Date: 20030526
Docket: T-1628-01
Citation: 2003 FCT 654
Ottawa, Ontario, this 26th day of May, 2003
Present: THE HONOURABLE MADAM JUSTICE SNIDER
BETWEEN:
NUNAVUT TUNNGAVIK INC.
Applicant
- and -
THE ATTORNEY GENERAL OF CANADA and
MUNICIPALITYOF IQALUIT
Respondents
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of the decision of Robert D. Nault, Minister of Indian Affairs and Northern Development (the "Minister"), dated August 13, 2001, withholding approval of a licence issued by the Nunavut Water Board ("NWB") to the Municipality of Iqaluit (the "Municipality"). This decision was contained in a letter from the Minister to Thomas Kudloo, Chair of the NWB. Nunavut Tunngavik Inc. (the "Applicant") makes application for an Order setting aside the decision of the Minister.
Background
[2] In 1993, the Government of Canada entered into An Agreement Between the Inuit of the Nunavut Settlement Area and her Majesty the Queen in the Right of Canada (the "Agreement"). The Inuit of Nunavut exchanged their Aboriginal title to the lands and waters in the Nunavut Settlement Area for the treaty rights set out in the Agreement. The Agreement was ratified by the Inuit by vote and, on the part of the Crown, was ratified, given effect and declared valid by subsection 4(1) of the Nunavut Land Claims Agreement Act, S.C. 1993, c. 29 (the "NLCA"). The Applicant is a non-profit corporation that represents the Inuit of Nunavut for the purposes of implementing and enforcing the Agreement.
[3] The NWB is an institution of public government and has responsibilities and powers over the regulation, use and management of water in the Nunavut Settlement Area. The NWB was established on July 9, 1996 by operation of article 10.10.1 of the Agreement.
[4] In September 2000, the Municipality applied to the NWB for renewal of its water licence, which was to expire on December 31, 2000. Following a public hearing in November 2000, the NWB issued a licence to the Municipality for the use of water and the disposal of waste into water for municipal undertakings for a three-year term commencing on January 1, 2001.
[5] By letter dated August 13, 2001, the Minister stated that he was not willing to approve the licence as issued to the Municipality.
[6] The Applicant has brought an application for judicial review to set aside the decision of the Minister contained in this letter on the grounds that approval of the Minister was not a precondition for the validity of licences issued by the NWB.
Issues
[7] The Applicant raises the following issue:
1. Does the Agreement provide, either expressly or by implication, that licensing decisions of the NWB are subject to the Minister's approval?
Analysis
[8] For the reasons that are set out herein, I would dismiss this application.
[9] Pursuant to Article 13.2.1 of the Agreement, the NWB was to be established to have:
[...] responsibilities and powers over the regulation, use and management of water in the Nunavut Settlement Area, on a basis at least equivalent to the powers and responsibilities currently held by the Northwest Territories Water Board under the Northern Inland Waters Act [...] and any other responsibilities acquired under this Article.
[10] Under the Agreement, it appears that the negotiating parties intended that the regulatory regime set out in the Northern Inland Waters Act, R.S.C. 1985, c. -25 ( the "NIWA") was to continue except as varied by the Agreement. There is no dispute that the water use licences issued by the Northwest Territories Water Board under the NIWA and the Northwest Territories Waters Act, S.C. 1992, c. 39 ( the "NTWA") required Ministerial approval. Further, it is clear that the Nunavut Waters and Nunavut Surface Rights Tribunal Act, S.C. 2002, c. 10 (the "Nunavut Waters Act"), the legislation that was ultimately enacted, also includes a Ministerial approval requirement.
[11] The authority for Ministerial approval of licences issued by the Northwest Territories Water Board was contained in subsection 11(1) of the NIWA:
| 11. (1) Subject to subsection (2), a board may, with the approval of the Minister, issue licences, for a term not exceeding twenty-five years, authorizing the applicant for such a licence, on payment of water use fees prescribed pursuant to paragraph 31(1)(a) at the times and in the manner prescribed by the regulations, to use waters, in association with the operation of a particular undertaking described in the licence and in a quantity and at a rate not exceeding that specified in the licence.
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11. (1) Sous réserve du paragraphe (2), un office peut, avec l'approbation du ministre, délivrer des permis, pour une durée maximale de vingt-cinq ans, autorisant les personnes qui en font la demande, sur paiement des droits d'utilisation fixés sous le régime de l'alinéa 31(1)a), aux dates et de la manière réglementaires, à utiliser les eaux pour l'exploitation d'une entreprise déterminée indiquée dans le permis en une quantité et à un régime n'excédant pas ce que prévoit le permis. |
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[12] This authority is also set out in subsection 14(6) of the NTWA:
| (6) The Board may issue a licence only with the approval (a) in the case of a type A licence, of the Minister; or (b) in the case of a type B licence, [...]
(i) of the chairperson of the Board, where no public hearing is held by the Board in connection with the application for the licence, or (ii) of the Minister, where a public hearing is held by the Board in connection with the application for the licence. |
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6) La délivrance est subordonnée à l'agrément_: a) dans le cas d'un permis de type A, du ministre; b) dans le cas d'un permis de type B, du président de l'Office si la demande ne fait pas l'objet d'une audience publique par l'Office ou du ministre dans le cas contraire. [...] |
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[13] Subsection 56(1) of the Nunavut Act provides that certain licences issued by the NWB are subject to the approval of the Minister:
| 56. (1) The issuance, amendment, renewal and cancellation of a type A licence and, if a public hearing is held, a type B licence are subject to the approval of the Minister.
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56. (1) Sont subordonnés à l'agrément du ministre la délivrance, le renouvellement, la modification et l'annulation d'un permis de type A et, dans les cas où une enquête publique est tenue, de type B. |
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[14] The question is whether, in the interim period, after the creation of the NWB and before the coming into force of the Nunavut Waters Act, the provisions of the Agreement operate to remove the requirement for Ministerial approval.
[15] With respect to this question, the Applicant's submissions can be grouped into the following broad areas of concern:
1. On the face of the Agreement, Article 13.7.1 does not provide for Ministerial approval.
2. Other provisions of Agreement explicitly provide for Ministerial approval.
3. A goal of the Agreement is to ensure a meaningful role for Inuit.
4. The requirement for Ministerial approval leads to an inconsistency or contradiction.
Legislative Background
[16] It is apparent from its terms that the Agreement was not intended to be a complete source of power and authority for the NWB. Article 10.2.1 of the Agreement requires that the substantive powers, functions, objectives and duties of the NWB be set out in statute:
10.2.1 All substantive powers, functions, objectives and duties of the institutions referred to in Section 10.1.1 shall be set out in statute. Matters that do not touch upon the substantive powers, functions, objectives, duties, membership ratios and manner of appointment of members of the institutions, may be implemented through regulation, but the discretion to implement through regulation shall in no way be construed so as to broaden the powers set out in Section 10.6.1 and Section 10.7.1.
[17] Article 13.2.1 of the Agreement makes specific reference to the NIWA:
13.2.1 A Nunavut Water Board (NWB) shall be established as an institutional of public government. It shall have responsibilities and powers over the regulation, use and management of water in the Nunavut Settlement Area, on a basis at least equivalent to the powers and responsibilities currently held by the Northwest Territories Water Board under the Northern Inland Waters Act RSC 1985, c. N-25, and any other responsibilities acquired under this Article.
[18] The NIWA has since been repealed and replaced by the Yukon Waters Act, S.C. 1992, c. 40 and the NTWA. As indicated by article 10.2.1, the Agreement also contemplated the enactment of new legislation by Parliament related to water regulation in Nunavut. This legislation, the Nunavut Waters Act, came into force on April 30, 2002. Until that time, the Northwest Territories Waters Act, as a law of general application, applied within Nunavut except where it was inconsistent or in conflict with the Agreement.
[19] As a result, the NTWA continued to have force and effect in Nunavut, both before and after the ratification of the Agreement, the creation of the NWB, and the creation of Nunavut on April 1, 1999 (Nunavut Act, S.C. 1993, c. 28, s. 29(4)).
On the face of the Agreement, Article 13.7.1 does not provide for Ministerial approval
[20] Article 13 of the Agreement sets out the provisions related to "Water Management". Part 7 of Article 13 deals with water application approval. Article 13.7.1 provides that ". . .no person may use water or dispose of waste into water without the approval of the NWB." This section of the Agreement makes no specific reference to the requirement of Ministerial approval. The Applicant submits that the omission of an express reservation of Ministerial approval in this particular provision or elsewhere in Article 13 should be interpreted as an intention of the negotiating parties to remove the Ministerial right that was contained in the NIWA. I do not think that this result follows.
[21] In my view, it was never intended that the provisions of Article 13 were to describe in detail the regulatory regime for water management. From a plain reading of Article 13.2.1, the content of the regulatory regime was to be found in the NIWA; the balance of Article 13 only addresses situations where the regulatory regime of the NIWA was to be modified or added to. The Applicant submits that Article 13.7.1 is one of those departures from the regulatory regime set out in the NIWA and, specifically, should be read as removing the right of the Minister to approve or disapprove of licences granted by the NWB. While I agree with the Applicant's submission that Article 13.7.1 is to provide a variation on the NIWA regulatory regime, I do not agree with the Applicant's conclusion as to what variation is being addressed.
[22] Article 13.7.1 of the Agreement is a general prohibition provision that provides that "no person may use water or dispose of waste into water without the approval of the NWB." This replaces and simplifies two provisions in the NIWA that prohibited a person from:
1. using water unless they held a licence or were authorized by regulation (NIWA, s. 4(2)); or
2. depositing waste in any waters except in accordance with a licence or as authorized by regulations (NIWA, s. 7(1)).
[23] Under Article 13.7.1, these provisions are grouped into one article such that use of water or disposal of waste is prohibited without the approval of the NWB; authorization by regulation is removed. This provision does not address the power of the NWB to issue approvals; for that, one must continue to look to the relevant provision of the NIWA that describe the power of the relevant water boards to "issue licences, with the approval of the Minister" (NIWA, s.11(1)). Thus, the requirement for Ministerial approval set out in the NIWA is not removed by the Agreement and, in my view, continues as provided for in the NIWA.
Other provisions of Agreement explicitly provide for Ministerial Approval
[24] The Applicant also points out that, when the parties to the Agreement wanted to reserve a right of approval to the Minister, they did so in clear terms. I was directed to parts of the Agreement dealing with the Nunavut Planning Commission ("NPC"), the Nunavut Wildlife Management Board ("NWMB") and the Nunavut Impact Review Board ("NIRB") all of which clearly set out that approvals by those bodies are subject to Ministerial approval. The Applicant submits that the absence of any comparable provision requiring Ministerial approval over decisions of the NWB is a highly persuasive indication that no such requirement was intended.
[25] With respect to the provisions in the Agreement dealing with the NPC, the NWMB and the NIRB, I note that there is no reference to any existing legislated regulatory scheme. The Articles in the Agreement with respect to those newly-created institutions must stand on their own. Thus, there are more detailed provisions dealing with the powers of those boards, including explicit reference to Ministerial approval.
[26] Given that there was already a workable regulatory regime in place under the NIWA for management of water resources, it was unnecessary to set out specific provisions for the NWB in the Agreement, unless they differed from the structure of the NIWA. Support for this position can be seen by reviewing what is missing from Article 13. For example, aside from the few provisions of Part 7, Article 13 does not deal with the mechanics of the approval process or with enforcement. For any of the details of the regulatory scheme, one must look to the NIWA. Of consequence in this case is that the existing regulatory regime under the NIWA contained a requirement, in subsection 11(1), for Ministerial approval; the Agreement did not change that requirement. Indeed, in Article 13, I would only expect to see reference to Ministerial approval if it was to be removed or modified. In the absence of explicit reference, my view is that the requirement continued. I do not view the explicit provisions for the NPC, the NWMB and the NIRB as helpful to the Applicant's position.
A goal of the Agreement is to ensure a meaningful role for Inuit
[27] The Applicant further submits that a requirement for Ministerial approval should not be read into the Agreement where the parties did not expressly provide for such a requirement. According to its preamble, one of the purposes of the Agreement is to ensure a meaningful role for Inuit in decision-making. This purpose is accomplished by placing precise limits on Ministerial authority to intervene in the regulatory system established by the Agreement and by providing that the Agreement is paramount over other legislation. According to the Applicant, it would be inconsistent with this purpose to imply a Ministerial power of disapproval over NWB decisions.
[28] However, the NWB is also an institution of public government that makes decisions impacting both Inuit and non-Inuit residing within and outside Nunavut (Agreement, art. 13.2.1). Ministerial approval is fully consistent with the broad public impact of the NWB and the continued federal responsibility for water resources in the north. In addition, the mere fact that the Minister is required to approve certain water licences does not eliminate or frustrate the Inuit's participatory rights in decisions of the NWB. Even with the need for Ministerial approval, the Agreement provides that Inuit will play an important role in the management of the water resources through their participation in the membership of the NWB.
The requirement for Ministerial approval leads to an inconsistency or contradiction
[29] The parties agree that, at the time the NWB approved the licence, the NTWA applied as a law of general application within Nunavut, except where it was inconsistent or in conflict with the Agreement. In such an event, the provisions of the Agreement would prevail (Agreement, art. 2.12.2; NLCA, s. 6; Nunavut Waters Act, s. 3). In particular, article 2.12.2 of the Agreement states:
Where there is any inconsistency or conflict between any federal, territorial and local government laws, and the Agreement, the Agreement shall prevail to the extent of the inconsistency or conflict.
[30] However, the parties have different viewpoints regarding whether the Agreement is inconsistent with the NTWA. The Applicant submits that reading in a requirement for Ministerial approval leads to an inconsistency or conflict.
[31] According to article 2.12.4 of the Agreement, the terms "inconsistency" and "conflict" "shall be interpreted by having regard to the common law rules governing the interpretation of laws and documents and to the Interpretation Act." Both parties agreed that the Interpretation Act, R.S.C. 1985, c. I-23, has no applicability in these circumstances.
[32] In B.C. Telephone Co. v. Shaw Cable Systems Ltd., [1955] 2 S.C.R. 739, the Supreme Court of Canada summarized the jurisprudence on inconsistency between legislative provisions at paragraph 52:
There is a fundamental interpretative principle of rationality that is to be applied in interpreting legislation. In Alberta Power Ltd. v. Alberta (Public Utilities Board) (1990), 72 Alta. L.R. (2d) 129, at p. 144, the Alberta Court of Appeal referred to this basic principle as the "presumption of legislative coherence":
There is no doubt that there exists a presumption of legislative coherence; an interpretation which fosters inconsistency or repugnancy between provisions in different statutes is to be avoided: Driedger, Construction of Statutes, 2nd ed. (1983), at p. 66; Côté, The Interpretation of Legislation in Canada (1984), at pp. 269, 274. It is not enough, however, that the two statutes deal "somewhat differently" with the same subject matter; inconsistency requires that the provisions cannot stand together: Toronto Ry. v. Paget (1909), [42] S.C.R. 488 at 499, per Anglin J.; Ottawa v. Eastview, [[1941] S.C.R. 448 at 462].
Thus, where a legislature enacts two statutes whose provisions appear to be in operational conflict (i.e., where compliance with one necessitates violation of the other), the courts will attempt to interpret the statutes so as to eliminate the operational conflict.
[33] As a result, the provisions of the Agreement related to the issuance of water licences must be examined with the legislative provisions requiring Ministerial approval in order to determine whether these provisions can stand together.
[34] The focus of this examination is Article 13.7.1 of the Agreement which provides that the NWB must approve all use of water or disposal of waste into water, unless that use or disposal is for domestic or emergency use. Is there an operational conflict between this provision and the section of the NIWA, or its successor, that requires Ministerial consent? In my view, there is no operational conflict; both provisions can be given effect.
[35] The existence of approval requirements from more than one level of government is common and does not necessarily create an inconsistency (Canada v. Williams, [1944] S.C.R. 226). In this case, the requirement that the NWB approve water use does not foreclose the existence of the Minister's power under valid federal legislation to approve the licence pertaining to that use. In other words, compliance with the federal legislation does not require violation of the Agreement and, in turn, compliance with the Agreement does not require violation of the federal legislation. As a result, the provisions can stand together and there is no need to resort to the principle of paramountcy set out in the Agreement and the relevant legislation.
[36] In support of his submissions, the Applicant relied on the case of R. v. Melford Developments Inc. [1982] 2 S.C.R. 504. The subject matter of that case was the Canada-Germany Tax Convention which had been codified, similar to the Agreement, by the Canada-Germany Income Tax Agreement Act, 1956, 1956 (Can.), c.33. This Convention legislation contained a provision almost identical to article 2.12.2 of the Agreement
3. In the event of inconsistency between the provisions of this Act, or the Agreement and the operation of any other law, the provisions of this Act and the Agreement prevail to the extent of the inconsistency.
[37] Subsequent to the Convention, Canada enacted amendments to the Income Tax Act, R.S.C. 1952, c. 148, that purported to change the tax treatment of guarantee fees payable by a non-resident. The Convention provided that such fees would not be subject to tax in Canada. The Supreme Court of Canada held that the Convention prevailed over the Income Tax Act, and its amendments and that, therefore, the Convention prevented the application of those amendments to the guarantee fees. The Applicant submits that this situation is directly analogous to the Ministerial approval requirement asserted by the Respondent.
[38] In my view, the Melford, supra, can be distinguished from the present case. One difference is that the Convention in Melford, supra, with respect to the guarantee fees, did not rely on underlying legislation. The Convention and its legislation could stand on their own without the incorporation of previous tax legislation. That is not the situation here. Further, there was a clear contradiction between the Convention and the amendments to the Income Tax Act, in respect of the tax treatment of the guarantee fees. There was no possibility that the two provisions could live together; under the Convention, the fees were not subject to tax while, as a result of the amendments, a withholding tax was to be assessed on the guarantee fees. Accordingly, Melford, supra, while having some common elements with the case before me, is not applicable.
[39] Accordingly, I am not persuaded that a requirement for Ministerial approval results in any inconsistency or contradiction between the provisions of the Agreement and the applicable legislation.
Conclusion
[40] In conclusion, the interpretation of the Agreement that would result in the removal of Ministerial approval is not supported by an analysis of the legislative provisions and the applicable law. Accordingly, the Minister had the legal authority to withhold approval of the licence issued by the NWB.
ORDER
THIS COURT ORDERS THAT:
1. This application is dismissed. In my discretion, I decline to award costs.
"Judith Snider"
JUDGE
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20030526
Docket: T-1628-01
BETWEEN:
NUNAVUT TUNNGAVIK INC.
and MUNICIPALITYOF IQALUIT
Applicant
- and -
THE ATTORNEY GENERAL
OF CANADA Respondent
REASONS FOR ORDER
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1628-01
STYLE OF CAUSE: NUNAVUT TUNNGAVIK INC. and THE ATTORNEY
GENERAL OF CANADA ET AL.
PLACE OF HEARING: OTTAWA, ONTARIO
DATE OF HEARING: MAY 13, 2003
REASONS FOR ORDER : THE HONOURABLE MADAM JUSTICE SNIDER
DATED: MAY 26, 2003
APPEARANCES:
DOUGALD E. BROWN FOR APPLICANT
JOHN S. TYHURST FOR RESPONDENT ATTORNEY GENERAL OF CANADA
LYNN MARCHILDON FOR RESPONDENT ATTORNEY GENERAL OF CANADA
SOLICITORS OF RECORD:
NELLIGAN O'BRIEN PAYNE LLP
OTTAWA ONTARIO FOR APPLICANT
MORRIS ROSENBERG FOR RESPONDENT
ATTORNEY GENERAL OF CANADA ATTORNEY GENERAL OF
DEPARTMENT OF JUSTICE CANADA
OTTAWA, ONTARIO
MILLER THOMSON LLP FOR RESPONDENT
MARKHAM ONTARIO MUNICIPALITY OF IQALUIT