus in Tétreault-Gadoury, supra, the Court found that the Board of Referees under the Unemployment Insurance Act, 1971, S.C , c. 48, had no jurisdiction to consider the constitutionality of its enabling statute, notwithstanding the fact that certain practical advantages argued in favour of granting the Board such a jurisdiction. 60 In the present case the practical advantages in having the Commission consider the constitutionality of its own statute are limited. First, since the Commission is not an adjudicative body it cannot be considered a proper forum in which to address fundamental constitutional issues. As this Court has previously found, there is no requirement for anything more than a "paper hearing" for the parties before the Commission. Although I readily acknowledge that the informal and accessible process of administrative bodies may well be a considerable advantage to a party, as compared to the regular court system, there comes a point where a body such as the Commission simply does not have the mechanism in place to adequately deal with multifaceted constitutional issues. For example, the Commission is not bound by the traditional rules of evidence. This means that it is open to the Commission to receive unsworn evidence, hearsay evidence, and simple opinion evidence. Such an unrestricted flow of information may be well suited to deciding the threshold question facing the Commission, but it is inappropriate when determining the constitutional validity of a legislative provision. In the latter case, suitable evidentiary safeguards are desirable. Related to this problem is the concern that one of the aims of the Commission, to deal with human right complaints in an accessible, efficient and timely manner, would be disrupted and interfered with by allowing the parties to raise constitutional issues before the Commission. Such

77 Page 28 issues would of necessity require a more involved and lengthy process than is presently the case. In my view, it was not the intention of Parliament that the Commission's screening function become entangled in this manner. 61 A second and more telling problem in the case of the Commission is its lack of expertise. In Tétreault-Gadoury, supra, I pointed out, at p. 34, that an Umpire under the Unemployment Insurance Act was a Federal Court judge which would ensure that a complainant received "a capable determination of the constitutional issue". Similarly in both Douglas/Kwantlen and in Cuddy Chicks, supra, the expertise of labour boards and the assistance they could bring to bear on the resolution of constitutional issues was recognized. In contrast this Court has made clear in Mossop, supra, at pp , and reiterated in Gould v. Yukon Order of Pioneers, [1996] 1 S.C.R. 571, at pp , that a human rights tribunal, unlike a labour arbitrator or labour board, has no special expertise with respect to questions of law. What is true of a tribunal is even more true of the Commission which, as was noted in Mossop, is lacking the adjudicative role of a tribunal. 62 To my mind the relevant practical considerations do not argue in favour of having the Commission consider Charter issues. Without question there is on the surface an attraction and efficiency, at least for the complainant, in having the constitutional matter first heard by the Commission. That will always be so, however, and in the present situation I am of the view that the reality would in fact be different. It is likely that in a case such as the one presently before us the decision of the Commission on the validity of a provision of the Act under the Charter would be the subject of judicial review proceedings in the Federal Court. It would be more efficient, both to the parties and to the system in general, to have a complainant seek a declaration of constitutional invalidity in either the Federal Court or a provincial superior court. In such a setting the question can be debated in the fullness it requires and the proper expertise can be brought to bear on its resolution. The Jurisdiction of a Tribunal under the Act 63 Given my finding that the Commission does not have the jurisdiction to question the constitutional validity of its enabling statute, it logically follows that a tribunal appointed under the Act, and indeed a review tribunal appointed pursuant to s. 56, must also lack the jurisdiction to declare unconstitutional a limiting provision of the Act. Take for example the case presently before us: if the Commission must apply the Act as it is written, then the appellants cannot get their complaint before a tribunal, depending as it does on s. 15(c) being found to be inoperative. The same is true of any complaint that requires the Commission to arrive at a decision on a constitutional matter before being able to find that the complaint warrants further inquiry by a tribunal. It would be something of a paradox for Parliament to grant tribunals under the Act a jurisdiction that could never be exercised. 64 As with the Commission there is no explicit power given to a tribunal to consider questions of law. Taken together, ss. 50(1) and 53(2) of the Act state that a tribunal shall inquire into the

78 Page 29 complaint referred to it by the Commission to determine if it is substantiated. This is primarily and essentially a fact-finding inquiry with the aim of establishing whether or not a discriminatory practice occurred. In the course of such an inquiry a tribunal may indeed consider questions of law. As with the Commission, these questions will often centre around the interpretation of the enabling legislation. However, unlike the Commission, it is implicit in the scheme of the Act that a tribunal possess a more general power to deal with questions of law. Thus tribunals have been recognized as having jurisdiction to interpret statutes other than the Act (see Canada (Attorney General) v. Druken, [1989] 2 F.C. 24 (C.A.)) and as having jurisdiction to consider constitutional questions other than those noted above. In particular, it is well accepted that a tribunal has the power to address questions on the constitutional division of powers (Public Service Alliance of Canada v. Qu'Appelle Indian Residential Council (1986), 7 C.H.R.R. D/3600 (C.H.R.T.)), on the validity of a ground of discrimination under the Act (Nealy v. Johnston (1989), 10 C.H.R.R. D/6450 (C.H.R.T.)), and it is foreseeable that a tribunal could entertain Charter arguments on the constitutionality of available remedies in a particular case (see Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892). Even in such instances, however, the legal findings of a tribunal receive no deference from the courts. This position was firmly established by this Court in Mossop, supra, at p. 585: The superior expertise of a human rights tribunal relates to fact-finding and adjudication in a human rights context. It does not extend to general questions of law such as the one at issue in this case. These are ultimately matters within the province of the judiciary, and involve concepts of statutory interpretation and general legal reasoning which the courts must be supposed competent to perform. 65 I would add a practical note of caution with respect to a tribunal's jurisdiction to consider Charter arguments. First, as already noted, a tribunal does not have any special expertise except in the area of factual determinations in the human rights context. Second, any efficiencies that are prima facie gained by avoiding the court system will be lost when the inevitable judicial review proceeding is brought in the Federal Court. Third, the unfettered ability of a tribunal to accept any evidence it sees fit is well suited to a human rights complaint determination but is inappropriate when addressing the constitutionality of a legislative provision. Finally, and perhaps most decisively, the added complexity, cost, and time that would be involved when a tribunal is to hear a constitutional question would erode to a large degree the primary goal sought in creating the tribunals, i.e., the efficient and timely adjudication of human rights complaints. 66 Taking all these factors into consideration, I am of the view that while a tribunal may have jurisdiction to consider general legal and constitutional questions, logic demands that it has no ability to question the constitutional validity of a limiting provision of the Act. Conclusion 67 To conclude, the Canadian Human Rights Commission has no jurisdiction under the Canadian

79 Page 30 Human Rights Act to subject provisions of that statute to constitutional scrutiny. The Commission is limited in its jurisdiction by the dictates of the Act. Similarly, a tribunal appointed at the request of the Commission is also without jurisdiction to determine the constitutional validity of limiting provisions of the Act. 68 Accordingly, I would dismiss the appeals. There should be no order as to costs. The reasons of L'Heureux-Dubé and McLachlin JJ. were delivered by McLACHLIN J. (dissenting):-- I. Introduction 69 In 1977 the Parliament of Canada enacted the Canadian Human Rights Act, S.C , c. 33 (now R.S.C., 1985, c. H-6), aimed at promoting equal treatment in the workplace and other areas. In 1982, this country adopted as part of our constitution the Canadian Charter of Rights and Freedoms, which guaranteed to Canadians the right to equal treatment under the law. The Constitution Act, 1982 declared in s. 52 that all laws, to the extent that they violate its guarantees, are invalid. The appellants argue that a provision of the Canadian Human Rights Act which permits an employer to retire an employee where the employee has reached "the normal age of retirement for employees working in [similar] positions" conflicts with the Charter and is hence invalid. Everyone agrees that the issue of whether a section of the Canadian Human Rights Act has been invalidated by s. 15 of the Charter and s. 52 of the Constitution Act, 1982 is an important issue for the appellants and for Canadians generally. Everyone also agrees that the Charter overrides the Human Rights Act if the latter fails to meet its requirements. Yet, a majority of this Court would assert that the Canadian Human Rights Commission has no power to consider the appellants' argument that the Act's defence of normal retirement for the industry is unconstitutional. The Commission is obliged to proceed, it asserts, as though the Charter did not exist and the statute's validity had not been called into question, and hence to dismiss the appellant's complaint -- a complaint which, if s. 52 of the Constitution Act, 1982 means what it says, may well be valid. Why is the Commission compelled to ignore the central legal question posed by these appeals and proceed in this artificial manner? Because, in the view of the majority, it lacks the power to consider Charter issues. 70 In my respectful view, the majority approach depreciates the language of s. 52 of the Constitution Act, 1982, makes it more difficult for the Human Rights Commission to fulfil its mandate, and places burdens on the victims of discrimination in their fight for equality that Parliament cannot have intended. If this is the clear effect of the Act and the law, then these results, however illogical, unjust and inconvenient they may be, must be accepted. But, unlike the majority, I do not find this to be the clear effect of the law. In my view, every tribunal charged with the duty of deciding issues of law has the concomitant power to do so. The fact that the question of law concerns the effect of the Charter does not change the matter. The Charter is not some holy grail which only judicial initiates of the superior courts may touch. The Charter belongs to the people.

80 Page 31 All law and law-makers that touch the people must conform to it. Tribunals and commissions charged with deciding legal issues are no exception. Many more citizens have their rights determined by these tribunals than by the courts. If the Charter is to be meaningful to ordinary people, then it must find its expression in the decisions of these tribunals. If Parliament makes it clear that a particular tribunal can decide facts and facts alone, so be it. But if Parliament confers on the tribunal the power to decide questions of law, that power must, in the absence of counter-indications, be taken to extend to the Charter, and to the question of whether the Charter renders portions of its enabling statute unconstitutional. 71 What is at stake may be judged by the case before us. The appellants contend that they are the victims of discrimination on the basis of age. Like many people who bring complaints before human rights tribunals, they have no lawyer. As is usual, they asked the Commission to consider their claim and refer it to a tribunal for investigation and hearing. Consistent with its goal of helping the disadvantaged, the Act establishes procedures for all this to be done at little or no cost to the complainant. 72 Everyone who appeared before this Court, with the exception of amicus curiae appointed at the direction of this Court, agreed that the Commission should be able to initiate proceedings to determine the constitutional validity of the "normal retirement age" exemption of the Act. The appellants, having fought their way all the way to this Court without counsel, submit that the Commission should refer their complaint to a tribunal for consideration of both the facts and the legal issues. The respondent employer, Canadian Airlines, suggests that the Commission should be permitted to refer the legal question to the Federal Court, which will permit it, upon obtaining the answer, to decide whether the complaint has sufficient merit to justify appointing a tribunal. The Canadian Human Rights Commission, for its part, submits that the Commission has the power as a screening body to consider the constitutional issue in a preliminary way and either appoint a tribunal if it finds a meritorious case to be made out considering the law and the facts, or decline to do so if it finds no such case. In the event a tribunal were appointed, the Commission submits that the tribunal would have the power to consider and decide the entire matter, including arguments that the "normal age of retirement" exemption is rendered void by s. 52 of the Constitution Act, Aggrieved parties could take appeals to the courts as permitted by the Canadian Human Rights Act. 73 It behooves this Court to ask why every party with a stake in the matter urges this Court to find that the Human Rights Commission may deal with the issue of the constitutionality of the "normal age of retirement" exemption in one way or another. The answer, I venture to suggest, is that this is the result which best achieves the economical and effective resolution of human rights disputes and best serves the values entrenched in the Canadian Human Rights Act and the Charter. 74 Applicants like the appellants suffer the greatest prejudice from a ruling that the Commission has no choice but to ignore the Charter challenge and to proceed on the basis that the law is valid. They must first launch their complaint with the Human Rights Commission, knowing that this is a useless pro forma step. When the complaint is refused, as it inevitably must be, they must then bring

81 Page 32 an action in Federal Court for a declaration that the section of the Canadian Human Rights Act at issue offends the Charter and is invalid. The requirement of this pro forma step can only serve to discourage complainants from challenging the constitutionality of a provision of the Canadian Human Rights Act. Moreover, the Commission itself may be unable to refer the constitutionality of a provision of the Canadian Human Rights Act to the court: see Re Rosen, [1987] 3 F.C. 238, where the Federal Court of Appeal held that it lacked jurisdiction to hear a reference from the Human Rights Commission on a question arguably similar to that raised by this appeal. 75 Nor does the process the majority envisions serve the employer; while the employer may be better able to bear the legal expense of a litigation detour than the appellants, the process may never provide an answer to the question of whether its policy violates the Canadian Human Rights Act. Unless the private complainants muster courage and enough money to pursue a collateral court challenge to the Canadian Human Rights Act, the employer will not know what policy is required to conform to the law and the Charter. 76 Finally, the Canadian public is ill-served by the process proposed by the majority on this appeal. Unless and until private individuals mount a successful court challenge under the Charter, administrative agencies like the Canadian Human Rights Commission must proceed to deal with people's rights as though the Charter had never been enacted. If and when the Charter issue is brought before the courts, it will be decided in a vacuum. Under the majority's suggested process of a declaratory action in Federal Court, there will be no factual record or tribunal findings to assist the courts in deciding whether or not to declare that the impugned section of Canadian Human Rights Act offends the Charter. 77 Why, one must ask, is it necessary to conclude, against the submissions of all the parties, that the Canadian Human Rights Commission has no jurisdiction to consider, even in its limited capacity as a screening body, the question of whether the "normal age of retirement" defence may have been invalidated by the Charter? In my view, it is not necessary. The authorities, in my opinion, point to a more efficient process, a process which will not place unnecessary roadblocks in the way of complainants like the appellants. The Canadian Human Rights Commission seeks to do only what its statute obliges it to do -- to carry out preliminary investigations of complaints and, if warranted, appoint tribunals to investigate and hear them. II. The Applicable Principles 78 Two related principles of general application govern the question before us. The first is the general rule that all decision-making tribunals, be they courts or administrative tribunals, are bound to apply the law of the land. In doing so, they apply all the law of the land, including the Charter. As this Court, per Justice La Forest, stated in Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570, there cannot be one law for administrative tribunals and another for the courts. Section 52 of the Constitution Act, 1982 proclaims the Constitution as the "supreme law" of Canada. Citizens have the same right to expect that it will be followed and applied by the

82 Page 33 administrative arm of government as by legislators, bureaucrats and the police. If the state sets up an institution to exercise power over people, then the people may properly expect that that institution will apply the Charter. 79 While all tribunals must apply the law of the land, the powers they can exercise in doing so may be limited by Parliament or the Legislature. Save for the superior courts, which enjoy inherent jurisdiction, a tribunal can do only that which its constituent statute empowers it to do. Some tribunals are limited to questions of fact only. Other tribunals are empowered to consider questions of law as well as fact. 80 Questions of law encompass the meaning to be given to particular provisions of the statute under which the tribunal acts. But other types of legal questions may arise as well. There may be questions of conflicts between the tribunal's constituent statute and other enactments. Or there may be questions, as in the instant appeal, of conflict between the tribunal's constituent statute and the fundamental law of the land, the Charter. 81 This Court has repeatedly held that administrative tribunals empowered to decide questions of law may consider Charter questions: Douglas College, supra, Cuddy Chicks Ltd. v. Ontario (Labour Relations Board ), [1991] 2 S.C.R. 5; Tétreault-Gadoury v. Canada (Employment and Immigration Commission), [1991] 2 S.C.R. 22; Weber v. Ontario Hydro, [1995] 2 S.C.R This conclusion reflects the principle that tribunals must apply the law of the land in its entirety. If the tribunal is empowered to decide questions of law, then that power goes not to part of the law but to all the law; absent an indication that Parliament intended to exclude Charter issues from the tribunal's purview, the courts should not do so by judicial fiat. 82 The general obligation of tribunals empowered to decide questions of law to apply the Charter and render decisions reflecting the Charter is confirmed by the court structure dictated by the Constitution of Canada. Unlike many countries, for example Germany and France, the Constitution of Canada does not establish a separate constitutional court which is given exclusive responsibility to decide constitutional questions. Such systems specifically forbid junior tribunals and courts from deciding constitutional issues, which must be referred to the constitutional court. As noted in Mills v. The Queen, [1986] 1 S.C.R. 863, and Douglas College, supra, the Canadian Constitution generally and the Charter in particular take another route: lower tribunals are to apply the Charter in their decisions. The correctness of their Charter rulings will be considered, along with all other matters, on appeal of the case as a whole. Absent specific indications to the contrary, lower courts and tribunals should as a general rule consider such Charter issues as may come before them. 83 The second principle of general application to the question before us is this: a tribunal's ruling that a law is inconsistent with the Charter is nothing more, in the final analysis, than a case of applying the law of the land -- including the most fundamental law of the land, the Constitution. It is common to speak of courts or tribunals "striking down" or invalidating laws, regulations and government actions, suggesting action that transcends mere application of the law and hence, must

83 Page 34 be reserved for the highest courts. This view of the Charter is, with respect, inaccurate. The Charter confers no power on judges or tribunals to strike down laws. The Constitution Act, 1982, however, provides that all laws are invalid to the extent that they are inconsistent with the Charter. Laws are struck down not by judicial fiat, but by operation of the Charter and s. 52 of the Constitution Act, The task of the judge or decision-maker is to determine whether there is an inconsistency between the law that is challenged and the Charter and, if so, its extent. My point is not that this is not an important and powerful role, but rather that we fall into error if we think of the Charter as a document that empowers some decision-making bodies to decide Charter questions to the exclusion of others. The Constitution Act, 1982 does not speak in terms of bodies possessing power to invalidate laws. Rather, it pronounces the laws invalid, to the extent of their inconsistency with the Charter. The only reference in the Charter to decision-making bodies deals not with the invalidity of the laws that conflict with the Charter, but with enforcement. Section 24(1) provides that a person whose rights are infringed or denied "may apply to a court of competent jurisdiction" for a remedy, and s. 24(2) permits a court to exclude evidence taken in violation of the Charter. The fact that invalidation of laws under the Charter is linked to inconsistency rather than the action of a particular court, undercuts the suggestion that striking down laws under the Charter is the prerogative of a particular court. 84 These general considerations suggest that any tribunal empowered to decide legal questions should be able to rule on the legal question of inconsistency with the Charter where this issue comes before them. The jurisprudence of this Court supports that view. It confirms a distinction between the duty of a tribunal to apply the Constitution in the course of performing its statutory mandate, and the power to grant Charter remedies under s. 24. Only in the latter case does the question of whether the tribunal is "competent" arise. In the former, the tribunal must consider and apply the Charter. 85 This distinction was made by La Forest J. in Douglas College, supra, speaking for the majority of the Court on this point. In that case, the issue was whether an arbitrator, applying a collective agreement governed by the British Columbia Labour Code, R.S.B.C. 1979, c. 212, was entitled to consider arguments that certain sections of the Code relating to mandatory retirement violated the Charter. The issue was identical to the issue posed in this case, except that there the decision-maker was an arbitrator under the Labour Code while here the decision-maker is the Canadian Human Rights Commission under the Canadian Human Rights Act. 86 La Forest J. began his consideration of the jurisdiction of the arbitrator to apply the Charter by noting the Court of Appeal in finding jurisdiction stated that it was unnecessary to consider the question of whether the arbitrator was "a court of competent jurisdiction" since no relief was sought under s. 24(1) (at p. 587). In the course of a careful review of the authorities, he stated, at p. 591, that the "predominant position among the courts is that in the exercise of its statutory mandate, a tribunal is empowered to examine and rule upon the constitutional validity of a statute it is called upon to apply". Later, he opined, at p. 594, that a tribunal "performing what it was by law empowered to do.... was entitled not only to construe the relevant legislation but to determine

84 Page 35 whether that legislation was validly enacted (emphasis added). He elaborated by reference to s. 52 of the Constitution: Section 52(1) of the Constitution Act, 1982 provides that any law that is inconsistent with the provisions of the Constitution of Canada -- the supreme law of the land -- is, to the extent of its inconsistency, of no force or effect. A tribunal must respect the Constitution so that if it finds invalid a law it is called upon to apply, it is bound to treat it as having no force or effect. [Emphasis added.] La Forest J. went on to state that if a tribunal were asked to address a Charter matter outside its mandate, for example a special remedy under s. 24(1) of the Charter, the result might be otherwise. He concluded by underlining "[t]he distinction... between the exercise of the power conferred by s. 24(1) of the Charter and the duty of a tribunal to apply the Constitution in the course of performing its statutory mandate" (p. 595). The same distinction was made by Wilson J., L'Heureux-Dubé J. concurring. In the result, this Court unanimously held that the arbitrator had the power, in the course of rendering his decision on the complaint against mandatory retirement, to consider whether the Code's retirement provision violated the Charter. 87 This Court applied the same principles in Tétreault-Gadoury, supra. Again, the issue was age discrimination and the ability of a tribunal to consider whether a statute violated the equality guarantee of the Charter. This time the statute was the Unemployment Insurance Act, 1971, S.C l-72, c. 48, which denied benefits to those over 65. The Board of Referees to which an appeal from denial of benefits was taken refused to consider the Charter question. The Federal Court of Appeal held that the Board had erred in refusing to consider the Charter. This Court, per La Forest J. reversed that decision on the ground that the statute did not give the Board the power to decide questions of law. The Act conferred that power on another administrative tribunal in the scheme -- the Umpire. Applying the test set out in Douglas College and Cuddy Chicks, it was the Umpire who was charged with interpreting the law and applying the Charter. La Forest J. underlined the practical reasons for permitting administrative tribunals to apply the Charter (at pp ): "one of the major advantages... is the relative accessibility such bodies provide in comparison with the regular court system". Another (at p. 36) is "that specialized expertise may be brought to bear on the issue.... The umpire will possess a certain insight, based upon broad experience with respect to the legislative scheme, that will render his or her contribution to the determination of the constitutional question a valuable one". These advantages, he noted, were preserved in the system at issue by permitting the Umpire to apply the Charter. 88 This Court applied the same principles in Cuddy Chicks to conclude that the Ontario Labour Relations Board had the power to apply the Ontario's Labour Relations Act, R.S.O. 1980, c. 228, in determining whether a provision of the Act violated the Charter's guarantee of freedom of association. La Forest J., after noting that the legislation empowered the Board to determine questions of law, wrote at p. 15: "The issue... is whether this authority with respect to questions of law can encompass the question of whether a law violates the Charter. It is clear to me that a

85 Page 36 Charter issue must constitute a question of law; indeed, the Charter is part of the supreme law of Canada" (emphasis added). 89 Douglas College, Tétreault-Gadoury and Cuddy Chicks stand for two related propositions. First, an administrative tribunal which has the power to decide questions of law has the power to decide the validity of particular laws under the Charter. Second, provided that an administrative tribunal is discharging a function assigned to it by its legislation, it may, in the course of doing so, consider and decide Charter issues. As a corollary, the cases affirm a third proposition: no express term conferring upon the tribunal the power to entertain constitutional questions is required for the tribunal to apply the Charter. 90 This Court has never overruled or limited these cases or the principles which they set out. Accordingly, it is these principles that govern the issue in the case at bar -- whether the Canadian Human Rights Commission has the power to consider the constitutional validity of the "normal age of retirement" defence in the Canadian Human Rights Act. III. Application of the Law in this Case 91 It is my view that the Canadian Human Rights Commission has the power to consider questions of law, and that the Charter issue raised here falls within the mandate of what the Commission is required to do under the Canadian Human Rights Act. Accordingly, I conclude that a tribunal appointed by the Commission has the power to apply the Charter and determine whether the "normal age of retirement" defence is rendered invalid by s. 52(1) of the Constitution Act, Since no relief is claimed under s. 24 of the Charter, the question of whether the tribunal is a "court of competent jurisdiction" under that section does not arise. 92 I approach the matter first from the perspective of the principle that tribunals entitled to decide questions of law may decide Charter issues. 93 The first enquiry focuses on the provisions of the Canadian Human Rights Act. The Act does not expressly state that the Commission has power to consider legal questions. However, this power may be inferred from the Act. Many of the duties which Parliament assigns to the Commission could not be accomplished unless the Commission has the power to consider issues of law generally and the effect of the Charter on human rights law more particularly. 94 Section 26 of the Act provides for a commission "to be known as the Canadian Human Rights Commission". Under s. 27, the Commission is charged with the administration of Part I of the Act, relating to the prevention of discrimination and the promotion of equality, as well as Part III of the Act, relating to complaints. Section 27 goes on to detail specific duties. These duties include information programs, liaison with other bodies and authorities to avoid conflicts in the handling of complaints, considering and making recommendations on human rights matters, review of regulations, rules, by-laws and other instruments made by Parliament, and generally to endeavour "by persuasion, publicity or any other means that it considers appropriate to discourage and reduce

86 Page 37 discriminatory practices". 95 These provisions negate any notion that the Commission is simply a rubber stamp, created to apply cipher-like the instructions Parliament delivers from above. If the Commission is to consider suggestions and requests on human rights and report to Parliament on the advisability of changes (s. 27(1)(e)), it must be presumed to have the power to interpret and consider the validity of the laws Parliament has already put in place. Similarly, if it is to carry out studies concerning human rights and freedoms and report with recommendations (s. 27(1)(f)), it must have the power to interpret the law. Again, if the Commission is to review Parliament's laws and regulations in any meaningful way and "comment on any provision thereof that in its opinion is inconsistent with the principle described in section 2" (promotion of equal opportunity and avoidance of discrimination) (s. 27(1)(g)), it must have the power to interpret the discrimination provisions of the Act; interpretation is the prerequisite to judging consistency and effect. 96 Section 27(2) is to the same effect. It expressly empowers the Commission to interpret the Act's provisions. It permits on the Commission "on application or on its own initiative" to issue "guideline setting out the extent to which and the manner in which, in the opinion of the Commission, any provision of this Act applies in a particular case or in a class of cases described by the guideline". The formulation of guidelines is the very stuff of legal and statutory interpretation -- the determination of how broadly or narrowly the words of particular sections should be read in order to ascertain whether specific cases fall within or outside the provisions. 97 The question then is whether the Commission, being required to interpret the law for the purposes of Part I of the Act, is forbidden to enter the domain of legal interpretation in discharging its duties in relation to complaints under Part III of the Act. In my view, that cannot have been the intent of Parliament. If the Commission, using its interpretative powers, sets out guidelines as to what the Act means under Part I, surely it can apply those guidelines in determining whether a complaint should be referred to a tribunal for investigation, hearing and decision under Part III. If this is so, as it must be, then the Commission has the power to interpret the law in determining whether to refer a complaint to a tribunal or dismiss it. 98 The Act confers the same power to consider and decide issues of law on the tribunals appointed to investigate and decide particular complaints. The tribunal may receive all "and other evidence or information... whether or not... admissible in a court of law"-- s. 50(2)(c). It must give full opportunity to all parties not only to call evidence, but to "make representations" -- s. 50(1). These suggest a full hearing extending beyond the facts to law. However, the Act does not leave us to guess. In the provisions for appeal from a tribunal, it defines the powers of the review tribunal as "all the powers of... a tribunal" -- s. 56(2). It then goes on to state that an "appeal lies to a review tribunal against a decision or order of a tribunal on any question of law or fact or mixed law and fact" -- s. 56(3) (emphasis added). If the tribunal were confined to deciding matters of fact, then there would be no need for the review panel to have the function of reviewing questions of law or mixed law and fact. The provisions make sense only if it is accepted that the tribunal has the

87 Page 38 power to decide questions of law. When it decides these questions of law or mixed law and fact, it is subject to correction by the review panel. 99 The second principle asserted by Douglas College, Tétreault-Gadoury, and Cuddy Chicks is that a tribunal may consider the Charter in carrying out the mandate conferred upon it by Parliament or the legislature. The provisions of the Act reviewed above support the conclusion, not only that the Canadian Human Rights Commission is empowered to consider questions of law but also that it is obliged to do so in carrying out its mandate. This obligation, the cases assert, extends to permitting boards and tribunals appointed under human rights legislation to hold that provisions of the law are invalid. Often this has been assumed without challenge: see, for example Insurance Corporation of British Columbia v. Heerspink, [1982] 2 S.C.R The power of inferior tribunals to find laws invalid in the course of performing their mandate is analogous to a similar question which was considered in Re Shewchuk and Ricard (1986), 28 D.L.R. (4th) 429 (B.C.C.A.), at p In that case, Macfarlane J.A., speaking for the majority held at pp that provincial courts do have the jurisdiction to deal with all relevant aspects of the Charter: It is clear that the power to make general declarations that enactments of Parliament or of the Legislature are invalid is a high constitutional power which flows from the inherent jurisdiction of the superior courts. But it is equally clear that if a person is before a court upon a charge, complaint, or other proceeding properly within the jurisdiction of that court then the court is competent to decide that the law upon which the charge, complaint or proceeding is based is of no force and effect by reason of the provisions of the Canadian Charter of Rights and Freedoms, and to dismiss the charge, complaint or proceeding. The making of a declaration that the law in question is of no force and effect, in that context, is nothing more than a decision of a legal question properly before the court. It does not trench upon the exclusive right of the superior courts to grant prerogative relief, including general declarations. The analysis that Macfarlane J.A. applied with respect to provincial courts also applies with respect to tribunals, in so far as such tribunals have been given the power by Parliament to decide questions of law. 100 This principle was applied to tribunals appointed under the Canadian Human Rights Act in Canada (Attorney General) v. Druken, [1989] 2 F.C. 24 (C.A.). In that case, the complainants were denied unemployment insurance benefits because they were employed by their husbands or by corporations of which their husbands controlled more than 40 percent of the voting shares. They brought a complaint under the Canadian Human Rights Act, alleging discrimination. The Commission referred the matter to a tribunal, which held the sections of the Unemployment Insurance Act which mandated the discriminatory treatment were inconsistent with the Canadian

88 Page 39 Human Rights Act and hence inoperative. The Attorney General of Canada argued that the tribunal had no jurisdiction to make general declarations as to the validity of the legislation. After citing the passage from Re Shewchuk quoted above, the Federal Court of Appeal per Mahoney J. found that the principle that an inferior court could find a statute invalid for breach of the Charter in the course of making the decision that Parliament had empowered it to make applied equally to a human rights tribunal under the Canadian Human Rights Act. The tribunal, in his view (at p. 35), was empowered to find the offending enactment "to have been implicitly repealed by the enactment of the Human Rights Act". 101 In this case, it is a provision of the Canadian Human Rights Act -- the "normal age of retirement" defence which is argued to be implicitly repealed by the Charter. However, from the point of view of the jurisdiction of the Commission there is no distinction between this case and Druken. If the appellants are correct, s. 52 of the Constitution Act, 1982 has implicitly repealed the "normal age of retirement" defence of the Canadian Human Rights Act. In order to decide whether a complaint has validity, the Commission is obliged to determine whether this submission has merit or not. Following the principle affirmed in Douglas College and applied in Re Shewchuk and Druken, the Commission has power to consider that question in discharging its duty of deciding whether to dismiss the complaint or refer it to a tribunal. 102 The Commission functions as gatekeeper to the tribunal process. It cannot be, therefore, as the majority suggests, that the Commission is barred from considering questions of law which the tribunal is permitted to consider. A question cannot be referred to a tribunal unless the Commission first considers it. The practical effect of the majority's approach will be to allow respondents to use the constitution as a shield, while rendering it impossible for complainants to challenge the validity of statutory defences. 103 I conclude that the Commission has the power to consider the issue of whether the Charter renders invalid the "normal age of retirement" defence. Given that the Commission's duty only is to screen the complaint, it need not decide the question finally, but only determine whether it has a reasonable chance of success. In the context of its duties under the Canadian Human Rights Act, the Commission has the expertise to carry out its duty in this regard. If it concludes that it does have a reasonable chance of success, then it should refer the matter to a tribunal, which can hear full representations on the matter and make its decision accordingly. The tribunal's decision on the issue of law may in turn be reviewed by the review tribunal. The review tribunal's decision in turn may be filed as a decision of the Federal Court, from which appeal lies to the Federal Court of Appeal. IV. Whether the Commission Erred in Dismissing the Complaints 104 The Commission proceeded on the basis that it had power to consider whether the "normal age of retirement" defence of the Canadian Human Rights Act violated s. 15 of the Charter and was hence invalid under s. 52 of the Constitution Act, It justified its dismissal of the appellants' complaints by asserting that the decision of this Court in McKinney v. University of Guelph, [1990]

89 Page 40 3 S.C.R. 229, upholds mandatory retirement and hence the "normal age of retirement" defence. 105 The respondent Canadian Airlines International argues that the Commission was right to conclude that McKinney provides a complete answer to the appellants' claims. In McKinney, this Court held that a mandatory retirement age for university professors of 65 violated the equality guarantee of s. 15 of the Charter but was saved under s. 1 of the Charter as a reasonable limitation demonstrably justified in a free and democratic society. This conclusion was based, in Canadian Airlines International's submission, on the conclusion of the Court that 65 was the "normal" age of retirement for university professors. It follows, Canadian contends, that if a statute provides for retirement at the normal age for the occupation in question, it must be saved under s.1 of the Charter. 106 In my respectful opinion, this argument oversimplifies the process envisaged under s. 1 of the Charter. Even if one were to accept the doubtful submission that the conclusion that the infringement in McKinney was justified under s. 1 of the Charter solely on the ground that this was the normal age of retirement, one cannot conclude that that factor alone would suffice in all cases to justify an infringement of s. 15. Section 1 is about much more than what is usual or "normal". The usual practice may be unjustifiable, having regard to the egregiousness of the infringement or the insubstantiality of the objective alleged to support it. Each case must be looked at on its own circumstances. It is not difficult to imagine cases where the industry standard for retirement might be unreasonable. If, for example, a computer software company decided to retire all persons over the age of 40 on the ground that most people's creativity wanes after that birthday, would the response that this was "normal" suffice to show justifiability without further inquiry? I think not. 107 Nor is the fact that unions are involved in determining what is "normal" a guarantee of justifiability. As the appellants point out, there may be many reasons why a union does not take up a particular cause. The concern may be of interest only to a minority of its members, or the union may have other more important issues on the bargaining table. Even if the union puts forward a concern like mandatory retirement age, it may be unable to win what it proposes. In collective bargaining, as in any bargaining, not every party achieves its wish-list. 108 In my view, the Commission erred in concluding that McKinney presents a complete answer to the appellant's claim. It should have concluded that the normal age of retirement may not necessarily constitute a defence to a claim for age discrimination, and referred the matter to a tribunal for investigation, hearing and decision, including a decision on the constitutional issue. Of course, when referring the complaint which involves a Charter issue like the one in the present case to a tribunal, the Commission is required to give notice to the Attorney General pursuant to s. 57 of the Federal Court Act, R.S.C., 1985, c. F-7. V. Conclusion 109 I would allow the appeals and direct the Commission to refer the issue to a tribunal for determination.

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92 Page 1 Case Name: Dene Tha' First Nation v. Alberta (Energy and Utilities Board) Between Dene Tha' First Nation, appellant, and The Alberta Energy and Utilities Board, respondent, and Penn West Petroleum Limited, respondent, and Her Majesty the Queen in Right of Alberta, Intervener [2005] A.J. No ABCA Alta. L.R. (4th) A.R C.E.L.R. (3d) A.C.W.S. (3d) CarswellAlta 203 Docket: AC Alberta Court of Appeal Calgary, Alberta Côté, Picard and Costigan JJ.A. Heard: February 11, Oral judgment: February 11, Filed: February 16, (34 paras.) Administrative law -- Judicial review and statutory appeal -- Scope of review -- When available -- Error of law -- Error of fact.

93 Page 2 Appeal by the Dene Tha' First Nation from a decision of the Alberta Energy and Utilities Board to dismiss its application for intervener status. Penn West Petroleum had informed the First Nation that it intended to drill a number of wells and put in some access roads on Crown land. It showed the First Nation precisely where the facilities were to be installed. None were to be within the First Nation's reserve. When the Board issued Penn West licenses for the wells and roads, the First Nation applied to intervene. The Board decided that the First Nation had not met the statutory test for intervention, which required it to prove that it might be directly and adversely affected. HELD: Appeal dismissed. An appeal from the Board's decision lay only with respect to a question of law or jurisdiction. The Board did not err with respect to the question of whether the claim right or interest being asserted was known in law. Satisfaction of that question was conceded. No appeal lay with respect to the factual question of whether the application by Penn West could directly and adversely affect those rights. Lastly, neither Penn West nor the Board had any duty in law to consult with those holding aboriginal or treaty rights. Statutes, Regulations and Rules Cited: Energy Resources Conservation Act of Alberta s. 26(2) Oil and Gas Conservation Act s. 3, s. 4, s. 11, s. 19 Appeal From: Appeal from the Decisions by the Alberta Energy and Utilities Board. Dated the 16th day of January, 2003 and the 15th day of April, Counsel: J.R. Rath, A.T. Rana and D.F. Saly, for the Appellant J.R. McKee and D.H. Pickup, for the Respondent Alberta Energy and Utilities Board A.W. Carpenter and K. O'Callaghan, for the Respondent Penn West Petroleum Ltd. T.G. Rothwell, for the Intervener Her Majesty the Queen in Right of Alberta The judgment of the Court was delivered by MEMORANDUM OF JUDGMENT DELIVERED FROM THE BENCH 1 CÔTÉ J.A. (orally):-- This is an appeal from the Alberta Energy and Utilities Board on three questions of law, by leave of one judge. 2 In 2002, the respondent energy company made known to the appellant First Nation that it proposed to drill a number of wells and put in access roads, all on Crown land. None of this was within the reserve of the First Nation. There were a number of meetings and discussions between the energy company and the First Nation, and a helicopter site tour by both sides. But the First Nation wished to be paid $111,000 before those discussions could continue. The energy company tried

94 Page 4 recognized the two branches (legal and factual). Though there is some ambiguity in the January 16 decision, we see none at all in the April 15 decision. Still less do we read the Board as saying that it had no jurisdiction to ask such a question (about a legally-recognized interest). The letter from a Board staff member asking for more information is not a decision by the Board, and was sent before most of the submissions were sent to the Board. The First Nation's solicitors sent lengthy letters giving a lot of authority about the legal aspects of the appellant First Nation's asserted aboriginal and treaty rights. 13 The wording of the April 15 letter seems clear to us. When it says that no person was shown to be susceptible of direct adverse effect, it clearly makes a factual finding. That is not a mis- statement of the test; it is a statement about the factual branch of the test. 14 It was argued before us that more recent case law on prima facie infringement of aboriginal or treaty rights changed things. But the Board still needed some facts to go on. It is not compelled by this legislation to order intervention and a hearing whenever anyone anywhere in Alberta merely asserts a possible aboriginal or treaty right. Some degree of location or connection between the work proposed and the right asserted is reasonable. What degree is a question of fact for the Board. 15 Whether that factual decision was correct here is not for us to say, and we lack jurisdiction to go into it. 16 However, in case it be thought that the Board had missed some issue, or erred in something procedural, we should say one thing. Despite many opportunities, the First Nation gave the Board very little factual detail or precise information. On appeal it now asserts that the key question was adverse effect on traplines; but that is only one matter of a number vaguely asserted in the letters. The letters came from the solicitors for the appellant First Nation. 17 The First Nation argument suggested to us that it lacked information to be more specific. As that is said to tie into the question of consultation, we will say a little about it in deference to counsel, even though it is a purely factual question. 18 There had been discussions and provision of exact wellsite locations long before the submissions to the Board. There never has been any suggestion that anyone lived outside the reserve, or that any wells or roads were to be within the reserve. The First Nation must know, or be able easily to learn, where its members hunt and trap. None of that hard information was provided to the Board. Instead the solicitors gave vague and adroitly-worded assertions of rights, some of which encompassed all land in Alberta, or in any event, all Crown land in Alberta. 19 The First Nation also contended before us it had no duty to tell the Board specifics, and that the Board should have frozen all development while deciding the question. We cannot agree, and have seen no authority, constitutional or otherwise, requiring such a logical impasse. 20 We repeat that we think these Board decisions sufficient for this evidentiary record, and have no power to intervene had we thought otherwise. 21 Therefore, the answer to question #1 is that the Board did not err in the respect asked. Questions #2 and #3 by their express terms do not arise. 22 That is really enough to dispose of this appeal. 23 However, duty to consult those with aboriginal or treaty rights was also argued before us. Indeed, at one point we were told that it was the core issue. But that recasts the dispute, and is quite

95 Page 5 different from what the Board was told. For one thing, the consultation suggested to the Board was that the energy company had a duty to consult. 24 It is now conceded to us that neither the energy company nor the Board has or had any duty in law to consult with those holding aboriginal or treaty rights. That concession is plainly correct today, though it may have been unclear for a time. At one point in oral argument, there was a stray reference to the Board as an "emanation" of the Crown, a characterization not argued elsewhere, and in our view inaccurate. In the 1930s the Privy Council condemned that term as vague and apt to mislead. 25 A duty of the Crown to consult was not really raised before the Board, though one or two phrases in the solicitors' letters make stray reference to it. 26 Though the Crown has later intervened on this appeal, it was not a party to the Board proceedings, and got no notice of them. As no claim was made against the Crown to the Board, that is not surprising. We do not regard as notice the fact that two of many letters were copied to an official in the government's Energy Department, particularly for letters making legal points, written and sent by solicitors. We presume that that official is not a lawyer. 27 Nor did anyone ever ask the Board to make the Crown a party, to give it notice, or to summon or implead it in any way. 28 A suggestion made to us in argument, but not made to the Board, was that the Board had some supervisory role over the Crown and its duty to consult on aboriginal or treaty rights. No specific section of any legislation was pointed out, and we cannot see where the Board would get such a duty. We will now elaborate on that. 29 There is no evidence here to tell the Board whether the Crown had consulted or not, and that fact is not conceded in argument. It seems to be disputed. Still less is there an evidentiary record which shows that there was no time or chance to consult. The little evidence there is suggests the contrary, but it is woefully inadequate to decide that question. Nor was anyone put on notice that that issue would be before the Board. 30 It was properly conceded in argument that someone wishing to drill an oil or gas well, or build a road, on Crown land in Alberta needs much more than the permission of the Board of the type which the energy company here sought and got. The person wishing to drill needs a Crown license or lease, and a number of other permits from the Crown. See for example s. 19 of the Oil and Gas Conservation Act respecting access road locations on Crown land. 31 Section 3 of that Act makes the Act cover all wells in Alberta, whether on public or private land. The Crown issues those licenses, leases, and permits; the Board does not. Nor does the Board review or cancel those. No one ever suggested to the Board in this case that it take such steps, nor that such leases, licenses or permits did not exist, nor that they were void or voidable. The topic never came up. 32 Though the record is not completely clear on this point, the application by the energy company seems to have been under the Oil and Gas Conservation Act, and its regulations. Section 4 of that Act (on scope) is about public protection from danger, and conservation of non-renewable resources (plus some issues among mineral owners). The applications seem to have been under that Act's Part 6, which requires a license from the Board (in its capacity as the Energy Resources Con-

96 Page 1 Indexed as: Haida Nation v. British Columbia (Minister of Forests) Minister of Forests and Attorney General of British Columbia on behalf of Her Majesty The Queen in Right of the Province of British Columbia, appellants; v. Council of the Haida Nation and Guujaaw, on their own behalf and on behalf of all members of the Haida Nation, respondents. And between Weyerhaeuser Company Limited, appellant; v. Council of the Haida Nation and Guujaaw, on their own behalf and on behalf of all members of the Haida Nation, respondents, and Attorney General of Canada, Attorney General of Ontario, Attorney General of Quebec, Attorney General of Nova Scotia, Attorney General for Saskatchewan, Attorney General of Alberta, Squamish Indian Band and Lax-kw'alaams Indian Band, Haisla Nation, First Nations Summit, Dene Tha' First Nation, Tenimgyet, aka Art Matthews, Gitxsan Hereditary Chief, Business Council of British Columbia, Aggregate Producers Association of British Columbia, British Columbia and Yukon Chamber of Mines, British Columbia Chamber of Commerce, Council of Forest Industries, Mining Association of British Columbia, British Columbia Cattlemen's Association and Village of Port Clements, interveners. [2004] 3 S.C.R. 511 [2004] S.C.J. No SCC 73 File No.: [page512]

97 Page 2 Supreme Court of Canada Heard: March 24, 2004; Judgment: November 18, Present: McLachlin C.J. and Major, Bastarache, Binnie, LeBel, Deschamps and Fish JJ. (80 paras.) Appeal From: ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA Catchwords: Crown -- Honour of Crown -- Duty to consult and accommodate Aboriginal peoples -- Whether Crown has duty to consult and accommodate Aboriginal peoples prior to making decisions that might adversely affect their as yet unproven Aboriginal rights and title claims -- Whether duty extends to third party. Summary: For more than 100 years, the Haida people have claimed title to all the lands of Haida Gwaii and the waters surrounding it, but that title has not yet been legally recognized. The Province of British Columbia issued a "Tree Farm License" (T.F.L. 39) to a large forestry firm in 1961, permitting it to harvest trees in an area of Haida Gwaii designated as Block 6. In 1981, 1995 and 2000, the Minister replaced T.F.L. 39, and in 1999, the Minister approved a transfer of T.F.L. 39 to Weyerhaeuser Co. The Haida challenged in court these replacements and the transfer, which were made without their consent and, since at least 1994, over their objections. They asked that the replacements and transfer be set aside. The chambers judge dismissed the petition, but found that the government had a moral, not a legal, duty to negotiate with the Haida. The Court of Appeal reversed the decision, declaring that both the government and Weyerhaeuser Co. have a duty to consult with and accommodate the Haida with respect to harvesting timber from Block 6. Held: The Crown's appeal should be dismissed. Weyerhaeuser Co.'s appeal should be allowed. While it is open to the Haida to seek an interlocutory injunction, they are not confined to that remedy, which [page513] may fail to adequately take account of their interests prior to final determination thereof. If they can prove a special obligation giving rise to a duty to consult or accommodate, they are free to pursue other available remedies. The government's duty to consult with Aboriginal peoples and accommodate their interests is

98 Page 3 grounded in the principle of the honour of the Crown, which must be understood generously. While the asserted but unproven Aboriginal rights and title are insufficiently specific for the honour of the Crown to mandate that the Crown act as a fiduciary, the Crown, acting honourably, cannot cavalierly run roughshod over Aboriginal interests where claims affecting these interests are being seriously pursued in the process of treaty negotiation and proof. The duty to consult and accommodate is part of a process of fair dealing and reconciliation that begins with the assertion of sovereignty and continues beyond formal claims resolution. The foundation of the duty in the Crown's honour and the goal of reconciliation suggest that the duty arises when the Crown has knowledge, real or constructive, of the potential existence of the Aboriginal right or title and contemplates conduct that might adversely affect it. Consultation and accommodation before final claims resolution preserve the Aboriginal interest and are an essential corollary to the honourable process of reconciliation that s. 35 of the Constitution Act, 1982, demands. The scope of the duty is proportionate to a preliminary assessment of the strength of the case supporting the existence of the right or title, and to the seriousness of the potentially adverse effect upon the right or title claimed. The Crown is not under a duty to reach an agreement; rather, the commitment is to a meaningful process of consultation in good faith. The content of the duty varies with the circumstances and each case must be approached individually and flexibly. The controlling question in all situations is what is required to maintain the honour of the Crown and to effect reconciliation between the Crown and the Aboriginal people with respect to the interests at stake. The effect of good faith consultation may be to reveal a duty to accommodate. Where accommodation is required in making decisions that may adversely affect as yet unproven Aboriginal rights and title claims, the Crown must balance Aboriginal concerns reasonably [page514] with the potential impact of the decision on the asserted right or title and with other societal interests. Third parties cannot be held liable for failing to discharge the Crown's duty to consult and accommodate. The honour of the Crown cannot be delegated, and the legal responsibility for consultation and accommodation rests with the Crown. This does not mean, however, that third parties can never be liable to Aboriginal peoples. Finally, the duty to consult and accommodate applies to the provincial government. At the time of the Union, the Provinces took their interest in land subject to any interest other than that of the Province in the same. Since the duty to consult and accommodate here at issue is grounded in the assertion of Crown sovereignty which pre-dated the Union, the Province took the lands subject to this duty. The Crown's obligation to consult the Haida on the replacement of T.F.L. 39 was engaged in this case. The Haida's claims to title and Aboriginal right to harvest red cedar were supported by a good prima facie case, and the Province knew that the potential Aboriginal rights and title applied to Block 6, and could be affected by the decision to replace T.F.L. 39. T.F.L. decisions reflect strategic planning for utilization of the resource and may have potentially serious impacts on Aboriginal

99 Page 4 rights and titles. If consultation is to be meaningful, it must take place at the stage of granting or renewing T.F.L.'s. Furthermore, the strength of the case for both the Haida's title and their right to harvest red cedar, coupled with the serious impact of incremental strategic decisions on those interests, suggest that the honour of the Crown may also require significant accommodation to preserve the Haida's interest pending resolution of their claims. Cases Cited Applied: Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010; referred to: RJR -- MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311; R. v. Van der Peet, [1996] 2 S.C.R. 507; R. v. Badger, [1996] 1 S.C.R. 771; R. v. Marshall, [1999] 3 S.C.R. 456; Wewaykum Indian Band v. Canada, [2002] 4 S.C.R. 245, 2002 SCC 79; R. v. Sparrow, [1990] 1 S.C.R. 1075; R. v. Nikal, [1996] 1 S.C.R. 1013; R. v. Gladstone, [1996] 2 S.C.R. 723; [page515] Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; TransCanada Pipelines Ltd. v. Beardmore (Township) (2000), 186 D.L.R. (4th) 403; Mitchell v. M.N.R., [2001] 1 S.C.R. 911, 2001 SCC 33; Halfway River First Nation v. British Columbia (Ministry of Forests), [1997] 4 C.N.L.R. 45, aff'd [1999] 4 C.N.L.R. 1; Heiltsuk Tribal Council v. British Columbia (Minister of Sustainable Resource Management) (2003), 19 B.C.L.R. (4th) 107; R. v. Marshall, [1999] 3 S.C.R. 533; R. v. Sioui, [1990] 1 S.C.R. 1025; R. v. Côté, [1996] 3 S.C.R. 139; R. v. Adams, [1996] 3 S.C.R. 101; Guerin v. The Queen, [1984] 2 S.C.R. 335; St. Catherine's Milling and Lumber Co. v. The Queen (1888), 14 App. Cas. 46; Paul v. British Columbia (Forest Appeals Commission), [2003] 2 S.C.R. 585, 2003 SCC 55; Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, 2003 SCC 20; Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R Statutes and Regulations Cited Constitution Act, 1867, s Constitution Act, 1982, s. 35. Forest Act, R.S.B.C. 1996, c Forestry Revitalization Act, S.B.C. 2003, c. 17. Authors Cited Concise Oxford Dictionary of Current English, 9th ed. Oxford: Clarendon Press, 1995, "accommodate", "accommodation". Hunter, John J. L. "Advancing Aboriginal Title Claims after Delgamuukw: The Role of the Injunction". Continuing Legal Education Conference on Litigating Aboriginal Title, June Isaac, Thomas, and Anthony Knox. "The Crown's Duty to Consult Aboriginal People" (2003), 41

100 Page 5 Alta. L. Rev. 49. Lawrence, Sonia, and Patrick Macklem. "From Consultation to Reconciliation: Aboriginal Rights and the Crown's Duty to Consult" (2000), 79 Can. Bar Rev New Zealand. Ministry of Justice. A Guide for Consultation with Maori. Wellington: The Ministry, History and Disposition: APPEALS from a judgment of the British Columbia Court of Appeal, [2002] 6 W.W.R. 243, 164 B.C.A.C. 217, 268 W.A.C. 217, 99 B.C.L.R. (3d) 209, 44 C.E.L.R. (N.S.) 1, [2002] 2 C.N.L.R. 121, [2002] B.C.J. No. 378 (QL), 2002 BCCA 147, [page516] with supplementary reasons (2002), 216 D.L.R. (4th) 1, [2002] 10 W.W.R. 587, 172 B.C.A.C. 75, 282 W.A.C. 75, 5 B.C.L.R. (4th) 33, [2002] 4 C.N.L.R. 117, [2002] B.C.J. No (QL), 2002 BCCA 462, reversing a decision of the British Columbia Supreme Court (2000), 36 C.E.L.R. (N.S.) 155, [2001] 2 C.N.L.R. 83, [2000] B.C.J. No (QL), 2000 BCSC Appeal by the Crown dismissed. Appeal by Weyerhaeuser Co. allowed. Counsel: Paul J. Pearlman, Q.C., and Kathryn L. Kickbush, for the appellants the Minister of Forests and the Attorney General of British Columbia on behalf of Her Majesty the Queen in Right of the Province of British Columbia. John J. L. Hunter, Q.C., and K. Michael Stephens, for the appellant Weyerhaeuser Company Limited. Louise Mandell, Q.C., Michael Jackson, Q.C., Terri-Lynn Williams-Davidson, Gidfahl Gudsllaay and Cheryl Y. Sharvit, for the respondents. Mitchell R. Taylor and Brian McLaughlin, for the intervener the Attorney General of Canada. E. Ria Tzimas and Mark Crow, for the intervener the Attorney General of Ontario. Pierre-Christian Labeau, for the intervener the Attorney General of Quebec. Written submissions only by Alexander MacBain Cameron, for the intervener the Attorney General of Nova Scotia. Graeme G. Mitchell, Q.C., and P. Mitch McAdam, for the intervener the Attorney General for Saskatchewan. Stanley H. Rutwind and Kurt Sandstrom, for the intervener the Attorney General of Alberta.

101 Page 6 Gregory J. McDade, Q.C., and John R. Rich, for the interveners the Squamish Indian Band and the Lax-kw'alaams Indian Band. Allan Donovan, for the intervener the Haisla Nation. [page517] Hugh M. G. Braker, Q.C., Anja Brown, Arthur C. Pape and Jean Teillet, for the intervener the First Nations Summit. Robert C. Freedman, for the intervener the Dene Tha' First Nation. Robert J. M. Janes and Dominique Nouvet, for the intervener Tenimgyet, aka Art Matthews, Gitxsan Hereditary Chief. Charles F. Willms and Kevin O'Callaghan, for the interveners the Business Council of British Columbia, the Aggregate Producers Association of British Columbia, the British Columbia and Yukon Chamber of Mines, the British Columbia Chamber of Commerce, the Council of Forest Industries and the Mining Association of British Columbia. Thomas F. Isaac, for the intervener the British Columbia Cattlemen's Association. Stuart A. Rush, Q.C., for the intervener the Village of Port Clements. The judgment of the Court was delivered by McLACHLIN C.J.:-- I. Introduction 1 To the west of the mainland of British Columbia lie the Queen Charlotte Islands, the traditional homeland of the Haida people. Haida Gwaii, as the inhabitants call it, consists of two large islands and a number of smaller islands. For more than 100 years, the Haida people have claimed title to all the lands of the Haida Gwaii and the waters surrounding it. That title is still in the claims process and has not yet been legally recognized. 2 The islands of Haida Gwaii are heavily forested. Spruce, hemlock and cedar abound. The most important of these is the cedar which, since time immemorial, has played a central role in the economy and culture of the Haida people. It is from cedar that they made their ocean-going canoes,

102 Page 18 [page537] E. Do Third Parties Owe a Duty to Consult and Accommodate? 52 The Court of Appeal found that Weyerhaeuser, the forestry contractor holding T.F.L. 39, owed the Haida people a duty to consult and accommodate. With respect, I cannot agree. 53 It is suggested (per Lambert J.A.) that a third party's obligation to consult Aboriginal peoples may arise from the ability of the third party to rely on justification as a defence against infringement. However, the duty to consult and accommodate, as discussed above, flows from the Crown's assumption of sovereignty over lands and resources formerly held by the Aboriginal group. This theory provides no support for an obligation on third parties to consult or accommodate. The Crown alone remains legally responsible for the consequences of its actions and interactions with third parties, that affect Aboriginal interests. The Crown may delegate procedural aspects of consultation to industry proponents seeking a particular development; this is not infrequently done in environmental assessments. Similarly, the terms of T.F.L. 39 mandated Weyerhaeuser to specify measures that it would take to identify and consult with "aboriginal people claiming an aboriginal interest in or to the area" (Tree Farm Licence No. 39, Haida Tree Farm Licence, para. 2.09(g)(ii)). However, the ultimate legal responsibility for consultation and accommodation rests with the Crown. The honour of the Crown cannot be delegated. 54 It is also suggested (per Lambert J.A.) that third parties might have a duty to consult and accommodate on the basis of the trust law doctrine of "knowing receipt". However, as discussed above, while the Crown's fiduciary obligations and its duty to consult and accommodate share roots in the principle that the Crown's honour is engaged in its relationship with Aboriginal peoples, the duty to consult is distinct from the fiduciary duty that is owed in relation to particular cognizable Aboriginal interests. [page538] As noted earlier, the Court cautioned in Wewaykum against assuming that a general trust or fiduciary obligation governs all aspects of relations between the Crown and Aboriginal peoples. Furthermore, this Court in Guerin v. The Queen, [1984] 2 S.C.R. 335, made it clear that the "trust-like" relationship between the Crown and Aboriginal peoples is not a true "trust", noting that "[t]he law of trusts is a highly developed, specialized branch of the law" (p. 386). There is no reason to graft the doctrine of knowing receipt onto the special relationship between the Crown and Aboriginal peoples. It is also questionable whether businesses acting on licence from the Crown can be analogized to persons who knowingly turn trust funds to their own ends. 55 Finally, it is suggested (per Finch C.J.B.C.) that third parties should be held to the duty in order to provide an effective remedy. The first difficulty with this suggestion is that remedies do not dictate liability. Once liability is found, the question of remedy arises. But the remedy tail cannot wag the liability dog. We cannot sue a rich person, simply because the person has deep pockets or

103 Page 19 can provide a desired result. The second problem is that it is not clear that the government lacks sufficient remedies to achieve meaningful consultation and accommodation. In this case, Part 10 of T.F.L. 39 provided that the Ministry of Forests could vary any permit granted to Weyerhaeuser to be consistent with a court's determination of Aboriginal rights or title. The government may also require Weyerhaeuser to amend its management plan if the Chief Forester considers that interference with an Aboriginal right has rendered the management plan inadequate (para. 2.38(d)). Finally, the government can control by legislation, as it did when it introduced the Forestry Revitalization Act, S.B.C. 2003, c. 17, which claws back 20 percent of all licensees' harvesting rights, in part to make land available for Aboriginal peoples. The government's legislative authority over provincial natural resources gives it [page539] a powerful tool with which to respond to its legal obligations. This, with respect, renders questionable the statement by Finch C.J.B.C. that the government "has no capacity to allocate any part of that timber to the Haida without Weyerhaeuser's consent or co-operation" ( (2002), 5 B.C.L.R. (4th) 33, at para. 119). Failure to hold Weyerhaeuser to a duty to consult and accommodate does not make the remedy "hollow or illusory". 56 The fact that third parties are under no duty to consult or accommodate Aboriginal concerns does not mean that they can never be liable to Aboriginal peoples. If they act negligently in circumstances where they owe Aboriginal peoples a duty of care, or if they breach contracts with Aboriginal peoples or deal with them dishonestly, they may be held legally liable. But they cannot be held liable for failing to discharge the Crown's duty to consult and accommodate. F. The Province's Duty 57 The Province of British Columbia argues that any duty to consult or accommodate rests solely with the federal government. I cannot accept this argument. 58 The Province's argument rests on s. 109 of the Constitution Act, 1867, which provides that "[a]ll Lands, Mines, Minerals, and Royalties belonging to the several Provinces of Canada... at the Union... shall belong to the several Provinces." The Province argues that this gives it exclusive right to the land at issue. This right, it argues, cannot be limited by the protection for Aboriginal rights found in s. 35 of the Constitution Act, To do [page540] so, it argues, would "undermine the balance of federalism" (Crown's factum, at para. 96). 59 The answer to this argument is that the Provinces took their interest in land subject to "any Interest other than that of the Province in the same" (s. 109). The duty to consult and accommodate here at issue is grounded in the assertion of Crown sovereignty which pre-dated the Union. It follows that the Province took the lands subject to this duty. It cannot therefore claim that s. 35 deprives it of powers it would otherwise have enjoyed. As stated in St. Catherine's Milling and Lumber Co. v. The Queen (1888), 14 App. Cas. 46 (P.C.), lands in the Province are "available to [the Province] as a source of revenue whenever the estate of the Crown is disencumbered of the Indian title" (p. 59). The Crown's argument on this point has been canvassed by this Court in Delgamuukw, supra, at para. 175, where Lamer C.J. reiterated the conclusions in St. Catherine's

104 KEARL OIL SANDS PROJECT JOINT REVIEW PANEL Calgary Alberta IMPERIAL OIL RESOURCES VENTURES LIMITED APPLICATION FOR AN OIL SANDS MINE AND BITUMEN PROCESSING FACILITY (KEARL OIL SANDS PROJECT) Decision Errata FORT MCMURRAY AREA Applications No and There is an omission in Decision , issued by the Joint Panel on February 27, 2007, that requires correction. A recommendation contained in Section of Decision should have been summarized in Section 1, under the Joint Panel recommendations to Canada. By oversight the summary did not appear in Section 1 of the decision report. The Joint Panel therefore adds the following to Section 1 of Decision , immediately following enumerated item 8) that appears under the heading The Joint Panel recommends to Canada that 9) EC collaborate with AENV in a review of the cumulative impacts on the Yellow Rail in the oils sands region using appropriate regional nocturnal surveys in areas of potentially suitable habitat within the next two years (Section ) Dated at Calgary, Alberta, on May 23, <original signed by> J. R. Nichol, P.Eng. Joint Panel Chair <original signed by> T. McGee Joint Panel Member <original signed by> L. Cooke Joint Panel Member EUB/CEAA Joint Review Panel Report (EUB Decision Errata) (May 23, 2007) 1

105 Joint Panel Report EUB Decision Imperial Oil Resources Ventures Limited Application for an Oil Sands Mine and Bitumen Processing Facility (Kearl Oil Sands Project) in the Fort McMurray Area February 27, 2007 Joint Review Panel Established by the Alberta Energy and Utilities Board and the Government of Canada

106 REPORT OF THE JOINT REVIEW PANEL ESTABLISHED BY THE ALBERTA ENERGY AND UTILITIES BOARD AND THE GOVERNMENT OF CANADA EUB Decision : Imperial Oil Resources Ventures Limited, Application for an Oil Sands Mine and Bitumen Processing Facility (Kearl Oil Sands Project) in the Fort McMurray Area February 27, 2007 Published by Alberta Energy and Utilities Board Avenue SW Calgary, Alberta T2P 3G4 Telephone: (403) Fax: (403) Web site: and Canadian Environmental Assessment Agency 160 Elgin Street, 22nd Floor Place Bell Canada Ottawa, Ontario K1A 0H3 Tel.: (613) Fax: (613) Web site:

107 Application for an Oil Sands Mine and Bitumen Processing Facility (Kearl Oil Sands Project) Imperial Oil CONTENTS Executive Summary... vii 1 Decision and Recommendations to Canada and Alberta Decision Context and StRategic Overview Introduction Application No Application No Joint Panel Review Process Hearing Submission of Wood Buffalo Métis Locals Association Submission of Deninu Kue First Nation Clearwater Band and WBFN Notice of Question of Constitutional Law Preliminary Matter Sufficiency of the Notice Given to Alberta and Canada Introduction Views of Alberta Views of Canada Views of the Clearwater Band and WBFN Views of Imperial Oil Views of the Joint Panel Duty to Consult Views of the Clearwater Band Views of the WBFN Views of Alberta Views of Canada Views of the Joint Panel Issues Purpose, Need, and Alternatives to the Project Views of Imperial Oil Views of the Interveners Views of the Joint Panel Alternative Means of Carrying out the Project Views of Imperial Oil Views of the Interveners Views of the Joint Panel Stakeholder and Public Consultation Consultation Views of Imperial Oil Views of the Oil Sands Environmental Coalition Views of DKFN Views of the Joint Panel Agreements Athabasca Chipewyan First Nation Clearwater Band and WBFN Fort McKay IRC EUB/CEAA Joint Review Panel Report (EUB Decision ) (February 27, 2007) i

108 Application for an Oil Sands Mine and Bitumen Processing Facility (Kearl Oil Sands Project) Imperial Oil MCFN NLHR RMWB WBMLA Non-Assertion of Rights Agreements Views of the Joint Panel Social and Economic Effects Project Benefits Views of Imperial Oil Views of NLHR Views of RMWB Views of the Joint Panel Health Services Views of Imperial Oil Views of NLHR Views of Alberta Views of the Joint Panel Public Infrastructure and Municipal Services Views of Imperial Oil Views of RMWB Views of Alberta Views of the Joint Panel Availability of Housing and Affordable Housing Views of Imperial Oil Views of RMWB Views of NLHR Views of Alberta Views of the Joint Panel East-Side Corridor Access Views of the Joint Panel Mine Plan and Resource Conservation Mine Plan and the Location of Facilities Views of Imperial Oil Views of Alberta Views of the Joint Panel External Tailings Area Views of Imperial Oil Views of the Joint Panel Overburden Disposal Areas Views of Imperial Oil Views of the Joint Panel Bitumen Recovery and Solvent Loss Views of Imperial Oil Views of the Joint Panel Asphaltene Rejection Views of Imperial Oil Views of the Joint Panel ii EUB/CEAA Joint Review Panel Report (EUB Decision ) (February 27, 2007)

109 Application for an Oil Sands Mine and Bitumen Processing Facility (Kearl Oil Sands Project) Imperial Oil 11 Tailings Management Tailings Technology Views of Imperial Oil Views of ACFN Views of the Joint Panel End Pit Lakes Views of Imperial Oil Views of Alberta Views of ACFN Views of the Joint Panel Reclamation Reclamation and Renewable Resource Conservation Views of Imperial Oil Views of ACFN Views of DKFN Views of the Clearwater Band Views of WBFN Views of OSEC Views of MCFN Views of Canada Views of Alberta Views of the Joint Panel Reclamation Liability Views of Imperial Oil Views of MCFN Views of OSEC Views of Alberta Coordination of Mine Plans Across Lease Boundaries Views of Imperial Oil Views of ACFN Views of Alberta Views of the Joint Panel Air Emissions Views of Imperial Oil Views of ACFN Views of OSEC Views of DKFN Views of Canada Views of Alberta Views of the Joint Panel Surface Water IFN Views of Imperial Oil Views of ACFN Views of Fort McKay IRC Views of OSEC EUB/CEAA Joint Review Panel Report (EUB Decision ) (February 27, 2007) iii

110 Application for an Oil Sands Mine and Bitumen Processing Facility (Kearl Oil Sands Project) Imperial Oil Views of MCFN Views of DKFN Views of Canada Views of Alberta Views of the Joint Panel Integrated Watershed Planning Views of Imperial Oil Views of ACFN Views of OSEC Views of Canada Views of Alberta Views of the Joint Panel Water Quality Views of Imperial Oil Views of ACFN Views of DKFN Views of Canada Views of Alberta Views of the Joint Panel Aquatic Resources Fish and Fish Habitat Views of Imperial Oil Views of Canada Views of the Joint Panel Cumulative Environmental Management Association Views of Imperial Oil Views of ACFN Views of OSEC Views of MCFN Views of Canada Views of Alberta Views of the Joint Panel Traditional Land use and Traditional Ecological Knowledge Views of Imperial Oil Views of MCFN Views of the Joint Panel Need for EIA Follow-Up Views of the Joint Panel Human Health Views of Imperial Oil Views of ACFN, Fort McKay IRC, and OSEC Views of DKFN Views of MCFN Views of Canada Views of Alberta Views of the Joint Panel iv EUB/CEAA Joint Review Panel Report (EUB Decision ) (February 27, 2007)

111 Application for an Oil Sands Mine and Bitumen Processing Facility (Kearl Oil Sands Project) Imperial Oil 20 Capacity of Renewable Resources Views of Imperial Oil Views of the Joint Panel Appendices 1 Hearing Participants Summary of Commitments and Conditions Joint Panel Agreement Figure 1 KOS Project Site Plan EUB/CEAA Joint Review Panel Report (EUB Decision ) (February 27, 2007) v

112 Application for an Oil Sands Mine and Bitumen Processing Facility (Kearl Oil Sands Project) Imperial Oil vi EUB/CEAA Joint Review Panel Report (EUB Decision ) (February 27, 2007)

113 Application for an Oil Sands Mine and Bitumen Processing Facility (Kearl Oil Sands Project) Imperial Oil EXECUTIVE SUMMARY 1 Imperial Oil Resources Ventures Limited (Imperial Oil) filed Application No with the Alberta Energy and Utilities Board (EUB) pursuant to Sections 10 and 11 of the Oil Sands Conservation Act (OSCA) and Sections 3, 24, 26, and 48 of the Oil Sands Conservation Regulation (OSCR) for construction and operation of the Kearl Oil Sands (KOS) Project. Imperial Oil also filed Application No pursuant to Section 11 of the Hydro and Electric Energy Act (HEEA) to construct and operate a cogeneration facility consisting of three 85 megawatt units for the KOS Project. Located about 70 kilometres north of Fort McMurray, Alberta, the KOS Project includes the design, construction, operation, and reclamation of four open pit truck and shovel mines and three trains of ore preparation and bitumen extraction facilities. Each train is designed to produce an average of cubic metres (m 3 ) per calendar day of partially deasphalted bitumen. The total project is designed to produce a maximum capacity of m 3 /day of partially deasphalted bitumen for a period of 50 years. The KOS Project also includes tailings management facilities and other supporting infrastructure. In addition to meeting the environmental assessment requirements of the Alberta Government, the KOS Project required an environmental assessment under the Canadian Environmental Assessment Act (CEAA). On January 18, 2006, the Honourable Geoff Regan, former Minister of Fisheries and Oceans Canada, requested that the Minister of the Environment of Canada refer the KOS Project to a review panel, in accordance with Section 25 of the CEAA. On July 14, 2006, Canada and the EUB entered into an agreement to establish a joint environmental assessment panel (the Joint Panel) for the project review. Under the agreement, the Joint Panel was authorized to undertake the review requirements of the CEAA, the Energy Resources Conservation Act (ERCA), and the OSCA. The Joint Panel considered the applications at a public hearing held in Fort McMurray, Alberta, during November 6-10 and 14-16; at Nisku, Alberta, during November 20-24; and at Edmonton, Alberta, during November 27-29, Participants that provided evidence at the hearing or registered to otherwise participate in the hearing included First Nations, local aboriginal groups, local residents, the Oil Sands Environmental Coalition, the Northern Lights Health Region, the Regional Municipality of Wood Buffalo, the Governments of Alberta and Canada, and other oil sands companies. While participants raised a number of issues for the Joint Panel s consideration, the most critical issues were related to the cumulative environmental and socioeconomic impacts of the project within the context of overall development of Alberta s mineable oil sands. The Joint Panel reviewed the KOS Project in accordance with the requirements of CEAA. The Joint Panel assessed the environmental effects of the project and their significance, including possible effects caused by accidents and malfunctions and the cumulative environmental effects that the project could cause when combined with the effects from other works, projects, or activities, taking into account measures to mitigate these effects. The purpose and need for the 1 This executive summary is provided for the benefit of the reader and does not form part of the report. All persons making use of the executive summary are reminded that the report should be consulted for all purposes relating to the interpretation and application of the Joint Panel s views. EUB/CEAA Joint Review Panel Report (EUB Decision ) (February 27, 2007) vii

114 Application for an Oil Sands Mine and Bitumen Processing Facility (Kearl Oil Sands Project) Imperial Oil project, alternative means of carrying out the project, the capacity of the renewable resources to satisfy the needs of present and future generations, and the need for a follow-up program were also reviewed. Having regard for its responsibilities under the ERCA, the CEAA, the HEEA and the OSCA, the Joint Panel has carefully considered all of the evidence pertaining to the applications. The Joint Panel finds that the KOS Project is in the public interest for the reasons set out in this report. The Joint Panel concludes that the project is not likely to result in significant adverse environmental effects, provided that the recommendations and mitigation measures proposed by the Joint Panel are implemented. Under its EUB authority, the Joint Panel is prepared to approve Application No , and it is prepared to approve Application No subject to the approval of the Lieutenant Governor in Council of Alberta. While this project has been considered to be in the public interest, the Joint Panel must emphasize the importance of the Governments of Alberta and Canada giving priority attention to critical challenges related to cumulative impacts for a number of key environmental sectors and to the acute and growing issues faced by both the Regional Municipality of Wood Buffalo and the Northern Lights Health Region. With each additional oil sands project, the growing demands and the absence of sustainable long-term solutions weigh more heavily in the determination of the public interest. The responsibility for developing regional environmental management frameworks has largely been assigned to the Cumulative Environmental Management Association (CEMA), and this work is important to the sustainable development of the mineable oil sands over the long term. The Joint Panel believes that the efficiency of CEMA needs to be improved in order to keep pace with current development in the region and that there is a need for more definitive priority setting and adherence to deadlines. The success of CEMA is viewed by the Joint Panel as critical. The Joint Panel acknowledges that management of environmental effects in the region is ultimately the responsibility of the regulators, and so it encourages the regulators to take a more direct leadership role in all aspects of CEMA. In approving Applications No and , the Joint Panel has set conditions relating to mining operations, resource conservation, and tailings management. In addition, the Joint Panel has also made recommendations to the federal and provincial governments that will aid in the mitigation of anticipated environmental and socioeconomic effects of the project and will address the need for follow-up measures. viii EUB/CEAA Joint Review Panel Report (EUB Decision ) (February 27, 2007)

115 KEARL OIL SANDS PROJECT JOINT REVIEW PANEL Calgary Alberta IMPERIAL OIL RESOURCES VENTURES LIMITED APPLICATION FOR AN OIL SANDS MINE AND BITUMEN PROCESSING FACILITY (KEARL OIL SANDS PROJECT) Decision FORT MCMURRAY AREA Applications No and DECISION AND RECOMMENDATIONS TO CANADA AND ALBERTA Having regard for its responsibilities under the Energy Resources Conservation Act (ERCA), the Canadian Environmental Assessment Act (CEAA), the Oil Sands Conservation Act (OSCA), and the Hydro and Electric Energy Act (HEEA), the Canadian Environmental Assessment Agency and the Alberta Energy and Utilities Board (EUB/Board) joint review panel (the Joint Panel) has carefully considered all the evidence pertaining to the applications of Imperial Oil Resources Ventures Limited (Imperial Oil). The Joint Panel finds that Imperial Oil s Kearl Oil Sands (KOS) Project is in the public interest for the reasons set out in the report. Under its authority as the EUB, the Joint Panel is prepared to approve Application No , subject to the approval of the Lieutenant Governor in Council. The Joint Panel also approves Application No The Joint Panel s approval is subject to the conditions listed in Appendix 2. The Joint Panel also expects that Imperial Oil will adhere to all commitments it made during the consultation process, in the applications, and at the hearing to the extent that those commitments do not conflict with the terms of the approval or licence affecting the project or any law, regulation, or similar requirement that Imperial Oil is bound to observe. With regard to its responsibilities under the CEAA and its terms of reference, the Joint Panel assessed the environmental effects of the project and their significance, including those caused by possible accidents and malfunctions, and the cumulative environmental effects that the project could cause when combined with the effects from other works, projects, or activities, taking into account measures to mitigate these effects. The purpose and need for the project, the feasible alternatives, and the need for a follow-up program were also reviewed, as well as the capacity of renewable resources to meet the needs of current and future generations. The Joint Panel concludes that the KOS Project is not likely to cause significant adverse environmental effects, provided that the proposed mitigation measures and the recommendations of the Joint Panel are implemented. The Joint Panel recommends to Canada that 1) Environment Canada (EC) and Alberta Environment (AENV) work together to assess the need for a mine fleet emissions technology review and regulation development process (Section 13.7); 2) Fisheries and Oceans Canada (DFO), AENV, the oil sands industry, and all other affected stakeholders dedicate the resources, staff, and funding to ensure that Phase II of the Water Management Framework for the Athabasca River is completed in a comprehensive manner and on time (Section ); EUB/CEAA Joint Review Panel Report (EUB Decision ) (February 27, 2007) 1

116 Application for an Oil Sands Mine and Bitumen Processing Facility (Kearl Oil Sands Project) Imperial Oil Views of Canada Canada adopted Alberta s argument regarding the failure of the Clearwater Band and WBFN to provide an NQCL that met the requirements of Section 12 of the APJA. Canada also stated that the environmental assessment process, which the Joint Panel was engaged in, was different from the issues to be addressed when an NQCL was filed that asserted rights under Section 35 of the Constitution Act, Canada further stated that in this proceeding the Joint Panel was not required to address a question of aboriginal rights under the Constitution of Canada Views of the Clearwater Band and WBFN The Clearwater Band and WBFN stated that the NQCL filed with their written submission satisfied the requirements under Section 12 of the APJA. They also stated that given Alberta s failure to raise the question of the adequacy of the notice at an early stage of the proceeding, for example after the Joint Panel had issued a letter seeking comments on the process for dealing with constitutional questions, it would not be fair for Alberta to later raise the question of the adequacy of the notice Views of Imperial Oil Imperial Oil stated that it shared the views of Alberta and Canada on the law in relation to the constitutional question. Imperial Oil emphasized that it had reached an agreement with the Clearwater Band and WBFN, and that any issues concerning consultation related to the question of the Crown's duty, if any, to consult and not to Imperial Oil's consultation efforts Views of the Joint Panel The Joint Panel has carefully considered the submissions of the parties on whether the NQCL filed by the Clearwater Band and WBFN complies sufficiently with the requirements under the APJA, so as to give the Joint Panel authority to consider the question of constitutional law raised in the notice. Alberta argued that strict compliance with the notice requirements is mandatory and that a failure to meet any of the requirements results in the Joint Panel losing jurisdiction to determine the constitutional question. Alberta cited a number of authorities for its position; however, the Joint Panel notes that none of the decisions specifically addressed the notice that must be given under Section 12 of the APJA. The Joint Panel understands that the reason for the requirement to provide notice to the Crown is to ensure that the Crown has a full opportunity to understand the questions raised in the NQCL and to respond appropriately. The Joint Panel notes that a form of NQCL was filed by the Clearwater Band and WBFN. No party suggested that there was a failure to give any notice of the question of constitutional law; rather, the Joint Panel considers the question to be the adequacy of the notice that was given by the Clearwater Band and WBFN. Section 3 of the Designation of Constitutional Decision Makers Regulation states that the notice for the purpose of Section 12(1) of the APJA is set out in Schedule 2. The following appears at the foot of the Schedule 2 form of notice: Details of Argument Details are to include: The grounds to be argued and reasonable particulars of the proposed argument, including a concise statement of the constitutional principles to be argued, references to any statutory 10 EUB/CEAA Joint Review Panel Report (EUB Decision ) (February 27, 2007)

117 Page 1 Case Name: Kelly v. Alberta (Energy and Utilities Board) Between Russ Kelly, Susan Kelly, Emil Hagman, Elsbeth Hagman, Daryle Schmidt, Debbie Schmidt, Patricia Kiehlbauch, R.J. Kiehlbauch, Linda McGinn, Garry Mastre, Louise Mastre, Cory Dusterhoft, Sandra Dusterhoft, Robert Mulligan, Candace Mulligan, Diane Sullivan, Don Sullivan, Eileen Belva, Lil Duperron, Robert Domke, Dallas Kisser, Christine Dodd, Barry Dodd, Sherrice Cunningham, Terry Dingwall and Laurel Dingwall, Applicants, and Alberta Energy and Utilities Board and West Energy Ltd., Respondents [2008] A.J. No ABCA C.E.L.R. (3d) CarswellAlta A.C.W.S. (3d) C.R.R. (2d) 14 Docket: AC Registry: Edmonton Alberta Court of Appeal R.L. Berger J.A. Heard: January 23, Judgment: February 12, 2008.

118 Page 2 (20 paras.) Natural resources law -- Oil and gas -- Wells -- Application by Kelly and others for leave to appeal from the Alberta Energy and Utilities Board's decision conditionally approving West Energy's applications to drill two sour oil wells allowed -- Applicants claimed that Board acted without jurisdiction and erred in law by requiring residents to voluntarily relocate or continue to live in their homes while exposed to an unacceptable risk during drilling and completion of wells -- It was arguable that applicants were entitled to mount an argument on appeal that s. 7 of Charter could be invoked and an infringement made out. Statutes, Regulations and Rules Cited: Alberta Energy and Utilities Board Act, R.S.A. 2000, c. A-17, s. 18 Canadian Charter of Rights and Freedoms, 1982, s. 7 Energy Resources Conservation Act, R.S.A. 2000, c. E-10, s. 14 Oil and Gas Conservation Act, R.S.A. 2000, c. O-6, s. 10(4) Oil and Gas Conservation Regulations Appeal From: Application for Leave to Appeal from a Decision of the Alberta Energy and Utilities Board. Dated the 8th day of August, Counsel: J.J. Klimek and D.P. Bishop: for the Applicants. G.A. Harding, Q.C. and B.S. Kapel Holden: for the Respondent - Alberta Energy and Utilities Board. D.M. Wood and D.P. Langen: for the Respondent - West Energy Ltd. Reasons for Decision 1 R.L. BERGER J.A.:-- This is an application for leave to appeal under the Alberta Energy and Utilities Board Act, R.S.A. 2000, c. A-17 (the "AEUB Act") and the Energy Resources Conservation Act, R.S.A. 2000, c. E-10 (the "ERCA") from a decision of the Alberta Energy and

119 Page 7 (EUB Decision , p. 21) b) West Energy had an obligation to inform those living in the area of the risk of its operation. (EUB Decision , p. 30) c) Relocating residents was the best option to reduce the risk to the Applicants. (EUB Decision , p. 30) 16 The Applicants note that the EUB did not impose a condition that the residents who live in areas of unacceptable risk must leave. Nor did the Board address the question of compensation. 17 I appreciate full well that pursuant to the Designation of Constitutional Decision Makers Regulation, Alta. Reg. 69/2006, s. 2, Schedule 1, made pursuant to the Administrative Procedures and Jurisdiction Act, R.S.A. 2000, c. A-3, ("the APJA"), the Board does have the power to determine questions of constitutional law. Under s of the Board Rules of Practice Regulation, Alta. Reg. 101/2001, a person who intends to raise a question of constitutional law must give notice in accordance with s. 12 of the APJA. 18 I appreciate also that at the hearing below the Applicants did not give notice of intention to raise a Charter argument and did not advance a Charter argument. Nevertheless, in respect of this proffered ground of appeal it is, in part, the Board's findings of fact that give rise to the s. 7 argument. That being so, it is at least arguable that the Applicants should be entitled to mount an argument on appeal that s. 7 may now be invoked and an infringement made out if they can establish: a) that there has been a real or imminent breach of the life, liberty or security of the person; b) that there are relevant principles of fundamental justice that apply; and c) that the deprivation of the life, liberty or security of the person was not in accordance with identified relevant principles of fundamental justice. See R. v. White, [1999] 2 S.C.R. 417 at para Mindful of the pronouncements of the Supreme Court of Canada in Charkaoui v. Canada (Citizenship and Immigration), [2007] 1 S.C.R. 350; Chaoulli v. Quebec (Attorney General), [2005] 1 S.C.R. 791; and Godbout v. Longueuil (City), [1997] 3 S.C.R I conclude that the

120 Page 8 Charter argument satisfies the test for leave. 20 I leave the question of costs of this application to the panel that hears the appeal. R.L. BERGER J.A. cp/e/qlkxl/qlpxm/qlhcs/qlcxm/qlhcs

121 Page 1 Case Name: Kwikwetlem First Nation v. British Columbia (Utilities Commission) IN THE MATTER OF the Utilities Commission Act, R.S.B.C. 1996, c. 473 and the Application by the British Columbia Transmission Corporation for a Certificate of Public Convenience and Necessity for the Interior to Lower Mainland Project Between The Kwikwetlem First Nation, Appellant (Applicant/Intervenor), and British Columbia Transmission Corporation, British Columbia Hydro and Power Authority, and British Columbia Utilities Commission, Respondents And between Nlaka'pamux Nation Tribal Council, Okanagan Nation Alliance and Upper Nicola Indian Band, Appellants (Applicants/Intervenors), and British Columbia Utilities Commission, British Columbia Transmission Corporation, and British Columbia Hydro and Power Authority, Respondents [2009] B.C.J. No BCCA 68 [2009] 9 W.W.R R.P.R. (4th) CarswellBC B.C.L.R. (4th) C.E.L.R. (3d) 159 [2009] 2 C.N.L.R. 212

122 Page B.C.A.C D.L.R. (4th) 285 Dockets: CA and CA British Columbia Court of Appeal Vancouver, British Columbia I.T. Donald, C.M. Huddart and R.J. Bauman JJ.A. Heard: November 26 and 27, Judgment: February 18, (71 paras.) Aboriginal law -- Aboriginal status and rights -- Duties of the Crown -- Fair dealing and reconciliation -- Consultation and accommodation -- Honour of the Crown -- Constitutional issues -- Recognition of existing aboriginal and treaty rights -- Appeal by intervenor First Nations from British Columbia Utilities Commission's determination that it was not required to consider adequacy of Crown's consultation and accommodation efforts with First Nations when determining whether public convenience and necessity required proposed extension of province's electric transmission system allowed -- Commission had jurisdiction and capacity to decide constitutional question of whether the duty to consult existed and if so, whether that duty had been met with regard to the subject matter before it -- Commission unreasonably refused to include consultation issue in scope of proceeding. Environmental law -- Jurisdictional and constitutional issues -- Aboriginal lands -- Duty to consult -- Appeal by intervenor First Nations from British Columbia Utilities Commission's determination that it was not required to consider adequacy of Crown's consultation and accommodation efforts with First Nations when determining whether public convenience and necessity required proposed extension of province's electric transmission system allowed -- Commission had jurisdiction and capacity to decide constitutional question of whether the duty to consult existed and if so, whether that duty had been met with regard to the subject matter before it -- Commission unreasonably refused to include consultation issue in scope of proceeding. Natural resources law -- Public utilities -- Regulatory tribunals -- Practice and procedure -- Intervenors -- Provincial boards, tribunals and commissions -- British Columbia -- Electricity -- Generation -- Hydro -- Appeal by intervenor First Nations from British Columbia Utilities Commission's determination that it was not required to consider adequacy of Crown's consultation and accommodation efforts with First Nations when determining whether public convenience and necessity required proposed extension of province's electric transmission system allowed --

123 Page 3 Commission had jurisdiction and capacity to decide constitutional question of whether the duty to consult existed and if so, whether that duty had been met with regard to the subject matter before it -- Commission unreasonably refused to include consultation issue in scope of proceeding. Appeal by the intervenor First Nations from the British Columbia Utilities Commission's determination that it was not required to consider the adequacy of the Crown's consultation and accommodation efforts with First Nations when determining whether public convenience and necessity required the proposed extension of the province's transmission system. The British Columbia Transmission Corporation (BCTC) applied for a certificate of public convenience and necessity (CPCN) for a hydro transmission line project. The proposed line originated, terminated, or passed through the traditional territory of four First Nations bands. The First Nations registered with the Commission as intervenors on BCTC's application and asked to lead evidence at an oral hearing about whether the Crown had fulfilled its duty to consult before seeking a CPCN for the project. The Commission decided to defer any assessment of whether the Crown's duty of consultation and accommodation with regard to the project had been fulfilled to the ministers with power to decide whether to issue an environmental assessment certificate under the Environmental Assessment Act. On appeal, the First Nations argued that the Commission's refusal to permit them to lead evidence about the consultation process effectively precluded consideration of alternatives to the project as a solution to the lower mainland's anticipated energy shortage. HELD: Appeal allowed and decision remitted to the Commission for reconsideration. The effect of the CPCN was suspended for the purpose of determining whether the Crown's duty to consult and accommodate the First Nations had been met. As a quasi-judicial tribunal with authority to decide questions of law on applications under its governing statute, the Commission had the jurisdiction and capacity to decide the constitutional question of whether the duty to consult existed and if so, whether that duty has been met with regard to the subject matter before it. The Crown's obligation to First Nations required interactive consultation and, where necessary, accommodation, at every stage of a Crown activity that had the potential to affect their Aboriginal interests. Once the Commission accepted that BCTC had a duty to consult First Nations regarding the project it was being asked to certify, it was incumbent on the Commission to hear the First Nations' complaints about the Crown's consultation efforts during the process leading to BCTC's selection of its preferred option, and to assess the adequacy of those efforts. Their failure to determine whether the Crown's honour had been maintained up to that stage of the Crown's activity was an error in law. Statutes, Regulations and Rules Cited: Business Corporations Act, SBC 2002, CHAPTER 57, Environmental Assessment Act, SBC 2002, CHAPTER 43, s. 9, s. 10(1)(c), s. 11, s. 16, s. 17, s. 30 Hydro and Power Authority Act, RSBC 1996, CHAPTER 212,

124 Page 4 Transmission Corporation Act, SBC 2003, CHAPTER 44, Utilities Commission Act, RSBC 1996, CHAPTER 473, s. 45, s. 45(3), s. 99, s. 101, s. 101(5) Counsel: G.J. McDade, Q.C.: Counsel for the Appellant, the Kwikwetlem First Nation. T. Howard and B.C. Stadfeld: Counsel for the Appellants, Nlaka'pamux Nation Tribal Council, Okanagan Nation Alliance and Upper Nicola Indian Band. K.B. Bergner and A. Bespflug: Counsel for the Respondent, British Columbia Hydro and Power Authority. A.W. Carpenter: Counsel for the Respondent, British Columbia Transmission Corporation. Reasons for Judgment The judgment of the Court was delivered by 1 C.M. HUDDART J.A.:-- This appeal under s. 101 of the Utilities Commission Act, R.S.B.C. 1996, c. 473, questions the approach of the British Columbia Utilities Commission ("the Commission") to the application of the principles of the Crown's duty to consult about and, if necessary, accommodate asserted Aboriginal interests on an application under s. 45 of that Act, for a certificate of public convenience and necessity ("CPCN") for a transmission line project proposed by the respondent, British Columbia Transmission Corporation ("BCTC"). 2 The line is said by its proponents to be necessary because the lower mainland's current energy supply will soon be insufficient to meet the needs of its growing population: the bulk of the province's electrical energy is generated in the interior of the province while the bulk of the electrical load is located at the coast. BCTC's preferred plan to remedy this problem is to build a new 500 kilovolt alternating current transmission line from the Nicola substation near Merritt to the Meridian substation in Coquitlam, a distance of about 246 kilometres (the "ILM Project"). It requires transmission work at both the Nicola and Meridian substations and the construction of a series capacitor station at the midpoint of the line. 3 The proposed line originates, terminates, or passes through the traditional territory of each of the four appellants. Most of the line will follow an existing right of way, although parts will need widening. About 40 kilometres of new right of way will be required in the Fraser Canyon and Fraser Valley. The respondents agree the ILM Project has the potential to affect Aboriginal

125 Page 6 8 As a quasi-judicial tribunal with authority to decide questions of law on applications under its governing statute, the Commission has the jurisdiction and capacity to decide the constitutional question of whether the duty to consult exists and if so, whether that duty has been met with regard to the subject matter before it: Carrier Sekani Tribal Council v. British Columbia (Utilities Commission), 2009 BCCA 67 at paras. 35 to 50. The question on this appeal is whether the Commission also has the obligation to consider and decide whether that duty has been discharged on an application for a CPCN under s. 45 of the Utilities Commission Act as it did on the application under s. 71 in Carrier Sekani. 9 The Commission is a regulatory agency of the provincial government which operates under and administers that Act. Its primary responsibility is the supervision of British Columbia's natural gas and electricity utilities "to achieve a balance in the public interest between monopoly, where monopoly is accepted as necessary, and protection to the consumer provided by competition", subject to the government's direction on energy policy. At the heart of its regulatory function is the grant of monopoly through certification of public convenience and necessity. (See British Columbia Hydro & Power Authority v. British Columbia (Utilities Commission) (1996), 20 B.C.L.R. (3d) 106, 36 Admin L.R. (2d) 249, at paras. 46 and 48.) 10 BCTC is a Crown corporation, incorporated under the Business Corporations Act, S.B.C. 2002, c. 57. In undertaking the ILM Project, it is supported by another Crown corporation, the British Columbia Hydro and Power Authority ("BC Hydro"), incorporated under the Hydro and Power Authority Act, R.S.B.C. 1996, c Under power granted to BCTC by the Transmission Corporation Act, S.B.C. 2003, c. 44, and a series of agreements with BC Hydro, BCTC is responsible for operating and managing BC Hydro's transmission lines, which form the majority of British Columbia's electrical transmission system. Planning for and building enhancements or extensions to the transmission system, and obtaining the regulatory approvals they require, are included in BCTC's responsibilities; BC Hydro retains responsibility for consultation with First Nations regarding them. Like the appellants, BC Hydro registered as an intervenor on BCTC's application for a CPCN for the ILM Project. The Issues 11 It is common ground that the ILM Project has the potential to affect adversely the asserted rights and title of the appellants, that its proposal invoked the Crown's consultation and accommodation duty, and that the Crown's duty with regard to the ILM Project has not yet been fully discharged. The broad issue raised by the scoping decision under appeal is the role of the Commission in assessing the adequacy of the Crown's consultation efforts before granting a CPCN for a project that may adversely affect Aboriginal title. The narrower issue is whether the Commission's decision to defer that assessment to the ministers is reasonable. 12 In granting leave, Levine J.A. defined the issue as "whether [the Commission] may issue a CPCN without considering whether the Crown's duty to consult and accommodate First Nations, to

126 Page 7 that stage of the approval process has been met": Kwikwetlem First Nation v. British Columbia Utilities Commission, 2008 BCCA 208. It may be thought this issue was settled when this Court stated at para. 51 in Carrier Sekani: Not only has the Commission the ability to decide the consultation issue, it is the only appropriate forum to decide the issue in a timely way. Furthermore, the honour of the Crown obliges it to do so. As a body to which powers have been delegated by the Crown, it must not deny the appellant timely access to a decision-maker with authority over the subject matter. 13 The Commission's constitutional duty was to consider whether the Crown's constitutional duty of consultation had been fulfilled with respect to the subject matter of the application. Thus, before it certified the ILM Project as necessary and convenient in the public interest, it was required to determine when the Crown's duty to consult with regard to that project arose, the scope of that duty, and whether it was fulfilled. The Commission did not look at its task that way or undertake that analysis. It decided that the government had put in place a process for consultation and accommodation with First Nations that required a ministerial decision as to whether the Crown had fulfilled these legal obligations before the ILM Project could proceed and that the Commission should defer to that process. 14 As I will explain, I am persuaded the reasons expressed at paras. 52 to 57 for the conclusion reached at para. 51 in Carrier Sekani apply with equal force to an application for a CPCN and the Commission erred in law when it refused to consider the appellant's challenge to the consultation process developed by BC Hydro. However, in anticipation of that potential conclusion, the respondents asked this Court to step back from a narrow view having regard only to the Commission's mandate, and to find that, in this case, the Commission both acknowledged and fulfilled its constitutional duty when it deferred consideration of the adequacy of BC Hydro's consultation and accommodation efforts to the ministers' review on the EAC application. In my view, the nature and effect of the CPCN decision obliged the Commission to assess the adequacy of the consultation and accommodation efforts of BC Hydro on the issues relevant to the s. 45 proceeding. The Commission's refusal to consider whether the honour of the Crown was maintained to the point of its decision was based on a misunderstanding of the import of the relevant jurisprudence and was unreasonable. 15 I would remit the scoping decision to the Commission for reconsideration in accordance with this Court's opinion, once certified, and direct that the effect of the CPCN be suspended for the purpose of determining whether the Crown's duty to consult and accommodate the appellants had been met up to that decision point. (See Utilities Commission Act, ss. 99 and 101(5).) The Relevant Statutory Regimes The CPCN Process

127 Page 8 Utilities Commission Act 45.(1) Except as otherwise provided, after September 11, 1980, a person must not begin the construction or operation of a public utility plant or system, or an extension of either, without first obtaining from the commission a certificate that public convenience and necessity require or will require the construction or operation.... (3) Nothing in subsection (2) [deemed CPCN for pre-1980 projects] authorizes the construction or operation of an extension that is a reviewable project under the Environmental Assessment Act.... (6) A public utility must file with the commission at least once each year a statement in a form prescribed by the commission of the extensions to its facilities that it plans to construct. (7) Except as otherwise provided, a privilege, concession or franchise granted to a public utility by a municipality or other public authority after September 11, 1980 is not valid unless approved by the commission. (8) The commission must not give its approval unless it determines that the privilege, concession or franchise proposed is necessary for the public convenience and properly conserves the public interest. (9) In giving its approval, the commission (a) (b) must grant a certificate of public convenience and necessity, and may impose conditions about (i) the duration and termination of the privilege, concession or franchise, or (ii) construction, equipment, maintenance, rates or service, as the public convenience and interest reasonably require.

128 Page 9 46.(1) An applicant for a certificate of public convenience and necessity must file with the commission information, material, evidence and documents that the commission prescribes.... (3) Subject to subsections (3.1) and (3.2), the commission may issue or refuse to issue the certificate, or may issue a certificate of public convenience and necessity for the construction or operation of a part only of the proposed facility, line, plant, system or extension, or for the partial exercise only of a right or privilege, and may attach to the exercise of the right or privilege granted by the certificate, terms, including conditions about the duration of the right or privilege under this Act as, in its judgment, the public convenience or necessity may require. (3.1) In deciding whether to issue a certificate under subsection (3), the commission must consider (a) (b) (c) the government's energy objectives, the most recent long-term resource plan filed by the public utility under section 44.1, if any, and whether the application for the certificate is consistent with the requirements imposed on the public utility under sections [achieving electricity self-sufficiency by 2016] and [achieving the goal that 90% of electricity be generated from clean or renewable resources], if applicable. (3.2) Section (3.1) does not apply if the commission considers that the matters addressed in the application for the certificate were determined to be in the public interest in the course of considering a long-term resource plan under section The commission may reconsider, vary or rescind a decision, order, rule or regulation made by it, and may rehear an application before deciding it....

129 Page (1) An appeal lies from a decision or order of the commission to the Court of Appeal with leave of a justice of that court.... (5) On the determination of the questions involved in the appeal, the Court of Appeal must certify its opinion to the commission, and an order of the commission must conform to that opinion. 16 The Commission issues CPCN Application Guidelines to assist public utilities and others in the preparation of CPCN applications. The preface to the guidelines issued March 2004 includes this advice: The scope of the information requirement for a specific application will depend on the nature of the project and the issues that it raises. Project proponents are encouraged to initiate discussions with appropriate government agencies and the public very early in the project planning stage in order to obtain an appreciation of the issues to be addressed prior to the filing of the application. CPCN Applications may be supported by resource plans and/or action plans prepared pursuant to the Resource Planning Guidelines issued in December The resource plan and/or action plans may deal with significant aspects of project justification, particularly the need for the project and the assessment of the costs and benefits of the project and alternatives. According to the Guidelines, the application should include the following: 2. Project Description:... (iv) identification and preliminary assessment of any impacts by the project on the physical, biological and social environments or on the public, including First Nations; proposals for reducing negative impacts and obtaining the maximum benefits from positive impacts; and the cost to the project of implementing the proposals;

130 Page 25 processes that can be coordinated. The CPCN defines the activity that becomes the project to be reviewed by ministers before they grant an EAC. Each decision-maker makes a decision in the public interest, taking into account factors relevant to the question on which they are required to form an opinion. 56 Information developed for the purpose of the CPCN application and the opinion expressed by the Commission are likely to be relevant to the EAC application, just as information gathered at the pre-application stage of the EAC process may be relevant to the CPCN hearing. That interplay does not mean the effect of their decision on Aboriginal interests is the same. Nor does it make a ministerial review of the Crown's duty to consult with regard to the definition of the project a necessarily satisfactory alternative to an assessment of that duty at an earlier stage by the Commission charged with opining as to whether a public utility system enhancement is necessary in the public interest. 57 The current Environmental Assessment Act provides a process designed to obtain sufficient information from the proponent of a reviewable project about any "adverse effects" of that project to permit an intelligent decision by the responsible ministers as to whether to grant an EAC for that project. I see the ministerial review as a wrap-up decision, where two ministers have unconstrained discretion to prevent a proposed activity, public or private, for profit or not-for-profit, that has potential "adverse effects" from going forward. The Act does not specify effects on whom or what. It can be inferred from the provisions of s. 10(1)(c) that the ministers are to consider any "significant adverse environmental, economic, social, heritage or health effect" revealed by the assessment. In this case, potential adverse effects on the appellants' asserted Aboriginal rights and title are undoubtedly included, although not identified in the current Act. 58 Where the activity being considered is a Crown project with the potential to affect Aboriginal interests, as it is in this case, because the responsible ministers are constitutionally required to consider whether the proponent has maintained the Crown's honour, all counsel assert they may refuse the EAC, not only by reason of any listed adverse effect, but also for failure of the Crown to meet its consultation and accommodation duty. The procedural order issued under s. 11 of the Act acknowledges this aspect of the ministerial responsibility with respect to the ILM Project. 59 By contrast, certification under s. 45 of the Utilities Commission Act is the vital first step toward the building of the transmission line across territory to which First Nations assert title and stewardship rights, one that, for practical reasons, BCTC, BC Hydro and the Commission consider necessarily precedes acceptance of an application for the required ministers' EAC. The legislature has delegated the discretion to opine as to the need and desirability for the construction of additional power transmission capacity to the Commission. Only the Commission can grant permission to enhance a power transmission line. 60 In these circumstances, in my view, the appellants were not only entitled to be consulted and accommodated with regard to the choice of the ILM Project by BCTC, they were also entitled to

131 Page 26 have their challenge to the adequacy of that consultation and accommodation assessed by the Commission before it certified BCTC's proposal for extending the power transmission system as being in the public interest. It was not enough for the Commission to say to First Nations: we will hear evidence about the rights you assert and how the ILM Project might affect them. 61 This is not to say the Commission, in formulating its opinion as to whether to grant a CPCN, will decide BC Hydro's efforts did not maintain the honour of the Crown. It is to say that the Commission is required to assess those efforts to determine whether the Crown's honour was maintained in its dealings with First Nations regarding the potential effects of the proposed project. 62 The Crown's obligation to First Nations requires interactive consultation and, where necessary, accommodation, at every stage of a Crown activity that has the potential to affect their Aboriginal interests. In my view, once the Commission accepted that BCTC had a duty to consult First Nations regarding the project it was being asked to certify, it was incumbent on the Commission to hear the appellants' complaints about the Crown's consultation efforts during the process leading to BCTC's selection of its preferred option, and to assess the adequacy of those efforts. Their failure to determine whether the Crown's honour had been maintained up to that stage of the Crown's activity was an error in law. 63 The certification decision is the first important decision in the process of constructing a power transmission line. It is the formulation of the opinion as to whether a line should be built to satisfy an anticipated need, rather than to upgrade an existing facility, find or develop alternative local power sources, or reduce demand by price increases or other means of rationing scarce resources. 64 If, as BCTC submits, the Commission's decision is to be read as having acknowledged its constitutional obligation by determining the existence of a duty to consult, the scope of that duty, and its fulfillment up to that stage of the ILM Project, it was unreasonable. 65 Where a decision-maker is called upon to approve a Crown activity that gives rise to the duty to consult, the first task of the decision-maker in assessing the adequacy of that duty, is to determine its scope and content in that particular case. Only when the scope of the duty to consult has been determined, can a decision-maker decide whether that duty has been fulfilled. In Haida, the Supreme Court of Canada clearly stated there is no one model of consultation; the Crown's obligations will vary with the individual circumstances of the case. Neither explicitly nor implicitly did the Commission attempt to define its obligations in this case. As it had in the two earlier cases, VITR and Revelstoke, it simply deferred to the ministers with ultimate responsibility for deciding whether to grant the project an EAC. Summary 66 BC Hydro's duty to consult and, where necessary, accommodate First Nations' interests arose when BCTC became aware that the means it was considering to maintain an adequate supply of power to consumers in the lower mainland had the potential to affect Aboriginal rights and title. BC

132 Page 27 Hydro acknowledged that duty by initiating contact with First Nations in August The duty continued while several alternative solutions were considered. The process was given substance by the holding of information meetings over the following months and some structure by the s. 11 procedural order issued by the EAO in May When BCTC settled on the ILM Project in May 2007 and applied for a CPCN for that project in November of that year, it effectively gave the Commission two choices - accept or reject its application. As BCTC argued, supported by BC Hydro as an intervenor, it effectively ended its own consideration of alternatives and foreclosed any consideration by the Commission of alternative solutions to the anticipated energy supply problem. The decision to certify a new line as necessary in the public interest has the potential to profoundly affect the appellants' Aboriginal interests. Like the existing line (installed without consent or consultation), the new line will pass over land to which the appellants claim stewardship rights and Aboriginal title. (For an understanding of that concept see Osoyoos Indian Band v. Oliver (Town), 2001 SCC 85, [2001] 3 S.C.R. 746, at paras. 41 to 46.) To suggest, as the respondents now do, that the appellants were free to put forward evidence during the s. 45 proceeding as to the adverse impacts of the ILM Project on their interests, and to have BC Hydro's consultation efforts with regard to those impacts evaluated by the ministers a year or two later, is to miss the point of the duty to consult. 68 Consultation requires an interactive process with efforts by both the Crown actor and the potentially affected First Nations to reconcile what may be competing interests. It is not just a process of gathering and exchanging information. It may require the Crown to make changes to its proposed action based on information obtained through consultations. It may require accommodation: Haida, at paras The crucial question is whether conduct that may result in adverse effects on Aboriginal rights or title will be considered during the CPCN process and not during the EAC process. That is the case here; the duty to consult with regard to the CPCN process is acknowledged. It follows that the Commission has the obligation to inquire into the adequacy of consultation before granting a CPCN. Even if the EAC process could theoretically be adapted to ensure the ministerial review includes a consideration of the adequacy of the consultation at the CPCN application stage, practically-speaking, the advantage would be to the proponent who has obtained a certification of its project as necessary and in the public interest. Moreover, the Commission cannot determine whether such an adapted process meets the duty whose scope it is in the best, if not only, position to determine unless it determines the scope of that duty. A cost/benefit analysis of one or more projects does not appear in the ministers' mandate. 70 If consultation is to be meaningful, it must take place when the project is being defined and continue until the project is completed. The pre-application stage of the EAC process in this case appears to have synchronized well with BCTC's practice of first seeking a CPCN and not making formal application for an EAC until a CPCN is granted. The question the Commission must decide is whether the consultation efforts up to the point of its decision were adequate.

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136 Page 1 Indexed as: Nova Scotia (Workers' Compensation Board) v. Martin; Nova Scotia (Workers' Compensation Board) v. Laseur Donald Martin, appellant; v. Workers' Compensation Board of Nova Scotia and Attorney General of Nova Scotia, respondents, and Nova Scotia Workers' Compensation Appeals Tribunal, Ontario Network of Injured Workers Groups, Canadian Labour Congress, Attorney General of Ontario, Attorney General of British Columbia and Workers' Compensation Board of Alberta, interveners. And between Ruth A. Laseur, appellant; v. Workers' Compensation Board of Nova Scotia and Attorney General of Nova Scotia, respondents, and Nova Scotia Workers' Compensation Appeals Tribunal, Ontario Network of Injured Workers Groups, Canadian Labour Congress, Attorney General of Ontario, Attorney General of British Columbia and Workers' Compensation Board of Alberta, interveners. [page505] [2003] 2 S.C.R. 504 [2003] S.C.J. No SCC 54 File Nos.: 28372, Supreme Court of Canada Heard: December 9, 2002; Judgment: October 3, 2003.

137 Page 2 Present: McLachlin C.J. and Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel and Deschamps JJ. (122 paras.) Appeal From: ON APPEAL FROM THE COURT OF APPEAL FOR NOVA SCOTIA Catchwords: Administrative law -- Workers' Compensation Appeals Tribunal -- Jurisdiction -- Charter issues -- Constitutional validity of provisions of Appeals Tribunal's enabling statute -- Whether Appeals Tribunal has jurisdiction to apply Canadian Charter of Rights and Freedoms -- Workers' Compensation Act, S.N.S , c. 10, s. 10B -- Functional Restoration (Multi-Faceted Pain Services) Program Regulations, N.S. Reg. 57/96. Constitutional law -- Charter of Rights -- Equality rights -- Workers' compensation legislation excluding chronic pain from purview of regular workers' compensation system and providing in lieu of benefits normally available to injured workers four-week functional restoration program beyond which no further benefits are available -- Whether legislation infringes s. 15(1) of Canadian Charter of Rights and Freedoms -- If so, whether infringement justifiable under s. 1 of Charter -- Workers' Compensation Act, S.N.S , c. 10, s. 10B -- Functional Restoration (Multi-Faceted Pain Services) Program Regulations, N.S. Reg. 57/96. Administrative law -- Boards and tribunals -- Jurisdiction -- Constitutional issues -- Powers of administrative tribunals to determine questions of constitutional law -- Appropriate test. Summary: The appellants, L and M, both suffer from the disability of chronic pain attributable to a work-related injury. M worked as a foreman and sustained a lumbar sprain. In the following months, he returned to work several times, but recurring pain required him to stop. He attended a work conditioning and hardening program. During this period, the Workers' Compensation Board of Nova Scotia provided him with temporary disability benefits and rehabilitation [page506] services. When his temporary benefits were discontinued, M sought review of this decision, but his claim was denied by the Board. L was employed as a bus driver and injured her back and her right hand when she slipped and fell from the bumper of her bus. She received temporary disability benefits. Although L attempted to return to work on several occasions, she found that performing her duties aggravated her condition. She was denied a permanent partial disability award and vocational rehabilitation assistance. M and L appealed the Board's decisions to the Workers' Compensation Appeals Tribunal on the ground that the Functional Restoration (Multi-Faceted Pain Services) Program Regulations and portions of s. 10B of the Workers' Compensation Act infringed s. 15(1) of

138 Page 3 the Canadian Charter of Rights and Freedoms. These provisions exclude chronic pain from the purview of the regular workers' compensation system and provide, in lieu of the benefits normally available to injured workers, a four-week Functional Restoration Program beyond which no further benefits are available. The Board challenged the Appeals Tribunal's jurisdiction to hear the Charter argument. The Appeals Tribunal affirmed its jurisdiction to apply the Charter and allowed M's appeal on the merits, holding that the Regulations and s. 10B(c) of the Act violated s. 15 of the Charter and that these violations were not justified under s. 1. M was awarded temporary benefits from August 6 to October 15, In L's appeal, the Appeals Tribunal concluded, based on the reasons given in M's appeal, that s. 10A and s. 10B(b) and (c) of the Act also violated s. 15(1) of the Charter and were not saved by s. 15(2) or s. 1; however, the Appeals Tribunal found that while L suffered from chronic pain attributable to her work injury, her permanent medical impairment rating under the applicable guidelines was 0 percent, thus barring her from obtaining permanent impairment or vocational rehabilitation. The Board appealed the Appeals Tribunal's Charter conclusions, M cross-appealed the cut-off of benefits as of October 15, 1996, and L cross-appealed the refusal to award benefits. The Court of Appeal allowed the Board's appeals and dismissed the cross-appeals. The court found that the Appeals Tribunal did not have jurisdiction to consider the constitutional validity of the Act and that, in any event, the chronic pain provisions did not demean the human dignity of [page507] the claimants and thus did not violate s. 15(1) of the Charter. Held: The appeals should be allowed. Section 10B of the Act and the Regulations in their entirety infringe s. 15(1) of the Charter and the infringement is not justified under s. 1. The challenged provisions are of no force or effect by operation of s. 52(1) of the Constitution Act, The general declaration of invalidity is postponed for six months from the date of this judgment. In M's case, the decision rendered by the Appeals Tribunal is reinstated. L's case is returned to the Board. The Constitution is the supreme law of Canada and, by virtue of s. 52(1) of the Constitution Act, 1982, the question of constitutional validity inheres in every legislative enactment. From this principle of constitutional supremacy flows, as a practical corollary, the idea that Canadians should be entitled to assert the rights and freedoms that the Constitution guarantees them in the most accessible forum available, without the need for parallel proceedings before the courts. To allow an administrative tribunal to decide Charter issues does not undermine the role of the courts as final arbiters of constitutionality in Canada. Administrative tribunal decisions based on the Charter are subject to judicial review on a correctness standard. In addition, the constitutional remedies available to administrative tribunals are limited and do not include general declarations of invalidity. A determination by a tribunal that a provision of its enabling statute is invalid pursuant to the Charter is not binding on future decision-makers, within or outside the tribunal's administrative scheme. Only by obtaining a formal declaration of invalidity by a court can a litigant establish the general invalidity of a legislative provision for all future cases. The Court of Appeal erred in concluding that the Appeals Tribunal did not have jurisdiction to

139 Page 4 consider the constitutionality of the challenged provisions of the Act and the Regulations. Administrative tribunals which have jurisdiction, explicit or implied, to decide questions of law arising under a legislative provision are presumed to have concomitant jurisdiction to decide the constitutional validity of that provision. In applying this approach, there is no need to draw any distinction between "general" and "limited" questions of law. Explicit jurisdiction must be found in the terms of the statutory grant of authority. [page508] Implied jurisdiction must be discerned by looking at the statute as a whole. Relevant factors will include the statutory mandate of the tribunal in issue and whether deciding questions of law is necessary to fulfilling this mandate effectively; the interaction of the tribunal in question with other elements of the administrative system; whether the tribunal is adjudicative in nature; and practical considerations, including the tribunal's capacity to consider questions of law. Practical considerations, however, cannot override a clear implication from the statute itself. The party alleging that the tribunal lacks jurisdiction to apply the Charter may rebut the presumption by pointing to an explicit withdrawal of authority to consider the Charter; or by convincing the court that an examination of the statutory scheme clearly leads to the conclusion that the legislature intended to exclude the Charter (or a category of questions that would include the Charter, such as constitutional questions generally) from the scope of the questions of law to be addressed by the tribunal. Such an implication should generally arise from the statute itself, rather than from external considerations. To the extent that Cooper v. Canada (Human Rights Commission), [1996] 3 S.C.R. 854, is inconsistent with this approach, it should no longer be relied upon. The Appeals Tribunal could properly consider and decide the Charter issue raised in this case. The legislature expressly conferred on the Appeals Tribunal the authority to decide questions of law by providing, in s. 252(1) of the Act, that it "may confirm, vary or reverse the decision of a hearing officer" exercising the authority conferred upon the Board by s. 185(1) of the Act to "determine all questions of fact and law arising pursuant to this Part". Other provisions of the Act also confirm the legislature's intention that the Appeals Tribunal decide questions of law, including s. 256(1), which provides for a further appeal to the Court of Appeal "on any question of law". This suggests that the Appeals Tribunal may deal initially with such questions. The Appeals Tribunal thus has explicit jurisdiction to decide questions of law arising under the challenged provisions, a jurisdiction which is presumed to include the authority to consider their constitutional validity. This presumption is not rebutted in this case, as there is no clear implication arising from the Act that the legislature intended to exclude the Charter from the scope of the Appeals Tribunal's authority. Even if there had been no express provision endowing the Appeals Tribunal with authority to consider and decide questions of law arising under the Act, an examination of [page509] the statutory scheme set out by the Act would lead to the conclusion that it has implied authority to do so. The Court of Appeal also erred in concluding that the challenged provisions of the Act and the Regulations did not infringe s. 15(1) of the Charter. The appropriate comparator group for the s. 15(1) analysis in this case is the group of workers subject to the Act who do not have chronic pain and are eligible for compensation for their employment-related injuries. By entirely excluding chronic pain from the application of the general compensation provisions of the Act and limiting the

140 Page 5 applicable benefits to a four-week Functional Restoration Program for workers injured after February 1, 1996, the Act and the Regulations clearly impose differential treatment upon injured workers suffering from chronic pain on the basis of the nature of their physical disability, an enumerated ground under s. 15(1) of the Charter. The view that since both the claimants and the comparator group suffer from physical disabilities, differential treatment of chronic pain within the workers' compensation scheme is not based on physical disability must be rejected. Differential treatment can occur on the basis of an enumerated ground despite the fact that not all persons belonging to the relevant group are equally mistreated. Distinguishing injured workers with chronic pain from those without is still a disability-based distinction. Although, under the current guidelines, L would be found to have a 0 percent impairment rating and would thus be denied benefits anyway, deprivation of access to an institution available to others, even though the individual bringing the claim would not necessarily derive immediate benefits from such access, constitutes differential treatment. In the context of the Act, and given the nature of chronic pain, the differential treatment is discriminatory. It is discriminatory because it does not correspond to the actual needs and circumstances of injured workers suffering from chronic pain, who are deprived of any individual assessment of their needs and circumstances. Such workers are, instead, subject to uniform, limited benefits based on their presumed characteristics as a group. The scheme also ignores the needs of those workers who, despite treatment, remain permanently disabled by chronic pain. Nothing indicates that the scheme is aimed at improving the circumstances of a more disadvantaged group, or that the interests affected are merely economic or otherwise minor. On the contrary, the denial of the reality of the pain suffered by the affected workers reinforces widespread negative assumptions held by employers, compensation officials and some members of the medical profession. A reasonable person in circumstances similar to those of L and M, fully apprised of all the relevant circumstances and taking into account the relevant contextual factors, would [page510] conclude that the challenged provisions have the effect of demeaning the dignity of chronic pain sufferers. The infringement of L's and M's equality rights cannot be justified under s. 1 of the Charter. The first objective of maintaining the financial viability of the Accident Fund is not pressing and substantial. Budgetary considerations in and of themselves cannot justify violating a Charter right, although they may be relevant in determining the appropriate degree of deference to governmental choices based on a non-financial objective. Likewise, the second objective of developing a consistent legislative response to chronic pain claims cannot stand on its own. Mere administrative expediency or conceptual elegance cannot be sufficiently pressing and substantial to override a Charter right. This objective only becomes meaningful when examined with the third objective of avoiding fraudulent claims based on chronic pain. Developing a consistent legislative response to the special issues raised by chronic pain claims -- such as determining whether the pain is actually caused by the work-related accident and assessing the relevant degree of impairment -- in order to avoid fraudulent claims is a pressing and substantial objective. The challenged provisions of the Act and the Regulations are rationally connected to this objective. It is obvious, however, that the blanket exclusion of chronic pain from the workers' compensation system does not minimally impair the rights of chronic pain sufferers. The challenged provisions make no attempt whatsoever

141 Page 6 to determine who is genuinely suffering and needs compensation, and who may be abusing the system. They ignore the very real needs of the many workers who are in fact impaired by chronic pain and whose condition is not appropriately remedied by the four-week Functional Restoration Program. The fourth objective is to implement early medical intervention and return to work as the optimal treatment for chronic pain. Assuming that this objective is pressing and substantial and that the challenged provisions are rationally connected to it, they do not minimally impair the rights of chronic pain sufferers. No evidence indicates that an automatic cut-off of benefits regardless of individual needs is necessary to achieve that goal. This is particularly true with respect to ameliorative benefits which would actually facilitate return to work, such as vocational rehabilitation, medical aid and the rights [page511] to re-employment and accommodation. Moreover, the legislation deprives workers whose chronic pain does not improve as a result of early medical intervention and who return to work from receiving any benefits beyond the four-week Functional Restoration Program. Others, like L, are not even admissible to this program because of the date of their injuries. The deleterious effects of the challenged provisions on these workers clearly outweigh their potential beneficial effects. Cases Cited Overruled: Cooper v. Canada (Human Rights Commission), [1996] 3 S.C.R. 854; discussed: Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570; Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), [1991] 2 S.C.R. 5; Tétreault-Gadoury v. Canada (Employment and Immigration Commission), [1991] 2 S.C.R. 22; referred to: Egan v. Canada, [1995] 2 S.C.R. 513; Vriend v. Alberta, [1998] 1 S.C.R. 493; M. v. H., [1999] 2 S.C.R. 3; Battlefords and District Co-operative Ltd. v. Gibbs, [1996] 3 S.C.R. 566; Granovsky v. Canada (Minister of Employment and Immigration), [2000] 1 S.C.R. 703, 2000 SCC 28; Weber v. Ontario Hydro, [1995] 2 S.C.R. 929; Bell Canada v. Canada (Human Rights Commission), [2001] 2 F.C. 392, rev'd [2001] 3 F.C. 481; Canada (Minister of Citizenship and Immigration) v. Reynolds (1997), 139 F.T.R. 315; McLeod v. Egan, [1975] 1 S.C.R. 517; David Taylor & Son, Ltd. v. Barnett, [1953] 1 All E.R. 843; Canadian Broadcasting Corp. v. Canada (Labour Relations Board), [1995] 1 S.C.R. 157; Pasiechnyk v. Saskatchewan (Workers' Compensation Board), [1997] 2 S.C.R. 890; Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497; Reference re Workers' Compensation Act, 1983 (Nfld.), [1989] 1 S.C.R. 922; Janzen v. Platy Enterprises Ltd., [1989] 1 S.C.R. 1252; Brooks v. Canada Safeway Ltd., [1989] 1 S.C.R. 1219; Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625; Eaton v. Brant County Board of Education, [1997] 1 S.C.R. 241; Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; [page512] Lavoie v. Canada, [2002] 1 S.C.R. 769, 2002 SCC 23; Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203; Lovelace v. Ontario, [2000] 1 S.C.R. 950, 2000 SCC 37; R. v. Swain, [1991] 1 S.C.R. 933; British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868; British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3; Gosselin v. Quebec (Attorney General), [2002] 4 S.C.R. 429, 2002 SCC 84; R. v. Oakes, [1986] 1 S.C.R. 103; Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624; Reference re Remuneration of Judges of the

142 Page 7 Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3; Schachter v. Canada, [1992] 2 S.C.R. 679; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; White v. Slawter (1996), 149 N.S.R. (2d) 321; Marinelli v. Keigan (1999), 173 N.S.R. (2d) 56. Statutes and Regulations Cited Canadian Charter of Rights and Freedoms, ss. 1, 15, 24(1). Constitution Act, 1982, s. 52(1). Constitutional Questions Act, R.S.N.S. 1989, c. 89. Functional Restoration (Multi-Faceted Pain Services) Program Regulations, N.S. Reg. 57/96, ss. 2(b), 3, 4, 5, 6, 7, 8. Public Inquiries Act, R.S.N.S. 1989, c Workers' Compensation Act, S.N.S , c. 10, ss. 10(1), 10A [ad. 1999, c. 1, s. 1], 10B [idem], 10E [idem], 28, 84, 90, 91, 113, 178(1), 180, 183 [am. idem, s. 19], 183(5A) [ad. idem], 185(1), 199(1), (2), 200(1), 202(a), 238(5), 240, 243 [rep. & sub. idem, s. 30], 245(1)(d), 246(1), (3) [ad. idem, s. 31], 248(1), (3), 252(1), 253(1), 256(1) [am. idem, s. 36]. Authors Cited Canada. Association of Workers' Compensation Boards of Canada. Compensating for Chronic Pain Mississauga, Ont.: AWCBC, McAllister, Debra M. "Administrative Tribunals and the Charter: A Tale of Form Conquering Substance", in L.S.U.C. Special Lectures Administrative Law: Principles, Practice and Pluralism. Scarborough, Ont. : Carswell, 1993, 131. Murray, T. J. Chronic Pain. Report prepared for the Workers' Compensation Board of Nova Scotia. Halifax: Workers' Compensation Board of Nova Scotia, Ontario. Workplace Safety and Insurance Board. Chronic Pain Initiative: Report of the Chair of the Chronic Pain Panels. Toronto: WSIB, [page513] Roman, Andrew J. "Case Comment: Cooper v. Canada (Human Rights Commission)" (1997), 43 Admin. L.R. (2d) 243. History and Disposition:

143 Page 8 APPEALS from judgments of the Nova Scotia Court of Appeal (2000), 192 D.L.R. (4th) 611, 188 N.S.R. (2d) 330, 587 A.P.R. 330, 26 Admin L.R. (3d) 90, 84 C.R.R. (2d) 246, [2000] N.S.J. No. 353 (QL), 2000 NSCA 126, allowing the appeals and dismissing the cross-appeals from the decisions of the Workers' Compensation Appeals Tribunal. Appeals allowed. Counsel: Kenneth H. LeBlanc, Anne S. Clark, Anne Derrick, Q.C., and Patricia J. Wilson, for the appellants. Brian A. Crane, Q.C., David P. S. Farrar and Janet Curry, for the respondent the Workers' Compensation Board of Nova Scotia. Catherine J. Lunn, for the respondent the Attorney General of Nova Scotia. John P. Merrick, Q.C., and Louanne Labelle, for the intervener the Nova Scotia Workers' Compensation Appeals Tribunal. Ena Chadha and William Holder, for the intervener the Ontario Network of Injured Workers Groups. Steven Barrett and Ethan Poskanzer, for the intervener the Canadian Labour Congress. Robert Earl Charney, for the intervener the Attorney General of Ontario. Kathryn L. Kickbush, for the intervener the Attorney General of British Columbia. Written submissions only by Curtis Craig, for the intervener the Workers' Compensation Board of Alberta. The judgment of the Court was delivered by GONTHIER J.:-- I. Introduction 1 Chronic pain syndrome and related medical conditions have emerged in recent years as one of the [page514] most difficult problems facing workers' compensation schemes in Canada and around the world. There is no authoritative definition of chronic pain. It is, however, generally considered to be pain that persists beyond the normal healing time for the underlying injury or is disproportionate to such injury, and whose existence is not supported by objective findings at the site of the injury under current medical techniques. Despite this lack of objective findings, there is

144 Page 17 [page528] V. Analysis A. Jurisdiction of the Appeals Tribunal to Apply the Charter 1. The Policy Adopted by This Court in the Trilogy 27 This Court has examined the jurisdiction of administrative tribunals to consider the constitutional validity of a provision of their enabling statute in Douglas College, supra, Cuddy Chicks, supra, and Tétreault-Gadoury, supra (together, the "trilogy"). On each occasion, the Court emphasized the strong reasons, of principle as well as policy, for allowing administrative tribunals to make such determinations and to refuse to apply a challenged provision found to violate the Constitution. 28 First, and most importantly, the Constitution is, under s. 52(1) of the Constitution Act, 1982, "the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect". The invalidity of a legislative provision inconsistent with the Charter does not arise from the fact of its being declared unconstitutional by a court, but from the operation of s. 52(1). Thus, in principle, such a provision is invalid from the moment it is enacted, and a judicial declaration to this effect is but one remedy amongst others to protect those whom it adversely affects. In that sense, by virtue of s. 52(1), the question of constitutional validity inheres in every legislative enactment. Courts may not apply invalid laws, and the same obligation applies to every level and branch of government, including the administrative organs of the state. Obviously, it cannot be the case that every government official has to consider and decide for herself the constitutional validity of every provision she is called upon to apply. If, however, she is endowed with the power to consider questions of law relating to a provision, that power will normally extend to assessing the constitutional validity of that provision. This is because the consistency of a provision with the Constitution is a question of law arising under that provision. It is, indeed, the most fundamental question of law one could conceive, as it will determine [page529] whether the enactment is in fact valid law, and thus whether it ought to be interpreted and applied as such or disregarded. 29 From this principle of constitutional supremacy also flows, as a practical corollary, the idea that Canadians should be entitled to assert the rights and freedoms that the Constitution guarantees them in the most accessible forum available, without the need for parallel proceedings before the courts: see Douglas College, supra, at pp In La Forest J.'s words, "there cannot be a Constitution for arbitrators and another for the courts" (Douglas College, supra, at p. 597). This accessibility concern is particularly pressing given that many administrative tribunals have

145 Page 18 exclusive initial jurisdiction over disputes relating to their enabling legislation, so that forcing litigants to refer Charter issues to the courts would result in costly and time-consuming bifurcation of proceedings. As McLachlin J. (as she then was) stated in her dissent in Cooper, supra, at para. 70: The Charter is not some holy grail which only judicial initiates of the superior courts may touch. The Charter belongs to the people. All law and law-makers that touch the people must conform to it. Tribunals and commissions charged with deciding legal issues are no exception. Many more citizens have their rights determined by these tribunals than by the courts. If the Charter is to be meaningful to ordinary people, then it must find its expression in the decisions of these tribunals. Similar views had been expressed by the majority in Weber v. Ontario Hydro, [1995] 2 S.C.R Second, Charter disputes do not take place in a vacuum. They require a thorough understanding of the objectives of the legislative scheme being challenged, as well as of the practical constraints it faces and the consequences of proposed constitutional remedies. This need is heightened when, as is often [page530] the case, it becomes necessary to determine whether a prima facie violation of a Charter right is justified under s. 1. In this respect, the factual findings and record compiled by an administrative tribunal, as well as its informed and expert view of the various issues raised by a constitutional challenge, will often be invaluable to a reviewing court: see Douglas College, supra, at pp As La Forest J. correctly observed in Cuddy Chicks, supra, at pp : It must be emphasized that the process of Charter decision making is not confined to abstract ruminations on constitutional theory. In the case of Charter matters which arise in a particular regulatory context, the ability of the decision maker to analyze competing policy concerns is critical.... The informed view of the Board, as manifested in a sensitivity to relevant facts and an ability to compile a cogent record, is also of invaluable assistance. 31 Third, administrative tribunal decisions based on the Charter are subject to judicial review on a correctness standard: see Cuddy Chicks, supra, at p. 17. An error of law by an administrative tribunal interpreting the Constitution can always be reviewed fully by a superior court. In addition, the constitutional remedies available to administrative tribunals are limited and do not include general declarations of invalidity. A determination by a tribunal that a provision of its enabling statute is invalid pursuant to the Charter is not binding on future decision makers, within or outside the tribunal's administrative scheme. Only by obtaining a formal declaration of invalidity by a court can a litigant establish the general invalidity of a legislative provision for all future cases. Therefore, allowing administrative tribunals to decide Charter issues does not undermine the role of the courts as final arbiters of constitutionality in Canada.

146 Page 1 Indexed as: Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch) The General Manager, Liquor Control and Licensing Branch, appellant; v. Ocean Port Hotel Limited, respondent, and The Attorney General of Canada, the Attorney General for Ontario, the Attorney General of Manitoba, Her Majesty the Queen in right of Alberta and the Minister of Justice and Attorney General for Alberta, interveners. [2001] 2 S.C.R. 781 [2001] S.C.J. No SCC 52 File No.: Supreme Court of Canada Hearing and judgment: March 22, Reasons delivered: September 14, Present: McLachlin C.J. and L'Heureux-Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ. ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA (45 paras.) Administrative law -- Tribunals -- Liquor Appeal Board -- Institutional independence -- Liquor Control and Licensing Act providing for appointment of Board members "at the pleasure of the Lieutenant Governor in Council" -- In practice, members are appointed for one-year term and serve on a part-time basis -- Whether Board members sufficiently independent to render decisions on violations of Act and impose penalties provided -- Liquor Control and Licensing Act, R.S.B.C. 1996, c. 267, s. 30.

147 Page 2 An initial police investigation and a subsequent investigation by a Senior Inspector with the Liquor Control and Licensing Branch led to allegations that the respondent, which operates a hotel and pub, had committed five infractions of the Liquor Control and Licensing Act and Regulations. Following a hearing, another [page782] Senior Inspector with the Branch concluded that the allegations had been substantiated and imposed a penalty that included a two-day suspension of the respondent's liquor licence. The respondent appealed to the Liquor Appeal Board by way of a hearing de novo. The findings on four of the five allegations were upheld, and the penalty was confirmed. Pursuant to s. 30(2)(a) of the Act, the chair and members of the Board "serve at the pleasure of the Lieutenant Governor in Council". In practice, members are appointed for a one-year term and serve on a part-time basis. All members but the chair are paid on a per diem basis. The chair establishes panels of one or three members to hear matters before the Board "as the chair considers advisable". The Court of Appeal concluded that members of the Board lacked the necessary guarantees of independence required of administrative decision makers imposing penalties and set aside the Board's decision. Held: The appeal should be allowed and the matter remitted to the British Columbia Court of Appeal to decide the issues which it did not address. It is well established that, absent constitutional constraints, the degree of independence required of a particular government decision maker or tribunal is determined by its enabling statute. The statute must be construed as a whole to determine the degree of independence the legislature intended. Confronted with silent or ambiguous legislation, courts generally infer that Parliament or the legislature intended the tribunal's process to comport with principles of natural justice. However, like all principles of natural justice, the degree of independence required of tribunal members may be ousted by express statutory language or necessary implication. There is a fundamental distinction between administrative tribunals and courts. Superior courts, by virtue of their role as courts of inherent jurisdiction, are constitutionally required to possess objective guarantees of both individual and institutional independence. The same constitutional imperative applies to the provincial courts. Administrative tribunals, by contrast, lack this constitutional distinction from the executive. They are, in fact, created precisely for the purpose of implementing government policy. Implementation of that policy may require them to make quasi-judicial decisions. Given their primary policy-making function, however, it is properly the role and responsibility of Parliament and the legislatures to determine the composition and structure [page783] required by a tribunal to discharge the responsibilities bestowed upon it. While tribunals may sometimes attract Charter requirements of independence, as a general rule they do not. The legislature's intention that Board members should serve at pleasure is unequivocal. As such, it does not permit the argument that the statute is ambiguous and hence should be read as imposing a higher degree of independence to meet the requirements of natural justice, if indeed a higher standard is required. Where the intention of the legislature, as here, is unequivocal, there is no room to import common law doctrines of independence. Nor is a constitutional guarantee of

148 Page 3 independence implicated here. There is no basis upon which to extend the constitutional guarantee of judicial independence that animated the Provincial Court Judges Reference to the Liquor Appeal Board. The Board is not a court, nor does it approach the constitutional role of the courts. It is first and foremost a licensing body. The suspension complained of was an incident of the Board's licensing function. Licences are granted on condition of compliance with the Act, and can be suspended for non-compliance. The exercise of power here at issue falls squarely within the executive power of the provincial government. This Court's conclusion affirming the independence of the Board makes it necessary to remit the case to the Court of Appeal for consideration of the issues it expressly refrained from addressing. Many of these issues directly relate to the validity of the decision at first instance. Since the Court of Appeal will have the benefit of full argument on the nature of the initial hearing and the relevant provisions of the Act, the Court also remits for its consideration the issue of whether this hearing gave rise to a reasonable apprehension of bias and, if so, whether this apprehension was cured by the de novo proceedings before the Board. Cases Cited Distinguished: Québec Inc. v. Quebec (Régie des permis d'alcool), [1996] 3 S.C.R. 919; referred to: Canadian Pacific Ltd. v. Matsqui Indian Band, [1995] 1 S.C.R. 3; Minister of National Revenue v. Coopers and Lybrand, [1979] 1 S.C.R. 495; Law Society of Upper Canada v. French, [1975] 2 S.C.R. 767; [page784] Katz v. Vancouver Stock Exchange, [1996] 3 S.C.R. 405; Innisfil (Corporation of the Township of) v. Corporation of the Township of Vespra, [1981] 2 S.C.R. 145; Brosseau v. Alberta Securities Commission, [1989] 1 S.C.R. 301; Ringrose v. College of Physicians and Surgeons (Alberta), [1977] 1 S.C.R. 814; Kane v. Board of Governors of the University of British Columbia, [1980] 1 S.C.R. 1105; Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3; Beauregard v. Canada, [1986] 2 S.C.R. 56; Preston v. British Columbia (1994), 92 B.C.L.R. (2d) 298; Re W. D. Latimer Co. and Bray (1974), 6 O.R. (2d) 129; Attorney-General for Ontario v. Attorney-General for Canada, [1947] A.C. 127; Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 S.C.R. 623; R. v. Silveira, [1995] 2 S.C.R. 297; M. v. H., [1999] 2 S.C.R. 3. Statutes and Regulations Cited Canadian Charter of Rights and Freedoms, ss. 7, 11(d). Charter of Human Rights and Freedoms, R.S.Q., c. C-12, s. 23. Constitution Act, 1867, preamble. Evidence Act, R.S.B.C. 1996, c. 124, s. 10(3). Liquor Control and Licensing Act, R.S.B.C. 1979, c. 237 [now R.S.B.C. 1996, c. 267], ss. 2, 3, 20, 30, 37, 38(1)(a) [am. 1986, c. 5, s. 11], 45(2) [am. 1988, c. 43, s. 21], 48. Liquor Control and Licensing Regulations, B.C. Reg. 608/76, s. 11(3).

149 Page 11 tribunals may be bound by the requirement of an independent and impartial decision maker, one of the fundamental principles of natural justice: Matsqui, supra (per Lamer C.J. and Sopinka J.); Régie, supra, at para. 39; Katz v. Vancouver Stock Exchange, [1996] 3 S.C.R Indeed, courts will not lightly assume that legislators intended to enact procedures that run contrary to this principle, although the precise standard of independence required will depend "on all the circumstances, and in particular on the language of the statute under which the agency acts, the nature of the task it performs and the type of decision it is required to make": Régie, at para. 39. [page794] 22 However, like all principles of natural justice, the degree of independence required of tribunal members may be ousted by express statutory language or necessary implication. See generally: Innisfil (Corporation of the Township of) v. Corporation of the Township of Vespra, [1981] 2 S.C.R. 145; Brosseau v. Alberta Securities Commission, [1989] 1 S.C.R. 301; Ringrose v. College of Physicians and Surgeons (Alberta), [1977] 1 S.C.R. 814; Kane v. Board of Governors of the University of British Columbia, [1980] 1 S.C.R Ultimately, it is Parliament or the legislature that determines the nature of a tribunal's relationship to the executive. It is not open to a court to apply a common law rule in the face of clear statutory direction. Courts engaged in judicial review of administrative decisions must defer to the legislator's intention in assessing the degree of independence required of the tribunal in question. 23 This principle reflects the fundamental distinction between administrative tribunals and courts. Superior courts, by virtue of their role as courts of inherent jurisdiction, are constitutionally required to possess objective guarantees of both individual and institutional independence. The same constitutional imperative applies to the provincial courts: Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3 (the "Provincial Court Judges Reference"). Historically, the requirement of judicial independence developed to demarcate the fundamental division between the judiciary and the executive. It protected, and continues to protect, the impartiality of judges -- both in fact and perception -- by insulating them from external influence, most notably the influence of the executive: Beauregard v. Canada, [1986] 2 S.C.R. 56, at p. 69; Régie, at para Administrative tribunals, by contrast, lack this constitutional distinction from the executive. They are, in fact, created precisely for the purpose of implementing government policy. Implementation of that policy may require them to make quasi-judicial [page795] decisions. They thus may be seen as spanning the constitutional divide between the executive and judicial branches of government. However, given their primary policy-making function, it is properly the role and responsibility of Parliament and the legislatures to determine the composition and structure required by a tribunal to discharge the responsibilities bestowed upon it. While tribunals may sometimes attract Charter requirements of independence, as a general rule they do not. Thus, the degree of

150 Page 12 independence required of a particular tribunal is a matter of discerning the intention of Parliament or the legislature and, absent constitutional constraints, this choice must be respected. 25 In the present case, the legislature of British Columbia spoke directly to the nature of appointments to the Liquor Appeal Board. Pursuant to s. 30(2)(a) of the Act, the chair and members of the Board "serve at the pleasure of the Lieutenant Governor in Council". In practice, members are appointed for a one-year term (pursuant to an Order-in-Council), and serve on a part-time basis. All members but the chair are paid on a per diem basis. The chair establishes panels of one or three members to hear matters before the Board "as the chair considers advisable": s. 30(5). 26 The Court of Appeal, per Huddart J.A. concluded that this appointment scheme effectively deprived Board members of security of tenure, an essential safeguard of their independence. Relying on Preston v. British Columbia (1994), 92 B.C.L.R. (2d) 298, she held that Board members could be removed at pleasure, although they would be entitled to payment for the fixed term of their appointment. In her view, however, the additional protection offered by the fixed term of employment was illusory. Since the chair has an absolute discretion over the composition of hearing panels, it is possible that members might not be assigned to any cases, thus depriving them of work and remuneration. Thus part-time, fixed term appointments to the Board are indistinguishable from appointments "at pleasure". Both raise a reasonable [page796] apprehension that Board members may be unduly influenced by the threat of removal should they render unsatisfactory decisions in the eyes of the executive. 27 In my view, the legislature's intention that Board members should serve at pleasure, as expressed through s. 30(2)(a) of the Act, is unequivocal. As such, it does not permit the argument that the statute is ambiguous and hence should be read as imposing a higher degree of independence to meet the requirements of natural justice, if indeed a higher standard is required. It is easy to imagine more exacting safeguards of independence -- longer, fixed-term appointments; full-time appointments; a panel selection process for appointing members to panels instead of the Chair's discretion. However, in each case one must face the question: "Is this what the legislature intended?" Given the legislature's willingness to countenance "at pleasure" appointments with full knowledge of the processes and penalties involved, it is impossible to answer this question in the affirmative. Huddart J.A. concluded that the tenure enjoyed by Board members was "no better than an appointment at pleasure" (para. 27). However, this is precisely the standard of independence required by the Act. Where the intention of the legislature, as here, is unequivocal, there is no room to import common law doctrines of independence, "however inviting it may be for a Court to do so": Re W. D. Latimer Co. and Bray (1974), 6 O.R. (2d) 129 (C.A.), at p Part of the problem in this case may be attributable to the Board's apparent concession before the Court of Appeal (at para. 9) that "the court must be guided in its consideration of this appeal by the discussion of the applicable principles" in Régie. The Court of Appeal, on this basis, appears to have treated the standards of independence articulated in Régie as binding. This overlooks the fact that the requirements of independence in Régie emanated from the Quebec Charter of Human

151 Page 1 Indexed as: Paul v. British Columbia (Forest Appeals Commission) Thomas Paul (Petitioner) v. Forest Appeals Commission, and the Attorney General of British Columbia, and the Ministry of Forests (Respondents) [2000] 1 C.N.L.R. 176 British Columbia Supreme Court Court File No Victoria Pitfield J. September 23, 1999 R.C. Freedman, for the petitioner. T.M. Rankin and M. Underhill, for the respondent, Forest Appeals Commission. T.P. Leadem and K. Kickbush, for the respondents, the Attorney General of British Columbia and the Ministry of Forests. The appellant, an Aboriginal person, removed four cedar trees from Flores Island situated off the west coast of Vancouver Island. The trees were located on Crown land that was included in Tree Farm Licence No. 44 held by MacMillan Bloedel Ltd. The appellant did not have a permit or any other authorization under the Forest Practices Code of British Columbia Act, R.S.B.C. 1996, c.159, authorizing him to remove the trees. On August 15, 1995, the trees were seized by a Ministry of Forests employee because he had grounds to believe that they had been removed from Crown land in contravention of s.96 of the Code. The trees were placed under forfeiture. On October 9, 1996 the District Manager of the Fort Alberni Forest District made a determination that the appellant had violated s.96 of the Code. The District Manager did not impose a penalty on the appellant, but merely confirmed the forfeiture of the trees. The appellant applied to have this decision reviewed. On February 14, 1997 a review panel consisting of three public servants who were employees of the Ministry of Forests was convened. At that time, the appellant advised the panel that he claimed an Aboriginal right to harvest trees in his traditional territory for use in constructing an addition or making repairs to his personal residence which was also situated in that territory. He also advised

152 Page 2 the panel that it was his position that neither the District Manager nor the panel had authority to make decisions in relation to the existence or extent of Aboriginal rights. The panel nevertheless proceeded with its review and confirmed the decision of the District Manager. The appellant then appealed to the Forest Appeals Commission. At the hearing of the appeal, the appellant repeated his jurisdictional objection and took the position that the Commission was not empowered to adjudicate with respect to the existence of Aboriginal rights. The Commission ruled on April 24, 1998 that it had jurisdiction to proceed with the appeal. However, the Commission advised the parties that it was prepared to adjourn the proceedings to enable an action to be brought in the British Columbia Supreme Court to determine the Aboriginal rights issue. The proceedings were adjourned, but no action was ever commenced. Instead, both the appellant and British Columbia applied to the Court for leave to appeal the Commission's decision concerning jurisdiction. These applications were granted. Subsequently, at the hearing of the appeals, the Court advised the parties that the matter was not properly before it because the Commission had not done any of the things that it was empowered to do under the Code and there was, accordingly, no "decision" to appeal within the meaning of s.141(1) of the Act. However, given the importance of the matter, the Court allowed the appellant to file an application under the Judicial Review Procedure Act, R.S.B.C. 1996, c.241 seeking an order to prohibit the Commission from proceeding with the appeal. The appellant took the position that the provincial legislation empowering the Commission to adjudicate Aboriginal rights issues was ultra vires. In the alternative, the appellant argued that the legislature had not expressly or impliedly empowered the Commission to consider these issues. British Columbia argued that the legislature could empower the Commission to adjudicate Aboriginal rights, but had not done so. The Commission accepted the position of British Columbia on the constitutional issue, but argued that it had been given the power to consider questions of law, including questions pertaining to Aboriginal rights. Held: Appeals dismissed on grounds of prematurity;application for an order of prohibition also dismissed. 1. The appellant argued that any provincial legislation that empowers a tribunal to adjudicate in relation to the existence of Aboriginal rights is, in substance, legislation in relation to "Indians, and Lands reserved for the Indians," subjects that are within the exclusive legislative domain of the federal Parliament under s.91(24) of the Constitution Act, This argument failed because it incorrectly equated the capacity to adjudicate with the capacity to legislate. 2. The provincial legislature may lawfully constitute a tribunal for the purpose of dealing with matters within provincial legislative authority such as the management and development of forest lands, including determining questions concerning property rights attaching to provincial Crown land. In

153 Page 3 this case, the Commission is empowered to determine if s.96 of the Code has been violated. Section 96 purports to apply to all persons carrying out specified activities on provincial lands. Nothing in s.96 purports to derogate from Aboriginal rights and no part of the provision appears directed to Indians or the "core of Indianness". The legislature has simply provided a mechanism by which a trespass against Crown property will be adjudged. This may involve a balancing of the competing rights of the Crown and an individual who asserts Aboriginal rights. In the process of adjudication, s.96 of the Code must be construed and applied so as to take into account and respect Aboriginal rights. The legislature cannot disregard Aboriginal rights without violating s.35 of the Constitution Act, 1982 and it cannot empower a statutory tribunal to ignore or override such rights. 3. The next issue is whether the Code empowers the Commission to address constitutional issues concerning Aboriginal rights when it embarks upon an appeal from a decision by a review panel that s.96 of the Code has been violated. The Supreme Court of Canada has considered the question of whether inferior tribunals are empowered to address constitutional issues in a series of recent cases. The question to be asked is whether the tribunal has been given the general power to consider questions of law in order to reach its decisions. If so, the tribunal has the concomitant power to determine the constitutional validity of laws. This conclusion ensues from the principle of the supremacy of the Constitution enshrined in s.52(1) of the Constitution Act, 1982 which must be applied by the tribunal. 4. The power to consider questions of law may be granted expressly or implicitly. In this case, there is no provision in the Code that expressly confers on the seizing officer, the District Manager, a review panel or the Commission a general power to decide questions of law, such as those concerning the existence of Aboriginal rights. No power or duty to consider such questions can be inferred with respect to the decisions of the District Manager or the review panel. This opinion results from the summary nature of the process in which these officials are involved. Their role is only to ascertain whether timber was cut or removed without a permit. Their role is not adjudicative in nature. 5. The Commission does, however, have an implicit power to consider questions of law, including questions related to the existence of Aboriginal rights. This conclusion flows from the requirement to convene a hearing and the obligations to permit representation by counsel, hear witnesses, receive evidence, receive submissions with respect to fact, law and jurisdiction, and to provide a decision promptly but not summarily combined with the right of appeal with leave to the court on questions of law and jurisdiction.

154 Page 4 6. There are also practical reasons for reaching this conclusion. If the Commission is denied the capacity to adjudicate in relation to Aboriginal rights claims, the province's ability to manage forestry resources in a manner consistent with the rights of all parties could be thwarted by the mere assertion of an Aboriginal right as the issue would be bifurcated. A separate proceeding would be required in each case to determine the nature, extent and applicability of the Aboriginal right. Separate proceedings are unnecessary as the Code already provides a thorough and refined adjudicative process and its decisions are subject to appeal to the Court. Introduction PITFIELD J.:-- * * * * * * 1 Thomas Paul, an Aboriginal Canadian, applies for an order prohibiting the Forest Appeals Commission from hearing an appeal under the Forest Practices Code of British Columbia Act, R.S.B.C. 1996, c.159 concerned with the question of whether he removed four cedar trees from Crown land in contravention of the Code. 2 Mr. Paul claims that the Commission lacks jurisdiction to hear the appeal because the dispute requires adjudication of the question whether there is an Aboriginal right permitting him to harvest trees in his traditional territory for use in constructing an addition or making repairs to his personal residence situated in that territory. For reasons to be explored, he says the Commission is not empowered to determine whether or not the right exists. He says that the existence of the right must be determined in an action in this court. 3 This petition is concerned solely with the Commission's power to adjudicate the questions whether an Aboriginal right of the kind asserted by Mr. Paul exists; if it exists, whether Mr. Paul was engaged in exercising it when cutting and removing the timber from Crown land; and whether the existence and exercise of the right asserted by Mr. Paul provides a defence in the context of s.96 of the Code. 4 The petition is not concerned with providing answers to the substantive questions but with the issue of who is responsible for providing those answers. 5 This matter came to the court as separate appeals by Mr. Paul and by the Ministry of Forests

155 Page The preamble to the Code states that sustainable use of forest resources is the guiding principle of the legislation. Sustainable use is described in the preamble to include the balancing of economic, productive, spiritual, ecological and recreational values of forests to meet the economic, social and cultural needs of peoples and communities, including First Nations. 86 While the preamble is not conclusive, the court is entitled to take cognizance of it having regard for the purposive test of statutory interpretation in the context of any statutory ambiguity. The Commission should have regard for Aboriginal rights, as does the Code itself. 87 It should be readily apparent that the existence of Aboriginal title and rights is of great import in the management and preservation of forests within the province. It is difficult to conceive of a situation where a decision in respect of timber on land vested in the provincial crown can be made without the possibility of the assertion of an Aboriginal right, whether in respect of title or otherwise. The authority of the province to manage, develop and preserve or perpetuate the resource as it is exclusively authorized to do by ss.92 and 92A of the Constitution Act, 1867, but having regard for the rights of all stakeholders, would be unjustifiably and inappropriately constrained were the Commission denied the capacity to adjudicate in relation to a defence of the kind asserted by Mr. Paul. Simply stated, the ability to manage the forest resource in a manner consistent with the rights of all parties could be thwarted by the mere assertion of constitutional right as the issues would be bifurcated. A separate proceeding would be required in each case to determine the nature, extent and applicability of an Aboriginal right. There is no compelling reason why that should be the case in so far as the adjudication of alleged contraventions of the Code are concerned where a thorough and refined adjudicative process has been provided by the legislature and decisions are subject to appeal. 88 The observations of La Forest J. in Douglas College, supra, at p. 604 in relation to practical considerations can be modified to apply in this case. Confirming the capacity of the Commission to adjudicate allows a party to assert his or her rights fully, at an early stage of the process and with the benefit of review by a court. The bifurcation of proceedings will be avoided. The process will allow the Commission to "sift the facts and compile a record for the benefit of a reviewing court". There is no evidence on this petition from which I could conclude that the Commission is unskilled and lacking in knowledge about the importance of Aboriginal rights, or their nature and extent in the context of forest use and management. 89 Finally, this court, in the event of appeal, is not required to accord deference to any decision of the Commission based on the constitution, nor should it do so. This court's jurisdiction on appeal with respect to questions of law and jurisdiction is not limited by the Code or restricted by the Rules of Court. This court has the capacity to grant relief which will ensure the application of such principles of law as it considers appropriate, including the requirement of a new hearing, should that be required. 90 Mr. Paul's second ground for relief fails accordingly.

156 Page 1 Indexed as: Paul v. British Columbia (Forest Appeals Commission) Attorney General of British Columbia and Ministry of Forests, appellants; v. Thomas Paul, respondent, and Forest Appeals Commission, Attorney General of Canada, Attorney General of Ontario, Attorney General of Quebec, Attorney General of New Brunswick, Attorney General of Manitoba, Attorney General for Saskatchewan, Attorney General of Alberta and First Nations Summit, interveners. [2003] 2 S.C.R. 585 [2003] S.C.J. No SCC 55 File No.: Supreme Court of Canada Heard: June 11, 2003; Judgment: June 11, Reasons: October 3, Present: McLachlin C.J. and Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel and Deschamps JJ. (49 paras.) Appeal From: ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA Catchwords: Constitutional law -- Division of powers -- Indians -- Forestry -- Whether province can

157 Page 2 constitutionally confer on administrative tribunal power to determine questions of aboriginal rights and title as they arise in course of tribunal's duties -- Constitution Act, 1867, s. 91(24) -- Forest Practices Code of British Columbia Act, R.S.B.C. 1996, c. 159, s Constitution Act, 1982, s. 35. Administrative law -- Forest Appeals Commission -- Jurisdiction -- Aboriginal rights -- Whether Forest Practices Code confers on Commission power to decide existence of aboriginal rights or title -- Forest Practices Code of British Columbia Act, R.S.B.C. 1996, c. 159, s. 96. [page586] Administrative law -- Boards and tribunals -- Jurisdiction -- Constitutional issues -- Powers of administrative tribunals to determine questions of constitutional law -- Appropriate test. Summary: The B.C. Ministry of Forestry seized four logs in the possession of P, a registered Indian, who planned to use the wood to build a deck on his home. P asserted that he had an aboriginal right to cut timber for house modification and, accordingly, s. 96 of the Forest Practices Code, a general prohibition against cutting Crown timber, did not apply to him. Both the District Manager and the Administrative Review Panel agreed that P had contravened s. 96. P appealed to the Forest Appeals Commission, which decided, as a preliminary matter of jurisdiction, that it was able to hear and determine the aboriginal rights issues in the appeal. The B.C. Supreme Court concluded that the Legislature of B.C. had validly conferred on the Commission the power to decide questions relating to aboriginal title and rights in the course of its adjudicative function in relation to contraventions of the Code. A majority of the Court of Appeal set aside the decision, holding that s. 91(24) of the Constitution Act, 1867, which gives Parliament exclusive power to legislate in relation to Indians, precluded the Legislature from conferring jurisdiction on the Commission to determine questions of aboriginal title and rights in the forestry context. Held: The appeal should be allowed. The province has legislative competence to endow an administrative tribunal with capacity to consider a question of aboriginal rights in the course of carrying out its valid provincial mandate. The parties conceded that the Code is, in its entirety, valid provincial legislation in relation to development, conservation and management of forestry resources in the province, and there was no suggestion that, in operation, the law's effects on Indians are so significant as to reveal a pith and substance that is a matter under exclusive federal competence. As a law of general application, the Code applies ex proprio vigore to Indians, to the extent that it does not touch on the "core of Indianness" and is not unjustifiably inconsistent with s. 35 of the Constitution Act, Under the

158 Page 3 doctrine of incidental effects, it is constitutionally permissible for a validly enacted provincial statute of general application to affect matters coming within the exclusive jurisdiction of Parliament. While, through operation of the doctrine [page587] of interjurisdictional immunity, the "core" of Indianness is protected from provincial laws of general application, the Commission's enabling provisions do not attempt to supplement or amend the constitutional and federal rules respecting aboriginal rights. The effect of the Code is to prescribe that Indians charged under the Code will first raise an aboriginal rights defence before the Commission, as opposed to before a superior court judge. This effect has not been shown to have a substantial impact upon Indians qua Indians. The doctrine of interjurisdictional immunity relates to the exercise of legislative powers -- that is, the power of a province to apply its valid legislation that affects matters under federal competence. The majority of the Court of Appeal erred in applying the doctrine in the context of an adjudicative, not legislative, function. The conclusion that a provincial board may adjudicate matters within federal legislative competence fits comfortably within the general constitutional and judicial architecture of Canada. In determining, incidentally, a question of aboriginal rights, a provincially constituted board would be applying constitutional or federal law in the same way as a provincial court, which is also a creature of provincial legislation. Boards must take into account all applicable legal rules, both federal and provincial, in applying their enabling legislation. A determination by an administrative tribunal, such as the Commission, is very different from both extinguishment of a right and legislation in relation to Indians or aboriginal rights. First, and most important, any adjudicator, whether a judge or a tribunal, does not create, amend, or extinguish aboriginal rights. Second, the Commission's decisions do not constitute legally binding precedents, nor will their collective weight over time amount to an authoritative body of common law. They could not be declaratory of the validity of any law. Moreover, as for constitutional determinations respecting s. 91(24) or s. 35, the Commission's rulings would be reviewable, on a correctness basis, in a superior court on judicial review. [page588] To determine if a tribunal has the power to apply the Constitution, including s. 35 of the Constitution Act, 1982, the essential question is whether the empowering legislation implicitly or explicitly grants to the tribunal the jurisdiction to interpret or decide any question of law. If it does, the tribunal will be presumed to have the concomitant jurisdiction to interpret or decide the question at issue in light of s. 35 or any other relevant constitutional provision. There is no persuasive basis for distinguishing the power to determine s. 35 questions from the power to determine other constitutional questions, and practical considerations will not suffice generally to rebut the presumption that arises from authority to decide questions of law. Here, the Commission has the power to decide questions relating to aboriginal rights arising incidentally to forestry matters and to hear P's defence of his aboriginal right to harvest logs for renovation of his home. Section 131(8) of the Code permits a party to "make submissions as to facts, law and jurisdiction". The Commission thus has the power to determine questions of law and nothing in the Code provides a clear

159 Page 4 implication to rebut the presumption that the Commission may decide questions of aboriginal law. The nature of the appeal does not prohibit the Commission from hearing a s. 35 argument. Even if the Administrative Review Panel has no jurisdiction to determine a s. 35 question, the Commission is not restricted to the issues considered by that board. Lastly, any restriction on the Commission's remedial powers is not determinative of its jurisdiction to decide s. 35 issues, nor is the complexity of the questions. Cases Cited Applied: Nova Scotia (Workers' Compensation Board) v. Martin, [2003] 2 S.C.R. 504, 2003 SCC 54; referred to: Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010; Cooper v. Canada (Human Rights Commission), [1996] 3 S.C.R. 854; R. v. Sparrow, [1990] 1 S.C.R. 1075; Kitkatla Band v. British Columbia (Minister of Small Business, Tourism and Culture), [2002] 2 S.C.R. 146, 2002 SCC 31; Reference re Firearms Act (Can.), [2000] 1 S.C.R. 783, 2000 SCC 31; Global Securities Corp. v. British Columbia (Securities Commission), [2000] 1 S.C.R. 494, 2000 SCC 21; General Motors of Canada Ltd. v. City National Leasing, [1989] 1 S.C.R. 641; Ordon Estate v. Grail, [1998] 3 S.C.R. 437; Bell Canada v. Quebec (Commission de la santé et de la sécurité du travail), [1988] 1 S.C.R. 749; Ontario (Attorney General) v. Pembina Exploration Canada Ltd., [1989] 1 S.C.R. 206; [page589] Crevier v. Attorney General of Quebec, [1981] 2 S.C.R. 220; Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, 2003 SCC 19; Krieger v. Law Society of Alberta, [2002] 3 S.C.R. 372, 2002 SCC 65; Buhs v. Board of Education of Humboldt Rural School Division No. 47 (2002), 217 Sask. R. 222, 2002 SKCA 41; Adler v. Ontario, [1996] 3 S.C.R. 609; Canada (Deputy Minister of National Revenue) v. Mattel Canada Inc., [2001] 2 S.C.R. 100, 2001 SCC 36; Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; Westcoast Energy Inc. v. Canada (National Energy Board), [1998] 1 S.C.R. 322; Canadian Pacific Ltd. v. Matsqui Indian Band, [1995] 1 S.C.R. 3; Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570; Four B Manufacturing Ltd. v. United Garment Workers of America, [1980] 1 S.C.R. 1031; R. v. Francis, [1988] 1 S.C.R. 1025; C.U.P.E. v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539, 2003 SCC 29; Ermineskin Cree Nation v. Canada (2001), 297 A.R. 226, 2001 ABQB 760; Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748; R. v Ontario Inc., [2001] 3 S.C.R. 575, 2001 SCC 81; R. v. Hynes, [2001] 3 S.C.R. 623, 2001 SCC 82; Tétreault-Gadoury v. Canada (Employment and Immigration Commission), [1991] 2 S.C.R. 22; Mills v. The Queen, [1986] 1 S.C.R. 863; Dupras v. Mason (1994), 99 B.C.L.R. (2d) 266; McKenzie v. Mason (1992), 72 B.C.L.R. (2d) 53, leave to appeal refused, [1993] 1 S.C.R. vii; British Columbia Chicken Marketing Board v. British Columbia Marketing Board (2002), 216 D.L.R. (4th) 587, 2002 BCCA 473. Statutes and Regulations Cited Bill 69, Forest and Range Practices Amendment Act, 2003, 4th Sess., 37th Parl., British Columbia, 2003 (date of first reading, May 29, 2003).

160 Page 5 Canadian Charter of Rights and Freedoms, ss. 11, 24(1). Constitution Act, 1867, ss. 91(24), 92A(1)(b), 96. Constitution Act, 1982, ss. 35, 52. Forest and Range Practices Act, S.B.C. 2002, c. 69 [not yet in force], ss. 77, 80, 82. Forest Practices Code of British Columbia Act, R.S.B.C. 1996, c. 159, ss. 96, 130 to 141, 131(8). Indian Act, R.S.C. 1985, c. I-5, s. 88. Judicial Review Procedure Act, R.S.B.C. 1996, c Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A, s Workers Compensation Act, R.S.B.C. 1996, c Workers' Compensation Act, S.N.S , c. 10, s. 48. [page590] Authors Cited British Columbia. Debates of the Legislative Assembly, vol. 16, No. 7, 4th Sess., 37th Parl., May 29, 2003, p Hogg, Peter W. Constitutional Law of Canada, vol. 1, loose-leaf ed. Scarborough, Ont.: Carswell, 1992 (updated 2002, release 1). History and Disposition: APPEAL from a judgment of the British Columbia Court of Appeal (2001), 201 D.L.R. (4th) 251, 154 B.C.A.C. 254, 252 W.A.C. 254, 89 B.C.L.R. (3d) 210, 38 C.E.L.R. (N.S.) 149, [2001] 7 W.W.R. 105, [2001] 4 C.N.L.R. 210, [2001] B.C.J. No (QL), 2001 BCCA 411, supplementary reasons (2001), 206 D.L.R. (4th) 320, 40 C.E.L.R. (N.S.) 169, [2001] B.C.J. No (QL), 2001 BCCA 644, allowing an appeal from a judgment of the British Columbia Supreme Court (1999), 179 D.L.R. (4th) 351, 31 C.E.L.R. (N.S.) 141, [2000] 1 C.N.L.R. 176, [1999] B.C.J. No (QL). Appeal allowed. Counsel: Timothy P. Leadem, Q.C., and Kathryn Kickbush, for the appellants.

161 Page 6 M. Hugh G. Braker, Q.C., and Robert C. Freedman, for the respondent. T. Murray Rankin, Q.C., and Mark G. Underhill, for the intervener the Forest Appeals Commission. Mitchell R. Taylor and Peter Southey, for the intervener the Attorney General of Canada. Michel Y. Hélie, for the intervener the Attorney General of Ontario. Written submissions only by Pierre-Christian Labeau, for the intervener the Attorney General of Quebec. Written submissions only by Gabriel Bourgeois, Q.C., for the intervener the Attorney General of New Brunswick. Holly D. Penner, for the intervener the Attorney General of Manitoba. Written submissions only by P. Mitch McAdam, for the intervener the Attorney General for Saskatchewan. [page591] Written submissions only by Kurt J. W. Sandstrom, for the intervener the Attorney General of Alberta. Arthur C. Pape and Jean Teillet, for the intervener the First Nations Summit. The judgment of the Court was delivered by BASTARACHE J.:-- I. Overview 1 These are the reasons following the decision of the Court on June 11, 2003 to allow the appeal. In August 1995, an official in the British Columbia Ministry of Forestry seized four logs in the possession of Thomas Paul, a registered Indian. Mr. Paul had cut three trees and found the fourth, and planned to use the wood to build a deck on his home. Mr. Paul asserted that he had an aboriginal right to cut timber for house modification, and accordingly that s. 96 of the Forest Practices Code of British Columbia Act, R.S.B.C. 1996, c. 159 ("Code"), a general prohibition against cutting Crown timber, did not apply to him. Both the District Manager and the Administrative Review Panel agreed that Mr. Paul had contravened s. 96. Mr. Paul then appealed to

162 Page 15 including its content and scope, or observe that the right has been properly extinguished by a competent legislative authority. Of course the decision maker may also conclude on the evidence that the aboriginal right simply has not been proven at all. [page606] 30 Admittedly, within the administrative state, the line between adjudication and legislation is sometimes blurred. Administrative tribunals that develop and implement policy while adjudicating disputes, such as the Competition Tribunal and a provincial Securities Commission, come to mind. Indeed, this Court's standard of review jurisprudence is sensitive to the deference that may be appropriate where an expert tribunal is simultaneously adjudicating and developing policy, which may sometimes be viewed as a legislative function: Canada (Deputy Minister of National Revenue) v. Mattel Canada Inc., [2001] 2 S.C.R. 100, 2001 SCC 36, at para. 28; Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, at para. 48. There is, however, a crucial distinction between a board that has been empowered by valid legislation to make policy within an area that is intra vires the enabling legislator, and a provincial board that is called upon, in executing its mandate, to answer incidentally a legal question relating to the Constitution or to federal law. No one has suggested that the Legislature has the constitutional power to enable a board to determine questions of aboriginal law on the basis of policy considerations favourable to the Province. 31 Second, while both provincially constituted courts and provincially constituted tribunals may consider the Constitution and federal laws, there is nevertheless one important distinction between them that the respondent overlooked. Unlike the judgments of a court, the Commission's decisions do not constitute legally binding precedents, nor will their collective weight over time amount to an authoritative body of common law. They could not be declaratory of the validity of any law. Moreover, as constitutional determinations respecting s. 91(24) or s. 35, the Commission's rulings would be reviewable, on a correctness basis, in a superior court on judicial review: Westcoast Energy Inc. v. Canada (National Energy Board), [1998] 1 S.C.R. 322, at para. 40; Canadian Pacific Ltd. v. Matsqui Indian Band, [1995] 1 S.C.R. 3, at [page607] para. 23; Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R To avoid judicial review, the Commission would have to identify, interpret, and apply correctly the relevant constitutional and federal rules and judicial precedents. As a result of the contrast between the general application of a provincial law by a court and the specific, non-binding effect of a board's particular decision, there is a substantial difference. (6) The Present Role of the Commission and the Core of Indianness 32 The preceding point brings me to consider the role of the Commission in this case. Recall that the general prohibition against cutting Crown timber appears in s. 96(1) of the Code, and is not

163 Page 16 attacked in this appeal. The question, then, is not whether that prohibition unjustifiably infringes an aboriginal right. The question is whether provisions that would enable the Commission to hear a defence of aboriginal right are unconstitutional. I have already noted that the determinations of the Commission respecting aboriginal rights would be reviewable on a correctness standard. Provincial officials cannot initiate any inquiry into aboriginal rights before the Commission. Instead, a question of aboriginal law will arise only when a respondent raises an aboriginal right before the Commission in seeking relief from a general prohibition or other regulatory provision in the Code. I do not see how, by raising a defence of aboriginal right, a respondent should be able to alter the primary jurisdiction of the Commission or halt its proceedings. The nature of a particular defence should be seen as secondary to the Commission's primary jurisdiction. A person accused of violating the Code should not be able to oust the Commission's jurisdiction relating to forestry simply by raising a particular defence and thereby highlighting a constitutional dimension of the main issue. In any event, constitutional law doctrines aside, I think it would be most convenient for aboriginal persons to seek the relief afforded by their constitutionally protected rights as early as possible within [page608] the mechanisms of the administrative and judicial apparatus. 33 The respondent has failed to grasp the distinction between adjudication by a provincially created tribunal, on the one hand, and limits on regulation by a province of a matter under federal competence, on the other. Taking this distinction into account, I cannot see how the ability to hear a defence based on s. 35 would constitute an indirect intrusion on the defining elements of "Indianness". The "core" of Indianness has not been exhaustively defined. It encompasses the whole range of aboriginal rights that are protected by s. 35(1): Delgamuukw, supra, at para For present purposes, it is perhaps more easily defined negatively than positively. The core has been held not to include labour relations (Four B Manufacturing Ltd. v. United Garment Workers of America, [1980] 1 S.C.R. 1031) and highway traffic regulation on reserves (R. v. Francis, [1988] 1 S.C.R. 1025). On the evidence adduced in Kitkatla Band, supra, at para. 70, the status or capacity of Indians was found not to be impaired by the impugned Heritage Conservation Act, R.S.B.C. 1996, c Given that these substantive matters were held not to go to the core of Indianness, I cannot see how the procedural question in this appeal can. The respondent has failed to demonstrate that the procedural right to raise at first instance a defence of aboriginal rights in a superior court, as opposed to before a provincially constituted tribunal, such as the Commission, goes to the core of Indianness. 34 I conclude, therefore, primarily on the basis that adjudication is distinct from legislation, that the Legislature of British Columbia has the constitutional power to enable the Commission to determine questions relative to aboriginal rights as [page609] they arise in the execution of its valid provincial mandate respecting forestry. I turn now to the question of whether the provisions of the Code in force at the time of this appeal's events actually gave such a power to the Commission. (7) The Disguised Claim of Bias 35 There was much discussion in the written and oral submissions concerning the unsuitability of

164 Page 17 any organ created by the Province of British Columbia hearing an argument relating to s. 35 rights. The concern, evidently, is that the significant number of aboriginal land claims in the Province assure that the interests of the Province are adverse to those of aboriginal persons. As I understand it, this argument is not one of constitutional law. It finds no place within the doctrine that has accreted around the division of powers. It strikes me more as an administrative law argument respecting the Commission's impartiality. The constitutional determination made here says nothing either way about the impartiality of the Commission, and does not preclude a fact-specific argument being raised in the future in the context of a particular constituted board and its practice: C.U.P.E. v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539, 2003 SCC 29, at paras. 44 and 197; Matsqui, supra, at pp In short, the potential bias argument is irrelevant to the constitutional division of powers issue. B. Statutory Interpretation: Does the Code Empower the Commission to Hear and Decide Section 35 Questions? (1) Are Section 35 Questions Distinct From Other Constitutional Matters? 36 As a preliminary issue, I note that there is no basis for requiring an express empowerment that [page610] an administrative tribunal be able to apply s. 35 of the Constitution Act, There is no persuasive basis for distinguishing the power to determine s. 35 questions from the power to determine other constitutional questions, such as the division of powers under the Constitution Act, 1867 or a right under the Charter. Section 35 is not, any more than the Charter, "some holy grail which only judicial initiates of the superior courts may touch" (Cooper, supra, at para. 70, per McLachlin J. (as she then was), dissenting). This Court has rejected the theory that Indian reserves are federal "enclaves" from which provincial laws are excluded: Hogg, supra, at p , discussing Francis, supra; Four B, supra. Similarly, aboriginal rights do not constitute an enclave that excludes a provincially created administrative tribunal from ruling, at first instance, on the border between those aboriginal rights and a provincial law of general application. The arguments that s. 35 rights are qualitatively different -- that they are more complex, and require greater expertise in relation to the evidence adduced -- have little merit. As Moen J. noted in Ermineskin Cree Nation v. Canada (2001), 297 A.R. 226, 2001 ABQB 760, at para. 51, in determining that a Human Rights Tribunal had jurisdiction to consider a s. 35 argument: [T]here is no principled basis for distinguishing Charter questions from s. 35 questions in the context of the Tribunal's jurisdiction to consider constitutional questions. In either case, the decision-maker is simply applying the tests set out in the case law to determine if the particular right claimed is protected by the Constitution. In either case, if the applicant is successful, the result is a declaration of invalidity or a refusal to apply only the particular statute or provision before the decision-maker.

165 Page 18 To the extent that aboriginal rights are unwritten, communal or subject to extinguishment, and thus a factual inquiry is required, it is worth noting that administrative tribunals, like courts, have fact-finding functions. Boards are not necessarily in an [page611] inferior position to undertake such tasks. Indeed, the more relaxed evidentiary rules of administrative tribunals may in fact be more conducive than a superior court to the airing of an aboriginal rights claim. 37 One difficulty with the argument about complexity is that it is difficult to draw the line between simple questions of aboriginal law, that boards like the Commission should be able to hear, and complex questions. In the hearing, counsel for the appellants was unable to provide a principled and convincing way to distinguish aboriginal law questions simple enough and therefore appropriate for the Commission from those that, in her view, were not. A member of the Court asked counsel for the appellants whether the Commission would be able to determine whether a person charged with an infraction was an Indian for the purposes of applying a superior court's declaration delineating an aboriginal right. Counsel replied that that would simply be a factual determination and well within the Commission's competency. She had no response, however, to the rejoinder that even ostensibly "factual" questions of aboriginal status can routinely engage more complex questions of s. 35 and federal aboriginal rights. The nature of the question (fact, mixed fact and law, or law) assists in determining the standard of review for decisions by administrative tribunals: Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R Such distinctions are not watertight enough, however, to serve as the basis for determining a board's jurisdiction to hear and decide a question. A further unconvincing argument was that aboriginal rights are, today, complicated and in a state of flux, but that in the future, when they have been settled, it may be appropriate for administrative tribunals to consider them. Again, such lines are not easily enough drawn for that to be the judicial test. The Attorney General of British Columbia presented no workable way of taking from administrative tribunals the complicated aboriginal law issues and leaving with them the simpler aboriginal law issues that they could resolve speedily [page612] and satisfactorily, in the best interests of all concerned. 38 I conclude, therefore, that there is no principled basis for distinguishing s. 35 rights from other constitutional questions. (2) The Appropriate Test: the Power to Determine Questions of Law 39 The facts and arguments in this appeal and those in Martin, supra, have presented this Court with an opportunity to review its jurisprudence on the power of administrative tribunals to determine questions of constitutional law. As Gonthier J. notes in Martin, at para. 34, the principle of constitutional supremacy in s. 52 of the Constitution Act, 1982 leads to a presumption that all legal decisions will take into account the supreme law of the land. "In other words", as he writes, "the power to decide a question of law is the power to decide by applying only valid laws" (para. 36). One could modify that statement for the present appeal by saying that the power of an administrative board to apply valid laws is the power to apply valid laws only to those factual situations to which they are constitutionally applicable, or to the extent that they do not run afoul of

166 Page 19 s. 35 rights. This Court's decision in Cooper, supra, has too easily been taken as suggesting that practical considerations relating to a tribunal may readily overcome this presumption. I am of the view that the approach set out in Martin, in the context of determining a tribunal's power to apply the Charter, is also the approach to be taken in determining a tribunal's power to apply s. 35 of the Constitution Act, The essential question is whether the empowering legislation implicitly or explicitly grants to the tribunal the jurisdiction to interpret or decide any question of law. If it does, the tribunal will be presumed to have the [page613] concomitant jurisdiction to interpret or decide that question in light of s. 35 or any other relevant constitutional provision. Practical considerations will generally not suffice to rebut the presumption that arises from authority to decide questions of law. This is not to say, however, that practical considerations cannot be taken into consideration in determining what is the most appropriate way of handling a particular dispute where more than one option is available. 40 The parties spent some time discussing the relationship between a tribunal's remedial powers and its jurisdiction to hear particular categories of legal questions. The appellants referred the Court to R. v Ontario Inc., [2001] 3 S.C.R. 575, 2001 SCC 81 ("Dunedin"), and R. v. Hynes, [2001] 3 S.C.R. 623, 2001 SCC 82. In those cases, this Court articulated a functional and structural approach for determining whether an inferior court is a "court of competent jurisdiction" for the purposes of granting a remedy under s. 24(1) of the Charter. It was suggested in the hearing that the test in Dunedin gives credit to the view that remedial powers are a central feature to determine jurisdiction, that Dunedin and Hynes can be read broadly as indicating that there are distinctions between particular subject matters of constitutional law, and that implied jurisdiction to consider general questions of law may include only certain questions concerning the constitutional validity of the tribunal's enabling statute. I cannot accept these points. First, this Court has already recognized that the power to find a statutory provision of no effect, by virtue of s. 52(1) of the Constitution Act, 1982, is distinct from the remedial power to invoke s. 24(1) of the Charter: Tétreault-Gadoury v. Canada (Employment and Immigration Commission), [1991] 2 S.C.R. 22, at p. 31. In other words, an inferior court's remedial [page614] powers are not determinative of its jurisdiction to hear and determine constitutional issues. In any case, s. 35 is part of the Constitution Act, 1982, but not of the Charter. Accordingly, there is no issue whatsoever of remedies under s. 24(1), and the Commission's remedial powers are not before us in the present appeal. Second, this Court's decisions in Dunedin and Hynes dealt, in two different contexts, with the same question: Was there a "court of competent jurisdiction" for the purposes of s. 24(1) of the Charter? In Dunedin, supra, at para. 73, McLachlin C.J. held that, where there is no express legislative intention to grant jurisdiction, jurisdiction may nonetheless be implied from the structure of the tribunal's enabling legislation, the powers conferred on the tribunal, the function it performs, and its overall context. The inquiry in those cases, and prior ones, such as Mills v. The Queen, [1986] 1 S.C.R. 863, arises from the term "court of competent jurisdiction" in s. 24(1). The test developed for applying that term should not, in my view, be taken as suggesting that, outside that unique context, there will be lines drawn between the kinds of constitutional questions that a tribunal is able to hear. (3) Application of the Test

167 Page 1 Case Name: Quebec (Attorney General) v. Canada (National Energy Board) The Grand Council of the Crees (of Quebec) and the Cree Regional Authority, Appellants; v. The Attorney General of Canada, the Attorney General of Quebec, Hydro-Québec and the National Energy Board, Respondents, and Sierra Legal Defence Fund, Canadian Environmental Law Association, Cultural Survival (Canada), Friends of the Earth and Sierra Club of Canada, Interveners. [1994] S.C.J. No. 13 [1994] A.C.S. no 13 [1994] 1 S.C.R. 159 [1994] 1 R.C.S D.L.R. (4th) N.R. 241 J.E Admin. L.R. (2d) C.E.L.R. (N.S.) 1 [1994] 3 C.N.L.R A.C.W.S. (3d) 141 File No.: Supreme Court of Canada 1993: October 13 / 1994: February 24.

168 Page 2 Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ. ON APPEAL FROM THE FEDERAL COURT OF APPEAL Public utilities -- Electricity -- Licences -- National Energy Board granting licences for export of electrical power to U.S. -- Licences granted subject to environmental assessments of future generating facilities -- Whether Board erred in granting licences -- National Energy Board Act, R.S.C., 1985, c. N-7 -- Environmental Assessment and Review Process Guidelines Order, SOR/ Following lengthy public hearings at which the appellants made numerous submissions, the National Energy Board granted Hydro-Québec licences for the export of electrical power to the states of New York and Vermont. At the time the licence applications were filed, the Board was required to satisfy itself both that the power sought to be exported was not needed to meet reasonably foreseeable Canadian requirements and that the price to be charged by the power authority was just and reasonable in relation to the public interest. After the hearings but prior to the Board's ruling, these two explicit criteria were removed from the National Energy Board Act, leaving only the requirement that the Board is to have regard to all conditions that appear to it to be relevant. In evaluating the environmental impact of the applications, the Board considered itself bound by both its own Act as amended and the Environmental Assessment and Review Process Guidelines Order. The licences were granted subject to two conditions relating to the successful completion of environmental assessments of future generating facilities. The Federal Court of Appeal rejected the appellants' argument that the Board erred in several respects in granting the licences, but allowed the appeal by Hydro-Québec and the Attorney General of Quebec, concluding that the Board had exceeded its jurisdiction in imposing the environmental assessment conditions. It severed these two conditions and allowed the licences to stand. This appeal is to determine (1) whether the Board properly conducted the required social cost-benefit review; (2) whether the Board's failure to require that Hydro-Québec disclose in full the assumptions and methodologies on which its cost-benefit review was based breached the requirements of procedural fairness; (3) whether the Board owed the appellants a fiduciary duty in the exercise of its decision-making power, and, if so, whether the requirements of this duty were fulfilled; (4) whether the Board's decision affects the appellants' aboriginal rights; and (5) whether the Board failed to follow the requirements of its own Act and of the Guidelines Order in conducting its environmental impact assessment. Held: The appeal should be allowed and the order of the Board restored. Hydro-Québec provided evidence on which the Board could reasonably conclude that the consideration of cost recoverability was satisfied. The Board did not err in considering relevant to this issue the fact that the export contracts had received the approval of the province. Also, as this was only one of the factors considered, the Board did not improperly delegate its decision-making responsibility. It has not been shown that the Board's discretion to determine what evidence is relevant to its decision was improperly exercised in this case so as to result in inadequate disclosure to the appellants. The Board had sufficient evidence before it to make a valid finding that all costs would be recovered, and the appellants were given access to all the material before the Board. While there is a fiduciary relationship between the federal Crown and the aboriginal peoples of Canada, the function

169 Page 3 of the Board in deciding whether to grant an export licence is quasi-judicial and inherently inconsistent with the imposition of a relationship of utmost good faith between the Board and a party appearing before it. The fiduciary relationship between the Crown and the appellants thus does not impose a duty on the Board to make its decisions in the appellants' best interests, or to change its hearing process so as to impose superadded requirements of disclosure. Moreover, even assuming that the Board should have taken into account the existence of the fiduciary relationship between the Crown and the appellants, the Board's actions in this case would have met the requirements of such a duty. The appellants had access to all the evidence that was before the Board, were able to make submissions and argument in reply, and were entitled to cross-examine the witnesses called by Hydro-Québec. On the issue of whether the Board's decision will have a negative impact on the appellants' aboriginal rights, it is not possible to evaluate realistically the impact of the Board's decision on the appellants' rights without reference to the James Bay Agreement, on which the appellants disavowed reliance. Moreover, even assuming that the Board's decision is one that has, prima facie, an impact on the appellants' aboriginal rights, and that for the Board to justify its interference it must at the very least conduct a rigorous, thorough, and proper cost-benefit review, the review carried out in this case was not wanting in this respect. The Board did not exceed its jurisdiction under the National Energy Board Act in considering the environmental effects of the construction of future generating facilities as they related to the proposed export, an area of federal responsibility. The Court of Appeal erred in limiting the scope of the Board's environmental inquiry to the effects on the environment of the transmission of power by a line of wire across the border. Even though the Board found that the new facilities contemplated would have to be built in any event to supply increasing domestic needs, if the construction of new facilities is required to serve the demands of the export contract, among other needs, then the environmental effects of the construction of such facilities are related to the export. In these circumstances, it becomes appropriate for the Board to consider the source of the electrical power to be exported, and the environmental costs that are associated with the generation of that power. In defining the jurisdictional limits of the Board, this Court must be careful to ensure that the Board's authority is truly limited to matters of federal concern, but the scope of its inquiry must not be narrowed to such a degree that the function of the Board is rendered meaningless or ineffective. The Board met its obligations under the Guidelines Order in attaching to the licence the two impugned conditions. Having concluded that the environmental effects of the construction and operation of the planned facilities were unknown, the Board was required by s. 12(d) of the Order to see either that the proposal was subjected to further study and subsequent rescreening, or that it was submitted to a public review. The conditions imposed by the Board meet in substance this obligation. They do not amount to an improper delegation of the Board's responsibility under the Guidelines Order, but rather are an attempt to avoid the duplication warned against in the Order, while continuing the Board's jurisdiction over this matter. Cases Cited Referred to: R. v. Sparrow, [1990] 1 S.C.R. 1075; Bell Canada v. Canada (Canadian Radio-television and Telecommunications Commission), [1989] 1 S.C.R. 1722; In re Canadian Radio-Television Commission and in re London Cable TV Ltd., [1976] 2 F.C. 621; Parke, Davis & Co. v. Fine Chemicals of Canada Ltd., [1959] S.C.R. 219; Martineau v. Matsqui Institution Disciplinary Board, [1980] 1 S.C.R. 602; Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643; Lakeside Colony of Hutterian Brethren v. Hofer, [1992] 3 S.C.R. 165; Guerin v. The Queen, [1984]

170 Page 4 2 S.C.R. 335; Lac Minerals Ltd. v. International Corona Resources Ltd., [1989] 2 S.C.R. 574; Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369; Gitludahl v. Minister of Forests, B.C.S.C., Vancouver A922935, August 13, 1992; Dick v. The Queen, F.C.T.D., T , June 3, 1992; Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3; Canadian Wildlife Federation Inc. v. Canada (Minister of the Environment) (1989), 4 C.E.L.R. (N.S.) 201 (F.C.T.D.), aff'd [1991] 1 F.C. 641 (C.A.); Friends of the Island Inc. v. Canada (Minister of Public Works), [1993] 2 F.C Statutes and Regulations Cited Act to amend the National Energy Board Act and to repeal certain enactments in consequence thereof, S.C. 1990, c. 7, s. 32. Constitution Act, 1867, s. 91(2). Constitution Act, 1982, s. 35(1). Environmental Assessment and Review Process Guidelines Order, SOR/84-467, ss. 2, 3, 4(1), 5(1), 6, 8, 10(2), 12. Hydro-Québec Act, R.S.Q., c. H-5, s. 24. James Bay and Northern Quebec Native Claims Settlement Act, S.C , c. 32. National Energy Board Act, R.S.C., 1985, c. N-7 [am. 1990, c. 7], ss. 2, 22(1), 24, 118, , , (2), , , , National Energy Board Part VI Regulations, C.R.C. 1978, c. 1056, ss. 6, 15(m). Authors Cited Canada. Energy, Mines and Resources Canada. Canadian Electricity Policy. Ottawa: Energy, Mines and Resources Canada, Canada. National Energy Board. The Regulation of Electricity Exports: Report of an Inquiry By a Panel of the National Energy Board Following a Hearing in November and December Ottawa: The Board, APPEAL from a judgment of the Federal Court of Appeal, [1991] 3 F.C. 443, 83 D.L.R. (4th) 146, 7 C.E.L.R. (N.S.) 315, 132 N.R. 214, severing conditions from licences granted by the National Energy Board, [1991] 2 C.N.L.R. 70, and allowing the licences to stand. Appeal allowed. Robert Mainville, Peter W. Hutchins and Johanne Mainville, for the appellants. Jean-Marc Aubry, Q.C., and René LeBlanc, for the respondent the Attorney General of Canada. Pierre Lachance and Jean Robitaille, for the respondent the Attorney General of Quebec. Pierre Bienvenu, Jean G. Bertrand and Bernard Roy, for the respondent Hydro-Québec. Judith B. Hanebury, for the respondent the National Energy Board. Gregory J. McDade and Stewart A. G. Elgie, for the interveners. Solicitors for the appellants: Robert Mainville & Associés, Montréal. Solicitor for the respondent the Attorney General of Canada: Jean-Marc Aubry, Ottawa. Solicitors for the respondent the Attorney General of Quebec: Pierre Lachance and Jean Bouchard, Ste-Foy. Solicitors for the respondent Hydro-Québec: Ogilvy Renault, Montréal. Solicitor for the respondent the National Energy Board: Judith B. Hanebury, Calgary.

171 Page 5 Solicitor for the interveners: Gregory J. McDade, Vancouver. The judgment of the Court was delivered by 1 IACOBUCCI J.:-- This appeal arises from the decision of the respondent National Energy Board ("the Board") to grant to the respondent Hydro-Québec licences for the export of electrical power to the states of New York and Vermont. This decision followed lengthy public hearings at which the Grand Council of the Crees (of Quebec) and the Cree Regional Authority ("the appellants"), along with other concerned groups, made numerous submissions. 2 The Attorneys General of Quebec and of Canada appeared as respondents to this appeal, as did the Board. The Court also heard the joint submissions of the Sierra Legal Defence Fund, the Canadian Environmental Law Association, Cultural Survival (Canada), Friends of the Earth and the Sierra Club of Canada ("the interveners"). 3 The appellants argued before the Federal Court of Appeal that the Board erred in several respects in granting the licences. The respondents Hydro-Québec and the Attorney General of Quebec claimed that the Board erred in making the granting of the licences conditional on the successful completion of environmental assessments of the power generation facilities contemplated by Hydro-Québec for future construction. The Federal Court of Appeal rejected the argument of the appellants, and concluded that the Board had erred in imposing the conditions impugned by the respondents. The Court of Appeal severed these conditions, and allowed the licences to stand. The appellants now appeal to this Court. I. Facts 4 On July 28, 1989, Hydro-Québec applied to the Board for licences to export blocks of power to New York and Vermont. These applications involved nine blocks of power which were to be provided over periods ranging from five to twenty-two years, pursuant to two agreements signed with the U.S. power companies that covered a total of MW of power and were projected to generate nearly $25 billion in income for Hydro-Québec. The purpose of the export was to raise sufficient revenue such that Hydro-Québec would be able to implement its development plan for expansion to meet the constantly rising demand for the provision of electrical services within the province. 5 The Board held public hearings during the months of February and March of 1990 on the application for licences for export. A number of interested parties, including the appellants, took part. At the time the applications were filed, the Board was required by s. 118 of the National Energy Board Act, R.S.C., 1985, c. N-7, to satisfy itself both that the power sought to be exported was not needed to meet reasonably foreseeable Canadian requirements at the relevant times, and that the price to be charged by the power authority was just and reasonable. After the hearings but prior to the Board's ruling, s. 118 was modified by the Act to amend the National Energy Board Act and to repeal certain enactments in consequence thereof, S.C. 1990, c. 7 ("Bill C-23"). These two explicit criteria were removed from the statute, leaving only the requirement that the Board is to have regard to all conditions that appear to it to be relevant. The parties made submissions before the Board on the effect of these amendments.

172 Page It is for this reason that I do not find helpful the authorities cited to me by the appellants as indicative of this evolving trend: Gitludahl v. Minister of Forests, B.C.S.C., August 13, 1992, Vancouver A922935, unreported, and Dick v. The Queen, F.C.T.D., June 3, 1992, Ottawa T , unreported. Those cases were concerned, respectively, with the decision-making of the Minister of Forests, and the conduct of the Crown when adverse in interest to aboriginal peoples in litigation. The considerations which may animate the application of a fiduciary duty in these contexts are far different from those raised in the context of a licence application before an independent decision-making body operating at arm's length from government. 37 Therefore, I conclude that the fiduciary relationship between the Crown and the appellants does not impose a duty on the Board to make its decisions in the best interests of the appellants, or to change its hearing process so as to impose superadded requirements of disclosure. When the duty is defined in this manner, such tribunals no more owe this sort of fiduciary duty than do the courts. Consequently, no such duty existed in relation to the decision-making function of the Board. 38 Moreover, even if this Court were to assume that the Board, in conducting its review, should have taken into account the existence of the fiduciary relationship between the Crown and the appellants, I am satisfied that, for the reasons set out above relating to the procedure followed by the Board, its actions in this case would have met the requirements of such a duty. There is no indication that the appellants were given anything less than the fullest opportunity to be heard. They had access to all the evidence that was before the Board, were able to make submissions and argument in reply, and were entitled to cross-examine the witnesses called by the respondent Hydro-Québec. This argument must therefore fail for the same reasons as the arguments relating to the nature of the review conducted by the Board. D. Aboriginal Rights 39 This Court, in R. v. Sparrow, supra, recognized the interrelationship between the recognition and affirmation of aboriginal rights constitutionally enshrined in s. 35(1) of the Constitution Act, 1982, and the fiduciary relationship which has historically existed between the Crown and aboriginal peoples. It is this relationship that indicates that the exercise of sovereign power may be limited or restrained when it amounts to an unjustifiable interference with aboriginal rights. In this appeal, the appellants argue that the decision of the Board to grant the licences will have a negative impact on their aboriginal rights, and that the Board was therefore required to meet the test of justification as set out in Sparrow. 40 It is obvious that the Board must exercise its decision-making function, including the interpretation and application of its governing legislation, in accordance with the dictates of the Constitution, including s. 35(1) of the Constitution Act, Therefore, it must first be determined whether this particular decision of the Board, made pursuant to s (1) of the National Energy Board Act, could have the effect of interfering with the existing aboriginal rights of the appellants so as to amount to a prima facie infringement of s. 35(1). 41 The respondents in this appeal argue that it cannot. They assert that, with the signing by the appellants of the James Bay and Northern Quebec Agreement, incorporated in the James Bay and Northern Quebec Native Claims Settlement Act, S.C , c. 32 ("the James Bay Act"), the appellants ceded and renounced all aboriginal rights except as set out in the Agreement. Since the act of granting a licence neither requires nor permits the construction of the new production facilities which the appellants claim will interfere with their rights, and since the Agreement itself provides

173 Page 1 Indexed as: R. v. Conway Paul Conway Appellant; v. Her Majesty The Queen and Person in charge of the Centre for Addiction and Mental Health Respondents, and Attorney General of Canada, Ontario Review Board, Mental Health Legal Committee and Mental Health Legal Advocacy Coalition, British Columbia Review Board, Criminal Lawyers' Association and David Asper Centre for Constitutional Rights, and Community Legal Assistance Society Interveners [2010] 1 S.C.R. 765 [2010] 1 R.C.S. 765 [2010] S.C.J. No. 22 [2010] A.C.S. no SCC 22 File No.: Supreme Court of Canada Heard: October 22, 2009; Judgment: June 11, Present: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ. (104 paras.) Appeal From: ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO

174 Page 2 Catchwords: Constitutional law -- Charter of Rights -- Remedies -- Accused not criminally responsible by reason of mental disorder detained in mental health facility -- Accused alleging violations of his constitutional rights and seeking absolute discharge as remedy under s. 24(1) of Canadian Charter of Rights and Freedoms -- Accused also seeking as remedy order directing mental health facility to provide him with particular treatment -- Whether Review Board has jurisdiction to grant remedies under s. 24(1) of Charter -- If so, whether accused entitled to remedies sought -- Criminal Code, R.S.C. 1985, c. C-46, ss , Constitutional law -- Charter of Rights -- Remedies -- Court of competent jurisdiction -- Remedial [page766] jurisdiction of administrative tribunals under s. 24(1) of Canadian Charter of Rights and Freedoms -- New approach. Criminal law -- Mental disorder -- Review Board -- Remedial jurisdiction under Canadian Charter of Rights and Freedoms -- Accused not criminally responsible by reason of mental disorder detained in mental health facility -- Accused alleging violations of his constitutional rights and seeking absolute discharge as remedy under s. 24(1) of Canadian Charter of Rights and Freedoms at his disposition hearing before Review Board -- Board concluding accused was a threat to public safety and not entitled to absolute discharge under Criminal Code -- Whether Review Board has jurisdiction to grant absolute discharge as remedy under s. 24(1) of Charter -- If so, whether accused entitled to remedy sought -- Criminal Code, R.S.C. 1985, c. C-46, s Administrative law -- Boards and tribunals -- Jurisdiction -- Remedial jurisdiction of administrative tribunals under s. 24(1) of Canadian Charter of Rights and Freedoms -- New approach. Summary: In 1984, C was found not guilty by reason of insanity on a charge of sexual assault with a weapon. Since the verdict, he has been detained in mental health facilities and diagnosed with several mental disorders. Prior to his annual review hearing before the Ontario Review Board in 2006, C alleged that the mental health centre where he was being detained had breached his rights under the Canadian Charter of Rights and Freedoms. He sought an absolute discharge as a remedy under s. 24(1) of the Charter. The Board unanimously concluded that C was a threat to public safety, who would, if released, quickly return to police and hospital custody. This made him an unsuitable candidate for an absolute discharge under s (a) of the Criminal Code, which provides that an absolute discharge is unavailable to any patient who is a "significant threat to the safety of the public". The Board therefore ordered that C remain in the mental health centre. The Board further concluded that it had no jurisdiction to consider C's Charter claims. A majority in the Court of Appeal upheld the Board's conclusion that it was not a court of competent jurisdiction for the purpose of granting an absolute discharge under s. 24(1) of the Charter. However, the Court of

175 Page 3 Appeal unanimously concluded that it was unreasonable for the Board not to address the [page767] treatment impasse plaguing C's detention. This issue was remitted back to the Board. Before this Court, the issue is whether the Ontario Review Board has jurisdiction to grant remedies under s. 24(1) of the Charter. C has requested, in addition to an absolute discharge, remedies dealing with his conditions of detention: an order directing the mental health centre to provide him with access to psychotherapy and an order prohibiting the centre from housing him near a construction site. Held: The appeal should be dismissed. When the Charter was proclaimed, its relationship with administrative tribunals was a blank slate. However, various dimensions of the relationship quickly found their way to this Court. The first wave of relevant cases started in 1986 with Mills v. The Queen, [1986] 1 S.C.R The Mills cases established that a court or administrative tribunal was a "court of competent jurisdiction" under s. 24(1) of the Charter if it had jurisdiction over the person, the subject matter, and the remedy sought. The second wave started in 1989 with Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R The Slaight cases established that any exercise of statutory discretion is subject to the Charter and its values. The third and final wave started in 1990 with Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570, followed in 1991 by Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), [1991] 2 S.C.R. 5, and Tétreault-Gadoury v. Canada (Employment and Immigration Commission), [1991] 2 S.C.R. 22. The cases flowing from this trilogy, which deal with s. 52(1) of the Constitution Act, 1982, established that specialized tribunals with both the expertise and the authority to decide questions of law are in the best position to hear and decide the constitutionality of their statutory provisions. This evolution of the case law over the last 25 years has cemented the direct relationship between the Charter, its remedial provisions and administrative tribunals. It confirms that we do not have one Charter for the courts and another for administrative tribunals and that, with rare exceptions, administrative tribunals with the authority to apply the law, have the jurisdiction to apply the Charter to the issues that arise in the proper [page768] exercise of their statutory functions. The evolution also confirms that expert tribunals should play a primary role in determining Charter issues that fall within their specialized jurisdiction and that in exercising their statutory functions, administrative tribunals must act consistently with the Charter and its values. Moreover, the jurisprudential evolution affirms the practical advantages and the constitutional basis for allowing Canadians to assert their Charter rights in the most accessible forum available, without the need for bifurcated proceedings between superior courts and administrative tribunals. Any scheme favouring bifurcation is, in fact, inconsistent with the well-established principle that an administrative tribunal is to decide all matters, including constitutional questions, whose essential factual character falls within the tribunal's specialized statutory jurisdiction. A merger of the three distinct constitutional streams flowing from this Court's administrative law

176 Page 4 jurisprudence calls for a new approach that consolidates this Court's gradual expansion of the scope of the Charter and its relationship with administrative tribunals. When a Charter remedy is sought from an administrative tribunal, the initial inquiry should be whether the tribunal can grant Charter remedies generally. The answer to this question flows from whether the administrative tribunal has the jurisdiction, explicit or implied, to decide questions of law. If it does, and unless the legislature has clearly demonstrated its intent to withdraw the Charter from the tribunal's authority, the tribunal will have the jurisdiction to grant Charter remedies in relation to Charter issues arising in the course of carrying out its statutory mandate. The tribunal is, in other words, a court of competent jurisdiction under s. 24(1) of the Charter. This approach has the benefit of attributing Charter jurisdiction to a tribunal as an institution, rather than requiring litigants to test, remedy by remedy, whether the tribunal is a court of competent jurisdiction. Once the initial inquiry has been resolved in favour of Charter jurisdiction, the remaining question is whether the tribunal can grant the particular remedy sought given its statutory scheme. Answering this question is necessarily an exercise in discerning legislative intent, namely, whether the remedy sought is the kind [page769] of remedy that the legislature intended would fit within the statutory framework of the particular tribunal. Relevant considerations include the tribunal's statutory mandate and function. In this case, C seeks certain Charter remedies from the Board. The first inquiry, therefore, is whether the Board is a court of competent jurisdiction under s. 24(1). The answer to this question depends on whether the Board is authorized to decide questions of law. The Board is a quasi-judicial body with significant authority over a vulnerable population. It operates under Part XX.1 of the Criminal Code as a specialized statutory tribunal with ongoing supervisory jurisdiction over the treatment, assessment, detention and discharge of NCR patients: accused who have been found not criminally responsible by reason of mental disorder. Part XX.1 of the Criminal Code provides that any party to a review board hearing may appeal the board's disposition on a question of law, fact or mixed fact and law. The Code also authorizes appellate courts to overturn a review board's disposition if it was based on a wrong decision on a question of law. This statutory language is indicative of the Board's authority to decide questions of law. Given this conclusion, and since Parliament has not excluded the Charter from the Board's mandate, it follows that the Board is a court of competent jurisdiction for the purpose of granting remedies under s. 24(1) of the Charter. The next question is whether the remedies sought are the kinds of remedies which would fit within the Board's statutory scheme. This requires consideration of the scope and nature of the Board's statutory mandate and functions. The review board regime is intended to reconcile the "twin goals" of protecting the public from dangerous offenders and treating NCR patients fairly and appropriately. Based on the Board's duty to protect public safety, its statutory authority to grant absolute discharges only to non-dangerous NCR patients, and its mandate to assess and treat NCR patients with a view to reintegration rather than recidivism, it is clear that Parliament intended that dangerous NCR patients have no access to absolute discharges. C cannot, therefore, obtain an absolute discharge from the Board. The same is true of C's request for a treatment order. Allowing

177 Page 5 the Board to prescribe or impose treatment is expressly prohibited by s of the Criminal Code. Finally, neither the validity of C's complaint about the location of his room nor, obviously, the propriety of his request for an order prohibiting the mental health centre from housing him near a construction site, have been considered [page770] by the Board. It may well be that the substance of C's complaint can be fully addressed within the Board's statutory mandate and the exercise of its discretion in accordance with Charter values. If so, resort to s. 24(1) of the Charter may not add to the Board's capacity to either address the substance of C's complaint or provide appropriate redress. Cases Cited Considered: Mills v. The Queen, [1986] 1 S.C.R. 863; Carter v. The Queen, [1986] 1 S.C.R. 981; Weber v. Ontario Hydro, [1995] 2 S.C.R. 929; Mooring v. Canada (National Parole Board), [1996] 1 S.C.R. 75; R. v Ontario Inc., 2001 SCC 81, [2001] 3 S.C.R. 575; Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038; Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570; Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), [1991] 2 S.C.R. 5; Tétreault-Gadoury v. Canada (Employment and Immigration Commission), [1991] 2 S.C.R. 22; Nova Scotia (Workers' Compensation Board) v. Martin, 2003 SCC 54, [2003] 2 S.C.R. 504; Paul v. British Columbia (Forest Appeals Commission), 2003 SCC 55, [2003] 2 S.C.R. 585; Quebec (Attorney General) v. Quebec (Human Rights Tribunal), 2004 SCC 40, [2004] 2 S.C.R. 223; Okwuobi v. Lester B. Pearson School Board, 2005 SCC 16, [2005] 1 S.C.R. 257; Cooper v. Canada (Human Rights Commission), [1996] 3 S.C.R. 854; Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners, 2000 SCC 14, [2000] 1 S.C.R. 360; Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Quebec (Attorney General), 2004 SCC 39, [2004] 2 S.C.R. 185; Vaughan v. Canada, 2005 SCC 11, [2005] 1 S.C.R. 146; Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625; Mazzei v. British Columbia (Director of Adult Forensic Psychiatric Services), 2006 SCC 7, [2006] 1 S.C.R. 326; referred to: Argentina v. Mellino, [1987] 1 S.C.R. 536; United States v. Allard, [1987] 1 S.C.R. 564; R. v. Rahey, [1987] 1 S.C.R. 588; R. v. Gamble, [1988] 2 S.C.R. 595; R. v. Smith, [1989] 2 S.C.R. 1120; R. v. Hynes, 2001 SCC 82, [2001] 3 S.C.R. 623; R. v. Menard, 2008 BCCA 521, 240 C.C.C. (3d) 1; British Columbia (Director of Child, Family & Community Service) v. L. (T.), 2009 BCPC 293, 73 R.F.L. (6) 455, aff'd 2010 BCSC 105 (CanLII); Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; Eaton v. Brant County Board of Education, [1997] 1 S.C.R. 241; Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624; [page771] Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307; Multani v. Commission scolaire Marguerite-Bourgeoys, 2006 SCC 6, [2006] 1 S.C.R. 256; Société des Acadiens et Acadiennes du Nouveau-Brunswick Inc. v. Canada, 2008 SCC 15, [2008] 1 S.C.R. 383; R. v. Mentuck, 2001 SCC 76, [2001] 3 S.C.R. 442; Toronto Star Newspapers Ltd. v. Ontario, 2005 SCC 41, [2005] 2 S.C.R. 188; Roncarelli v. Duplessis, [1959] S.C.R. 121; Four B Manufacturing Ltd. v. United Garment Workers of America, [1980] 1 S.C.R. 1031; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; R. v. Swain, [1991] 1 S.C.R. 933; Penetanguishene Mental Health Centre v. Ontario (Attorney General), 2004 SCC 20, [2004] 1 S.C.R. 498; R. v. Owen, 2003 SCC 33, [2003] 1 S.C.R.

178 Page 6 779; Pinet v. St. Thomas Psychiatric Hospital, 2004 SCC 21, [2004] 1 S.C.R. 528; Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3; Canada (Prime Minister) v. Khadr, 2010 SCC 3, [2010] 1 S.C.R. 44; R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R Statutes and Regulations Cited Canadian Charter of Rights and Freedoms, ss. 2(b), (d), 7, 8, 9, 12, 15(1), 24. Constitution Act, 1982, s. 52(1). Criminal Code, R.S.C. 1985, c. C-46, Part XX.1, ss (1), (1), , , , (1), (1), (1), (1). Authors Cited Canada. House of Commons. Minutes of Proceedings and Evidence of the Standing Committee on Justice and the Solicitor General, No. 7, 3 Sess., 34 Parl., October 9, Latimer, Jeff, and Austin Lawrence. Research Report: The Review Board Systems in Canada: Overview of Results from the Mentally Disordered Accused Data Collection Study. Ottawa: Department of Justice Canada, Research and Statistics, January Lokan, Andrew K., and Christopher M. Dassios. Constitutional Litigation in Canada. Toronto: Thomson/Carswell, History and Disposition: APPEAL from a judgment of the Ontario Court of Appeal (Simmons, Armstrong and Lang JJ.A.), 2008 ONCA 326, 90 O.R. (3d) 335, 293 D.L.R. (4) 729, [page772] 235 O.A.C. 341, 231 C.C.C. (3d) 429, 169 C.R.R. (2d) 314, [2008] O.J. No (QL), 2008 CarswellOnt 2352, allowing in part an appeal from a decision of the Ontario Review Board. Appeal dismissed. Counsel: Marlys A. Edwardh, Delmar Doucette, Jessica Orkin and Michael Davies, for the appellant. Hart M. Schwartz and Amanda Rubaszek, for the respondent Her Majesty the Queen. Janice E. Blackburn and Ioana Bala, for the respondent the Person in charge of the Centre for Addiction and Mental Health. Simon Fothergill, for the intervener the Attorney General of Canada.

179 Page 7 Stephen J. Moreau and Elichai Shaffir, for the intervener the Ontario Review Board. Paul Burstein and Anita Szigeti, for the interveners the Mental Health Legal Committee and the Mental Health Legal Advocacy Coalition. Joseph J. Arvay, Q.C., Mark G. Underhill and Alison Latimer, for the intervener the British Columbia Review Board. Cheryl Milne, for the interveners the Criminal Lawyers' Association and the David Asper Centre for Constitutional Rights. David W. Mossop, Q.C., and Diane Nielsen, for the intervener the Community Legal Assistance Society. The judgment of the Court was delivered by 1 ABELLA J.:-- The specific issue in this appeal is the remedial jurisdiction of the Ontario Review Board under s. 24(1) of the Canadian Charter of Rights and Freedoms. The wider issue is the relationship between the Charter, its remedial provisions and administrative tribunals generally. 2 There are two provisions in the Charter dealing with remedies: s. 24(1) and s. 24(2). Section [page773] 24(1) states that anyone whose Charter rights or freedoms have been infringed or denied may apply to a "court of competent jurisdiction" to obtain a remedy that is "appropriate and just in the circumstances". Section 24(2) states that in those proceedings, a court can exclude evidence obtained in violation of the Charter if its admission would bring the administration of justice into disrepute. A constitutional remedy is also available under s. 52(1) of the Constitution Act, 1982, which states that the Constitution is the supreme law of Canada, and that any law inconsistent with its provisions is, to the extent of the inconsistency, of no force or effect. 3 When the Charter was proclaimed in 1982, its relationship with administrative tribunals was a tabula rasa. It was not long, however, before various dimensions of the relationship found their way to this Court. 4 The first relevant wave of cases started in 1986 with Mills v. The Queen, [1986] 1 S.C.R The philosophical legacy of Mills was in its conclusion that for the purposes of s. 24(1) of the Charter, a "court of competent jurisdiction" was a "court" with jurisdiction over the person, the subject matter, and the remedy sought. For the next 25 years, this three-part test served as the grid for determining whether a court or administrative tribunal was a "court of competent jurisdiction" under s. 24(1) of the Charter (Carter v. The Queen, [1986] 1 S.C.R. 981; Argentina v. Mellino, [1987] 1 S.C.R. 536; United States v. Allard, [1987] 1 S.C.R. 564; R. v. Rahey, [1987] 1 S.C.R. 588;

180 Page 24 [para. 78] In her view, both the Commission and the tribunals could consider whether the Charter renders invalid the "'normal age of retirement' defence", since both bodies were empowered to decide questions of law. 63 In Martin, in 2003, the Court sought to resolve the debate over the Charter jurisdiction of tribunals. The issue was whether s. 10B of the Workers' Compensation Act, S.N.S , c. 10, and the Functional Restoration (Multi-Faceted Pain Services) Program Regulations, N.S. Reg. 57/96, which precluded individuals suffering from chronic pain from receiving workers' compensation [page798] benefits, were contrary to s. 15(1) of the Charter. As a threshold issue, it was necessary to decide whether the Nova Scotia Workers' Compensation Appeals Tribunal had the jurisdiction to consider whether the benefits provisions of its enabling statute were constitutional. 64 Gonthier J., writing for a unanimous Court, expressly rejected the 1996 ratio in Cooper, particularly insofar as it distinguished between limited and general questions of law and insofar as it suggested that an adjudicative function was a prerequisite for a tribunal's constitutional jurisdiction. He also expressly rejected Lamer C.J.'s contention that the Cuddy Chicks trilogy was inconsistent with the separation of powers and Parliamentary democracy. 65 Instead, Gonthier J. affirmed and synthesized the main principles emerging from the trilogy. The first was the principle of constitutional supremacy, which provides that any law that is inconsistent with the Constitution is, to the extent of the inconsistency, of no force and effect. No government actor can apply an unconstitutional law, he observed, and, subject to an express contrary intention, a government agency given statutory authority to consider questions of law is presumed to have the jurisdiction to assess related constitutional questions. 66 As a further corollary, Gonthier J. echoed the views expressed over the years by McLachlin J., Major J., La Forest J., and McIntyre J. confirming that "Canadians should be entitled to assert the rights and freedoms that the Constitution guarantees them in the most accessible forum available, without the need for parallel proceedings before the courts". Explaining that this "accessibility concern" was "particularly pressing given that many administrative tribunals have exclusive initial jurisdiction over disputes relating to their enabling legislation", Gonthier J. concluded that "forcing litigants to refer Charter issues to the courts would [page799] result in costly and time-consuming bifurcation of proceedings" (para. 29). 67 In his view, a tribunal's factual findings and the record it compiles when considering a constitutional question are of invaluable assistance in constitutional determinations. The tribunal provides the reviewing court with the most well-informed, expert view of the issues at stake: It must be emphasized that the process of Charter decision making is not confined to abstract ruminations on constitutional theory. In the case of Charter matters which arise in a particular regulatory context, the ability of the decision

181 Page 27 and whose Charter jurisdiction has not been clearly withdrawn have the corresponding authority - and duty - to consider and apply the Constitution, including the Charter, when answering those legal questions. As McLachlin J. observed in Cooper: The Merger [E]very tribunal charged with the duty of deciding issues of law has the concomitant power to do so. The fact that the question of law concerns the effect of the Charter does not change the matter. The Charter is not some holy grail which only judicial initiates of the superior courts may touch. The Charter belongs to the people. All law and law-makers that touch the people must conform to it. Tribunals and commissions charged with deciding legal issues are no exception. Many more citizens have their rights determined by these tribunals than by the courts. If the Charter is to be meaningful to ordinary people, then it must find its expression in the decisions of these tribunals. [para. 70] 78 The jurisprudential evolution leads to the following two observations: first, that administrative tribunals with the power to decide questions of law, and from whom constitutional jurisdiction has not been clearly withdrawn, have the authority to resolve constitutional questions that are linked to matters properly before them. And secondly, [page803] they must act consistently with the Charter and its values when exercising their statutory functions. It strikes me as somewhat unhelpful, therefore, to subject every such tribunal from which a Charter remedy is sought to an inquiry asking whether it is "competent" to grant a particular remedy within the meaning of s. 24(1). 79 Over two decades of jurisprudence has confirmed the practical advantages and constitutional basis for allowing Canadians to assert their Charter rights in the most accessible forum available, without the need for bifurcated proceedings between superior courts and administrative tribunals (Douglas College, at pp ; Weber, at para. 60; Cooper, at para. 70; Martin, at para. 29). The denial of early access to remedies is a denial of an appropriate and just remedy, as Lamer J. pointed out in Mills, at p And a scheme that favours bifurcating claims is inconsistent with the well-established principle that an administrative tribunal is to decide all matters, including constitutional questions, whose essential factual character falls within the tribunal's specialized statutory jurisdiction (Weber; Regina Police Assn.; Quebec (Commission des droits de la personne et des droits de la jeunesse); Quebec (Human Rights Tribunal); Vaughan; Okwuobi. See also Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 49.). 80 If, as in the Cuddy Chicks trilogy, expert and specialized tribunals with the authority to decide questions of law are in the best position to decide constitutional questions when a remedy is sought under s. 52 of the Constitution Act, 1982, there is no reason why such tribunals are not also in the best position to assess constitutional questions when a remedy is sought under s. 24(1) of the Charter. As McLachlin J. said in Weber, "[i]f an arbitrator can find a law violative of the Charter, it would seem he or she can determine whether conduct in the administration of the collective

182 Page 28 agreement violates the Charter and likewise grant remedies" [page804] (para. 61). I agree with the submission of both the Ontario Review Board and the British Columbia Review Board that in both types of cases, the analysis is the same. 81 Building on the jurisprudence, therefore, when a remedy is sought from an administrative tribunal under s. 24(1), the proper initial inquiry is whether the tribunal can grant Charter remedies generally. To make this determination, the first question is whether the administrative tribunal has jurisdiction, explicit or implied, to decide questions of law. If it does, and unless it is clearly demonstrated that the legislature intended to exclude the Charter from the tribunal's jurisdiction, the tribunal is a court of competent jurisdiction and can consider and apply the Charter - and Charter remedies - when resolving the matters properly before it. 82 Once the threshold question has been resolved in favour of Charter jurisdiction, the remaining question is whether the tribunal can grant the particular remedy sought, given the relevant statutory scheme. Answering this question is necessarily an exercise in discerning legislative intent. On this approach, what will always be at issue is whether the remedy sought is the kind of remedy that the legislature intended would fit within the statutory framework of the particular tribunal. Relevant considerations in discerning legislative intent will include those that have guided the courts in past cases, such as the tribunal's statutory mandate, structure and function (Dunedin). Application to This Case 83 The question before the Court is whether the Ontario Review Board is authorized to provide certain remedies to Mr. Conway under s. 24(1) of the Charter. Before the Board, Mr. Conway sought an absolute discharge. At the hearing before this Court, and for the first time, he requested additional remedies dealing with his conditions of detention: an [page805] order directing CAMH to provide him with access to psychotherapy, and an order prohibiting CAMH from housing him near a construction site. 84 The first inquiry is whether the Board is a court of competent jurisdiction. In my view, it is. The Board is a quasi-judicial body with significant authority over a vulnerable population. It is unquestionably authorized to decide questions of law. It was established by, and operates under, Part XX.1 of the Criminal Code as a specialized statutory tribunal with ongoing supervisory jurisdiction over the treatment, assessment, detention and discharge of those accused who have been found not criminally responsible by reason of mental disorder ("NCR patient"). Section (1) provides that any party may appeal a board's disposition on any ground of appeal that raises a question of law, fact or mixed fact and law. Further, s (1) authorizes an appellate court to allow an appeal against a review board's disposition where the court is of the opinion that the board's disposition was based on a wrong decision on a question of law. I agree with the conclusion of Lang J.A. and the submission of the British Columbia Review Board that, as in Martin and Paul, this language is indicative of the Board's power to decide legal questions. And there is nothing in Part XX.1 of the Criminal Code - the Board's statutory scheme - which permits us to conclude that

183 Page 1 Indexed as: R. v. Kapp John Michael Kapp, Robert Agricola, William Anderson, Albert Armstrong, Dale Armstrong, Lloyd James Armstrong, Pasha Berlak, Kenneth Axelson, Michael Bemi, Leonard Botkin, John Brodie, Darrin Chung, Donald Connors, Bruce Crosby, Barry Dolby, Wayne Ellis, William Gaunt, George Horne, Hon van Lam, William Leslie Sr., Bob M. McDonald, Leona McDonald, Stuart McDonald, Ryan McEachern, William McIsaac, Melvin (Butch) Mitchell, Ritchie Moore, Galen Murray, Dennis Nakutsuru, Theordore Neef, David Luke Nelson, Phuoc Nguyen, Nung Duc Gia Nguyen, Richard Nomura, Vui Phan, Robert Powroznik, Bruce Probert, Larry Salmi, Andy Sasidiak, Colin R. Smith, Donna Sonnenberg, Den van Ta, Cedric Towers, Thanh S. Tra, George Tudor, Mervin Tudor, Dieu To Ve, Albert White, Gary Williamson, Jerry A. Williamson, Spencer J. Williamson, Kenny Yoshikawa, Dorothy Zilcosky and Robert Zilcosky, Appellants; v. Her Majesty The Queen, Respondent, and Attorney General of Ontario, Attorney General of Quebec, Attorney General for Saskatchewan, Attorney General of Alberta, Tsawwassen First Nation, Haisla Nation, Songhees Indian Band, Malahat First Nation, T'Sou-ke First Nation, Snaw-naw-as (Nanoose) First Nation and Beecher Bay Indian Band (collectively Te'mexw Nations), Heiltsuk Nation, Musqueam Indian Band, Cowichan Tribes, Sportfishing Defence Alliance, B.C. Seafood Alliance, Pacific Salmon Harvesters Society, Aboriginal Fishing Vessel Owners Association, United Fishermen and Allied Workers Union, Japanese Canadian Fishermens Association, Atlantic Fishing Industry Alliance, Nee Tahi Buhn Indian Band, Tseshaht First Nation and Assembly of First Nations, Interveners. [page484]

184 Page 2 [2008] 2 S.C.R. 483 [2008] S.C.J. No SCC 41 File No.: Supreme Court of Canada Heard: December 11, 2007; Judgment: June 27, Present: McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ. (123 paras.) Appeal From: ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA Catchwords: Constitutional law -- Charter of Rights -- Right to equality -- Affirmative action programs -- Relationship between s. 15(1) and s. 15(2) of Canadian Charter of Rights and Freedoms -- Ambit and operation of s. 15(2) -- Communal fishing licence issued under pilot sales program granting members of three aboriginal bands exclusive right to fish for salmon for period of 24 hours -- Commercial, mainly non-aboriginal, fishers excluded from fishery at that time alleging a breach of their equality rights on basis of race-based discrimination -- Whether program protected by s. 15(2) of Charter. Constitutional law -- Charter of Rights -- Aboriginal rights and freedoms not affected by Charter -- Right to equality -- Communal fishing licence issued under pilot sales program granting members of three aboriginal bands exclusive right to fish for salmon for period of 24 hours -- Commercial, mainly non-aboriginal, fishers excluded from fishery at that time alleging a breach of their equality rights on basis of race-based discrimination -- Whether s. 25 of Canadian Charter of Rights and Freedoms applicable to insulate program from discrimination charge. [page485]

185 Page 3 Fisheries -- Commercial fishery -- Aboriginal Fisheries Strategy -- Communal fishing licence issued under pilot sales program granting members of three aboriginal bands exclusive right to fish for salmon for period of 24 hours -- Commercial, mainly non-aboriginal, fishers excluded from fishery at that time alleging a breach of their equality rights on basis of race-based discrimination -- Whether licence constitutional -- Canadian Charter of Rights and Freedoms, s. 15. Summary: The federal government's decision to enhance aboriginal involvement in the commercial fishery led to the Aboriginal Fisheries Strategy. A significant part of the Strategy was the introduction of three pilot sales programs, one of which resulted in the issuance of a communal fishing licence to three aboriginal bands, permitting fishers designated by the bands to fish for salmon in the mouth of the Fraser River for a period of 24 hours and to sell their catch. The appellants, who are all commercial fishers, mainly non-aboriginal, excluded from the fishery during this 24-hour period, participated in a protest fishery and were charged with fishing at a prohibited time. At their trial, they argued that the communal fishing licence discriminated against them on the basis of race. The trial judge found that the licence granted to the three bands was a breach of the appellants' equality rights under s. 15(1) of the Canadian Charter of Rights and Freedoms that was not justified under s. 1 of the Charter. Proceedings on all the charges were stayed. A summary convictions appeal by the Crown was allowed. The stay of proceedings was lifted and convictions were entered against the appellants. The Court of Appeal upheld that decision. Held: The appeal should be dismissed. The communal fishing licence was constitutional. Per McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.: The communal fishing licence falls within the ambit of s. 15(2) of the Charter, and the appellants' claim of a violation of s. 15 cannot succeed. [para. 3] Section 15(1) and s. 15(2) work together to promote the vision of substantive equality that underlies s. 15 as a whole. The focus of s. 15(1) is on preventing [page486] governments from making distinctions based on enumerated or analogous grounds that have the effect of perpetuating disadvantage or prejudice or imposing disadvantage on the basis of stereotyping. The focus of s. 15(2) is on enabling governments to pro-actively combat discrimination by developing programs aimed at helping disadvantaged groups improve their situation. Through s. 15(2), the Charter preserves the right of governments to implement such programs without fear of challenge under s. 15(1). It is thus open to the government, when faced with a s. 15 claim, to establish that the impugned program falls under s. 15(2) and is therefore constitutional. If the government fails to do so, the program must then receive full scrutiny under s. 15(1) to determine whether its impact is discriminatory. [para. 16] [para. 37] [para. 40] A distinction based on an enumerated or analogous ground in a government program will not constitute discrimination under s. 15 if, under s. 15(2): (1) the program has an ameliorative or remedial purpose; and (2) the program targets a disadvantaged group identified by the enumerated

186 Page 4 or analogous grounds. Given the language of the provision and its purpose, legislative goal is the paramount consideration in determining whether or not a program qualifies for s. 15(2) protection. The program's ameliorative purpose need not be its sole object. [para. 41] [para. 44] [para. 48] [para. 50] [para. 57] The government program at issue here is protected by s. 15(2) of the Charter. The communal fishing licence was issued pursuant to an enabling statute and regulations and qualifies as a "law, program or activity" within the meaning of s. 15(2). The program also "has as its object the amelioration of conditions of disadvantaged individuals or groups". The Crown describes numerous objectives for the program, which include negotiating solutions to aboriginal fishing rights claims, providing economic opportunities to native bands and supporting their progress towards self-sufficiency. The means chosen to achieve the purpose (special fishing privileges for aboriginal communities, constituting a benefit) are rationally related to serving that purpose. The Crown has thus established a credible ameliorative purpose for the program. The program also targets a disadvantaged group identified by the enumerated or analogous grounds. The bands granted the benefit were disadvantaged in terms of income, education and a host of other measures. This disadvantage, rooted in history, continues to this day. The fact that some individual members of the bands may not experience personal disadvantage does not negate the group disadvantage [page487] suffered by band members. It follows that the program does not violate the equality guarantee of s. 15 of the Charter. [para. 30] [paras ] [para. 61] With respect to s. 25 of the Charter, it is not clear that the communal fishing licence at issue lies within the provision's compass. The wording of s. 25 and the examples given therein suggest that only rights of a constitutional character are likely to benefit from s. 25. A second concern is whether, even if the fishing licence does fall under s. 25, the result would constitute an absolute bar to the appellants' s. 15 claim, as distinguished from an interpretive provision informing the construction of potentially conflicting Charter rights. Prudence suggests that these issues, which raise complex questions of the utmost importance to the peaceful reconciliation of aboriginal entitlements with the interests of all Canadians, are best left for resolution on a case-by-case basis as they arise. [paras ] Per Bastarache J.: Section 25 of the Charter operates to bar the appellants' constitutional challenge under s. 15. Although there is agreement with the restatement of the test for the application of s. 15 of the Charter set out in the main opinion, there is no need to go through a full s. 15 analysis before considering whether s. 25 applies. It is sufficient to establish the existence of a potential conflict between the pilot sales program and s. 15. [para. 75] [para. 77] [para. 108] Section 25 is not a mere canon of interpretation. It serves the purpose of protecting the rights of aboriginal peoples where the application of the Charter protections for individuals would diminish the distinctive, collective and cultural identity of an aboriginal group. This is consistent with the wording and history of the provision. The s. 25 shield against the intrusion of the Charter upon native rights or freedoms is restricted by s. 28 of the Charter, which provides for gender equality

187 Page 5 "[n]otwithstanding anything in this Charter". It is also restricted to its object, placing Charter rights and freedoms in juxtaposition to aboriginal rights and freedoms. This means in essence that only laws that actually impair native rights will be considered, not those that simply have incidental effects on natives. [paras ] [para. 89] [para. 93] [para. 97] [page488] The reference to "aboriginal and treaty rights" in s. 25 suggests that the focus of the provision is the uniqueness of those persons or communities mentioned in the Constitution; the rights protected are those that are unique to them because of their special status. Legislation that distinguishes between aboriginal and non-aboriginal people in order to protect interests associated with aboriginal culture, territory, sovereignty or the treaty process deserves to be shielded from Charter scrutiny. Laws adopted under the power set out in s. 91(24) of the Constitution Act, 1867 would normally fall into this category, the power being in relation to the aboriginal peoples as such, but not laws that fall under s. 88 of the Indian Act, because they are by definition laws of general application. "[O]ther rights or freedoms" in s. 25 comprise statutory rights which seek to protect interests associated with aboriginal culture, territory, self-government, and settlement agreements that are a replacement for treaty and aboriginal rights. But private rights of individual Indians held in a private capacity as ordinary Canadian citizens would not be protected. Section 25 reflects the imperative need to accommodate, recognize and reconcile aboriginal interests. [para. 103] [paras ] There are three steps in the application of s. 25. The first step requires an evaluation of the claim in order to establish the nature of the substantive Charter right and whether the claim is made out, prima facie. The second step requires an evaluation of the native right to establish whether it falls under s. 25. The third step requires a determination of the existence of a true conflict between the Charter right and the native right. [para. 111] Here, there is a prima facie case of discrimination pursuant to s. 15(1). The right given by the pilot sales program is limited to Aboriginals and has a detrimental effect on non-aboriginal commercial fishers who operate in the same region as the beneficiaries of the program. It is also clear that the disadvantage is related to racial differences. The native right falls under s. 25. The unique relationship between British Columbia aboriginal communities and the fishery should be enough to draw a link between the right to fish given to Aboriginals pursuant to the pilot sales program and the rights contemplated by s. 25. The right to fish has consistently been the object of claims based on aboriginal rights and treaty rights, the enumerated terms in the provisions. Furthermore, the Crown itself argued that these rights to fish were a first step in establishing [page489] a treaty right and s. 25 reflects the notions of reconciliation and negotiation present in the treaty process. Finally, the right in this case is totally dependent on the exercise of powers given to Parliament under s. 91(24) of the Constitution Act, 1867, which deals with Indians. The Charter cannot be interpreted as rendering unconstitutional the exercise of powers consistent with the purposes of s. 91(24), nor is it rational to believe that every exercise of the s. 91(24) jurisdiction requires a justification under s.

188 Page 6 1 of the Charter. Section 25 is a necessary partner to s. 35(1) of the Constitution Act, 1982; it protects s. 35(1) purposes and enlarges the reach of measures needed to fulfill the promise of reconciliation. There is also a real conflict here, since the right to equality afforded to every individual under s. 15 is not capable of application consistently with the rights of aboriginal fishers holding licences under the pilot sales program. Section 25 of the Charter accordingly applies in the present situation and provides a full answer to the claim. [para. 116] [paras ] Cases Cited By McLachlin C.J. and Abella J. Considered: Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497; referred to: R. v. Sparrow, [1990] 1 S.C.R. 1075; R. v. Van der Peet, [1996] 2 S.C.R. 507; Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010; R. v. Oakes, [1986] 1 S.C.R. 103; Athabasca Tribal Council v. Amoco Canada Petroleum Co., [1981] 1 S.C.R. 699; Lovelace v. Ontario, [2000] 1 S.C.R. 950, 2000 SCC 37; Manitoba Rice Farmers Association v. Human Rights Commission (Man.) (1987), 50 Man. R. (2d) 92, rev'd in part (1988), 55 Man. R. (2d) 263; R. v. Music Explosion Ltd. (1989), 62 Man. R. (2d) 189, rev'd (1990), 68 Man. R. (2d) 203; Re Rebic and The Queen (1985), 20 C.C.C. (3d) 196, aff'd (1986), 28 C.C.C. (3d) 154; Re M and The Queen (1985), 21 C.C.C. (3d) 116; Miron v. Trudel, [1995] 2 S.C.R. 418; Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R By Bastarache J. Referred to: R. v. Sparrow, [1990] 1 S.C.R. 1075; Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497; R. v. Ulybel Enterprises Ltd., [2001] 2 S.C.R. 867, 2001 SCC 56; Reference re Secession of Quebec, [1998] 2 S.C.R. 217; Reference re Bill 30, An Act to amend the Education [page490] Act (Ont.), [1987] 1 S.C.R. 1148; R. v. Daoust, [2004] 1 S.C.R. 217, 2004 SCC 6; Adler v. Ontario, [1996] 3 S.C.R. 609; R. v. Drybones, [1970] S.C.R. 282; Attorney General of Canada v. Lavell, [1974] S.C.R. 1349; Mahe v. Alberta, [1990] 1 S.C.R. 342; R. v. Steinhauer, [1985] 3 C.N.L.R. 187; Campbell v. British Columbia (Attorney General), [2000] 4 C.N.L.R. 1; Shubenacadie Band Council v. Canada (Human Rights Commission) (2000), 37 C.H.R.R. D/466; R. v. Nicholas, [1989] 2 C.N.L.R. 131; R. v. Van der Peet, [1996] 2 S.C.R. 507; R. v. Oakes, [1986] 1 S.C.R. 103; Mitchell v. M.N.R., [2001] 1 S.C.R. 911, 2001 SCC 33; Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203; Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511, 2004 SCC 73; Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), [2004] 3 S.C.R. 550, 2004 SCC 74; Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010; Lalonde v. Ontario (Commission de restructuration des services de santé) (2001), 56 O.R. (3d) 505. Statutes and Regulations Cited

189 Page 7 Aboriginal Communal Fishing Licences Regulations, SOR/93-332, s. 2 "aboriginal organization". Canadian Bill of Rights, R.S.C. 1985, App. III, s. 2. Canadian Charter of Rights of Freedoms, ss. 1, 2, 3, 15, 16(3), 21, 25, 27, 28, 29, 32(1)(a). Constitution Act, 1867, ss. 91(24), 93. Constitution Act, 1982, s. 35. Constitution Amendment Proclamation, 1983, R.S.C. 1985, App. II, No. 46. Fisheries Act, R.S.C. 1985, c. F-14. Indian Act, R.S.C. 1985, c. I-5, ss. 81, 83, 85.1, 88. Authors Cited Arbour, Jane M. "The Protection of Aboriginal Rights Within a Human Rights Regime: In Search of an Analytical Framework for Section 25 of the Canadian Charter of Rights and Freedoms" (2003), 21 S.C.L.R. (2d) 3. Baines, Beverley. "Equality, Comparison, Discrimination, Status", in Fay Faraday, Margaret Denike and M. Kate Stephenson, eds., Making Equality Rights Real: Securing Substantive Equality under the Charter. Toronto: Irwin Law, 2006, 73. Bartlett, Richard H. "Survey of Canadian Law: Indian and Native Law" (1983), 15 Ottawa L. Rev Bredt, Christopher D., and Adam M. Dodek. "Breaking the Law's Grip on Equality: A New Paradigm for Section 15" (2003), 20 S.C.L.R. (2d) 33. [page491] Brunelle, Christian. "La dignité dans la Charte des droits et libertés de la personne: de l'ubiquité à l'ambiguïté d'une notion fondamentale", dans La Charte québécoise: origines, enjeux et perspectives, [2006] R. du B. (numéro thématique) 143. Canada. Commission of Inquiry on Equality in Employment. Report of the Commission on Equality in Employment. Ottawa: Supply and Services Canada, Canada. Commission on Pacific Fisheries Policy. Turning the Tide: A New Policy For Canada's Pacific Fisheries: Final Report. Vancouver: The Commission, 1982.

190 Page 8 Canada. Fisheries and Oceans. An Evaluation of the Pilot Sale Arrangement of Aboriginal Fisheries Strategy (AFS). Halifax: Gardner Pinfold Consulting Economists, Canada. Government of Canada. White paper on the Constitution. A Time for Action: Toward the Renewal of the Canadian Federation. Ottawa: Government of Canada, Canada. Senate. House of Commons. Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada. Minutes of Proceedings and Evidence, Issue No. 3, November 12, 1980, pp. 68 and 84. Cumming, Peter. "Canada's North and Native Rights", in Bradford W. Morse, ed., Aboriginal Peoples and the Law: Indian, Metis and Inuit Rights in Canada. Ottawa: Carleton University Press, 1985, 695. Dickson, Timothy. "Section 25 and Intercultural Judgment" (2003), 61 U.T. Fac. L. Rev Drumbl, Mark A., and John D. R. Craig. "Affirmative Action in Question: A Coherent Theory for Section 15(2)" (1997), 4 Rev. Const. Stud. 80. Fyfe, R. James. "Dignity as Theory: Competing Conceptions of Human Dignity at the Supreme Court of Canada" (2007), 70 Sask. L. Rev. 1. Gilbert, Daphne. "Time to Regroup: Rethinking Section 15 of the Charter" (2003), 48 McGill L.J Gilbert, Daphne, and Diana Majury. "Critical Comparisons: The Supreme Court of Canada Dooms Section 15" (2006), 24 Windsor Y.B. Access Just Goldenberg, André. "'Salmon for Peanut Butter': Equality, Reconciliation and the Rejection of Commercial Aboriginal Rights" (2004), 3 Indigenous L.J. 61. Greschner, Donna. "Does Law Advance the Cause of Equality?" (2001), 27 Queen's L.J Greschner, Donna. "The Purpose of Canadian Equality Rights" (2002), 6 Rev. Const. Stud Hogg, Peter W. Constitutional Law of Canada, 5th ed. Supp. Scarborough, Ont.: Thomson/Carswell, 2007 (loose-leaf updated 2007, release 2). [page492] Hutchinson, Celeste. "Case Comment on R. v. Kapp: An Analytical Framework for Section 25 of the Charter" (2007), 52 McGill L.J. 173.

191 Page 9 Isaac, Thomas. "Canadian Charter of Rights and Freedoms: The Challenge of the Individual and Collective Rights of Aboriginal People" (2002), 21 Windsor Y.B. Access Just Juriansz, Russell G. "Recent Developments in Canadian Law: Anti-Discrimination Law Part I" (1987), 19 Ottawa L. Rev Kymlicka, Will. Multicultural Citizenship: A Liberal Theory of Minority Rights. New York: Oxford University Press, Lepofsky, M. David, and Jerome E. Bickenbach. "Equality Rights and the Physically Handicapped", in Anne F. Bayefsky and Mary Eberts, eds., Equality Rights and the Canadian Charter of Rights and Freedoms. Toronto: Carswell, 1985, 323. Lyon, Noel. "Constitutional Issues in Native Law", in Bradford W. Morse, ed., Aboriginal Peoples and the Law: Indian, Metis and Inuit Rights in Canada. Ottawa: Carleton University Press, 1985, 408. Lysyk, Kenneth M. "The Rights and Freedoms of the Aboriginal Peoples of Canada", in Walter S. Tarnopolsky and Gérald-A. Beaudoin, eds., The Canadian Charter of Rights and Freedoms: Commentary. Toronto: Carswell, 1982, 467. Macklem, Patrick. Indigenous Difference and the Constitution of Canada. Toronto: University of Toronto Press, Martin, Sheilah. "Balancing Individual Rights to Equality and Social Goals" (2001), 80 Can. Bar Rev McAllister, Debra M. "Section The Unpredictability of the Law Test" ( ), 15 N.J.C.L. 3. McIntyre, Sheila. "Deference and Dominance: Equality Without Substance", in Sheila McIntyre and Sanda Rodgers, eds., Diminishing Returns: Inequality and the Canadian Charter of Rights and Freedoms. Markham, Ont.: LexisNexis Butterworths, 2006, 95. McNeil, Kent. "The Constitutional Rights of the Aboriginal Peoples of Canada" (1982), 4 S.C.L.R Moran, Mayo. "Protesting Too Much: Rational Basis Review Under Canada's Equality Guarantee", in Sheila McIntyre and Sanda Rodgers, eds., Diminishing Returns: Inequality and the Canadian Charter of Rights and Freedoms. Markham, Ont.: LexisNexis Butterworths, 2006, 71. Moreau, Sophia Reibetanz. "Equality Rights and the Relevance of Comparator Groups" (2006), 5 J.L. & Equality 81.

192 Page 10 Morin, Alexandre. Le droit à l'égalité au Canada. Montréal: LexisNexis, Ontario English-French Legal Lexicon. Toronto: Ministry of the Attorney General, [page493] Oxford English Dictionary, vol. III, 2nd ed. Oxford: Clarendon Press, 1989, "construe". Peirce, Michael. "A Progressive Interpretation of Subsection 15(2) of the Charter" (1993), 57 Sask. L. Rev Pentney, William. "The Rights of the Aboriginal Peoples of Canada and the Constitution Act, 1982: Part I -- The Interpretive Prism of Section 25" (1988), 22 U.B.C. L. Rev. 21. Pentney, William F. The Aboriginal Rights Provisions in the Constitution Act, Saskatoon: University of Saskatchewan Native Law Centre, Picotte, Jacques. Juridictionnaire: Recueil des difficultés et des ressources du français juridique, t. I A. Moncton: École de droit, Université de Moncton, 1991, "atteinte". Pothier, Dianne. "Connecting Grounds of Discrimination to Real People's Real Experiences" (2001), 13 C.J.W.L. 37. Pothier, Dianne. "Equality as a Comparative Concept: Mirror, Mirror, on the Wall, What's the Fairest of Them All?", in Sheila McIntyre and Sanda Rodgers, eds., Diminishing Returns: Inequality and the Canadian Charter of Rights and Freedoms. Markham, Ont.: LexisNexis Butterworths, 2006, 135. Proulx, Daniel. "Le concept de dignité et son usage en contexte de discrimination: deux Chartes, deux modèles", [2003] R. du B. (numéro spécial) 485. Russell, Dan. A People's Dream: Aboriginal Self-Government in Canada. Vancouver: UBC Press, Ryder, Bruce, Cidalia C. Faria and Emily Lawrence. "What's Law Good For? An Empirical Overview of Charter Equality Rights Decisions" (2004), 24 S.C.L.R. (2d) 103. Sanders, Douglas. "Prior Claims: Aboriginal People in the Constitution of Canada", in Stanley M. Beck and Ivan Bernier, eds., Canada and the New Constitution: The Unfinished Agenda, vol. 1. Montreal: Institute for Research on Public Policy, 1983, 225. Sanders, Douglas. "The Rights of the Aboriginal Peoples of Canada" (1983), 61 Can. Bar Rev. 314.

193 Page 11 Schwartz, Bryan. First Principles: Constitutional Reform with Respect to the Aboriginal Peoples of Canada, Kingston, Ont.: Institute of Intergovernmental Relations, Queen's University, Shachar, Ayelet. "The Paradox of Multicultural Vulnerability: Individual Rights, Identity Groups, and the State", in Christian Joppke and Steven Lukes, eds., Multicultural Questions. New York: Oxford University Press, 1999, 87. Slattery, Brian. "The Constitutional Guarantee of Aboriginal and Treaty Rights" ( ), 8 Queen's L.J [page494] Wildsmith, Bruce H. Aboriginal Peoples & Section 25 of the Canadian Charter of Rights and Freedoms. Saskatoon: University of Saskatchewan Native Law Centre, Wilkins, Kerry. "... But We Need the Eggs: The Royal Commission, the Charter of Rights and the Inherent Right of Aboriginal Self-government" (1999), 49 U.T.L.J. 53. Zlotkin, Norman K. Unfinished Business: Aboriginal Peoples and the 1983 Constitutional Conference. Kingston, Ont.: Institute of Intergovernmental Relations, Queen's University, History and Disposition: APPEAL from a judgment of the British Columbia Court of Appeal (Finch C.J.B.C. and Mackenzie, Low, Levine and Kirkpatrick JJ.A.) (2006), 56 B.C.L.R. (4th) 11, 271 D.L.R. (4th) 70, [2006] 10 W.W.R. 577, 227 B.C.A.C. 248, 374 W.A.C. 248, 24 C.E.L.R. (3d) 99, [2006] 3 C.N.L.R. 282, 141 C.R.R. (2d) 249, [2006] B.C.J. No (QL), 2006 CarswellBC 1407, 2006 BCCA 277, affirming a decision of Brenner C.J.S.C. (2004), 31 B.C.L.R. (4th) 258, [2004] 3 C.N.L.R. 269, 121 C.R.R. (2d) 349, [2004] B.C.J. No (QL), 2004 CarswellBC 1607, 2004 BCSC 958, lifting a stay of proceedings by Kitchen Prov. Ct. J., [2003] 4 C.N.L.R. 238, [2003] B.C.J. No (QL), 2003 CarswellBC 1881, 2003 BCPC 279. Appeal dismissed. Counsel: Bryan Finlay, Q.C., J. Gregory Richards and Paul D. Guy, for the appellants. Croft Michaelson and Paul Riley, for the respondent. Sarah T. Kraicer and S. Zachary Green, for the intervener the Attorney General of Ontario. Isabelle Harnois and Brigitte Bussières, for the intervener the Attorney General of Quebec.

194 Page 12 Richard James Fyfe, for the intervener the Attorney General for Saskatchewan. Robert J. Normey, for the intervener the Attorney General of Alberta. Joseph J. Arvay, Q.C., and Jeffrey W. Beedell, for the intervener the Tsawwassen First Nation. [page495] Allan Donovan and Bram Rogachevsky, for the intervener the Haisla Nation. Robert J. M. Janes and Dominique Nouvet, for the interveners the Songhees Indian Band, the Malahat First Nation, the T'Sou-ke First Nation, the Snaw-naw-as (Nanoose) First Nation and the Beecher Bay Indian Band (collectively the Te'mexw Nations). Maria A. Morellato and Joanne R. Lysyk, for the interveners the Heiltsuk Nation and the Musqueam Indian Band. F. Matthew Kirchner and Lisa C. Glowacki, for the intervener the Cowichan Tribes. J. Keith Lowes, for the interveners the Sportfishing Defence Alliance, the B.C. Seafood Alliance, the Pacific Salmon Harvesters Society, the Aboriginal Fishing Vessel Owners Association and the United Fishermen and Allied Workers Union. John Carpay and Chris Schafer, for the intervener the Japanese Canadian Fishermens Association. Kevin O'Callaghan and Katey Grist, for the intervener the Atlantic Fishing Industry Alliance. Ryan D. W. Dalziel, for the intervener the Nee Tahi Buhn Indian Band. Hugh M. G. Braker, Q.C., and Anja P. Brown, for the intervener the Tseshaht First Nation. Bryan P. Schwartz and Jack R. London, Q.C., for the intervener the Assembly of First Nations. The judgment of McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ. was delivered by McLACHLIN C.J. and ABELLA J.:-- A. Introduction

195 Page 14 6 The government's decision to enhance aboriginal involvement in the commercial fishery followed the recommendations of the 1982 Pearse Final Report, which endorsed the negotiation of aboriginal fishery agreements (Turning the Tide: A New Policy For Canada's Pacific Fisheries). The Pearse Report recognized the problematic connection between aboriginal communities' economic disadvantage and the longstanding prohibition against selling fish -- a prohibition that disrupted what was once an important economic opportunity for Aboriginals. Policing the prohibition was also problematic; the 1994 Gardner Pinfold Report addressed the serious conservation issue stemming from a fish sales prohibition "honoured more in the breach than the observance" (An Evaluation of the Pilot Sale Arrangement of Aboriginal Fisheries [page498] Strategy (AFS), p. 3). The decision to enhance aboriginal participation in the commercial fishery may also be seen as a response to the directive of this Court in Sparrow, at p. 1119, that the government consult with aboriginal groups in the implementation of fishery regulation in order to honour its fiduciary duty to aboriginal communities. Subsequent decisions have affirmed the duty to consult and accommodate aboriginal communities with respect to resource development and conservation; it is a constitutional duty, the fulfilment of which is consistent with the honour of the Crown: see e.g. Delgamuukw v. British Columbia, [1997] 3 S.C.R The federal government's policies aimed at giving aboriginal people a share of the commercial fishery took different forms, united under the umbrella of the "Aboriginal Fisheries Strategy". Introduced in 1992, the Aboriginal Fisheries Strategy has three stated objectives: ensuring the rights recognized by the Sparrow decision are respected; providing aboriginal communities with a larger role in fisheries management and increased economic benefits; and minimizing the disruption of non-aboriginal fisheries (1994 Gardner Pinfold Report). In response to consultations with stakeholders carried out since its inception, the Aboriginal Fisheries Strategy has been reviewed and adjusted periodically in order to achieve these goals. A significant part of the Aboriginal Fisheries Strategy was the introduction of three pilot sales programs, one of which resulted in the issuance of the communal fishing licence at issue in this case. The licence was granted pursuant to the Aboriginal Communal Fishing Licences Regulations, SOR/ ("ACFLR"). The ACFLR grants communal licences to "aboriginal organization[s]", defined as including "an Indian band, an Indian band council, a tribal council and an organization that represents a territorially based aboriginal community" (s. 2). The communal licence cannot be granted to [page499] individuals, but an aboriginal organization can designate its use to individuals. 8 The licence with which we are concerned permitted fishers designated by the bands to fish for sockeye salmon between 7:00 a.m on August 19, 1998 and 7:00 a.m. on August 20, 1998, and to use the fish caught for food, social and ceremonial purposes, and for sale. Some of the fishers designated by the bands to fish under the communal fishing licence were also licensed commercial fishers entitled to fish at other openings for commercial fishers. 9 The appellants are all commercial fishers who were excluded from the fishery during the 24 hours allocated to the aboriginal fishery under the communal fishing licence. Under the auspices of the B.C. Fisheries Survival Coalition, they participated in a protest fishery during the prohibited

196 Page 1 Indexed as: Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council Rio Tinto Alcan Inc. and British Columbia Hydro and Power Authority, Appellants; v. Carrier Sekani Tribal Council, Respondent, and Attorney General of Canada, Attorney General of Ontario, Attorney General of British Columbia, Attorney General of Alberta, British Columbia Utilities Commission, Mikisew Cree First Nation, Moosomin First Nation, Nunavut Tunngavik Inc., Nlaka'pamux Nation Tribal Council, Okanagan Nation Alliance, Upper Nicola Indian Band, Lakes Division of the Secwepemc Nation, Assembly of First Nations, Standing Buffalo Dakota First Nation, First Nations Summit, Duncan's First Nation, Horse Lake First Nation, Independent Power Producers Association of British Columbia, Enbridge Pipelines Inc. and TransCanada Keystone Pipeline GP Ltd., Interveners. [2010] 2 S.C.R. 650 [2010] 2 R.C.S. 650 [2010] S.C.J. No. 43 [2010] A.C.S. no SCC 43 File No.: Supreme Court of Canada Heard: May 21, 2010; Judgment: October 28, Present: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.

197 Page 2 (95 paras.) Appeal From: ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA Catchwords: Constitutional law -- Honour of the Crown -- Aboriginal peoples -- Aboriginal rights -- Right to consultation -- British Columbia authorized project altering timing and flow of water in area claimed by First Nations [page651] without consulting affected First Nations -- Thereafter, provincial hydro and power authority sought British Columbia Utilities Commission's approval of agreement to purchase power generated by project from private producer -- Duty to consult arises when Crown knows of potential Aboriginal claim or right and contemplates conduct that may adversely affect it -- Whether Commission reasonably declined to consider adequacy of consultation in context of assessing whether agreement is in public interest -- Whether duty to consult arose -- What constitutes "adverse effect" -- Constitution Act, 1982, s Utilities Commission Act, R.S.B.C. 1996, c. 473, s. 71. Administrative law -- Boards and tribunals -- Jurisdiction -- British Columbia authorized project altering timing and flow of water in area claimed by First Nations without consulting affected First Nations -- Thereafter, provincial hydro and power authority sought British Columbia Utilities Commission's approval of agreement to purchase power generated by project from private producer -- Commission empowered to decide questions of law and to determine whether agreement is in public interest -- Whether Commission had jurisdiction to discharge Crown's constitutional obligation to consult -- Whether Commission had jurisdiction to consider adequacy of consultation -- If so, whether it was required to consider adequacy of consultation in determining whether agreement is in public interest -- Constitution Act, 1982, s Utilities Commission Act, R.S.B.C. 1996, c. 473, s. 71. Summary: In the 1950s, the government of British Columbia authorized the building of a dam and reservoir which altered the amount and timing of water flows in the Nechako River. The First Nations claim the Nechako Valley as their ancestral homeland, and the right to fish in the Nechako River, but, pursuant to the practice at the time, they were not consulted about the dam project. Since 1961, excess power generated by the dam has been sold by Alcan to BC Hydro under Energy Purchase Agreements ("EPAs") which commit Alcan to supplying and BC Hydro to purchasing excess electricity. The government of British Columbia sought the [page652] Commission's approval of the 2007 EPA. The First Nations asserted that the 2007 EPA should be subject to

198 Page 3 consultation under s. 35 of the Constitution Act, The Commission accepted that it had the power to consider the adequacy of consultation with Aboriginal groups, but found that the consultation issue could not arise because the 2007 EPA would not adversely affect any Aboriginal interest. The British Columbia Court of Appeal reversed the Commission's orders and remitted the case to the Commission for evidence and argument on whether a duty to consult the First Nations exists and, if so, whether it had been met. Alcan and BC Hydro appealed. Held: The appeal should be allowed and the decision of the British Columbia Utilities Commission approving the 2007 EPA should be confirmed. The Commission did not act unreasonably in approving the 2007 EPA. Governments have a duty to consult with Aboriginal groups when making decisions which may adversely impact lands and resources to which Aboriginal peoples lay claim. The duty to consult is grounded in the honour of the Crown and is a corollary of the Crown's obligation to achieve the just settlement of Aboriginal claims through the treaty process. While the treaty claims process is ongoing, there is an implied duty to consult with Aboriginal claimants on matters that may adversely affect their treaty and Aboriginal rights, and to accommodate those interests in the spirit of reconciliation. The duty has both a legal and a constitutional character, and is prospective, fastening on rights yet to be proven. The nature of the duty and the remedy for its breach vary with the situation. The duty to consult arises when the Crown has knowledge, real or constructive, of the potential existence of the Aboriginal right or title and contemplates conduct that might adversely affect it. This test can be broken down into three elements. First, the Crown must have real or constructive knowledge of a potential Aboriginal claim or right. While the existence of a potential claim is essential, proof that the claim will succeed is not. Second, there must be Crown conduct or a Crown decision. In accordance with the generous, purposive approach that must be brought to the duty to consult, the required decision or conduct is not confined to government exercise of statutory powers or to decisions or conduct which have an immediate impact [page653] on lands and resources. The duty to consult extends to "strategic, higher level decisions" that may have an impact on Aboriginal claims and rights. Third, there must be a possibility that the Crown conduct may affect the Aboriginal claim or right. The claimant must show a causal relationship between the proposed government conduct or decision and a potential for adverse impacts on pending Aboriginal claims or rights. Past wrongs, speculative impacts, and adverse effects on a First Nation's future negotiating position will not suffice. Moreover, the duty to consult is confined to the adverse impacts flowing from the current government conduct or decision, not to larger adverse impacts of the project of which it is a part. Where the resource has long since been altered and the present government conduct or decision does not have any further impact on the resource, the issue is not consultation, but negotiation about compensation. Tribunals are confined to the powers conferred on them by their constituent legislation, and the role

199 Page 4 of particular tribunals in relation to consultation depends on the duties and powers the legislature has conferred on them. The legislature may choose to delegate the duty to consult to a tribunal, and it may empower the tribunal to determine whether adequate consultation has taken place. The power to engage in consultation itself, as distinct from the jurisdiction to determine whether a duty to consult exists, cannot be inferred from the mere power to consider questions of law. Consultation itself is not a question of law; it is a distinct, often complex, constitutional process and, in certain circumstances, a right involving facts, law, policy, and compromise. The tribunal seeking to engage in consultation must be expressly or impliedly empowered to do so and its enabling statute must give it the necessary remedial powers. The duty to consult is a constitutional duty invoking the honour of the Crown. It must be met. If the tribunal structure set up by the legislature is incapable of dealing with a decision's potential adverse impacts on Aboriginal interests, then the Aboriginal peoples affected must seek appropriate remedies in the courts. These remedies have proven time-consuming and expensive, are often ineffective, and serve the interest of no one. [page654] In this case, the Commission had the power to consider whether adequate consultation had taken place. The Utilities Commission Act empowered it to decide questions of law in the course of determining whether an EPA is in the public interest, which implied a power to decide constitutional issues properly before it. At the time, it also required the Commission to consider "any other factor that the commission considers relevant to the public interest", including the adequacy of consultation. This conclusion is not altered by the Administrative Tribunals Act, which provides that a tribunal does not have jurisdiction over any "constitutional question", since the application for reconsideration does not fall within the narrow statutory definition of that term. The Legislature did not delegate the Crown's duty to consult to the Commission. The Commission's power to consider questions of law and matters relevant to the public interest does not empower it to engage in consultation because consultation is a distinct constitutional process, not a question of law. The Commission correctly accepted that it had the power to consider the adequacy of consultation with Aboriginal groups, and reasonably concluded that the consultation issue could not arise because the 2007 EPA would not adversely affect any Aboriginal interest. In this case, the Crown had knowledge of a potential Aboriginal claim or right and BC Hydro's proposal to enter into an agreement to purchase electricity from Alcan is clearly proposed Crown conduct. However, the 2007 EPA would have neither physical impacts on the Nechako River or the fishery nor organizational, policy or managerial impacts that might adversely affect the claims or rights of the First Nations. The failure to consult on the initial project was an underlying infringement, and was not sufficient to trigger a duty to consult. Charged with the duty to act in accordance with the

200 Page 5 honour of Crown, BC Hydro's representatives will nevertheless be required to take into account and consult as necessary with affected Aboriginal groups insofar as any decisions taken in the future have the potential to adversely affect them. Cases Cited Followed: Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511; referred to: R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483; Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), 2004 SCC 74, [page655] [2004] 3 S.C.R. 550; Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69, [2005] 3 S.C.R. 388; Huu-Ay-Aht First Nation v. British Columbia (Minister of Forests), 2005 BCSC 697, [2005] 3 C.N.L.R. 74; Wii'litswx v. British Columbia (Minister of Forests), 2008 BCSC 1139, [2008] 4 C.N.L.R. 315; Klahoose First Nation v. Sunshine Coast Forest District (District Manager), 2008 BCSC 1642, [2009] 1 C.N.L.R. 110; Dene Tha' First Nation v. Canada (Minister of Environment), 2006 FC 1354, [2007] 1 C.N.L.R. 1, aff'd 2008 FCA 20, 35 C.E.L.R. (3d) 1; An Inquiry into British Columbia's Electricity Transmission Infrastructure & Capacity Needs for the Next 30 Years, Re, 2009 CarswellBC 3637; R. v. Lefthand, 2007 ABCA 206, 77 Alta. L.R. (4) 203; R. v. Douglas, 2007 BCCA 265, 278 D.L.R. (4) 653; R. v. Conway, 2010 SCC 22, [2010] 1 S.C.R. 765; Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339; Paul v. British Columbia (Forest Appeals Commission), 2003 SCC 55, [2003] 2 S.C.R. 585; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R Statutes and Regulations Cited Administrative Tribunals Act, S.B.C. 2004, c. 45, ss. 1, 44(1), 58. Constitution Act, 1867, s. 91(12). Constitution Act, 1982, ss. 24, 35, 52. Constitutional Question Act, R.S.B.C. 1996, c. 68, s. 8. Utilities Commission Act, R.S.B.C. 1996, c. 473, ss. 2(4), 71, 79, 101(1), 105. Authors Cited Newman, Dwight G. The Duty to Consult: New Relationships with Aboriginal Peoples. Saskatoon: Purich Publishing, Slattery, Brian. "Aboriginal Rights and the Honour of the Crown" (2005), 29 S.C.L.R. (2d) 433. Woodward, Jack. Native Law, vol. 1. Toronto: Carswell, 1994 (loose-leaf updated 2010, release 4).

201 Page 6 History and Disposition: APPEAL from a judgment of the British Columbia Court of Appeal (Donald, Huddart and Bauman JJ.A.), 2009 BCCA 67, 89 B.C.L.R. (4) 298, 266 B.C.A.C. 228, 449 W.A.C. 228, [2009] 2 C.N.L.R. 58, [2009] 4 W.W.R. 381, 76 R.P.R. (4) 159, [2009] B.C.J. No. 259 (QL), 2009 CarswellBC 340, allowing an appeal from a decision of the British Columbia Utilities Commission, 2008 CarswellBC 1232, and remitting the consultation issue to the Commission. Appeal allowed; decision [page656] of the British Columbia Utilities Commission approving 2007 EPA confirmed. Counsel: Daniel A. Webster, Q.C., David W. Bursey and Ryan D. W. Dalziel, for the appellant Rio Tinto Alcan Inc. Chris W. Sanderson, Q.C., Keith B. Bergner and Laura Bevan, for the appellant the British Columbia Hydro and Power Authority. Gregory J. McDade, Q.C., and Maegen M. Giltrow, for the respondent. Mitchell R. Taylor, Q.C., for the intervener the Attorney General of Canada. Malliha Wilson and Tamara D. Barclay, for the intervener the Attorney General of Ontario. Paul E. Yearwood, for the intervener the Attorney General of British Columbia. Stephanie C. Latimer, for the intervener the Attorney General of Alberta. Written submissions only by Gordon A. Fulton, Q.C., for the intervener the British Columbia Utilities Commission. Written submissions only by Robert C. Freedman and Rosanne M. Kyle, for the intervener the Mikisew Cree First Nation. Written submissions only by Jeffrey R. W. Rath and Nathalie Whyte, for the intervener the Moosomin First Nation. Richard Spaulding, for the intervener Nunavut Tunngavik Inc. Written submissions only by Timothy Howard and Bruce Stadfeld, for the interveners the Nlaka'pamux Nation Tribal Council, the Okanagan Nation Alliance and the Upper Nicola Indian Band. Robert J. M. Janes, for the intervener the Lakes Division of the Secwepemc Nation.

202 Page 7 [page657] Peter W. Hutchins and David Kalmakoff, for the intervener the Assembly of First Nations. Written submissions only by Mervin C. Phillips, for the intervener the Standing Buffalo Dakota First Nation. Arthur C. Pape and Richard B. Salter, for the intervener the First Nations Summit. Jay Nelson, for the interveners the Duncan's First Nation and the Horse Lake First Nation. Roy W. Millen, for the intervener the Independent Power Producers Association of British Columbia. Written submissions only by Harry C. G. Underwood, for the intervener Enbridge Pipelines Inc. Written submissions only by C. Kemm Yates, Q.C., for the intervener the TransCanada Keystone Pipeline GP Ltd. The judgment of the Court was delivered by 1 McLACHLIN C.J.:-- In the 1950s, the government of British Columbia authorized the building of the Kenney Dam in Northwest British Columbia for the production of hydro power for the smelting of aluminum. The dam and reservoir altered the water flows to the Nechako River, which the Carrier Sekani Tribal Council ("CSTC") First Nations have since time immemorial used for fishing and sustenance. This was done without consulting with the CSTC First Nations. Now, the government of British Columbia seeks approval of a contract for the sale of excess power from the dam to British Columbia Hydro and Power Authority ("BC Hydro"), a Crown corporation. The question is whether the British Columbia Utilities Commission (the "Commission") is required to consider the issue of consultation with the CSTC First Nations in determining whether the sale is in the public interest. [page658] 2 In Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511, this Court affirmed that governments have a duty to consult with Aboriginal groups when making decisions which may adversely impact lands and resources to which Aboriginal peoples lay claim. In the intervening years, government-aboriginal consultation has become an important part of the

203 Page Grounded in the honour of the Crown, the duty has both a legal and a constitutional character: R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483, at para. 6. The duty seeks to provide protection to Aboriginal and treaty rights while furthering the goals of reconciliation between Aboriginal peoples and the Crown. Rather than pitting Aboriginal peoples against the Crown in the litigation process, the duty recognizes that both must work together to reconcile their interests. It also accommodates the reality that often Aboriginal peoples are involved in exploiting the resource. Shutting down development by court injunction may serve the interest of no one. The honour of the Crown is therefore best reflected by a requirement for consultation with a view to reconciliation. 35 Haida Nation sets the framework for dialogue prior to the final resolution of claims by requiring the Crown to take contested or established Aboriginal rights into account before making a decision that may have an adverse impact on them: J. Woodward, Native Law, vol. 1 (loose-leaf), at p The duty is prospective, fastening on rights yet to be proven. 36 The nature of the duty varies with the situation. The richness of the required consultation increases with the strength of the prima facie Aboriginal claim and the seriousness of the impact on the underlying Aboriginal or treaty right: Haida Nation, at paras , and Taku River Tlingit First Nation v. British Columbia (Project Assessment [page671] Director), 2004 SCC 74, [2004] 3 S.C.R. 550, at para The remedy for a breach of the duty to consult also varies with the situation. The Crown's failure to consult can lead to a number of remedies ranging from injunctive relief against the threatening activity altogether, to damages, to an order to carry out the consultation prior to proceeding further with the proposed government conduct: Haida Nation, at paras The duty to consult embodies what Brian Slattery has described as a "generative" constitutional order which sees "section 35 as serving a dynamic and not simply static function" ("Aboriginal Rights and the Honour of the Crown" (2005), 29 S.C.L.R. (2d) 433, at p. 440). This dynamicism was articulated in Haida Nation as follows, at para. 32:... the duty to consult and accommodate is part of a process of fair dealing and reconciliation that begins with the assertion of sovereignty and continues beyond formal claims resolution. Reconciliation is not a final legal remedy in the usual sense. Rather, it is a process flowing from rights guaranteed by s. 35(1) of the Constitution Act, As the post-haida Nation case law confirms, consultation is "[c]oncerned with an ethic of ongoing relationships" and seeks to further an ongoing process of reconciliation by articulating a preference for remedies "that promote ongoing negotiations": D. G. Newman, The Duty to Consult: New Relationships with Aboriginal Peoples (2009), at p Against this background, I now turn to the three elements that give rise to a duty to consult.

204 Page 20 [page677] or the management of the contested resource, the duty to consult may be triggered because the 2007 EPA is part of a larger hydro-electric project which continues to impact its rights. The effect of this proposition is that if the Crown proposes an action, however limited, that relates to a project that impacts Aboriginal claims or rights, a fresh duty to consult arises. The current government action or decision, however inconsequential, becomes the hook that secures and reels in the constitutional duty to consult on the entire resource. 53 I cannot accept this view of the duty to consult. Haida Nation negates such a broad approach. It grounded the duty to consult in the need to preserve Aboriginal rights and claims pending resolution. It confines the duty to consult to adverse impacts flowing from the specific Crown proposal at issue - not to larger adverse impacts of the project of which it is a part. The subject of the consultation is the impact on the claimed rights of the current decision under consideration. 54 The argument for a broader duty to consult invokes the logic of the fruit of the poisoned tree - an evidentiary doctrine that holds that past wrongs preclude the Crown from subsequently benefiting from them. Thus, it is suggested that the failure to consult with the CSTC First Nations on the initial dam and water diversion project prevents any further development of that resource without consulting on the entirety of the resource and its management. Yet, as Haida Nation pointed out, the failure to consult gives rise to a variety of remedies, including damages. An order compelling consultation is only appropriate where the proposed Crown conduct, immediate or prospective, may adversely impact on established or claimed rights. Absent this, other remedies may be more appropriate. [page678] B. The Role of Tribunals in Consultation 55 The duty on a tribunal to consider consultation and the scope of that inquiry depends on the mandate conferred by the legislation that creates the tribunal. Tribunals are confined to the powers conferred on them by their constituent legislation: R. v. Conway, 2010 SCC 22, [2010] 1 S.C.R It follows that the role of particular tribunals in relation to consultation depends on the duties and powers the legislature has conferred on it. 56 The legislature may choose to delegate to a tribunal the Crown's duty to consult. As noted in Haida Nation, it is open to governments to set up regulatory schemes to address the procedural requirements of consultation at different stages of the decision-making process with respect to a resource. 57 Alternatively, the legislature may choose to confine a tribunal's power to determinations of whether adequate consultation has taken place, as a condition of its statutory decision-making process. In this case, the tribunal is not itself engaged in the consultation. Rather, it is reviewing

205 Page 21 whether the Crown has discharged its duty to consult with a given First Nation about potential adverse impacts on their Aboriginal interest relevant to the decision at hand. 58 Tribunals considering resource issues touching on Aboriginal interests may have neither of these duties, one of these duties, or both depending on what responsibilities the legislature has conferred on them. Both the powers of the tribunal to consider questions of law and the remedial powers granted it by the legislature are relevant considerations in determining the contours of that tribunal's jurisdiction: Conway. As such, they are also relevant to determining whether a particular tribunal has a duty to consult, a duty to consider consultation, or no duty at all. 59 The decisions below and the arguments before us at times appear to merge the different [page679] duties of consultation and its review. In particular, it is suggested that every tribunal with jurisdiction to consider questions of law has a constitutional duty to consider whether adequate consultation has taken place and, if not, to itself fulfill the requirement regardless of whether its constituent statute so provides. The reasoning seems to be that this power flows automatically from the power of the tribunal to consider legal and hence constitutional questions. Lack of consultation amounts to a constitutional vice that vitiates the tribunal's jurisdiction and, in the case before us, makes it inconsistent with the public interest. In order to perform its duty, it must rectify the vice by itself engaging in the missing consultation. 60 This argument cannot be accepted, in my view. A tribunal has only those powers that are expressly or implicitly conferred on it by statute. In order for a tribunal to have the power to enter into interim resource consultations with a First Nation, pending the final settlement of claims, the tribunal must be expressly or impliedly authorized to do so. The power to engage in consultation itself, as distinct from the jurisdiction to determine whether a duty to consult exists, cannot be inferred from the mere power to consider questions of law. Consultation itself is not a question of law; it is a distinct and often complex constitutional process and, in certain circumstances, a right involving facts, law, policy, and compromise. The tribunal seeking to engage in consultation itself must therefore possess remedial powers necessary to do what it is asked to do in connection with the consultation. The remedial powers of a tribunal will depend on that tribunal's enabling statute, and will require discerning the legislative intent: Conway, at para A tribunal that has the power to consider the adequacy of consultation, but does not itself have the power to enter into consultations, should provide whatever relief it considers appropriate in the circumstances, in accordance with the remedial powers expressly or impliedly conferred upon it by [page680] statute. The goal is to protect Aboriginal rights and interests and to promote the reconciliation of interests called for in Haida Nation. 62 The fact that administrative tribunals are confined to the powers conferred on them by the legislature, and must confine their analysis and orders to the ambit of the questions before them on a particular application, admittedly raises the concern that governments may effectively avoid their duty to consult by limiting a tribunal's statutory mandate. The fear is that if a tribunal is denied the

206 Page 23 consider the issue of consultation. 68 As discussed above, issues of consultation between the Crown and Aboriginal groups arise from s. 35 of the Constitution Act, They therefore have a constitutional dimension. The question is whether the Commission possessed the power to [page682] consider such an issue. As discussed, above, tribunals are confined to the powers conferred on them by the legislature: Conway. We must therefore ask whether the Utilities Commission Act conferred on the Commission the power to consider the issue of consultation, grounded as it is in the Constitution. 69 It is common ground that the Utilities Commission Act empowers the Commission to decide questions of law in the course of determining whether the 2007 EPA is in the public interest. The power to decide questions of law implies a power to decide constitutional issues that are properly before it, absent a clear demonstration that the legislature intended to exclude such jurisdiction from the tribunal's power (Conway, at para. 81; Paul v. British Columbia (Forest Appeals Commission), 2003 SCC 55, [2003] 2 S.C.R. 585, at para. 39). "[S]pecialized tribunals with both the expertise and authority to decide questions of law are in the best position to hear and decide constitutional questions related to their statutory mandates": Conway, at para Beyond its general power to consider questions of law, the factors the Commission is required to consider under s. 71 of the Utilities Commission Act, while focused mainly on economic issues, are broad enough to include the issue of Crown consultation with Aboriginal groups. At the time, s. 71(2)(e) required the Commission to consider "any other factor that the commission considers relevant to the public interest". The constitutional dimension of the duty to consult gives rise to a special public interest, surpassing the dominantly economic focus of the consultation under the Utilities Commission Act. As Donald J.A. asked, "How can a contract formed by a Crown agent in breach of a constitutional duty be in the public interest?" (para. 42). 71 This conclusion is not altered by the Administrative Tribunals Act, which provides that a tribunal does not have jurisdiction over [page683] constitutional matters. Section 2(4) of the Utilities Commission Act makes certain sections of the Administrative Tribunals Act applicable to the Commission. This includes s. 44(1) which provides that "[t]he tribunal does not have jurisdiction over constitutional questions." However, "constitutional question" is defined narrowly in s. 1 of the Administrative Tribunals Act as "any question that requires notice to be given under section 8 of the Constitutional Question Act". Notice is required only for challenges to the constitutional validity or constitutional applicability of any law, or are application for a constitutional remedy. 72 The application to the Commission by the CSTC for a rescoping order to address consultation issues does not fall within this definition. It is not a challenge to the constitutional validity or applicability of a law, nor a claim for a constitutional remedy under s. 24 of the Charter or s. 52 of the Constitution Act, In broad terms, consultation under s. 35 of the Constitution Act, 1982 is a constitutional question: Paul, para. 38. However, the provisions of the Administrative Tribunals

207 Page 24 Act and the Constitutional Question Act do not indicate a clear intention on the part of the legislature to exclude from the Commission's jurisdiction the duty to consider whether the Crown has discharged its duty to consult with holders of relevant Aboriginal interests. It follows that, in applying the test articulated in Paul and Conway, the Commission has the constitutional jurisdiction to consider the adequacy of Crown consultation in relation to matters properly before it. 73 For these reasons, I conclude that the Commission had the power to consider whether adequate consultation with concerned Aboriginal peoples had taken place. 74 While the Utilities Commission Act conferred on the Commission the power to consider whether adequate consultation had taken place, [page684] its language did not extend to empowering the Commission to engage in consultations in order to discharge the Crown's constitutional obligation to consult. As discussed above, legislatures may delegate the Crown's duty to consult to tribunals. However, the Legislature did not do so in the case of the Commission. Consultation itself is not a question of law, but a distinct constitutional process requiring powers to effect compromise and do whatever is necessary to achieve reconciliation of divergent Crown and Aboriginal interests. The Commission's power to consider questions of law and matters relevant to the public interest does not empower it to itself engage in consultation with Aboriginal groups. 75 As the Court of Appeal rightly found, the duty to consult with Aboriginal groups, triggered when government decisions have the potential to adversely affect Aboriginal interests, is a constitutional duty invoking the honour of the Crown. It must be met. If the tribunal structure set up by the Legislature is incapable of dealing with a decision's potential adverse impacts on Aboriginal interests, then the Aboriginal peoples affected must seek appropriate remedies in the courts: Haida Nation, at para. 51. D. The Commission's Reconsideration Decision 76 The Commission correctly accepted that it had the power to consider the adequacy of consultation with Aboriginal groups. The reason it decided it would not consider this issue was not for want of power, but because it concluded that the consultation issue could not arise, given its finding that the 2007 EPA would not adversely affect any Aboriginal interest. 77 As reviewed earlier in these reasons, the Commission held a hearing into the issue of whether the main hearing should be rescoped to permit exploration of the consultation issue. The evidence at this hearing was directed to the issue [page685] of whether approval of the 2007 EPA would have any adverse impact on the interests of the CSTC First Nations. The Commission considered both the impact of the 2007 EPA on river levels (physical impact) and on the management and control of the resource. The Commission concluded that the 2007 EPA would not have any adverse physical impact on the Nechako River and its fishery. It also concluded that the 2007 EPA did not "transfer or change control of licenses or authorization", negating adverse impacts from management or control changes. The Commission held that an underlying infringement (i.e. failure to consult on the initial project) was not sufficient to trigger a duty to consult. It therefore dismissed the application

208 Page 1 Case Name: Slaight Communications Inc. v. Davidson Slaight Communications Incorporated (operating as Q107 FM Radio), appellant; v. Ron Davidson, respondent. [1989] S.C.J. No. 45 [1989] A.C.S. no 45 [1989] 1 S.C.R [1989] 1 R.C.S D.L.R. (4th) N.R. 183 J.E C.C.E.L CLLC CLLC para. 14,031 at C.R.R A.C.W.S. (3d) CanLII 92 File No.: Supreme Court of Canada 1987: October 8 / 1989: May 4. Present: Dickson C.J. and Beetz, Lamer, Wilson, Le Dain *, La Forest and L'Heureux-Dubé JJ.

209 Page 2 ON APPEAL FROM THE FEDERAL COURT OF APPEAL * Le Dain J. took no part in the judgment. Constitutional law -- Charter of Rights -- Freedom of expression -- Adjudicator ordering employer to give unjustly dismissed employee letter of recommendation with specified content -- Adjudicator also ordering employer to answer request for information about employee only by sending letter -- Whether orders infringe employer's freedom of expression guaranteed by s. 2(b) of Canadian Charter of Rights and Freedoms -- If so, whether limitation on freedom of expression justifiable under s. 1 of Charter -- Canada Labour Code, R.S.C. 1970, c. L-1, s. 61.5(9)(c). Labour relations -- Unjust dismissal -- Jurisdiction of adjudicator -- Adjudicator ordering employer to give unjustly dismissed employee letter of recommendation with specified content -- Adjudicator also ordering employer to answer request for information about employee only by sending letter -- Whether s. 61.5(9)(c) of Canada Labour Code authorizes adjudicator to make such orders -- Whether orders infringe employer's freedom of expression guaranteed by s. 2(b) of Canadian Charter of Rights and Freedoms -- If so, whether limitation on freedom of expression justifiable under s. 1 of Charter -- Whether orders unreasonable in administrative law sense. Respondent had been employed by appellant as a "radio time salesman" for three and a half years when he was dismissed on the ground that his performance was inadequate. Respondent filed a complaint and an adjudicator appointed by the Minister of Labour under s. 61.5(6) of the Canada Labour Code held that respondent had been unjustly dismissed. Based on s. 61.5(9)(c) of the Code, the adjudicator made an initial order imposing on appellant an obligation to give respondent a letter of recommendation certifying (1) that he had been employed by the radio station from June 1980 to January 20, 1984; (2) the sales quotas he had been set and the amount of sales he actually made during this period; and (3) that an adjudicator had held that he was unjustly dismissed. The order specifically indicated the amounts to be shown as sales quotas and as sales actually made. A second order prohibited appellant from answering a request for information about respondent except by sending the letter of recommendation. The Federal Court of Appeal dismissed an application by appellant to review and set aside the adjudicator's decision. The purpose of the appeal at bar is to determine whether s. 61.5(9)(c) of the Code authorizes an adjudicator to make such orders; and in particular, whether the orders infringed appellant's freedom of expression guaranteed by s. 2(b) of the Canadian Charter of Rights and Freedoms. Held (Beetz J. dissenting and Lamer J. dissenting in part): The appeal should be dismissed. The orders infringe s. 2(b) of the Charter but are justifiable under s. 1. The Charter applies to orders made by the adjudicator. The adjudicator is a creature of statute. He is appointed pursuant to a legislative provision and derives all his powers from statute. The Constitution is the supreme law of Canada, and any law that is inconsistent with its provisions is, to the extent of the inconsistency, of no force or effect. It is thus impossible to interpret legislation conferring discretion as conferring a power to infringe the Charter, unless, of course, that power is expressly conferred or necessarily implied. Such an interpretation would require this Court to declare the legislation to be of no force or effect, unless it could be justified under s. 1 of the Charter. It follows that an adjudicator, who exercises delegated powers, does not have the power to make an order that would result in an infringement of the Charter.

210 Page 3 The word "like" in the English version of s. 61.5(9)(c) of the Canada Labour Code does not have the effect of limiting the powers conferred on the adjudicator by allowing him to make only orders similar to the orders expressly mentioned in paras. (a) and (b) of that subsection. Interpreting this provision in this way would mean applying the ejusdem generis rule. It is impossible to apply this rule in the case at bar since one of the conditions essential for its application -- the presence of a common characteristic or common genus -- has not been met. The interpretation according to which the word "like" in the English version of para. (c) does not have the effect of limiting the general power conferred on the adjudicator is also more consistent with the general scheme of the Code, and in particular with the purpose of Division V.7, which is to give non-unionized employees a means of challenging a dismissal they feel to be unjust and at the same time to equip the adjudicator with the powers necessary to remedy the consequences of such a dismissal. Per Dickson C.J. and Wilson, La Forest and L'Heureux-Dubé JJ.: The adjudicator's orders were reasonable in the administrative law sense. Administrative law unreasonableness, as a preliminary standard of review, should not impose a more onerous standard upon government than would Charter review. While patent unreasonableness is important to maintain for questions untouched by the Charter, such as review of determinations of fact, in the realm of value inquiry the courts should have recourse to this standard only in the clearest of cases in which a decision could not be justified under s. 1 of the Charter. The adjudicator's first order infringed s. 2(b) of the Charter but is saved under s. 1. The adjudicator's second order also infringed s. 2(b) of the Charter. It was an attempt to prevent the appellant from expressing its opinion as to the respondent's qualifications beyond the facts set out in the letter. But this order, too, was justifiable under s. 1. First, the objective was of sufficient importance to warrant overriding appellant's freedom of expression. Like the first order, the objective of the second order was to counteract the effects of the unjust dismissal by enhancing the ability of the employee to seek new employment without being lied about by the previous employer. The adjudicator's remedy was a legislatively-sanctioned attempt to remedy the unequal balance of power that normally exists between an employer and employee. The governmental objective, in a general sense, was that of protection of a particularly vulnerable group, or members thereof. To constitutionally protect freedom of expression in this case would be tantamount to condoning the continuation of an abuse of an already unequal relationship. Second, the means chosen were reasonable. Like the first order, the second order was rationally linked to the objective. With the proven history of promoting a fabricated version of the quality of respondent's service and the concern that the employer would continue to treat him unfairly if he went back to work for the employer, it was rational for the adjudicator to attach a rider to the order for a reference letter so as to ensure that the employer's representatives did not subvert the effect of the letter by unjustifiably maligning its previous employee in the guise of giving a reference. Further, no less intrusive measure could have been taken and still achieved the objective with any likelihood. Monetary compensation would not have been an acceptable substitute because it would only have been compensation for the economic, not the personal, effects of unemployment. Labour should not be treated as a commodity and every day without work as exhaustively reducible to some pecuniary value. The letter was tightly and carefully designed to reflect only a very narrow range of facts which were not really contested. The appellant was not forced to state opinions which were not its own. The prohibition was also very circumscribed. It was triggered only in cases when the appellant was contacted for a reference and there was no requirement to send the letter to anyone other then prospective employers. In short, the adjudicator went no further than was necessary to achieve the objective. Finally, the effects of the

211 Page 4 measures were not so deleterious as to outweigh the objective of the measures. The objective in this case was a very important one, especially in light of Canada's international treaty commitment to protect the right to work in its various dimensions. For purposes of this final stage of the proportionality inquiry, the fact that a value has the status of an international human right, either in customary international law under a treaty to which Canada is a State Party, should generally be indicative of a high degree of importance attached to that objective. Per Lamer J. (dissenting in part): The adjudicator did not exceed his jurisdiction by ordering appellant to give respondent a letter of recommendation with a specified content. Apart from the Charter, the only limitation imposed by s. 61.5(9)(c) is that the order must be designed to "remedy or counteract any consequence of the dismissal". That is the case here. The order prevents appellant's decision to dismiss respondent from having negative consequences for the latter's chances of finding new employment. Ordering an employer to give a former employee a letter of recommendation containing only objective facts that are not in dispute is not as such unreasonable and there is nothing to indicate that the adjudicator was pursuing an improper objective or acting in bad faith or in a discriminatory manner. However, the adjudicator exceeded his jurisdiction by prohibiting appellant from answering a request for information about respondent other than by sending the letter of recommendation. Though the order is also meant to remedy or counteract the consequences of the dismissal, its effect, by prohibiting appellant from adding any comments whatever, is to create circumstances in which the letter could be seen as the expression of appellant's opinions. This type of penalty is totalitarian and as such alien to the tradition of free nations like Canada. Parliament therefore cannot have intended to authorize such an unreasonable use of the discretion conferred by it. The adjudicator lost this jurisdiction when he made a patently unreasonable order. The first order limits appellant's freedom of expression but this limitation, which is prescribed by law -- the order made by the adjudicator is only an exercise of the discretion conferred on him by statute -- can be justified under s. 1 of the Charter. The purpose of the order is clearly, as required by the Code, to counteract the consequences of the unjust dismissal. Such an objective is sufficiently important to warrant a limitation on freedom of expression. It is essential for the legislator to provide mechanisms to restore equilibrium in employer/employee relations so the employee will not be subject to arbitrary action by the employer. Additionally, the means chosen to attain the objective are reasonable in the circumstances. The order is fair and was carefully designed. The purpose of the letter of recommendation is to correct the false impression given by the fact of the dismissal and it contains only facts that are not in dispute. It is rationally connected to the dismissal since in certain cases it is the only way of effectively remedying the consequences of the dismissal. Finally, the consequences of the order are proportional to the objective sought. The latter is important in our society. The limitation on freedom of expression is not what could be described as very serious. It does not abolish that freedom, but simply limits its exercise by requiring the employer to write something determined in advance. Per Beetz J. (dissenting): Except for the attestation relating to the unjust dismissal, the first order violated the appellant's freedoms of opinion and of expression and could not be justified under s. 1 of the Charter. This order forced the employer to write, as if they were his own, statements of facts in which, rightly or wrongly, he may not believe, or which he may ultimately find or think to be inaccurate, misleading or false. In short, the order may force the appellant to lie. To order the affirmation of facts, apart from belief in their veracity by the person who is ordered to affirm them consti-

212 Page 5 tutes a prima facie violation of the freedoms of opinion and expression. Such a violation was totalitarian in nature and could never be justified under s. 1 of the Charter. The second order, coupled with the first, also violated the former employer's freedoms of opinion and of expression in a manner which was not justified under s. 1 of the Charter. The sending of the letter as drafted by the adjudicator, coupled with the prohibition to say or write anything else could lead to the implication that the former employer had no further comment to make upon the performance of the respondent and that, accordingly, the letter reflected the opinion of the former employer. In any event, the second order was disproportionate and unreasonable. One should view with extreme suspicion an administrative order or even a judicial order which has the effect of preventing the litigants from commenting upon and even criticizing the rulings of the deciding board or court. Further, in cases of unjust dismissal, the issuance by an adjudicator of a blanket and perpetual prohibition against a former employer to write or say anything to a prospective employer but what the adjudicator has dictated in the letter of recommendation can lead to absurd and even counter-productive results. The adjudicator cannot foresee all the possible types of exchanges which are susceptible to occur between former and prospective employers. The absurdity which results from the adjudicator's second order is sufficient to warrant its reversal. If it is disproportionate and unreasonable from a practical point of view, then it has to be unreasonable from an administrative law point of view and it is difficult to conceive how it could be reasonable within the meaning of s. 1 of the Charter. Cases Cited By Dickson C.J. Distinguished: National Bank of Canada v. Retail Clerks' International Union, [1984] 1 S.C.R. 269; referred to: Blanchard v. Control Data Canada Ltd., [1984] 2 S.C.R. 476; R. v. Oakes, [1986] 1 S.C.R. 103; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; Reference Re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R By Lamer J. (dissenting in part) National Bank of Canada v. Retail Clerks' International Union, [1984] 1 S.C.R. 269; Blanchard v. Control Data Canada Ltd., [1984] 2 S.C.R. 476; Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227; R. v. Oakes, [1986] 1 S.C.R By Beetz J. (dissenting) National Bank of Canada v. Retail Clerks' International Union, [1984] 1 S.C.R. 269; Attorney General of Quebec v. Quebec Association of Protestant School Boards, [1984] 2 S.C.R. 66; Reference re Alberta Statutes, [1938] S.C.R Statutes and Regulations Cited Canada Labour Code, R.S.C. 1970, c. L-1, s. 61.5(6) [ad , c. 27, s. 21], 61.5(9)(a), (b), (c) [idem]. Canadian Charter of Rights and Freedoms, ss. 1, 2(b). Federal Court Act, R.S.C (2nd Supp.), c. 10, s. 52(d).

213 Page 6 International Covenant on Economic, Social and Cultural Rights, G.A. Res A (XXI), 21 U.N. GAOR, Supp. (No. 16) 49, Doc. A/6316 U.N. (1966), s. 6. Authors Cited Beatty, David M. "Labour is not a Commodity". In Barry J. Reiter and John Swan, eds. Studies in Contract Law. Toronto: Butterworths, Côté, Pierre-André. The Interpretation of Legislation in Canada. Cowansville: Yvon Blais Inc., Hogg, Peter W. Constitutional Law of Canada, 2nd ed. Toronto: Carswells, Kahn-Freund, Sir Otto. Kahn-Freund's Labour and the Law, 3rd ed. By Paul Davies and Mark Freedland. London: Stevens & Sons, Maxwell, Sir Peter B. Maxwell on the Interpretation of Statutes, 12th ed. London: Sweet & Maxwell, Wade, H.W.R. Administrative Law, 4th ed. Oxford: Clarendon Press, APPEAL from a judgment of the Federal Court of Appeal, [1985] 1 F.C. 253, 58 N.R. 150, 85 C.L.L.C. para. 14,053, dismissing appellant's application pursuant to s. 28 of the Federal Court Act to set aside an order made by an adjudicator under s. 61.5(9)(c) of the Canada Labour Code. Appeal dismissed, Beetz J. dissenting and Lamer J. dissenting in part. Brian A. Grosman, Q.C., and John Martin, for the appellant. Morris Cooper and Fern Weinper, for the respondent. Solicitor for the appellant: Brian A. Grosman, Toronto. Solicitor for the respondent: Morris Cooper, Toronto. by The judgment of Dickson C.J. and Wilson, La Forest and L'Heureux-Dubé JJ. was delivered THE CHIEF JUSTICE:-- I 1 The respondent, Mr. Ron Davidson, a radio time salesman, was dismissed by his employer, the appellant, Slaight Communications Incorporated, operating as Q107 FM Radio. A complaint was filed by Mr. Davidson under the Canada Labour Code, R.S.C. 1970, c. L-1, as amended by S.C , c. 27, s. 21, and an inquiry undertaken. As the matter could not be resolved or settled, Mr. Edward B. Joliffe, Q.C., was appointed by the Minister of Labour to act as adjudicator and to render a decision in accordance with the provisions of subss. (6) to (9) of s. 61.5, Division V.7, Part III of the Canada Labour Code. Two days of hearings were held in Toronto. Twelve days later, Mr. Joliffe received a letter, written on behalf of the employer, requesting Mr. Joliffe to consider reopening the adjudication because, the letter read in part, "... our client has advised us that it is in possession of certain material which may indicate that Mr. Davidson perjured his testimony before you in one or

214 Page Appellant further argued that s. 61.5(9)(c) did not empower the adjudicator to make such an order, since that paragraph does not clearly state that the adjudicator can use a remedy that differs from the remedies usually available under the ordinary rules of common law in such circumstances. The principle underlying this argument is that, in the absence of a clear provision to the contrary, the legislator should not be assumed to have intended to alter the pre-existing ordinary rules of common law. There is no need for me to rule on the merits of this principle, since I consider that in the case at bar, by enacting para. (c), the legislator clearly indicated his intent to confer wider powers on the adjudicator than those he usually has under the ordinary rules of common law in such circumstances. 86 It now remains to assess in light of the Canadian Charter of Rights and Freedoms the part of the order we have found to be not unreasonable in terms of the rules of administrative law. The fact that the part of the order relating to sending the letter of recommendation is not unreasonable from an administrative law standpoint does not mean that it is necessarily consistent with the Charter. 87 The fact that the Charter applies to the order made by the adjudicator in the case at bar is not, in my opinion, open to question. The adjudicator is a statutory creature: he is appointed pursuant to a legislative provision and derives all his powers from the statute. As the Constitution is the supreme law of Canada and any law that is inconsistent with its provisions is, to the extent of the inconsistency, of no force or effect, it is impossible to interpret legislation conferring discretion as conferring a power to infringe the Charter, unless, of course, that power is expressly conferred or necessarily implied. Such an interpretation would require us to declare the legislation to be of no force or effect, unless it could be justified under s. 1. Although this Court must not add anything to legislation or delete anything from it in order to make it consistent with the Charter, there is no doubt in my mind that it should also not interpret legislation that is open to more than one interpretation so as to make it inconsistent with the Charter and hence of no force or effect. Legislation conferring an imprecise discretion must therefore be interpreted as not allowing the Charter rights to be infringed. Accordingly, an adjudicator exercising delegated powers does not have the power to make an order that would result in an infringement of the Charter, and he exceeds his jurisdiction if he does so. This idea was very well expressed by Professor Hogg when he wrote in his text titled Constitutional Law of Canada (2nd ed. 1985), at p. 671: The reference in s. 32 to the "Parliament" and a "legislature" make clear that the Charter operates as a limitation on the powers of those legislative bodies. Any statute enacted by either Parliament or a Legislature which is inconsistent with the Charter will be outside the power of (ultra vires) the enacting body and will be invalid. It follows that any body exercising statutory authority, for example, the Governor in Council or Lieutenant Governor in Council, ministers, officials, municipalities, school boards, universities, administrative tribunals and police officers, is also bound by the Charter. Action taken under statutory authority is valid only if it is within the scope of that authority. Since neither Parliament nor a Legislature can itself pass a law in breach of the Charter, neither body can authorize action which would be in breach of the Charter. Thus, the limitations on statutory authority which are imposed by the Charter will flow down the chain of statutory authority and apply to regulations, by-laws, orders, decisions and all other action (whether legislative, administrative or judicial) which depends for its validity on statutory authority.

215 Page BCSC 1320, 34 B.C.L.R. (4th) 280, [2005] 1 C.N.L.R CarswellBC 2379 Squamish Indian Band v. British Columbia (Minister of Sustainable Resource Management) THE SQUAMISH NATION, by the Chiefs and Council of the Squamish Indian Band, on their own behalf and on behalf of the members of the Squamish Indian Band (Petitioners) and THE MINISTER OF SUSTAINABLE RESOURCE MANAGEMENT, on behalf of Her Majesty the Queen in right of the Province of British Columbia LAND AND WATER BRITISH COLUMBIA INC. and THE ENVIRONMENTAL ASSESSMENT OFFICE and GARIBALDI AT SQUAMISH INC. (Respondents) British Columbia Supreme Court Koenigsberg J. Heard: September 27, 2004 Judgment: September 27, 2004 Docket: Vancouver L Copyright Thomson Reuters Canada Limited or its Licensors. All rights reserved. Counsel: G.J. McDade, Q.C. James P. Tate, for Petitioners P.J. Pearlman, Q.C. for Respondents C.D. Johnston for Garibaldi at Squamish Inc. H. Shapray, Q.C. for GAR 96 Subject: Public; Constitutional; Property; Environmental Aboriginal law --- Constitutional issues -- Reserves and real property -- Rights and title -- Miscellaneous issues First Nation Indian band claimed aboriginal title over lands in mountain area and aboriginal rights to use land for hunting, fishing and cultural uses -- Band was involved in treaty process with province and federal Crown -- Resort developer formed agreement with province to establish ski hill on lands in question -- Band filed petition for declaration that decisions of Minister of Sustainable Resource Management and provincial Crown corporation breached duty to consult with aboriginal rights -- Petition granted -- Breach of government's fiduciary duty to band had occurred in failing to consult -- Consultation was ordered to take place as if decisions had not been made -- Band was entitled to Copr. West 2008 No Claim to Orig. Govt. Works

216 Page BCSC 1320, 34 B.C.L.R. (4th) 280, [2005] 1 C.N.L.R. 347 timely notice of any proposal in relation to which decision was sought which could affect their aboriginal interests in land -- Expansion agreement decision in relation to project was sent back for full reconsideration after consultation had taken place. Environmental law --- Statutory protection of environment -- Environmental assessment -- Aboriginal interests First Nation Indian band claimed aboriginal title over lands in mountain area and aboriginal rights to use land for hunting, fishing and cultural uses -- Band was involved in treaty process with province and federal Crown -- Resort developer formed agreement with province to establish ski hill on lands in question -- Project was "reviewable project" within meaning of Environmental Assessment Act -- Band filed petition for declaration that decisions of Minister of Sustainable Resource Management and provincial Crown corporation breached duty to consult with aboriginal rights -- Petition granted -- Fiduciary duty to consult with band was infringed -- Crown corporation knew that significant rights were being asserted by band which could result in accommodation such that development might not proceed -- Band was entitled to all relevant information -- Expansion agreement decision in relation to project was sent back for full reconsideration after consultation had taken place. Cases considered by Koenigsberg J.: Delgamuukw v. British Columbia (1997), 153 D.L.R. (4th) 193, 220 N.R. 161, 99 B.C.A.C. 161, 162 W.A.C. 161, [1997] 3 S.C.R. 1010, 1997 CarswellBC 2358, 1997 CarswellBC 2359, [1998] 1 C.N.L.R. 14, [1999] 10 W.W.R. 34, 66 B.C.L.R. (3d) 285 (S.C.C.) -- considered Gitxsan Houses v. British Columbia (Minister of Forests) (2002), 2002 BCSC 1701, 2002 CarswellBC 2928, 10 B.C.L.R. (4th) 126, 48 Admin. L.R. (3d) 225, (sub nom. Gitxsan First Nation v. British Columbia (Minister of Forests)) [2003] 2 C.N.L.R. 142 (B.C. S.C.) -- considered Haida Nation v. British Columbia (Minister of Forests) (2002), 2002 BCCA 147, 2002 CarswellBC 329, 99 B.C.L.R. (3d) 209, [2002] 2 C.N.L.R. 121, [2002] 6 W.W.R. 243, 44 C.E.L.R. (N.S.) 1, 164 B.C.A.C. 217, 268 W.A.C. 217 (B.C. C.A.) -- considered Halfway River First Nation v. British Columbia (Ministry of Forests) (1999), 1999 CarswellBC 1821, 64 B.C.L.R. (3d) 206, [1999] 9 W.W.R. 645, 1999 BCCA 470, [1999] 4 C.N.L.R. 1, 178 D.L.R. (4th) 666, (sub nom. Halfway River First Nation v. British Columbia (Minister of Forests)) 129 B.C.A.C. 32, (sub nom. Halfway River First Nation v. British Columbia (Minister of Forests)) 210 W.A.C. 32 (B.C. C.A.) -- considered Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage) (2001), 2001 FCT 1426, 2001 CarswellNat 2902, [2002] 1 C.N.L.R. 169, 214 F.T.R. 48, 2001 CFPI 1426, 2001 CarswellNat 3747 (Fed. T.D.) -- considered R. v. Sparrow (1990), 70 D.L.R. (4th) 385, 111 N.R. 241, [1990] 1 S.C.R. 1075, [1990] 3 C.N.L.R. 160, 46 B.C.L.R. (2d) 1, 56 C.C.C. (3d) 263, [1990] 4 W.W.R. 410, 1990 CarswellBC 105, 1990 CarswellBC 756 (S.C.C.) -- referred to Statutes considered: Environmental Assessment Act, R.S.B.C. 1996, c. 119 s. 1 "reviewable project" -- referred to Copr. West 2008 No Claim to Orig. Govt. Works

217 Page BCSC 1320, 34 B.C.L.R. (4th) 280, [2005] 1 C.N.L.R. 347 Environmental Assessment Act, S.B.C. 2002, c. 43 Generally -- referred to s referred to Indian Act, R.S.C. 1985, c. I-5 s. 2(1) "Indian band" -- referred to Land Act, R.S.B.C. 1979, c. 214 s referred to Land Act, R.S.B.C. 1996, c. 245 Generally -- referred to PETITION by First Nation band for declaratory relief. Koenigsberg J. (orally): Introduction The Petitioner, the Squamish Nation, petitions the Court for a declaration that four decisions made by the Respondent government bodies were made in breach of the government's fiduciary and constitutional duties to consult and seek accommodation with the Petitioner's claimed aboriginal rights before granting rights to third parties which may affect the exercise of those aboriginal rights. The Parties and their Interests 1 The Squamish Nation claims aboriginal title over the lands at Brohm Ridge which are the subject of this Petition. The Squamish Nation also claims aboriginal rights to use the area for cultural and sacred practices, and for hunting, fishing, trapping, recreational and other traditional uses. The Squamish Nation asserts that the construction and operation of the proposed project will infringe their title, and will infringe their aboriginal rights. 2 The Minister of Sustainable Resource Management is the Minister responsible for the Land Act, R.S.B.C. 1996, c Land and Water British Columbia Inc. ("LWBC") is a Crown corporation which operates as an agent of government to carry out activities such as the disposition of Crown lands, the issuance of land tenures and the administration and licensing of Crown water resources. 4 The Environmental Assessment Office is the office of government continued by the Environmental Assessment Act, SBC 2002, c. 43 responsible for the environmental assessment of reviewable projects under that Act. 5 Garibaldi at Squamish ("GAS") is the current proponent of a proposed four season mountain resort at Brohm Copr. West 2008 No Claim to Orig. Govt. Works

218 Page BCSC 1320, 34 B.C.L.R. (4th) 280, [2005] 1 C.N.L.R. 347 Crown granted right in question being inconsistent with the exercise of aboriginal rights including title if such rights should be proven to exist in the area in question. 71 In Delgamuukw v. British Columbia, [1997] 3 S.C.R (S.C.C.), at 1112 at para. 168, Chief Justice Lamer made clear the duty to consult and its general scope: Moreover, the other aspects of aboriginal title suggest that the fiduciary duty may be articulated in a manner different than the idea of priority. This point becomes clear from a comparison between aboriginal title and the aboriginal right to fish for food in Sparrow. First, aboriginal title encompasses within it a right to choose to what ends a piece of land can be put. The aboriginal right to fish for food, by contrast, does not contain within it the same discretionary component. This aspect of aboriginal title suggests that the fiduciary relationship between the Crown and aboriginal peoples may be satisfied by the involvement of aboriginal peoples in decisions taken with respect to their lands. There is always a duty of consultation. Whether the aboriginal group has been consulted is relevant to determining whether the infringement of aboriginal title is justified, in the same way that the Crown's failure to consult an aboriginal group with respect to the terms by which reserve land is leaded may breach its fiduciary duty at common law: Guerin. [emphasis added] The nature and scope of the duty of consultation will vary with the circumstances. In occasional cases, when the breach is less serious or relatively minor, it will be no more than a duty to discuss important decisions that will be taken with respect to lands held pursuant to aboriginal title. Of course, even in these rare cases when the minimum acceptable standard is consultation, this consultation must be in good faith, and with the intention of substantially addressing the concerns of the aboriginal peoples whose lands are at issue. In most cases, it will be significantly deeper than mere consultation. Some cases may even require the full consent of an aboriginal nation, particularly when provinces enact hunting and fishing regulations in relation to aboriginal lands. 72 In Haida Nation v. British Columbia (Minister of Forests) (2002), 99 B.C.L.R. (3d) 209 (B.C. C.A.), (Haida No. 1) at para. 55 Lambert J.A., after quoting from Delgamuukw and considering the duty to consult concluded that the obligation to consult and accommodate is a free standing enforceable legal and equitable duty. 73 The duty to consult is triggered whenever there is the potential for impact of third party interests on claimed aboriginal lands. In this case -- there can be no issue about how or why that duty arises at the earliest stages. The Crown knew of the aboriginal claims and knew before it reinstated the Interim Agreement and approved the Change of Control that the Squamish Nation had defined and confirmed interests in the area and a concern about the negative impact on their interests (which were then and still are the subject of treaty negotiations) of any commercial development specifically including a ski hill development. Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage) (2001), [2002] 1 C.N.L.R. 169 (Fed. T.D.) at a recent decision of the Federal Court Trial Division discusses the importance of consultation at early stages of planning. 74 The duty of consultation, if it is to be meaningful, cannot be postponed to the last and final point in a series of decisions, Once important preliminary decisions have been made and relied upon by the proponent and others, there is clear momentum to allow a project. This case illustrates the importance of early consultations being an essential part of meaningful consultation. At this point, and for some time, GAS has asserted legally enforceable rights to pursue the expansion agreement even though it is aware that there has been no consultation. There is thus, the clear appearance of bias in favour of GAS's expansion plans, as GAS has issued a warning of legal proceedings against the Crown should rights they believe they now have not be realized. 75 The case law establishes that the proper questions to be asked in order to assess whether the duty to consult and its scope will arise in respect of statutory decisions in respect of an activity which causes a potential infringement to aboriginal rights and title are these: Copr. West 2008 No Claim to Orig. Govt. Works

219 Page BCSC 1320, 34 B.C.L.R. (4th) 280, [2005] 1 C.N.L.R. 347 a) Does the decision purport to grant rights, in enforceable terms, either actual or conditional ones, in relation to lands which would be inconsistent with aboriginal title or rights?; b) Does the decision constitute the imposition of obligations or the fettering or restriction of Crown discretion over lands upon which there were duties of consultation?; c) Does the decision amount to an important decision with respect to the use of aboriginal title lands (including the identity of the future operator)?; and d) Is the decision a statutory decision which is in furtherance of a legislative or administrative scheme that has the potential to infringe aboriginal rights or title? (e) Is there strong potential to affect the claimant's rights 76 In Gitxsan, Tysoe, J. found: I do not accept the submission that the decision of the Minister to give his consent to Skeena's change in control had no impact on the Petitioners. While it is true that the change in control was neutral in the sense that it did not affect the theoretical tenure of the tree farm and forest licences or any of the conditions attached to them, the change in control was not neutral from a practical point of view [emphasis added] 77 Here the practical implications of the change of control decision are dramatic. The original proponent made a comparatively modest proposal for the development of a ski resort. The Squamish Nation although not formally "consulted" was invited to make submissions on the possible accommodation with such a proposal at the time of the environmental assessment stage. It used that opportunity and made submissions. Subsequent to that process, the new controlling shareholders wasted no time in securing an expansion of the project. Further, at this point, GAS forthrightly states it really is mainly interested in the greatly expanded project. 78 The defendant government has always agreed there was and is a duty to consult the Petitioners about a decision to allow the development of a ski and golf resort to be built on land which is the subject of the aboriginal rights including title claimed by the Squamish Nation. 79 Initially the government's position was that the duty to consult was not triggered by any of the decisions made in the approval process required of the proponents of the ski development until the plans had been sufficiently refined that an Environmental Assessment process was underway. In the approval process leading to that assessment review there are several preliminary steps or hurdles for a proponent and decisions to be made by the government agencies as to whether any particular proposal is appropriate to go on to the next stage. After this hearing was underway in May of this year, the government modified its position and acknowledged that its duty to consult may have arisen earlier. It sought an adjournment of the hearing to seek settlement of the issues including trying to arrive at a consent order. Over objections to such an adjournment from the proponent GAS and the Petitioner, I granted the adjournment to an early resumption date, if settlement was not achieved with leave of the parties to return to court for further directions toward settlement. 80 Settlement was not achieved. Earlier court dates were not available and the hearing resumed on September In the interim, the government sought consultation with the Squamish Nation in relation to some or all of the impugned decisions -- the Squamish Nation resisted such consultation until the ground rules were established to their satisfaction. The issues surrounding the appropriate ground rules for meaningful consultation among these parties now Copr. West 2008 No Claim to Orig. Govt. Works

220 Province of Alberta ADMINISTRATIVE PROCEDURES AND JURISDICTION ACT Revised Statutes of Alberta 2000 Chapter A-3 Current as of July 1, 2012 Office Consolidation Published by Alberta Queen s Printer Alberta Queen s Printer 5 th Floor, Park Plaza Avenue Edmonton, AB T5K 2P7 Phone: Fax: qp@gov.ab.ca Shop on-line at

221 Copyright and Permission Statement Alberta Queen's Printer holds copyright on behalf of the Government of Alberta in right of Her Majesty the Queen for all Government of Alberta legislation. Alberta Queen's Printer permits any person to reproduce Alberta s statutes and regulations without seeking permission and without charge, provided due diligence is exercised to ensure the accuracy of the materials produced, and Crown copyright is acknowledged in the following format: Alberta Queen's Printer, 20.* *The year of first publication of the legal materials is to be completed. Note All persons making use of this consolidation are reminded that it has no legislative sanction, that amendments have been embodied for convenience of reference only. The official Statutes and Regulations should be consulted for all purposes of interpreting and applying the law. Amendments Not in Force This consolidation incorporates only those amendments in force on the consolidation date shown on the cover. It does not include the following amendments: 2011 cn-6.5 s12 repeals ss10(a), 12, 13, 14, 16(c) and (d). Regulations The following is a list of the regulations made under the Administrative Procedures and Jurisdiction Act that are filed as Alberta Regulations under the Regulations Act Alta. Reg. Amendments Administrative Procedures and Jurisdiction Act Authorities Designation...64/ /2003, 196/2006, 254/2007 Designation of Constitutional Decision Makers...69/ /2007

222 ADMINISTRATIVE PROCEDURES AND JURISDICTION ACT Chapter A-3 Table of Contents Part 1 Administrative Procedures 1 Definitions 2 Application of Part 3 Notice to parties 4 Evidence and representations 5 Cross-examination 6 When certain representations not permitted 7 Written decision with reasons 8 Requirements of other Acts 9 Rules of evidence Part 2 Jurisdiction to Determine Questions of Constitutional Law 10 Definitions 11 Lack of jurisdiction 12 Notice of question of constitutional law 13 Referral of question of constitutional law 14 Attorney General of Canada and Minister of Justice and Attorney General of Alberta 15 Transitional 16 Regulations 1

223 ADMINISTRATIVE PROCEDURES AND RSA 2000 Section 1 JURISDICTION ACT Chapter A-3 HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Alberta, enacts as follows: Definitions 1 In this Act, Part 1 Administrative Procedures (a) authority means a person authorized to exercise a statutory power; (b) party means a person whose rights will be varied or affected by the exercise of a statutory power or by an act or thing done pursuant to that power; (c) statutory power means an administrative, quasi-judicial or judicial power conferred by statute, other than a power conferred on a court of record of civil or criminal jurisdiction or a power to make regulations, and for greater certainty, but without restricting the generality of the foregoing, includes a power (i) to grant, suspend or revoke a charter or letters patent, (ii) to grant, renew, refuse, suspend or revoke a permission to do an act or thing that, but for the permission, would be unlawful, whether the permission is called a licence or permit or certificate or is in any other form, (iii) to declare or establish a status provided for under a statute for a person and to suspend or revoke that status, (iv) to approve or authorize the doing or omission by a person of an act or thing that, but for the approval or authorization, would be unlawful or unauthorized, (v) to declare or establish a right or duty of a person under a statute, whether in a dispute with another person or otherwise, or (vi) to make an order, decision, direction or finding prohibiting a person from doing an act or thing that, but for the order, decision, direction or finding, it would be lawful for the person to do, or any combination of those powers. RSA 1980 ca-2 s1 2

224 ADMINISTRATIVE PROCEDURES AND RSA 2000 Section 8 JURISDICTION ACT Chapter A-3 (b) the reasons for the decision. RSA 1980 ca-2 s7 Requirements of other Acts 8 Nothing in this Part relieves an authority from complying with any procedure to be followed by it under any other Act relating to the exercise of its statutory power. RSA 2000 ca-3 s8;2005 c4 s6 Rules of evidence 9 Nothing in this Part (a) requires that any evidence or allegations of fact made to an authority be made under oath, or (b) requires any authority to adhere to the rules of evidence applicable to courts of civil or criminal jurisdiction. RSA 2000 ca-3 s9;2005 c4 s7 Part 2 Jurisdiction to Determine Questions of Constitutional Law Definitions 10 In this Part, (a) court means the Court of Queen s Bench of Alberta; (b) decision maker means an individual appointed or a body established by or under an Act of Alberta to decide matters in accordance with the authority given under that Act, but does not include (i) The Provincial Court of Alberta or a judge of that Court, (ii) a justice of the peace conferred with the authority to determine a question of constitutional law under the Provincial Court Act, (iii) the Court of Queen s Bench of Alberta or a judge or master in chambers of that Court, or (iv) the Court of Appeal of Alberta or a judge of that Court; (c) designated decision maker means a decision maker designated under section 16(a) as a decision maker that 5

225 ADMINISTRATIVE PROCEDURES AND RSA 2000 Section 11 JURISDICTION ACT Chapter A-3 has jurisdiction to determine one or more questions of constitutional law under section 16(b); (d) question of constitutional law means (i) any challenge, by virtue of the Constitution of Canada or the Alberta Bill of Rights, to the applicability or validity of an enactment of the Parliament of Canada or an enactment of the Legislature of Alberta, or (ii) a determination of any right under the Constitution of Canada or the Alberta Bill of Rights c4 s8;2011 c20 s8 Lack of jurisdiction 11 Notwithstanding any other enactment, a decision maker has no jurisdiction to determine a question of constitutional law unless a regulation made under section 16 has conferred jurisdiction on that decision maker to do so c4 s8 Notice of question of constitutional law 12(1) Except in circumstances where only the exclusion of evidence is sought under the Canadian Charter of Rights and Freedoms, a person who intends to raise a question of constitutional law at a proceeding before a designated decision maker that has jurisdiction to determine such a question (a) must provide written notice of the person s intention to do so at least 14 days before the date of the proceeding and (i) to the Attorney General of Canada, (ii) to the Minister of Justice and Attorney General of Alberta, and (iii) to the parties to the proceeding, (b) must provide written notice of the person s intention to do so to the designated decision maker. (2) Until subsection (1) is complied with, the decision maker must not begin the determination of the question of constitutional law. (3) Nothing in this section affects the power of a decision maker to make any interim order, decision, directive or declaration it 6

226 ADMINISTRATIVE PROCEDURES AND RSA 2000 Section 13 JURISDICTION ACT Chapter A-3 considers necessary pending the final determination of any matter before it. (4) The notice under subsection (1) must be in the form and contain the information provided for in the regulations c4 s8 Referral of question of constitutional law 13(1) With respect to a question of constitutional law over which a designated decision maker has jurisdiction and in respect of which a notice has been given under section 12, if the designated decision maker is of the opinion that the court is a more appropriate forum to decide the question, the designated decision maker may, instead of deciding the question, (a) direct the person who provided the notice under section 12 to apply to the court to have the question determined by that court, or (b) state the question of constitutional law in the form of a special case to the court for the opinion of the court. (2) Before acting under subsection (1)(a) or (b), the designated decision maker may conduct any inquiries the designated decision maker considers necessary. (3) Where the designated decision maker acts under subsection (1)(a) or (b), the designated decision maker must, unless otherwise directed by the court, suspend the proceeding, or any part of the proceeding, as it relates to the question to be heard by the court under subsection (1) until the decision of the court has been given. (4) A question of constitutional law in respect of which an application has been directed to be made to the court under subsection (1)(a) must be brought on for hearing as soon as practicable. (5) The court must hear and determine the question of constitutional law submitted to it under this section and give its decision as soon as practicable. (6) The designated decision maker may and, at the request of the court, shall provide the court with any record and documentation that may assist the court in determining the question of constitutional law submitted to it under this section c4 s8 7

227 ADMINISTRATIVE PROCEDURES AND RSA 2000 Section 14 JURISDICTION ACT Chapter A-3 Attorney General of Canada and Minister of Justice and Attorney General of Alberta 14 In any proceeding relating to the determination of a question of constitutional law before a decision maker or before the court under this Part, or in any subsequent proceeding on appeal or judicial review, (a) the Attorney General of Canada and the Minister of Justice and Attorney General of Alberta are entitled as of right to be heard, in person or by counsel, (b) no person other than the Minister of Justice and Attorney General of Alberta or counsel designated by the Minister of Justice and Attorney General of Alberta shall, on behalf of Her Majesty in right of Alberta, or on behalf of an agent of Her Majesty in right of Alberta, appear and participate, and (c) if the Minister of Justice and Attorney General of Alberta or counsel designated by the Minister of Justice and Attorney General of Alberta appears, the Minister of Justice and Attorney General of Alberta is deemed to be a party and has the same rights as any other party c4 s8 Transitional 15 Where proceedings to determine a question of constitutional law have commenced but have not been concluded before the coming into force of this Part, the decision maker hearing the question may continue the proceedings as if this Part had not come into force c4 s8 Regulations 16 The Lieutenant Governor in Council may make regulations (a) designating decision makers as having jurisdiction to determine questions of constitutional law; (b) respecting the questions of constitutional law that decision makers designated under a regulation made under clause (a) have jurisdiction to determine; (c) respecting the referral of questions of constitutional law to the court; (d) respecting the form and contents of the notice under section 12(1). RSA 2000 ca-3 s10;2005 c4 s8 8

228 APPENDIX III Constitution Act, Schedule B to Canada Act 1982 (U.K.) PART I CANADIAN CHARTER OF RIGHTS AND FREEDOMS Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law: PARTIE I CHARTE CANADIENNE DES DROITS ET LlBERTES Attendu que Ie Canada est fonde sur des principes qui reconnaissent la suprematie de Dieu et la primaute du droit: Rights and rree doms in Canada Guarantee of Righls and Freedoms 1. The Canadian Char Ier of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and demo' cratic society. Garantie des drails et libertes 1. La Charte canadienne des droits et libertes garantit les droits et libertes qui y sont enonces. IIs ne peuvent etre restreints que par une regie de droit, dans des limites qui soient raisonnables et dont la justification puisse se demontrer dans Ie cadre d'une societe libre et democratique. Droits et libenes au Canada Fundamental Freedoms Li bertes fondamentales Fundamental rree- 2. Everyone has the fol- 2. Chacuri ales libertes Libertes rondamendums lowing fundamental freedoms: fondamentales suivantes: talcs (a) freedom of conscience and religion; (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; (c) freedom of peaceful assembly; and a) liberte de conscience et de religion; b) Iiberte de pensee, de croyance, d'opinion et d'expression, y compris la liberte de la presse et des autres moyens de communication; c) liberte de reunion pacifique; d) liberte d'association. (d) freedom of association. 863

229 876 APPENDIX III Rc, "a, lmcrll Fi'ncorlimll'llron force or on such earlier date as may be specified in the declaration. (4) Parliament or the legislature of a province may re-enact a declaration made under subsection (I). (5) Subsection (3) applies in respect of a re-enactment made under subsection (4). cinq ans apres son entree en vlgueur. (4) Le Parlement ou une l'ou'elk adopllon legislature peut adopter de noll veau une declaration visee au paragraphe (I). (5) Le paragraphe (3) Dureede,.Iidil< s'applique a toute declaration adoptee SOLIS Ie regime du paragraphe (4). ( "ilalion CiiaiiOIl 34. This Part may be cited as the Canadian Charter of Right5 and Freedom5. Tilre 34. Titre de la presente Titre partie: Chane cal1adiel1l1e de5 droits el liberti's. P.-'cRTIE II Rt::cognitlon of~x ISling 3.buriginal and lreai~ rights Dclinilion of-'jbor~ Iginal peoples or C:mad3" L:lOd cl3im~ agreements AblHlglr.al J.nJ lr'~;ll~ rights Jrl' gljaram~..:d,.:qu.li!; 10 both ':,t.."-\('i:. RIGHTS OF THE ABORIGINAL PEOPLES OF C-'cNA.D.-'c 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 lyktis peoples of Canada. (3) For greater certainty. in subsection (I) "treaty rights" includes rights that now exist by way of land claims agreements or may be so acquired. (4) Notwithstandingany other provision of this Act. the aboriginal and treaty rights referred to in subsection (I) are guaranteed DROITS DES PEUPLES AUTOCHTONES DlJ CANADA 35, (I) Les droits exis- Canllrmalion des tants - ancestraux ou issus drails existants des de t[aites - des peuples autochtones du Canada sont reconnus et conflrmes. (2) Dans la presente loi, «peuples autochtones du Canada» s'entend notamment des Indiens. des Inuit et des Metis dll Canada. (3) II est entendu que sont compris parmi les droits issus de traites, dont il est fait mention au paragraphe (I), les droits existants issus d'accords sur des revendications territoriales ou ceux susceptibles d 'etre ainsi acquis. (4) Independamment de toute autre disposition de la presente loi. les droits - ancestraux ou issus de traites - vises au paragraphe (I) peupll!s autochloneo;, Definition de «peu pies aulochtones du Canada)}.-\ccords sur des icvendicalions terriloriaks Egaiilc d~,?aranlic des druits pour ks de'..!x 5C:\~S

230 CONSTITUTION ACT, Commitment 10 participation in consliwtional conference equally to male and female persons. (2) 35.1 The government of Canada and the provincial governments are committed to the principle that, before any amendment is made.to Class 24 of section 91 of the "Constitution Act, 1867", to section 25 of this Act or to this Part, (a)' a constitutional conference that includes in its agenda an item relating to the proposed amendment, composed of the Prime Minister of Canada and the first ministers of the provinces, will be convened by the Prime Minister of Canada; and (b) the Prime Minister of Canada will invite representatives of the aboriginal peoples of Canada to participate in the discussions on that item.(3) sont garantis egalement aux personnes des deux sexes. (2) 35.1 Les gouvernements federal et provinciaux sont lies par l'engagement de principe selon lequel Ie premier ministre du Canada, avant toute modification de la categorie 24 de l'article 92 de la <<Loi constitutionnelle de 1867», de l'article 25 de la pn!sente loi ou de la presente partie: a) convoquera une conference constitutionnelle reunissant les premiers ministres provinciaux et lui-meme et comportant a son ordre du jour la question du projet de modification; b) invitera les representants des peuples autochtones du Canada a participer aux travaux relatifs a cette question.(3) Engagement relatif it la participation a une conference constitulionnelle Commitment to promote equal opportunities PART III EQUALIZATION AND REGIONAL DISPARITIES 36. (1) Without altering the legislative authority of Parliament or of the provincial legislatures, or the rights of any of them with respect to the exercise of their legislative authority, Parliament and the legislatures, together with the government of Canada and the provincial governments, are committed to PARTIE III PEREQUA TION ET INEGALITES REGIONALES 36. (1) Sous reserve des competences legislatives du Pariement et des legislatures et de leur droit de les exercer, Ie Parlement et les legislatures, ainsi que les gouvernements federal et provinciaux, s'engagent a : a) promouvoir l'egalite des chances de tous les Canadiens dans larecherche de leur bien-etre; Engagements relatifs il reg.lite des chances (2) Subsections (3) and (4) of s. 35 were added by the Constitution Amendment Proclamation, (3) Section 35.1 was added by the Constitution Amendment Proclamation, 1983.

231 P,-RT VI P.-\RTIE V! '-\IE~Di\IE~T TO THE CONSTITL'TION ACT, 1867 MODIFIC,-TION DE L.'- LOI CO"'STITL'TION~ELLE DE 1867 [Sections 50 and 51 arc omitted. They added a new s. 92.-\ and a ne'x Sixth Schedule to Ihe CunstilLltion Act The new provisions ha'ie been reproduced as pan of,he Constitution Act ] P.'-RT VII P,-RTIE VII 11: lma~-:. I,f(. oll \UiHI!l lift J.1l~ltlii ( IIn'lIIIU!IUIl i.lf ( -~IIl~tia.l.:llCnum":1l1:- III CUlbiilulioll uf { "an.. IJa GENER.'-L 52, (I) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Consti tution is. to the extent of the inconsistency. of no force or effect. (2) The Constitution of Canada includes (a) the Canada..{C! lwe includi ng this Act; (b) the Acts and orders referred to in the schedule: and (c) any amendment to any Act or order referred to in paragraph (a) or (b). (3) Amendments to the Constitution of Canada shall be made only in accordance with the authority contained in the Constitution of Canada. 53. (I) The enactments referred to in Column I of the schedule are hereby repealed or amended to the extent indicated in Column II thereof and. unless repealed. shall continue as law in Canada under the names set out in Column Ii I thereof DISPOSITIO!'S GE~ER.-\LES 52. (I) La Constitution du Canada est la loi supreme du Canada: elk rend inoperantes les dispositions incompatibles. de toute autre regie de droit. (2) La Constitution du Canada comprend : a) la Loi de 198:} SlIr Ie Canada. y compris la presente loi; b) les textes legislatifs et les decrets figuran tarannexe; c) les modifications des textes legislatifs et des decrets Dltntionnes aux ali~ neas a) ou b). Pnm;]Ull' de fa ComlHlItion Ju Canada (,)nsl:lul;on du CanadJ (3) La Constitution du ~Iodific"'ion Canada ne peut etre modifee que conformemen t aux pollvoirs conferes par elle. 53. (I) Les texleslegisla-."'bragali",,", n.)'jtifs et les deerets enumeres "<JUX,ill"S it la colonne I de l'annexe sont abroges Oll modifies dans la mesure indiquee a la colonne II. Sauf abrogjtion, ils restent en vigueur en tant que lois du Canada so us les titres mentionnes a la colonne Ill.

232 Province of Alberta ADMINISTRATIVE PROCEDURES AND JURISDICTION ACT DESIGNATION OF CONSTITUTIONAL DECISION MAKERS REGULATION Alberta Regulation 69/2006 With amendments up to and including Alberta Regulation 254/2007 Office Consolidation Published by Alberta Queen s Printer Queen s Printer Bookstore Main Floor, Park Plaza Avenue Edmonton, AB T5K 2P7 Phone: Fax: qp@gov.ab.ca Shop on-line at

233 Note All persons making use of this consolidation are reminded that it has no legislative sanction, that the amendments have been embodied for convenience of reference only, and that the original Regulations should be consulted for all purposes of interpreting and applying the law.

234 (Consolidated up to 254/2007) ALBERTA REGULATION 69/2006 Administrative Procedures and Jurisdiction Act DESIGNATION OF CONSTITUTIONAL DECISION MAKERS REGULATION Table of Contents 1 Definitions 2 Authorization 3 Form of notice 4 Expiry 5 Coming into force Schedules Definitions 1 In this Regulation, (a) Charter means the Canadian Charter of Rights and Freedoms; (b) labour arbitrator means (i) a voluntary arbitration board appointed under Part 2, Division 15 of the Labour Relations Code; (ii) a compulsory arbitration board appointed under Part 2, Division 16 of the Labour Relations Code; (iii) a public emergency tribunal established under Part 2, Division 18 of the Labour Relations Code; (iv) an arbitrator, arbitration board or other body referred to in Part 2, Division 22 of the Labour Relations Code; (v) a construction industry disputes resolution tribunal under Part 3, Division 6 of the Labour Relations Code; (vi) a compulsory arbitration board established under Part 6 of the Public Service Employee Relations Act;

235 DESIGNATION OF CONSTITUTIONAL Section 2 DECISION MAKERS REGULATION AR 69/2006 (vii) an arbitrator appointed under Part 7 of the Public Service Employee Relations Act, (viii) an interest arbitration board established under Part 3 of the Police Officers Collective Bargaining Act; (ix) an arbitrator, a grievance arbitration board or other body referred to in Part 4 under the Police Officers Collective Bargaining Act; (c) Law Society entity means the Benchers or a panel, committee or subcommittee of the Benchers or any other entity established, by or under the Legal Profession Act. Authorization 2 The decision makers listed in column 1 of the Schedule have jurisdiction to determine the questions of constitutional law set out opposite them in column 2. Form of notice 3 The notice for the purpose of section 12(1) of the Act is set out in Schedule 2. Expiry 4 For the purpose of ensuring that this Regulation is reviewed for ongoing relevancy and necessity, with the option that it may be repassed in its present or an amended form following a review, this Regulation expires on January 31, Coming into force 5 This Regulation comes into force on the coming into force of section 8 of the Administrative Procedures Amendment Act,

236 DESIGNATION OF CONSTITUTIONAL Schedule 1 DECISION MAKERS REGULATION AR 69/2006 Schedule 1 Column 1 Column 2 Decision Maker Labour Relations Board Alberta Energy and Utilities Board Law Society entity a human rights panel appointed under the Human Rights, Citizenship and Multiculturalism Act labour arbitrators Workers Compensation Board Appeals Commission established under the Workers Compensation Act Law Enforcement Review Board Alberta Securities Commission Alberta Utilities Commission Energy Resources Conservation Board Jurisdiction all questions of constitutional law all questions of constitutional law all questions of constitutional law questions of constitutional law arising from the federal or provincial distribution of powers under the Constitution of Canada all questions of constitutional law questions of constitutional law arising from the federal or provincial distribution of powers under the Constitution of Canada questions of constitutional law arising from the federal or provincial distribution of powers under the Constitution of Canada questions of constitutional law relating to the Charter questions of constitutional law that relate to the Charter or arising from the federal or provincial distribution of powers under the Constitution of Canada all questions of constitutional law all questions of constitutional law AR 69/2006 Sched.1;254/2007 3

237 DESIGNATION OF CONSTITUTIONAL Schedule 2 DECISION MAKERS REGULATION AR 69/2006 Schedule 2 (Administrative Procedures and Jurisdiction Act (section 12)) Notice of Question of Constitutional Law To: The Minister of Justice and Attorney General of Alberta: To: The Attorney General of Canada: AND To: (decision-maker before which question will be raised) From: Address: Phone: Lawyer (if any): Date of hearing: I intend to raise the following question(s) of constitutional law. Attached are the details of my argument: Question(s): I intend to seek the following relief: Estimated time needed to call evidence and make arguments before the decision-maker: Dated: Signed: Details of Argument Details are to include: The grounds to be argued and reasonable particulars of the proposed argument, including a concise statement of the constitutional principles to be argued, references to any statutory provision or rule on which reliance will be placed and any cases or authorities to be relied upon. The law in question, the right or freedom alleged to be infringed or denied or the aboriginal or treaty right to be determined, as the case may be. The material and documents that will be filed with the decision-maker. List of witnesses intended to be called to give evidence before the decision-maker and the substance of their proposed testimony. 4

238 Province of Alberta ENERGY RESOURCES CONSERVATION ACT Revised Statutes of Alberta 2000 Chapter E-10 Current as of December 2, 2010 Office Consolidation Published by Alberta Queen s Printer Alberta Queen s Printer 5 th Floor, Park Plaza Avenue Edmonton, AB T5K 2P7 Phone: Fax: qp@gov.ab.ca Shop on-line at

239 Copyright and Permission Statement Alberta Queen's Printer holds copyright on behalf of the Government of Alberta in right of Her Majesty the Queen for all Government of Alberta legislation. Alberta Queen's Printer permits any person to reproduce Alberta s statutes and regulations without seeking permission and without charge, provided due diligence is exercised to ensure the accuracy of the materials produced, and Crown copyright is acknowledged in the following format: Alberta Queen's Printer, 20.* *The year of first publication of the legal materials is to be completed. Note All persons making use of this consolidation are reminded that it has no legislative sanction, that amendments have been embodied for convenience of reference only. The official Statutes and Regulations should be consulted for all purposes of interpreting and applying the law. Amendments Not in Force This consolidation incorporates only those amendments in force on the consolidation date shown on the cover. It does not include the following amendments: 2009 ca-31.5 s37 repeals and substitutes ss5(3) to (5), 5.1(2), 6(2). Regulations The following is a list of the regulations made under the Energy Resources Conservation Act that are filed as Alberta Regulations under the Regulations Act Alta. Reg. Amendments Energy Resources Conservation Act Energy Resources Conservation Board Administration Fees...114/ /2009, 225/2009, 80/2010, 95/2011 Energy Resources Conservation Board Rules of Practice...98/ /2011

240 ENERGY RESOURCES CONSERVATION ACT Chapter E-10 Table of Contents 1 Definitions 2 Purposes of Act 3 Consideration of public interest 3.1 ALSA regional plans 4 Continuation of Board 5 Membership of Board 5.1 Chief Executive 6 Duty of care 7 Acting Board member 8 Divisions of the Board 9 Absent Board members 10 Services of technical specialists 11 Report by Board member 12 Meetings 13 Chair and vice-chair 14 Delegation of powers 15 Proof of Board orders 16 Powers of Board 16.1 Order to comply with ALSA regional plans 17 Personnel 18 Hearing by examiners 19 Fiscal year 20 Powers of Board 21 Inquiries and recommendations 22 Co-operative proceedings 23 Records as evidence 24 Copies of records as evidence 25 Board decision final 26 Hearings 27 Rules of evidence 1

241 RSA 2000 Section 1 ENERGY RESOURCES CONSERVATION ACT Chapter E Board s funds and expenditures 27.2 Funding 28 Local interveners cost 29 Powers of Board on hearing 30 Coming into force of order 31 Restraining order 32 Content of order 33 Application for hearing 34 Notices 35 Costs of advertising hearing 36 Power of Board on inquiry 37 Protection re evidence 38 Witnesses at hearing 39 Review, etc., of Board order 40 Review of order made without hearing 41 Appeal 42 Exclusion of prerogative writs 43 Protection from action 45 Disposition of taxes and penalties 46 Action for recovery 47 Enforcement of remedies 48 References to former Board 49 Rules of practice 50 Regulations regarding security 51 Lieutenant Governor in Council regulations HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Alberta, enacts as follows: Definitions 1 In this Act, (a) Board means the Energy Resources Conservation Board; (a.1) carbon capture and storage project means a project for the injection of captured carbon dioxide conducted pursuant to rights granted under an agreement under Part 9 of the Mines and Minerals Act; (b) chair means the chair of the Board; 2

242 RSA 2000 Section 2 ENERGY RESOURCES CONSERVATION ACT Chapter E-10 (c) energy resource means any natural resource within Alberta that can be used as a source of any form of energy; (d) environment means the components of the earth and includes (i) air, land and water, (ii) all layers of the atmosphere, (iii) all organic and inorganic matter and living organisms, and (iv) the interacting natural systems that include components referred to in subclauses (i) to (iii). RSA 2000 ce-10 s1;2010 c14 s1 Purposes of Act 2 The purposes of this Act are (a) to provide for the appraisal of the reserves and productive capacity of energy resources and energy in Alberta; (b) to provide for the appraisal of the requirements for energy resources and energy in Alberta and of markets outside Alberta for Alberta energy resources or energy; (c) to effect the conservation of, and to prevent the waste of, the energy resources of Alberta; (d) to control pollution and ensure environment conservation in the exploration for, processing, development and transportation of energy resources and energy; (e) to secure the observance of safe and efficient practices in the exploration for, processing, development and transportation of the energy resources of Alberta; (e.1) to secure the observance of safe and efficient practices in the exploration for and use of underground formations for the injection of substances; (f) to provide for the recording and timely and useful dissemination of information regarding the energy resources of Alberta; (g) to provide agencies from which the Lieutenant Governor in Council may receive information, advice and recommendations regarding energy resources and energy. RSA 2000 ce-10 s2;2010 c14 s1 3

243 RSA 2000 Section 3 ENERGY RESOURCES CONSERVATION ACT Chapter E-10 Consideration of public interest 3 Where by any other enactment the Board is charged with the conduct of a hearing, inquiry or other investigation in respect of a proposed energy resource project or carbon capture and storage project, it shall, in addition to any other matters it may or must consider in conducting the hearing, inquiry or investigation, give consideration to whether the project is in the public interest, having regard to the social and economic effects of the project and the effects of the project on the environment. RSA 2000 ce-10 s3;2010 c14 s1 ALSA regional plans 3.1 In carrying out its mandate under this Act and other enactments, the Board must act in accordance with any applicable ALSA regional plan ca-26.8 s75 Continuation of Board 4(1) The Energy Resources Conservation Board is continued as a corporation. (2) The head office of the Board is to be at the City of Calgary. RSA 1980 ce-11 s3 Membership of Board 5(1) The Board shall consist of not more than 9 members appointed by the Lieutenant Governor in Council, one of whom shall be designated as chair, not more than 2 of whom may be designated as vice-chairs and the remainder of whom shall be designated as Board members. (2) In the event of any vacancy occurring in the membership of the Board, the Lieutenant Governor in Council may appoint a member and, in case the office of chair or a vice-chair becomes vacant, the Lieutenant Governor in Council may designate any member to fill the vacancy. (3) Each of the members of the Board holds office during good behaviour for a term of 5 years from the date of that member s appointment and afterwards during the pleasure of the Lieutenant Governor in Council. (4) Notwithstanding anything in this section, any member of the Board may be removed from office by the Lieutenant Governor in Council at any time during the 5-year term referred to in subsection (3) on the address of the Legislative Assembly. 4

244 RSA 2000 Section 14 ENERGY RESOURCES CONSERVATION ACT Chapter E-10 (2) Repealed 2007 ca-37.2 s82(5). (3) At any time during which the office of chair is vacant or the chair is absent from the head office of the Board or is incapacitated for any reason from executing the chair s functions as chair, or on the direction of the chair, a vice-chair has and shall exercise or perform all the powers, duties and functions conferred or imposed on the chair by this Act. (4) At any time during which the offices of the vice-chairs are vacant or the vice-chairs are absent from the head office of the Board or are incapacitated for any reason from executing their functions as vice-chairs, or on the direction of the chair, a Board member has and may exercise and perform all the powers, duties and functions conferred or imposed on a vice-chair by this Act. RSA 2000 ce-10 s13;2007 ca-37.2 s82(5) Delegation of powers 14 The Board may delegate any of the powers, duties and functions conferred or imposed on it under this Act or any other enactment to any member or any other person unless the regulations under section 51 prohibit the delegation. RSA 2000 ce-10 s14;2007 ca-37.2 s82(5) Proof of Board orders 15(1) Repealed 2007 ca-37.2 s82(5). (2) A copy of an order, direction or other document purporting to be issued by authority of the Board, when certified as a true copy by the Board s solicitor, shall be admitted in evidence to prove the order, direction or other document and its contents without any proof of the authority of the member by whom the order, direction or document purports to be signed and without any proof of the signature or of the appointment of or authority of the solicitor. RSA 2000 ce-10 s15;2007 ca-37.2 s82(5) Powers of Board 16 The Board, in the performance of the duties and functions imposed on it by this Act and by any other Act, may do all things that are necessary for or incidental to the performance of any of those duties or functions. RSA 1980 ce-11 s15 Order to comply with ALSA regional plans 16.1(1) The Board may, in making an order that it is authorized to make under this Act or other enactments, direct a person who is the 8

245 RSA 2000 Section 39 ENERGY RESOURCES CONSERVATION ACT Chapter E-10 Review, etc., of Board order 39 The Board may review, rescind, change, alter or vary an order or direction made by it, or may rehear an application before deciding it. RSA 1980 ce-11 s42 Review of order made without hearing 40(1) A person affected by an order or direction made by the Board without the holding of a hearing may, within 30 days after the date on which the order or direction was made, apply to the Board for a hearing. (2) A person affected by an order or direction made by the Board after a hearing and to whom notice of the hearing was not directly given may, within 30 days after the date on which the order or direction was made, apply to the Board to vary, amend or rescind it. (3) An application under this section shall set out the matters complained against and the reasons for the complaint. (4) On making an application under this section, the applicant may request that the order or direction referred to in the application be suspended until the application is heard, and the Board may suspend the order or direction on the terms and conditions it prescribes or may refuse the request. (5) When an application is made under this section, the Board shall, after not less than 10 days notice to all persons affected by the order or direction, hold a public hearing of the application, and may confirm, vary or rescind the order or direction, as to the Board seems just. RSA 1980 ce-11 s43 Appeal 41(1) Subject to subsection (2), on a question of jurisdiction or on a question of law, an appeal lies from the Board to the Court of Appeal. (2) An application for leave to appeal must be filed and served within 30 days from the day that the order or direction sought to be appealed from was made, or within a further period of time granted by the judge where, in the opinion of the judge, the circumstances warrant it. (2.1) Notice of an application for leave to appeal must be given to the parties affected by the appeal and to the Board. 19

246 Province of Alberta OIL SANDS CONSERVATION ACT Revised Statutes of Alberta 2000 Chapter O-7 Current as of May 13, 2011 Office Consolidation Published by Alberta Queen s Printer Alberta Queen s Printer 5 th Floor, Park Plaza Avenue Edmonton, AB T5K 2P7 Phone: Fax: qp@gov.ab.ca Shop on-line at

247 Copyright and Permission Statement Alberta Queen's Printer holds copyright on behalf of the Government of Alberta in right of Her Majesty the Queen for all Government of Alberta legislation. Alberta Queen's Printer permits any person to reproduce Alberta s statutes and regulations without seeking permission and without charge, provided due diligence is exercised to ensure the accuracy of the materials produced, and Crown copyright is acknowledged in the following format: Alberta Queen's Printer, 20.* *The year of first publication of the legal materials is to be completed. Note All persons making use of this consolidation are reminded that it has no legislative sanction, that amendments have been embodied for convenience of reference only. The official Statutes and Regulations should be consulted for all purposes of interpreting and applying the law. Regulations The following is a list of the regulations made under the Oil Sands Conservation Act that are filed as Alberta Regulations under the Regulations Act Alta. Reg. Amendments Oil Sands Conservation Act Oil Sands Conservation...76/ /90, 331/92, 372/92, 79/98, 180/98, 48/99, 226/2000, 251/2001, 191/2003, 83/2009, 93/2009, 158/2009, 218/2010, 115/2011, 133/2011, 31/2012

248 OIL SANDS CONSERVATION ACT Chapter O-7 Table of Contents Interpretation 1 Interpretation 2 References to subdivisions of unsurveyed land Application and Purposes of the Act 3 Purposes of the Act 4 Overriding provisions Powers and Duties of the Board 5 Jurisdiction of the Board 6 Scope of authority to make orders 7 Board s power to make orders 8 Inspections and investigations 9 Stop orders Approvals 10 Approval of scheme or operation 11 Approval of processing plant 13 Amendment of approvals 14 Failure to comply with orders 15 Cancellation of approvals General 16 Registered address of holder and agent 17 Statutory obligations of holder not affected by agreement 18 Scheme to maximize recovery of oil sands or crude bitumen 19 Remedial action by the Board

249 RSA 2000 Section 1 OIL SANDS CONSERVATION ACT Chapter O-7 Regulations 20 Regulations Offences and Penalties 21 False reports 22 Waste 23 Civil cause of action not affected by prosecution 24 Offences 25 Limitations on prosecutions 26 General offence Cancellation of Industrial Development Permits and Applications 27 Cancellation of permits and applications HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Alberta, enacts as follows: Interpretation 1(1) In this Act, Interpretation (a) Board means the Energy Resources Conservation Board under the Energy Resources Conservation Act; (b) contractor means a person who undertakes to perform any drilling, mining, service or other operation at an oil sands site by agreement (i) directly with the operator of the oil sands site, or (ii) with a person who has entered directly into an agreement with the operator; (c) crude bitumen means a naturally occurring viscous mixture, mainly of hydrocarbons heavier than pentane, that may contain sulphur compounds and that, in its naturally occurring viscous state, will not flow to a well; (d) declared oil sands means those hydrocarbon substances declared to be oil sands under section 7(2); (e) discard means solid or liquid material, whether naturally occurring or introduced during operations at a mine site, an in situ operation site or a processing plant, that does not have an immediate use and is removed or rejected 2

250 RSA 2000 Section 5 OIL SANDS CONSERVATION ACT Chapter O-7 Powers and Duties of the Board Jurisdiction of the Board 5 Except as otherwise provided in this or any other Act, the Board has exclusive jurisdiction to examine, inquire into, hear and determine all matters or questions arising under this Act co-5.5 s5 Scope of authority to make orders 6 The Board, with the approval of the Lieutenant Governor in Council, may make any just and reasonable orders or directions that it considers to be necessary to effect the purposes of this Act and that are not otherwise specifically authorized by this Act co-5.5 s6 Board s power to make orders 7(1) The Board may by order (a) designate a scheme or operation as an in situ operation; (b) designate an operation as a mining operation; (c) prescribe official names for oil sands sites. (2) The Board may by order, with respect to a zone within a specified area set out in the order, declare any hydrocarbon substance, except natural gas and coal, to be oil sands if the Board is satisfied (a) that the zone adjoins or is in reasonable proximity to an oil sands deposit, and (b) that to do so would be in the interests of the orderly, efficient or economic development of (i) the hydrocarbon substance, or (ii) the oil sands in the oil sands deposit referred to in clause (a). (3) An oil sands deposit may be designated by the Board (a) by describing the surface area vertically above the oil sands deposit and by naming the geological formation, member or zone in which the oil sands deposit occurs, or (b) by any other method of description that the Board considers appropriate. 7

251 RSA 2000 Section 10 OIL SANDS CONSERVATION ACT Chapter O-7 Approvals Approval of scheme or operation 10(1) No person shall (a) construct facilities for a scheme or operation, or (b) commence or continue a scheme or operation for the recovery of oil sands or crude bitumen, unless the Board, on application, has granted an approval in respect of the scheme or operation. (2) The Board shall, on receiving an application referred to in subsection (1), make any investigations or inquiries and hold any hearings that it considers necessary or desirable in connection with the application. (3) The Board may, with respect to an application referred to in subsection (1), (a) if in its opinion it is in the public interest to do so, and with the prior authorization of the Lieutenant Governor in Council, grant an approval on any terms and conditions that the Board considers appropriate, (b) refuse to grant an approval, (c) defer consideration of the application on any terms and conditions that the Board may prescribe, or (d) make any other disposition of the application that the Board considers appropriate. (4) An authorization of the Lieutenant Governor in Council is subject to any terms and conditions prescribed by the Lieutenant Governor in Council. (5) Notwithstanding subsections (3) and (4), the authorization of the Lieutenant Governor in Council is not required under this section in respect of (a) an approval of an experimental scheme where the total quantity of energy, as estimated by the Board, in the oil sands, crude bitumen or derivatives of crude bitumen recovered in any year will not exceed 12.5 petajoules, or (b) an approval of a scheme or operation, other than an experimental scheme, where the total quantity of energy, as estimated by the Board, in the oil sands, crude bitumen 10

252 354 Alberta Hansard March 21, 2005 Bill 2 Alberta Centennial Medal Act The Chair: The hon. Minister of Community Development. Mr. Mar: Thank you, Mr. Chairman. At second reading of this bill I indicated to hon. members on both sides of the House that I would take the transcripts from Hansard and conveying them on to the drafters of the regulations so that the comments and questions that were brought forward at that stage of the reading of this bill could be addressed by the drafters of the regulations, and I ve fulfilled that commitment. With that, I don t have any further words to add except to say thank you to the members who have spoken very passionately about this particular bill. Thank you, sir. 9:50 Mr. R. Miller: Mr. Chairman, I just have one quick question to the minister. Under section 6, revocation of the award, it says that the Minister may revoke any award given pursuant to this Act. I m just wondering if he could share with us under what circumstances the minister might wish to revoke an award. Mr. Mar: Mr. Chairman, this question was asked by the hon. Member for Edmonton-Strathcona at the second reading stage. The reason why the revocation clause is put in there is because it is a requirement by Rideau Hall s direction so that this medal may be recognized by the order of precedence as established by the Governor General. So it is a requirement. Obviously, one can think of many examples where an individual, perhaps by reason of criminal activity, is somebody that you may wish to revoke their medal. There are numerous circumstances I think most members could probably imagine when such a situation could arise. Mr. R. Miller: I d like to thank the minister for that clarification. I obviously didn t read Hansard, or else I would have seen that and perhaps your answer. That may well be the case here as well. Under article 3, eligibility, it refers to former long-term residents, and again I m just wondering if you could share with us what the definition might be for long-term when we re talking about former residents of the province. Mr. Mar: Mr. Chairman, I think what we re trying to contemplate is if somebody had long been a resident of the province of Alberta but was retired in the province of British Columbia, but they were well-recognized as an Albertan who contributed greatly to this province, then that s such a person that we would not want to restrict from being eligible for this medal. The Chair: The hon. Member for Edmonton-Calder. Mr. Eggen: Yes. Thank you, Mr. Chairman. I have a couple of questions in regard to the medallions. I guess my first question is perhaps a bit naive, but I would like to ask it anyway. I m just wondering why we require legislation in the first place to hand out these medallions. You know, it seems as though it s a bit of a formal process for the medallions. Right? Mr. Mar: Mr. Chairman, at the outset of my comments at second reading I did make a very clear distinction between the medallions and the centennial medal. Medallions being struck do not require legislation. Those medallions are being struck for commemorative souvenirs for all school students, for example, in the province of Alberta. That is not the subject matter of the legislation that we re looking at today. The subject matter of the legislation that we are considering today is the Centennial Medal Act, which is restricted. A total, I believe, of 8,000 of these will be struck. The requirement for legislation is the requirement that is established so that it is recognized by Rideau Hall so that individuals may wear the medals at appropriate occasions. [The clauses of Bill 2 agreed to] [Title and preamble agreed to] The Chair: Shall the bill be reported? Are you agreed? Hon. Members: Agreed. The Chair: Opposed? Carried. The hon. Deputy Government House Leader. Mr. Zwozdesky: Thank you, Mr. Chairman. I would move that we rise and report Bill 2. [Motion carried] [The Deputy Speaker in the chair] The Deputy Speaker: The hon. Member for Lac La Biche-St. Paul. Mr. Danyluk: Thank you very much, Mr. Speaker. The Committee of the Whole has had under consideration certain bills. The committee reports the following bill: Bill 2. The Deputy Speaker: Does the Assembly concur in the report? Hon. Members: Agreed. The Deputy Speaker: Opposed? So ordered. head: Government Bills and Orders Second Reading (continued) Bill 23 Administrative Procedures Amendment Act, 2005 Mr. Stevens: Mr. Speaker, it s my pleasure to rise this evening to move second reading of Bill 23, the Administrative Procedures Amendment Act, This bill is in response to two Supreme Court rulings that have made it necessary for provincial governments across Canada to specify the authority of tribunals in their jurisdiction. In October 2003 the Supreme Court released two decisions that set out a new test for determining the jurisdiction of administrative tribunals. Those two cases were Paul and Martin, one relating to aboriginal rights and the other to labour rights. In the Paul case, which originated in British Columbia, Mr. Paul, an aboriginal person, cut down two red cedar trees to construct a deck for his home. The province of B.C. charged him with offences under their Forest Act for cutting down the trees without authorization. Mr. Paul appealed his regulatory convictions to the Forest Appeals Commission, the B.C. tribunal set up to regulate the use of forest products. At his hearing Mr. Paul argued that he had an aboriginal right under section 35 of the Constitution of Canada to cut

253 March 21, 2005 Alberta Hansard 355 down those trees. The question in that case was whether the tribunal had any jurisdiction to consider the constitutional matters. Mr. Speaker, regulatory tribunals such as the Forest Appeals Commission in B.C. were set up by the province to streamline regulatory dispositions and hear matters quickly so that resource development can proceed in a timely fashion. An inquiry into whether Mr. Paul had an aboriginal right to cut down trees was a significant threat to the entire purpose for which tribunals are created. Aboriginal claims are complex and very involved, often requiring reams of historical evidence and experts and elders to testify. It was not clear that the Forest Appeals Commission had any capacity to handle such an important but complex and lengthy inquiry. Without jurisdiction the issue would be litigated and resolved in the courts. The Supreme Court concluded that the Forest Appeals Commission had the necessary jurisdiction to determine aboriginal rights because of the way the enabling statute was drafted. Mr. Speaker, the second case, the Martin case, was decided the very same day as the Paul case. While the Paul case considered aboriginal constitutional law matters, Martin concerned the Charter of Rights and Freedoms and whether the Workers Compensation Appeals Tribunal had the jurisdiction to decide whether the Workers Compensation Act offended the Charter. The case concerned an argument before the Workers Compensation Appeals Tribunal of Nova Scotia that provisions excluding certain injuries from the workers compensation system violated section 15 of the Charter. Based on the wording of that legislation, the Supreme Court concluded that the tribunal had the jurisdiction to determine the constitutional law issue. Mr. Speaker, prior to the Supreme Court s decisions in these cases the law was that when deciding whether a tribunal had jurisdiction over complex questions of constitutional law, it had to be determined whether the Legislature or Parliament intended to confer jurisdiction on the particular tribunal. In most cases the statute creating the tribunal was silent and did not expressly give the jurisdiction to the board. The statutory scheme as a whole in the capacity of the particular tribunal had to be looked at to discover whether or not the Legislature or Parliament intended to confer such jurisdiction. The exercise was not a very clear one. The Supreme Court turned the test on its head by saying that if a Legislature gave the tribunal the right to determine questions of law, there was an automatic presumption that the tribunal had jurisdiction over all constitutional matters; that is, without an express withdrawal or constitutional jurisdiction by the Legislature. 10:00 Mr. Speaker, Bill 23 is designed to clarify which Alberta tribunals and boards have the jurisdiction to determine which constitutional questions. Constitutional questions generally fall into three broad categories: Charter of Rights and Freedoms, existing aboriginal and treaty rights, and federal and provincial division of powers. There are many other constitutional questions, but these three are the most common. In the fall of last year, Mr. Speaker, Alberta Justice put a team together to go out and discuss the contents of Bill 23 with most of the major boards and tribunals in Alberta. Input from the various boards was solicited and obtained as the bill was drafted. The boards who met with our officials were very supportive of this legislation and were happy to have the question of constitutional jurisdiction clarified by the Legislature. Our officials had discussions and meetings with officials from the Labour Relations Board, the Securities Commission, the Energy and Utilities Board, the Natural Resources Conservation Board, the Workers Compensation Board and appeals tribunal, the Human Rights Commission, the Environmental Appeal Board, the Alberta Gaming and Liquor Commission, the Law Society of Alberta, the Citizens Appeal Panel under the Assured Income for the Severely Handicapped Act, the Occupational Health and Safety Council, and the law enforcement board. Mr. Speaker, all of the boards contacted by our team supported the legislation, especially the provisions to allow boards that have jurisdiction an opportunity to refer constitutional questions to the court and the provisions that provide a role for the Attorney General in the determination of constitutional issues for tribunals. In addition to the boards I mentioned, there were a great number of other statutory offices and tribunals that were identified by Alberta s team, including the agricultural services boards, the Irrigation Council, the livestock diseases panel, and the Seniors Advisory Council, to name but a few. Our team did not meet with every board because it was very clear upon discussing the matter with the department overseeing them that these boards simply did not have the capacity or need to determine issues of constitutional law. These types of issues arise very infrequently, and the courts are simply better equipped to resolve them. However, the new test by the Supreme Court could mean that many of these boards that lack the capacity or need to determine questions of constitutional law now have that jurisdiction. Something has to be done to clarify the will of the Legislature, and Bill 23, Mr. Speaker, provides that. The amendment specifies that as a general rule no board has the jurisdiction to determine questions of constitutional law unless jurisdiction is given by regulation. A regulation will be finalized in the coming months listing the various boards that need constitutional jurisdiction and what type of constitutional jurisdiction is required. Mr. Speaker, during the fall, the major boards were also asked by our team to indicate and itemize the type and kind of jurisdiction required by them to discharge their statutory functions. Our team used the following criteria to determine whether a board required this type of jurisdiction. Do constitutional issues arise with some frequency before the tribunal? Does the tribunal need to decide these questions in order to discharge its statutory functions? Does the tribunal have the necessary expertise to decide these questions? Are there other avenues of redress, such as court, and are these avenues a preferable means for a litigant to obtain constitutional relief? While work is still proceeding to determine what boards will get what type of jurisdiction, many boards have demonstrated the clear need and capacity to determine constitutional issues; for example, the Energy and Utilities Board and the Labour Relations Board routinely are asked to consider constitutional issues and have a demonstrated capacity in handling them. The Workers Compensation Board and appeal tribunal did not wish to have jurisdiction over Charter and aboriginal law issues, as these issues simply did not arise very often, and they felt they would be better handled by the courts. However, they demonstrated a need to have jurisdiction over constitutional division of powers, as they have to determine when their legislation applies as opposed to federal legislation. Mr. Speaker, the legislation also provides a mechanism for boards to refer questions of constitutional law to court. This will allow tribunals that have jurisdiction over routine constitutional law matters to refer complicated matters to the courts for decision. One other provision of the bill requires a person who wishes to raise a question of constitutional law before a board to give the Attorney General 14 days notice so that the Attorney General has the right to participate in the determination of any matter of constitutional rights. This provision was significant to many of the

254 356 Alberta Hansard March 21, 2005 boards our officials met with because, clearly, Alberta boards want the assistance of the Attorney General and its council in determining issues of constitutional law. The requirement to give 14 days notice means that the determination of these important issues will not be made hastily and will ensure that they are determined with full knowledge and participation, in appropriate cases, by the Attorney General and council. In conclusion, Mr. Speaker, the new legislation is expected to streamline the regulatory process and help boards get on with the business the Legislature entrusted to them. It will clarify the intention of the Legislature, thereby reducing the number of court challenges brought by applications over whether certain boards do or do not have jurisdiction to determine constitutional law matters. It will allow boards, such as the Energy and Utilities Board, to decide constitutional questions when appropriate, but it will allow the very same board to refer issues that it believes may be beyond its capacity to the court for determination. This will provide flexibility so that the board can conclude its statutory business subject to what the court has to say on the constitutional issue. Mr. Speaker, I encourage all members of the Legislature to support Bill 23 in clarifying the roles and responsibilities of our boards and tribunals, and at this time I wish to adjourn debate on this bill. [Motion to adjourn debate carried] Bill 25 Provincial Court Amendment Act, 2005 The Deputy Speaker: The hon. Minister of Justice and Attorney General. Mr. Stevens: Thanks, Mr. Speaker. I m pleased to rise this evening to move second reading of Bill 25, the Provincial Court Amendment Act, 2005, and to bring to the attention of the House some aspects of this bill. Most importantly, Mr. Speaker, the bill amends the Provincial Court Act to allow provincial court judges to retire and sit on a parttime basis. Just to clarify this matter, these amendments allow retired provincial court judges to be appointed to sit full-time for six months, or half of the year. This can be either six consecutive months or two terms of three months each. Mr. Speaker, we ve worked with the provincial court to develop a made-in-alberta solution that improves our justice system by meeting the needs of Albertans and the judiciary. Judges who want to provide a guaranteed amount of judicial service after retirement will be attracted to this option. As a result, highly experienced and competent judges will continue serving Albertans on a part-time basis after retirement. Further, the government will obtain a financial benefit in that it no longer has to contribute to the part-time judge s pension plan. As of April 1, 2005, the government contributions to a provincial court judge s pension will be approximately $63,000. These kinds of innovative solutions in delivering court services demonstrate how Alberta Justice and the provincial court are working together to make our justice system more cost-effective. Mr. Speaker, to be eligible for part-time service, a judge must be at least 60 years of age with a minimum of 10 years of service or age 70 or older. Alberta currently has 112 full-time provincial court judges. In 2005 there will be 40 judges who will be eligible for parttime service; 32 of these judges will be under the age of 70. Judges wishing to sit part-time will be required to notify the Chief Judge of their intention prior to their retirement. The legislation ensures that all part-time appointments will be subject to the Chief Judge s approval. The Chief Judge must be satisfied that the appointment will enhance the efficient and effective administration of the provincial court. Mr. Speaker, judges 70 years of age or older must meet an additional criteria established by the Chief Judge and approved by the Judicial Council. This additional criteria involves providing a medical certificate establishing that the judge s health will not be an issue in his or her ability to provide continued judicial service. This additional criteria is also currently applied to judges 70 years of age or older who wish to continue sitting on a full-time basis. 10:10 Mr. Speaker, the bill also lays out the process for part-time appointments. When the Chief Judge is satisfied that allowing a judge to sit on a part-time basis will enhance the efficient and effective administration of the court, he will request the Lieutenant Governor in Council to appoint the judge a part-time judge. The Lieutenant Governor in Council will then formally appoint the judge as a part-time judge by order in council. The term of a part-time appointment will commence on the judge s birthday. The term of a judge under the age of 70 will expire on his or her 70th birthday. The term of a judge 70 years of age or older will be for one year with possible renewals for further one-year terms. No judge can sit on a part-time basis after age 75. Mr. Speaker, with respect to compensation part-time judges will receive their pension and a salary of up to 50 per cent of a full-time judge s annual salary. A part-time judge s total annual remuneration is capped at 100 per cent of a full-time judge s annual salary. By virtue of the Provincial Court Act part-time judges will also be restricted from engaging in any other business, profession, trade, or occupation. Mr. Speaker, we have an understanding with the provincial court as to how part-time judicial service will operate. Some of these operational matters will be dealt with in the regulations; for instance, part-time judges will not be permitted to hold administrative offices such as the office of Chief Judge or Assistant Chief Judge. Judges who currently hold an administrative office and who meet the parttime eligibility criteria will have the option to sit part-time available to them; however, they cannot keep their status as an administrative judge once they begin sitting on a part-time basis. If a part-time judge s pension is worth more than 50 per cent of a full-time judge s salary, the part-time judge s salary will be reduced, but he or she will still be required to sit full-time for six months of the year. Part-time judges under 70 years of age will be entitled to participate in the same group benefit plans available to full-time judges under 70 years of age. Part-time judges 70 years of age or older will be entitled to participate in the same group benefit plans offered to full-time judges 70 years of age or older. Part-time judges will be entitled to one-half the annual professional allowance and one-half the annual vacation benefit of fulltime judges. Part-time judges will not be given a personal office, nor their own parking space. They will not have their own judicial assistant or any other staff. Mr. Speaker, the remuneration of part-time judges will be subject to the review of the next Judicial Compensation Commission, expected to convene in Mr. Speaker, this bill will also make a consequential amendment to the Judicature Act. The amendment will allow a judge to appeal to the Judicial Council if he or she disagrees with a decision made by the Chief Judge regarding their request to be appointed a part-

255 942 Alberta Hansard April 20, 2005 Mr. Eggen: Thank you, Mr. Speaker. I, too, had made rather extensive comments in regard to Bill 19 during second reading. The main issue, my main concern, I guess, with Bill 19 was in regard to how it was going to flow through and indeed support and encourage the development of a national securities regulator. That s not to say a federal but a national body that could oversee the securities exchanges of each of the provinces and territories. Considering that we didn t receive entirely a clear answer to that, I do have a notice of amendment that I would like to pass out to each of the members now. This amendment from my colleague, Mr. Martin, is to move that the motion for third reading of Bill 19, the Securities Amendment Act, 2005, be amended by deleting all the words after that and substituting the following: Bill 19, Securities Amendment Act, 2005, be not now read a third time because it inadequately addresses the need for a national securities regulator. The NDP opposition has during earlier stages of this bill highlighted the need for a single national securities regulator to better protect investors and catch corporate bad guys, so to speak. It s important to note that a national securities regulator does not mean a federal government regulator. In fact, a single regulator would be a collaboration of the 10 provinces and the three territories modelled somewhat along the lines of the Securities and Exchange Commission in the United States. Nor does a national securities regulator mean that all of the activities will take place in Ontario. While SEC s head office is in Washington, DC, in America, it has a number of regional offices located in other centres more or less proportionate to the amount of capital market activity that originates there. 10:40 When it comes to investor protection and pursuing corporate crime, Canada is a rather small player compared to the much tougher laws in the U.S. Enron, WorldCom, Martha Stewart, and Tyco have all been prosecuted in the United States, where they take corporate crime very seriously and have the tools to pursue it. Let s take the comparison to the track record that we have here, let s say, for example, with Bre-X, which arguably was one of the biggest scams in corporate securities history. Due to Canada s weak securities laws, none of the Bre-X principals were ever held accountable for their crimes. A big part of the reason for this patchwork quilt of securities regulation in this country is because of this provincial regulation that we adhere to. I don t think Bill 19 will do much to improve the situation. In fact, the passport system implemented through Bill 19 could, I would suggest, even make things worse. According to Wayne Alford, the former director of enforcement for the Alberta Securities Commission, the passport system could contribute further to, as he said, a race to the bottom. Alford notes that with 13 jurisdictions the incentive is to lower standards in a province relative to other provinces in order to attract capital market participants. Of course, this is not necessarily in the best interests of any investor anywhere. I want to briefly quote from a guest column Mr. Alford published in the October 2004 Economics Society of Calgary newsletter. In it he states: The Passport System will perpetuate many of the current complaints. There will still be infrastructure duplication. There will still be thirteen regulators who can make whatever rules they see fit. There will still be inconsistent investor protection and enforcement. Government oversight will still be inconsistent. For the above reasons, I urge members to support this amendment at this time, and I invite you to reflect on it and make comment as you see fit. The Acting Speaker: Hon. Member for Edmonton-Calder, just for the record, this reasoned amendment that you moved was moved on behalf of the hon. Member for Edmonton-Beverly-Clareview. Is that correct? Mr. Eggen: That s correct. That s right. Thank you. The Acting Speaker: Hon. members, we have a reasoned amendment before us. Anybody wish to participate? [Motion on amendment lost] The Acting Speaker: The hon. Member for Grande Prairie-Smoky to close debate? [Motion carried; Bill 19 read a third time] Bill 23 Administrative Procedures Amendment Act, 2005 The Acting Speaker: The hon. Minister of Advanced Education and Government House Leader. Mr. Hancock: Thank you, Mr. Speaker. On behalf of the Minister of Justice and Attorney General I move third reading of Bill 23. As he indicated during second reading, the bill is in response to two Supreme Court rulings that have made it necessary for provincial governments across Canada to specify the authority of tribunals in their jurisdiction. The bill streamlines the regulatory process, preserves access to justice for the boards that have the capacity to handle constitutional issues. Bill 23 ensures that boards up to the task of determining these complex issues will have the jurisdiction to do so and makes very clear that boards that do not have that same capacity will be free to do what the Legislature needs them to do. The bill will cut down on unnecessary litigation concerning the jurisdiction of Alberta tribunals and will save time for the litigant as he or she will not have to have the question of jurisdiction slowly winding its way through the various appeals. To conclude, Mr. Speaker, Bill 23 is a necessary piece of legislation that will greatly enhance the administration of justice by clarifying the roles of our boards and tribunals while at the same time maximizing meaningful access to justice. I d ask all hon. members to support Bill 23 at third reading. The Acting Speaker: The hon. Member for Edmonton-Gold Bar. Mr. MacDonald: Thank you very much, Mr. Speaker. I ve been following I don t want to use the word monitor the progress of Bill 23 through this Assembly since the day it was introduced, and I m not convinced that this bill is necessary at this time. Now, the hon. Minister of Advanced Education spoke about the need for this bill and specifically section 12 and the notice of question of constitutional law, but I m not convinced that we need this at this time. I m not convinced that the reasons that the hon. minister has just recently given are in this case valid. We are looking at what has been described to me as an unusual procedure, and it s also being described in the research that I have done to be an elaborate legal stunt. I would certainly caution all Members of this Legislative Assembly before Bill 23, the Administrative Procedures Amendment Act, 2005, is passed into law, that we reconsider this. I know from my time in this Assembly that this will not happen, but I just find at this time in the history of this country and as the Canadian Charter of Rights and Freedoms continues to be defined by various levels of our parliamentary process that I don t understand why this is necessary. With that, I will take my seat, but I m not convinced that this is

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258 JUDICIAL REVIEW OF ADMINISTRATIVE ACTION IN CANADA ) BY DONALD J.M. BROWN, Q.C. AND THE HONOURABLE JOHN M. EVANS of the Federal Court of Appeal Professor Emeritus, Osgoode Hall Law School York University WITH THE ASSISTANCE OF CHRISTINE E. DEACON of the Ontario Bar CANVASBACK PUBLISHING TORONTO, ONTARIO

259 CHAPTER 12 REVIEW OF THE DECISION-MAKING PROCESS 12:1000 INTRODUCTION Traditionally, procedural fairness has been viewed as pertaining to the parties' right to an effective opportunity to participate in the decision-making process through the presentation of evidence and argument, and through the requirement of impartiality in the decisionmaker. In addition, however, there are other aspects of the law which are designed to prevent the conduct of the tribunal from undermining the participatory rights required by the duty of procedural fairness, although they have not always been regarded as elements of the rules of natural justice or the duty of fairness. These principles and rules relate to five interconnected aspects of the decision-making process: the gathering of information; the consideration of evidence; the making of the decision; the giving of reasons for decision; and revisitation of decisions after they have been made. Of course, as with all other aspects of fairness, these rules and principles seek to strike an appropriate balance between efficient administrative practice on the one hand, and affording effective participation to the parties on the other. More particularly, from the perspective of maximizing efficiency and minimizing costs, tribunals need to be free to gather any additional evidence that they may need, and to draw from the evidence such inferences as they thirjr proper; to delegate and to consult; to engage in categorical rather than case-by-case decision-making through the applicatio:j?. of rules, even when not expressly authorized by statute; to avoid the burden of providing the parties with reasons for decision, a task that is not only a drain on scarce agency resources, but also exposes it to costly interference from the courts; and to regard a matter as closed once the decision has been released. Conversely, the desire to maximize participation by affected parties leads to constraints being placed on a tribunal's procedures. For example, strict limitations may be placed on a decision-maker's ability to base the decision on material other than that presented at the hearing, to draw inferences from the evidence, to divide up the task of decision-making, and to involve others in the deliberations. Similarly, a reasons requirement may be imposed in the interest of"transparency" and to ensure responsiveness. Furthermore, a desire to provide an 12-1 July 2010

260 12: :4400 Fettering of Judgment 12:4410 Overview An allegation that a tribunal has "fettered its judgment" is similar to a charge of"prejudgment," in that the complaint is that the decisionmaker has decided the matter without regard to the particular circumstances. 180 In particular, an agency may not fetter the exercise of its statutory discretion, or its duty to interpret and apply the provisions of its enabling statute, by mechanically applying a rule that it had previously formulated, other than where it is properly enacted pursuant to a statutory power to make subordinate legislation. "Fettering" can also occur if, without exercising any independent judgment in a matter, a decision-maker makes a decision in accordance with the views of another, 181 or where a contract or some other undertaking is regarded as determinative of the exercise of a statutory power. 182 On the other hand, it is not unlawful for a decision-maker to take into account informal rules or guidelines, previous decisions, contractual commitments or the views of others. Indeed, formulating guidelines and written reasons for decision can enhance the quality of decision-making and administrative justice by increasing certainty, reducing inconsistencies and raising the level of accountability to the public. Thus, the issue in each case is not whether the rule, guideline, precedent, policy, or contract was a factor, or even the determining factor, in the making of a decision, but whether the decision-maker treated it as binding or conclusive, without the need to consider any other factors, including whether it should apply to the unique circumstances of the particular case. In the result, in each instance a tension will exist between the desirability of consistency on the one 180 As to "prejudgment," see topic 11:4510, ante, and for review of discretion generally, see topics 14:5400, 15:2000, post. 181 E.g. Stafford u. Newfoundland (Milk Marketing Board) (1987), 67 Nfld. & P.E.I.R. 198 (Nfld. S.C.) (appeal tribunal deferred to decision of Milk Marketing Board); Amerato u. Ontario (Registrar Motor Vehicle Dealers Act) (2005), 257 D.L.R. (4th) 146 (Ont. C.A.) (by allowing Registrar to automatically revoke licence for any breach of order, tribunal fettered its discretion); Labiyi u. Canada (Solicitor General) (2004), 261 F.T.R. 149 (FC) (officer wrongly concluded decision had been made by her Director and that she was bound by it). 182 To refuse to exercise discretion based on an error oflaw, while it may be described as "fettering," e.g. Electrical Power Construction Systems Association u. Ontario Allied Construction Trades (1993), 12 OR. (3d) 768 (Ont. Div. Ct.), is more properly viewed as an instance of legal error which may or may not result in judicial intervention August 2012

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266 PRACTICE AND PROCEDURE BEFORE Administrative Tribunals VOLUME2 by ROBERT W. MACAULAY, Q.C. and JAMES L.H. SPRAGUE, B.A., LL.B. Contributors Judy Algar Peter Budd Irene Dicaire Marvin J. Huberman David P. Jacobs Charles Mathis Sharon Silberstein Patricia Auron Laura Boujoff Daria Farr Irving Kleiner Steve B. McCann Judith A. Snider Gay A. Brown Douglas Colbourne Roger R. Elliott Leslie Macintosh Paul Pudge David Wood CARSWELL

267 6.3 ADMINISTRATIVE TRIBUNALS administrative sphere. Agencies are not only at liberty not to treat their earlier decisions as precedent, they are positively obliged not to do so. This is clear in respect to matters where the agency has some discretionary authority which it has to decide how to exercise or a decision involves some policy element which the agency is to forumulate. In Hopedale Developments Ltd. v. Oakville (Town) 8 the Ontario Court of Appeal held that the Ontario Municipal Board could not decide the case before it solely on the basis of principles enunciated in earlier decisions. As McGillivrey J.A. stated (at pp D.L.R.): In laying... down... principles and stipulating that the defendant must come within them the Board has sought, one must conclude, to reduce the scope of the to have been patently unreasonable binding other panels of the same agency to reach the same conclusion. A judicial finding that a decision is not patently unreasonable is not the same as a finding that it is correct - and other panels of the same agency may arrive at other decisions which are also not patently unreasonable. (See Essex County Roman Catholic School Board (The Windsor-Essex Catholic School Board) v. Ontario English Catholic Teachers' Association (200 I), 56 O.R. (3d) 85 (C.A.).) See also Domtar Inc. v. Quebec (Commission d' appel en Matiere de Lesions professionnelles, [1993] 2 S.C.R. 756 (fact that different agencies looking at same provision may have interpreted it differently does not in itself mean that the decisions are patently unreasonable). See also Myers v. Mannette, 2003 CarsweiiNS 209 (N.S. C.A.) (Board not bound by its prior decisions); Daley v. Economical Mutua/Insurance Co., 2004 Carswel!Ont 5696 (Ont. S.C.J.), reversed on other grounds (2005), 2005 Carswel!Ont 7425, 206 O.A.C. 33 (Ont. C.A.) (Court not required to follow earlier decisions of Financial Services Commission of Ontario but states that reasoning in cases heard by the Commission may be of assistance in light of Commission's expertise). Similarly, see the decision of the Alberta Court of Appeal in Maitland Capital Ltd. v. Alberta (Securities Commission), 2009 Carswel!Alta 710,2009 ABCA 186 (Alta. C.A.): As for the second suggestion that, by imposing an administrative penalty higher than that proposed by Staff counsel, the panel had abandoned its adjudicative function, we find no authority that suggests the panel was bound by the Securities Act or other authority to obey the position of counsel as to sanction. On the contrary, it was ultimately the panel's duty to determine the public interest. Here the panel was certainly entitled to give weight to the issue of deterrence where, on the evidence, over 500 investors were prompted to invest in excess of $2,500,000: see e.g. Cartaway Resources Corp., Re, [2004] I S.C.R. 672, [2004] S.C.J. No. 22, 2004 SCC 26 (S.C.C.), at paras. 4, The panel was, in service of the legislative objectives, entitled to move away from prior decisions made by earlier panels on the subject of sanction if it were satisfied that the public interest required it to do so. Earlier decisions are not carved in stone. For administrative tribunals, and where, as with sanction, the question involves mixed fact and law, and the "fact-intensive elements" are not "easily extracted" from "discretely framed questions of law", a decision is likely to be "not one that will determine future cases except insofar as it is a useful case for comparison": Ryan v. Law Society (New Brunswick), [2003]1 S.C.R. 247, [2003] S.C.J. No. 17, 2003 SCC 20 (S.C.C.), at para. 41. Accordingly, the presentation of earlier authorities by Staff counsel in its brief, which doubtless influenced the presentation of Staff counsel, could not crimp the panel's jurisdiction to require imposing those earlier more lenient levels of sanction. A fortiori, it could not be a denial of natural justice for the panel to exercise the jurisdiction given to it by the Legislature. 8 [1965] I O.R. 259, 47 D.L.R. (2d) 482 (C.A.). 6-8