File OF-Fac-Oil-N304-2010-01 01 9 April 2013 To: All Parties to Hearing Order OH-4-2011 Northern Gateway Pipelines Inc. (Northern Gateway) Enbridge Northern Gateway Project Application (Application) of 27 May 2010 Gitxaala Nation - Notice of Constitutional Question (Notice) On 24 August 2010, the Gitxaala Nation (Gitxaala) served notice that it intended to raise a number of constitutional questions with the Joint Review Panel (Panel) for the Enbridge Northern Gateway Project (Project). In accordance with section 57 of the Federal Courts Act, notice was served on the federal and provincial attorneys general at or around that time. On 6 July 2012, amendments to the National Energy Board Act (NEB Act) came into force following the passage of the Jobs, Growth and Long-term Prosperity Act. On 16 November 2012, the Panel issued a letter to all parties advising that, prior to finalizing any schedule to hear the constitutional questions, the Panel would accept comments on, among other things, the impact of the recent amendments to the NEB Act on the constitutional questions. Specifically, the Panel sought comments on the following: (1) What is the impact of the recent amendments to the NEB Act on the constitutional questions the Gitxaala intend to raise? Would the questions need to be amended? (2) Does the Panel have the jurisdiction to make any determinations on the constitutionality of the issuance of a decision, which would be made by the Governor in Council (GiC)? (3) Could the Panel make its recommendation on the Application, in a manner that does not respect the provisions of subsection 35(1) of the Constitution? (4) Is a separate process required for, or beneficial to, the hearing of the constitutional question, as opposed to proceeding with argument on all other issues before the Panel together? Comments were received from the Gitxaala, Northern Gateway, C.J. Peter Associates Engineering, Gitga at First Nation (Gitga at), the Government of Canada (Canada), the Province of British Columbia (BC) and the Province of Alberta (Alberta). A summary of the parties respective positions on these matters, together with the Panel s decision follows. /2
- 2 - VIEWS OF THE PARTIES Gitxaala Nation The Gitxaala asked the Panel to consider whether the issuance of a Certificate of Public Convenience and Necessity (Certificate) would unjustifiably infringe its Aboriginal rights and title. This determination is to be made prior to the Panel making any recommendations, setting any conditions, or the National Energy Board (NEB or the Board) issuing a Certificate. The Gitxaala argued that the Panel not only has the ability, but also an obligation to consider and decide the constitutional questions outlined. In Gitxaala s view, the amendments to the NEB Act could not change the requirement that the Board, as an administrative tribunal with the power to decide questions of law, act consistently with the Constitution when exercising its administrative functions and interpreting and applying its governing legislation. The Panel must act consistently with the Constitution, including section 35 thereof. The Board is the body that will ultimately issue a Certificate. As a result, the Gitxaala argued, the question of whether that Certificate would unjustifiably infringe Gitxaala s Aboriginal rights is a relevant and necessary question for the Panel (sitting as the Board) to consider in exercising its statutory function and interpreting its governing legislation. The Gitxaala argued that they are entitled to assert their constitutional rights in the most accessible forum available, without the need for costly, time-consuming, bifurcated processes between the courts and administrative tribunals. The Panel hearing the Gitxaala s constitutional argument was then argued to be preferred in the interests of accessibility and efficiency. A revised Notice was filed to reflect the amendments to the NEB Act and to clarify the nature and scope of constitutional rights to be determined. Specifically, the Gitxaala advised that it now intends to question: (1) The constitutional validity, applicability or effect of sections 52 and 54 of the National Energy Board Act, R.S.C. 1985, c. N-7 to the extent that these sections may permit Certificates of Public Convenience and Necessity to be issued which infringe Aboriginal rights; and (2) The constitutional validity, applicability or effect of the issuance of a Certificate of Public Convenience and Necessity for the Northern Gateway Pipeline Project (the Project ) pursuant to section 54 of the National Energy Board Act on the basis that it would unjustifiably infringe Gitxaala First Nation s Aboriginal rights, including Aboriginal title, as protected under section 35 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c. 11, s. 52(1). The Gitxaala suggested that, if the Panel has any residual issues concerning the scope of its jurisdiction, the question could be referred to the Federal Court of Appeal in accordance with the Federal Courts Act. In the Gitxaala s opinion, it would be beneficial to raise any jurisdictional questions with the Federal Court of Appeal at an early stage, to minimize any potential prejudice and allow all parties to understand the scope of issues to be determined by the Panel. The Gitxaala confirmed their view that arguments on the constitutional questions should be heard at the end of final argument, after all evidence has been tendered. /3
- 3 - Northern Gateway Northern Gateway took the position that the amendments to the NEB Act do not materially impact the constitutional questions raised by the Gitxaala or the manner in which they can be addressed in the joint review process. The Panel s jurisdiction to decide questions of constitutional law is limited to those matters that are properly before the Panel or otherwise related to its statutory mandate. However, in Northern Gateway s view, the Panel has no jurisdiction to decide the constitutionality of the ultimate decision to be made by GiC, which will not be made until after the Panel s process is complete and the Crown has completed its consultation efforts. Northern Gateway further asserted that through the revised Notice, the Gitxaala was again seeking to have the adequacy of Crown consultation added to the List of Issues. The adequacy of Crown consultation is not within the Panel s mandate and, in fact, could not be assessed by the Panel as the Crown s consultation obligations extend beyond the Panel process. Under the amended NEB Act, the GiC will ultimately determine whether to order the NEB to issue a Certificate; similarly it is the GiC s decision that can be judicially reviewed under section 55 of the NEB Act. In Northern Gateway s view, the NEB is simply not the arbiter of the constitutionality of that decision. Northern Gateway took the position that a separate hearing is not required to hear the constitutional question. Additional time may however be added to oral argument to hear from parties on these issues. Lastly, Northern Gateway noted that the revisions made to the Notice went well beyond the scope of the original Notice, including seeking a determination of the existence of its rights, including Aboriginal title, and infringements of those rights. Northern Gateway objects to the revised Notice for a number of reasons including, without limitation: (a) it reaches far beyond the original Notice; (b) it seeks to pose constitutional questions outside this Panel s mandate and jurisdiction; (c) it is not responsive to the questions posted by the Panel; and (d) to adopt the proposed revised Notice at this point in the hearing would work serious prejudice on many of the participants, including Northern Gateway. Government of Canada Canada took the position that it is premature for the Panel to determine the questions framed by the Gitxaala, as the questions involve a potential future event; namely, whether a decision by GiC to order that a Certificate be issued would unjustifiably infringe Gitxaala s Aboriginal rights and title. In its submission, Canada reviewed prior communications from the Panel together with various documents regarding the role of the Panel in relation to project impacts on Aboriginal rights and title. This role was paraphrased as receiving prima facie evidence of the Aboriginal rights and title asserted by the Gitxaala, or others, in order to assess how the project may impact such asserted rights having regard to the implementation of mitigation measures. /4
- 4 - The Panel should decline jurisdiction to hear the proposed constitutional questions as the Panel s role is not to offer advisory opinions about the constitutionality of future potential decisions. In this case, the Panel should also refuse to offer such an opinion, as it could not know the full factual context of that decision. Canada outlined a number of potential future events that could materially influence the questions posed by the Gitxaala, including: (a) The Crown has the capacity to consult and accommodate Gitxaala s concerns after the Panel Report is issued, but before a Certificate is issued; (b) The Governor in Council may order that the NEB reconsider its report recommendation, taking into account any factor specified in the order (as set out in section 53 of the NEB Act); or (c) Gitxaala may withdraw their opposition to the Project, due to events which they believe justify the withdrawal. Canada argued that Charter decisions should not be made in a factual vacuum or where the dispute in issue was merely speculative. The recent changes to the NEB Act only serve to reinforce the fact that it is premature for the Panel to consider the constitutional questions outlined by the Gitxaala, as the Panel is not the body making the ultimate decision on whether the project ought to be approved. Government of British Columbia BC advised that it supported the submissions of Canada. In particular, BC affirmed its view that a full factual context is necessary for the proper resolution of complex constitutional questions. The Panel s mandate does not include any appeal of an existing Crown decision, nor does it extend to an adjudication of whether asserted Aboriginal rights and title have been proven to exist. An inquiry into whether the future issuance of a Certificate would represent an unjustified infringement of the Gitxaala s interests is premature and inconsistent with the Panel s mandate. It is appropriate for the Panel to consider the interests of First Nations and report on how they may be impacted. This does not however extend to a determination with respect to claims to specific rights and title. Government of Alberta Alberta advised generally that it did not wish to take a specific position on the revised Notice. It did however reserve its right to participate in the hearing on the constitutional question in the future. C.J. Peter Associates Engineering C.J. Peter Associates Engineering provided excerpts from the 1977 Alaska Highway Pipeline Inquiry by Lysky, Phelps and Bohmer on events that resulted in the enactment of Section 35(1) of the Constitution Act, 1982. C.J. Peter Associates Engineering asserted that these excerpts may be useful in assessing the Gitxaala s submissions. /5
- 5 - Gitga at First Nation The Gitga at asserted that if the Panel agrees to hear argument on the constitutional questions raised, the Panel will be required to make determinations regarding the nature and geographic scope of the rights being asserted by the Gitxaala. The Gitga at raised concerns about the specific area that the Gitxaala have submitted constitute its traditional territories and disputed the Gitxaala s claim to the larger area depicted in the Gitxaala s evidence. The Gitga at reserved its rights to submit arguments in this regard in any future process. Gitxaala Reply In its reply, the Gitxaala sought to distinguish between claims regarding consultation (which it asserted do not form part of its Notice) and infringement claims (which does). The Panel s mandate stems from the Panel Agreement; that agreement gives the Panel the mandate to consider issues relating to infringement of Aboriginal rights, as well as to consider issues relating to the manner in which the Project could affect the rights of First Nations, including the Gitxaala. These are the issues raised through the revised Notice. The Gitxaala argued that the revised Notice does not raise issues with respect to the decision of the GiC. Rather, the Notice seeks to have the Panel determine whether the Panel has the jurisdiction to recommend issuance of a Certificate and the Board could ultimately issue a Certificate, if to do so would be contrary to the constitution. In refuting that substantive changes had been made to the Notice, the Gitxaala noted, among other things, that statements regarding its asserted boundaries were included to provide additional clarity with respect to the geographic area in which Gitxaala is asserting infringement of its rights. Gitxaala is not asking the Panel to assess the adequacy of Crown consultation. The Gitxaala argued that the contingencies and potential future events cited by Canada do not affect the Panel s ability to determine the constitutional questions prior to making its recommendation on the Project. If facts relating to justification issues change, then the legality of the proposed course of action could be revisited. Any decision on an unjustifiable infringement by the Panel could be used as guidance as to what issues need to be addressed before a Certificate is issued. The Gitxaala also challenged that it was asking the Panel to make a decision in a factual vacuum; a large volume of evidence in relation to the claims raised in the revised Notice has been filed by Gitxaala. The Gitxaala argued that any new evidence to be adduced by the Gitga at would have to come by way of a motion. PANEL DECISION The Panel has considered the views put forth by the parties with respect to the Panel s mandate and jurisdiction, and the proposed process for addressing the constitutional questions that the Gitxaala seeks to raise during the Final Hearings. /6
- 6 - Jurisdiction and mandate of the Panel At the outset, the Panel notes that it derives its mandate from the Panel Agreement, as amended, and the provisions of its underlying legislation, most notably the NEB Act. The Panel acknowledges that, as an administrative tribunal, it must fulfill this mandate and apply its legislation in a manner that respects the provisions of the Constitution, including section 35(1). The Panel is of the view that it has the jurisdiction to hear and consider any constitutional questions that relate specifically to the recommendations and decisions that the Panel will make about the proposed Project. The Panel will make its recommendations to the GiC on the Project in accordance with, among other things, section 52 of the NEB Act. The Panel confirms that its recommendation as to whether a Certificate should be issued will include consideration of the manner in which the proposed Project could impact upon the rights of Aboriginal groups, including the Gitxaala. Again, the Panel must apply its legislation and make these recommendations in a manner that respects the Constitution. The Panel cannot consider the constitutionality of decisions that are beyond its mandate. This would include the ultimate decision of GiC as to whether to order the Board to issue a Certificate and how the Board will apply its legislation in issuing a Certificate. The decision of the GiC and any potential issuance of a Certificate will be undertaken well after the Panel has issued its report. These decisions and actions are beyond the Panel s mandate. In accordance with section 55 of the NEB Act, any decision of GiC may be challenged before the Federal Court of Appeal, on judicial review. Notice of Constitutional Question The Gitxaala filed a revised Notice of Constitutional Question with its submissions on 30 November 2012. Several parties took issue with some of the grounds cited in paragraphs 10 to 12 of the Revised Notice. Specifically, the suggestion that the Gitxaala is seeking a determination of the existence of its rights, including Aboriginal title and infringement of those rights, in certain areas as identified on the appendices attached to the Revised Notice. The Panel accepts and supports the comments made in reply by the Gitxaala, that its constitutional questions were focused on the issue of potential infringement of its rights. Specifically, the Panel notes the Gitxaala s submissions, in reply, that statements regarding the determination of its rights were added to the Notice to provide all parties with greater clarity in relation to the geographical area in which Gitxaala is asserting infringements of its rights This, in the Panel s view, is appropriate and in line with the Panels mandate. With respect to the issue of potential prejudice as a result of the revised Notice, the Panel also notes that, in accordance with section 57(2) of the Federal Courts Act, notice of any constitutional questions that a party intends to raise need only be given ten (10) days before argument on the constitutional question, unless the tribunal orders otherwise. To date, no alternate time limits have been set. As such, the Panel sees no prejudice in the filing of the revised Notice at this time. /7
- 7 - Process for hearing constitutional questions In Procedural Direction #12, the Panel outlined the process for final argument. This includes written argument to be filed with the Panel by 31 May 2013. Oral argument would then proceed starting 17 June 2013. Each party is allotted a maximum of one (1) hour for oral argument. Argument on the constitutional questions will proceed in a similar fashion. Parties may file written argument on the constitutional question on or before 31 May 2013. In a cover letter attached to their written argument, parties must also advise the Panel of their intention to present oral argument on the constitutional question. The Panel will set aside one day immediately following the completion of final argument, to hear oral submissions on the constitutional questions raised. Parties will have up to one hour each to provide oral argument on the constitutional question. Following completion of oral argument, the Gitxaala will be provided the final right of reply. If you have any questions regarding this comment process, please contact Mr. Andrew Hudson, Legal Counsel, at 403-299-2708 or 1-800-899-1265. Yours truly, Sheri Young Secretary to the Joint Review Panel