Nunatsiavut v Newfoundland and Labrador

The Supreme Court of Newfoundland and Labrador Trial Division released a decision on January 12, 2015 in <a href="" title="Nunatsiavut v. Newfoundland and Labrador"><i>Nunatsiavut v. Newfoundland and Labrador (Department of Environment and Conservation)</i></a>, dismissing the Nunatsiavut Government’s application for judicial review of a Permit to Alter a Body of Water issued to Nalcor Energy with respect to its Muskrat Falls hydroelectric generating facility in Labrador.

The Nunatsiavut Government, representing the Inuit of Labrador, was concerned that the environmental alteration caused by the construction of Muskrat Falls, a large hydroelectric development, would negatively impact their rights through mercury contamination in the water downstream of the development. Muskrat Falls underwent a federal-provincial environmental assessment review that included 30 days of public hearings, culminating in a report issued by the Joint Review Panel (JRP) that oversaw the hearings in August 2011. In March 2012 the federal and provincial governments both issued responses to the Panel’s report indicating that the project should proceed, and issued orders releasing the project from environmental assessment. Then in July 2013 the Province issued a Permit to Alter a Body of Water for the project, authorizing the construction of infrastructure needed to construct the hydroelectric facility such as a powerhouse, spillway, transition dams, rock-fill coffer dams and reservoir stabilization. Nunatsiavut alleged that in issuing the Permit the Province breached its duty to consult with Nunatsiavut and failed to accommodate the rights and interests of the Inuit of Labrador. On this basis, Nunatsiavut sought an order quashing the Permit and an order directing consultation and consideration of certain specific accommodations.

In rejecting this application, the Court noted that when the Province released the project from environmental assessment in 2012, Nunatsiavut’s concerns relating to mercury accumulation and its potential impact on Inuit rights had already been clearly and comprehensively expressed, as had its concerns with mitigation, monitoring and compensation related to this issue. Once the Province released the decision from environmental assessment these consideration “move[d] to the background, in a legal sense”. While the Court noted that “[o]ne might question” the Province’s response to the JRP’s report with respect to the issue of mercury accumulation, the time to challenge that response and the decision to release the project from environmental assessment had come and gone. Moving forward, that response established the framework in which the project would proceed and the Province’s position could not be repeatedly reconsidered in the context of various subsequent regulatory permits such as the Permit challenged in this case. The Court rejected the notion that the duty to consult “keeps reappearing every time a regulatory decision must be made or issued where that decision involves a matter that has previously been the subject of an appropriate level of consultation”.

The Court also discussed the process set out under the modern land claims agreement of Nunatsiavut in determining whether there was any breach of that process that would provide grounds for judicial review. The Court distinguished this case from the Supreme Court of Canada’s decision in Beckman v. Little Salmon/Carmacks First Nation, finding that the land claims agreement of the Nunatsiavut excluded the possibility of any additional common law/constitutional duty to consult that would be engaged by the Province’s decision to issue the Permit, unlike the modern land claims agreement addressed in Little Salmon. Instead, Nunatsiavut’s land claims agreement was described by the Court as “a complete code governing consultation”. The Court found that the Province had appropriately adopted Consultation Guidelines for addressing the concerns of Aboriginal groups in relation to the project and by and large had followed these Guidelines. Although two failures to follow the Guidelines were made out on the evidence, the Court found no remedy was warranted in the circumstances.

Finally, the Court expressed concerns with Nunatsiavut bringing to the Court its “[o]ngoing and long-standing disagreements” with the Province over the potential for mercury accumulation as a result of the project. The Court said that while it could determine whether judicial review was warranted or whether the duty to consult and accommodate had been satisfied, the issues underlying this application were “more suited to a forum such as the Joint Review Panel or a commission of inquiry”.