[1]                                      Two applications have been advanced.

[2]                                      The first is advanced by the applicants, Chief Rene Chaboyer, Chief of Cumberland House Cree Nation, on his own behalf and on behalf of all members of Cumberland House Cree Nation; and by Cumberland House Cree Nation, together [CHCN].

[3]                                      Taken directly from the application, CHCN seeks:

[4]                                      The next application is advanced by Opaskwayak Cree Nation [OCN]. OCN seeks, as provided in its January 14, 2020 amended application:

[5]                                      In the alternative, OCN seeks:

[6]                                      An order mandating that the WSA suspend the licences for the dams until the duty to consult and accommodate has been discharged.

[7]                                      In the further alternative, OCN requests:

[8]                                      With the consent of all parties, the CHCN and the OCN judicial reviews were consolidated, to be heard on the same date, in succession.

[9]                                      There was, however, no agreement as to what constituted the record for consideration in the judicial review application. Applications by SaskPower and the WSA to strike affidavits filed by CHCN and OCN were pursued.  The determination of those applications is found in Chaboyer v Saskatchewan, 2021 SKQB 200.

[10]                                 In that decision, some relevant facts are provided and, for convenience, repeated here:

[11]                                  SaskPower applied for the EBC licence on August 28, 2014. That licence was to terminate on December 31, 2015. The licence was extended until ultimately issued on October 12, 2018.  The Nipawin licence was not set to expire until November 24, 2019 so no extension was required prior to the October 12, 2018 decision.

[12]                                 CHCN argues that the WSA does not have standing to participate in these proceedings given that the WSA duplicates SaskPower’s position and makes the WSA involvement unnecessary. CHCN says that the principles of finality and impartiality require, in the circumstances of this case, that the WSA’s participation be denied.

[13]                                 Ontario (Energy Board) v Ontario Power Generation Inc., 2015 SCC 44, [2015] 3 SCR 147 [Ontario Power] provides guidance, identifying that a discretionary determination lies with a reviewing court to identify a tribunal’s role on appeal. The Supreme Court stated:

[14]                                 In Chapman v Saskatchewan Workers’ Compensation Board, 2017 SKQB 134 at para 31, this Court observed that Ontario Power “appears to have rejected the bright-line, categorical restriction on tribunal participation previously articulated” in the jurisprudence. 

[15]                                 The Water Security Agency Act, SS 2005, c W-8.1 [WSA Act] is silent as to the extent to which the WSA may participate in judicial review proceedings. As such, the Ontario Power factors must be considered.

[16]                                 While the CHCN application for review will not go unopposed should the WSA not participate, the WSA is the regulator with knowledge and expertise in both the regulatory scheme and in water. The WSA is best placed to speak of its statutory powers, technical water management issues and its familiarity with the record. The WSA serves a regulatory role, not an adjudicative one, and thus there are decreased concerns regarding impartiality. Given this, the court’s discretion is exercised to permit the WSA to participate in the proceedings on the terms they have requested:

[17]                                 Notably, the WSA does not seek standing to argue the merits of the reasonableness of the licensing decisions though does, regarding OCN’s application for review, seek to address the consultation decision on the merits.

[18]                                 This is an acceptable approach and, in keeping with Ontario Power, is permissible.

[19]                                  The WSA has standing to participate in the judicial reviews as indicated above. 

[20]                                 CHCN challenges the licences for both EBC and Nipawin. OCN does the same. The relevant jurisprudence, facts and analysis contained in the CHCN analysis apply in the OCN application. Similarly, relevant jurisprudence, facts and analysis provided in the OCN analysis, are applicable in the CHCN application.

[21]                                 CHCN is a signatory to Treaty 5 and has a population of approximately 1,682 people. The main reserve of the CHCN people is located along the banks of the Saskatchewan River near Cumberland House, about 100 kilometers downstream from the EBC. CHCN relies on the nearby Saskatchewan River Delta [SRD] and Cumberland Lake for their subsistence and preferred exercise of their treaty and Aboriginal rights.

[22]                                 The SRD is the largest inland freshwater delta in North America, covering approximately 10,000 square kilometers. The North and South Saskatchewan Rivers, among others, flow through Alberta and central Saskatchewan and drain into the SRD. Wetlands, active and abandoned river channels, streams and tributaries form part of the SRD. The SRD is part of the mid-boreal lowland ecoregion that is relatively flat, low lying and contains wetlands. The SRD is also comprised of trembling aspen, balsam poplar, white spruce, black spruce and balsam fir. The SRD supports migratory birds, song birds and birds of prey as well as fish bearing streams and water bodies. It is also habitat for moose, elk, deer, caribou, black bear, small mammals and furbearers.

[23]                                 The duty to consult arises when the Crown has knowledge of the existence of Aboriginal rights or title and contemplates conduct that might adversely affect those rights or title (Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73 at para 35, [2004] 3 SCR 511 [Haida]).

[24]                                 The duty to consult is grounded in the honour of the Crown. The duties of consultation and, if required, accommodation form part of the process of reconciliation and fair dealing (See Haida at para 32; Gitxaala Nation v Canada, 2016 FCA 187 at para 171, [2016] 4 FCR 418 [Gitxaala]). 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 peoples with respect to the interests at stake” (Haida at para 45). 

[25]                                 The honour of the Crown is not maintained by giving Aboriginal people the “opportunity to blow off steam” during the consultation process, before the Crown does what it intended to do at the outset (Mikisew Cree First Nation v Canada (Minister of Canadian Heritage), 2005 SCC 69, [2005] 3 SCR 388 [Mikisew]).

[26]                                 Meaningful consultation “may oblige the Crown to make changes to its proposed action based on information obtained through consultations” (Haida at para 46).

[27]                                 Accommodation is to occur when the consultation process suggests amendments to Crown policy. That is, the effect of good faith consultation may identify a duty to accommodate (Haida at para 47).

[28]                                 The process does not give Aboriginal groups a veto (Haida at para 48). Further, the Crown is to balance Aboriginal concerns reasonably with the potential impact of the decision on the asserted right or title and with other societal interests (Haida at para 50).

[29]                                 CHCN submits that the WSA failed to discharge their constitutional duties to consult CHCN by incorrectly determining the depth and scope of the consultation.

[30]                                 CHCN submits that as a result, the licences cannot stand. They must be quashed and the matter remitted back to the WSA for consideration in a manner consistent with the honour of the Crown.

[31]                                 The WSA, acting on behalf of Saskatchewan, determined that SaskPower’s licensing applications triggered the duty to consult and accommodate with impacted First Nations and Métis communities in accordance with s. 35 of the Constitution Act, 1982. On June 2, 2015, the WSA advised Chief Lorne Stewart by letter that the duty to consult had been triggered:

[32]                                 The scope of the duty was reiterated more than once subsequent to this letter. Such an instance occurred in the March 24, 2017 correspondence from Susan Ross, President of the WSA to Chief Stewart. In that correspondence, Ms. Ross reiterated that the duty to consult was triggered at a low level. She advised that the WSA would only consider adverse impacts to treaty or Aboriginal rights and traditional uses as a result of new or novel impacts to lands and resources as a result of the licensing of the dams as they currently existed.  Aligned with Jeff Hovdebo’s message in the June 2, 2015 correspondence, she further advised the WSA took the position that there was no duty to consult related to past impacts that may have occurred as a result of the construction of the dams and/or their operation prior to the proposed licensing.     

[33]                                 In the December 20, 2017 letter to Chief Chaboyer from Dan Johnston, Mr. Johnston explained the reason for the triggering of the duty to consult as “the new or novel impact [which] is the temporal extension of the impacts of the dam over an extended period of time” (Condensed Book, page 190).

[34]                                 Mr. Hovdebo, executive Director of Water Programs & Services with the WSA, described the process in his August 28, 2020 affidavit. He explained that when an application for a licence is submitted, the WSA conducts a pre-consultation initial assessment in which an evaluation is conducted as to whether a duty to consult is triggered followed by an identification of the level of consultation. That assessment may be revised at any time upon learning new information. Once the assessment is complete, if the duty to consult is triggered, the WSA conducts its consultations in accordance with the First Nation and Métis Consultation Policy Framework, June 2010 [Consultation Framework].  The Consultation Framework is Saskatchewan’s policy regarding consultation with First Nations and Métis communities. Pursuant to the Consultation Framework, the WSA can delegate procedural aspects of a consultation to a proponent. As previously noted, in this case, the proponent was SaskPower.

[35]                                 Saskatchewan’s duty is set out at page 4 of the Consultation Framework:

[36]                                 There is a reciprocal responsibility on First Nations and Métis communities, described at page 4 of the Consultation Framework:

[37]                                 That which is subject to the duty to consult is listed, as is that which is not. At page 6 of the Consultation Framework, it provides:

[38]                                 At page 11 of the Consultation Framework, a statement is made regarding the renewal or extension of an existing project:

[39]                                 Based on the above, a precise identification of the decision under scrutiny is useful. SaskPower applied to licence EBC. This was a request for the renewal of an existing licence. This was not an initial construction or an initial licence. In short, the WSA had to decide whether or not to issue the licence to SaskPower, and if so, on what terms.

[40]                                 The consultation itself was assessed by the WSA as low level consultation. This was because, in the initial assessment, which the WSA stated they were open to revising should different information arise, the WSA concluded that the impacts were minor though occurring over a long period of time.  The consultation was to focus on new or novel impacts from the licensing date onwards and as a result of the future operations of the dams as they existed at the time the decision was made.  The WSA’s view was that there was no duty to consult on past impacts resulting from the construction of EBC or the operation of EBC prior to the decision date.

[41]                                 The scope of the duty to consult has been the subject of significant judicial comment. Haida provides:

[42]                                 On this spectrum, the WSA concluded that the consultation would be undertaken at a low level having determined the impacts which would occur as a result of granting a licence to operate EBC, where a licence had existed for many years to operate in a manner that it had historically been operating, would be minor. In the WSA’s view, based on current information, nothing would change as a result of granting a new licence other than the same minor impacts would continue to occur. 

[43]                                 The WSA advised CHCN that the WSA would only consider potential adverse impacts to treaty and Aboriginal rights and traditional uses that were new and novel from the licensing date forward and potential adverse impacts resulting from the future operation of the dams and were open to learning of this from CHCN. Because no changes to the operation of the dams were proposed, subject to any accommodation measures that may be incorporated, the new or novel impacts as described by the WSA were described as the “temporal extension of the impacts of the dam over an extended period of time” (Record of Proceedings [Record], page 1172). Further, the WSA advised they would not consult on past impacts caused from the construction of the dams or the operation of the dams prior to licensing.  

[44]                                 Haida states:

[45]                                 In West Moberly First Nations v British Columbia (Chief Inspector of Mines), 2011 BCCA 247 at para 174, [2011] 9 WWR 34 [West Moberly], the standard of review regarding the extent of the duty to consult is identified:

[46]                                 Agreement is found in Buffalo River Dene Nation v Saskatchewan (Energy and Resources), 2015 SKCA 31, 471 Sask R 71:

[47]                                 In this instance, the identification of the scope of the duty to consult is to be reviewed on a correctness standard.

[48]                                 The WSA’s assessment that the duty to consult would be conducted at a low level was predicated in part on the Consultation Framework. The WSA assessed consultation to be at Level 3 because it concluded that impacts would be minor but long term.  It is anticipated that a Level 3 decision is to be made within 60 days.

[49]                                 The WSA was also guided by relevant jurisprudence in its assessment. Rio Tinto Alcan Inc. v Carrier Sekani Tribal Council, 2010 SCC 43, [2010] 2 SCR 650 [Rio Tinto] provided such direction. Rio Tinto held that past wrongs and continuing breaches of Aboriginal rights do not give rise to a duty to consult. Whether potential adverse impacts are continuing breaches, one must look carefully at the decision itself.  Should past wrongs or continuing breaches give rise to new or novel impacts, a duty to consult would be triggered. The Supreme Court stated:

[50]                                 In Rio Tinto, the scrutinized decision was to sell excess power generated from the Kenney Dam, which was built in the 1950s, and given a final licence to operate years before. The energy purchase agreement did not impact whether the dam would continue its operations in the manner it had been doing and thus would not have any further impact on Aboriginal rights. No duty to consult was triggered.

[51]                                 In Peter Ballantyne Cree Nation v Canada (Attorney General), 2016 SKCA 124, [2017] 1 WWR 685 [Peter Ballantyne], Peter Ballantyne Cree Nation commenced an action for the flooding of Southend Reserve caused by the construction of dams on the Reindeer River. Part of its claim alleged that the Crown failed in its duty to consult. Each of the dams altered or continued to alter the natural flows of waters in the Reindeer River where it passed the Southend Reserve.

[52]                                 The court found that there were continuing impacts but none that were new or novel arising from the operations that would attract a duty to consult:

[53]                                 Where there is a duty to consult because of potential new or novel impacts arising from continuing breaches, cumulative impacts may be considered to determine the scope of the duty to consult, but not used as the subject of consultation. West Moberly presents a clear articulation of this point. In West Moberly, officials in the Ministry of Energy, Mines and Petroleum Resources made decisions to amend existing permits to allow First Coal to obtain a 50,000 tonne bulk sample of coal and to engage in an advanced exploration program. The chambers judge relied on two reports in which a view was expressed that the anticipated activities would destroy a large range that the  burnt pine caribou herd used and needed. The herd had been reduced from abundant numbers to one consisting of eleven animals.

[54]                                 The West Moberly court stated:

[55]                                 This was stated in Chippewas of the Thames First Nation v Enbridge Pipelines Inc., 2017 SCC 41, [2017] 1 SCR 1099 [Chippewas] where the Supreme Court reiterated that consultation was not to encompass historical impacts, though historical impacts may be used to inform the scope of the duty to consult in order to recognize the consequences that may result from the decision taken:

[56]                                 Thus there is no duty to consult about past wrongs and continuing breaches unless they result in new or novel impacts. There will be instances where it may be impossible to understand the seriousness of the project or a decision’s impact without assessing it in the larger context. This is not to redress past wrongs but to comprehensively recognize the existing situation.

[57]                                 It bears noting that in West Moberly, there was new activity which was permitted to occur: additional sampling and advanced exploration. These activities were expected to result in the destruction of a good part of the caribou’s winter range. It thus makes sense this adverse impact would be considered within the knowledge of what lands occupied by the caribou had previously been impacted.

[58]                                 Further in Chippewas, new activity was also permitted. That was the increase in pipeline capacity and the transporting of heavy crude. This decision was also oriented in historic context to determine the scope of the duty to consult.

[59]                                 In the present situation, there was no new project. There were no new activities. The decision in question was whether to provide a licence to SaskPower to continue to operate EBC in the same manner it had been operated since it was built, subject to accommodation measures. These factual circumstances are similar to those in Peter Ballantyne where there was no new activity and no new or novel impacts.

[60]                                 However, the WSA took a generous and purposive approach to consultation and determined that the duty to consult had been triggered. It identified the scope of the consultation aligning with the Consultation Framework and based on the relevant cases which clearly focus on the particular decision made and its impact on Aboriginal and treaty rights.    

[61]                                 The WSA concluded that low level consultation was required in the circumstances where its view was the impacts of the particular decision to provide SaskPower with a licence to continue operating in the same manner, subject to accommodation measures, would be minor though occurring over a long period of time.  SaskPower’s view was that the construction of EBC years ago had caused adverse impacts which would not form part of the consultation, though were, in part, covered by accommodations. Consultation was limited to new or novel impacts emanating directly from the extension of the licence. While the WSA could not identify new or novel impacts from a situation that was not changing, the WSA wanted to know from CHCN whether CHCN could provide information regarding new or novel impacts. The WSA was prepared to modify their low level triggering should new or novel impacts be identified by CHCN.

[62]                                 The conclusion that no new or novel adverse impacts were identified by CHCN to increase the low level consultation, and the conclusion that some impacts, such as sedimentation, were historic impacts that did not attract consultation, were factual determinations made by the WSA, a regulatory body with significant experience in managing water and water works in the province. These are decisions to which deference is owed.

[63]                                 The jurisprudence does not cause consultation on historical impacts, as identified by the WSA. At best, historical impacts may provide a framework in which to assess the scope of consultation which would have been considered by the WSA.

[64]                                 Further, The Water Power Regulations, RRS c W-6 Reg 3 [Regulations] do not override jurisprudential direction and expand the scope of consultation beyond what the cases permit. The Regulations cannot be invoked to require the WSA to consult on historic or ongoing impacts. Consultation is necessary for new or novel adverse impacts only.  

[65]                                 SaskPower asks the court to first determine whether a duty to consult should have been triggered in this case. The WSA does not seek that determination and, in fact, decided that the duty had been triggered and consequently engaged in consultation. As noted, the WSA triggered consultation on the basis that there were potential new and novel impacts that CHCN might be aware of that the WSA was not. This, again, is a factual determination which caused the triggering of the consultation and is owed deference. It is a factual conclusion which falls in the realm of reasonable. On this basis, there was a duty to consult, the scope of which, not its existence, requires comment. 

[66]                                 The WSA determined the scope of the consultation to be low level, again on the basis of the Consultation Framework and the relevant case law. There were no new operations or new activities being proposed. The decision before it was whether to permit SaskPower to continue operating EBC. Continued operations meant the same impacts would occur over a long period of time. That assessment did not change as a result of information presented to the WSA. Historical impacts, the identification of which is owed deference, were not required subject matter of the consultation, though, including an understanding of historical impacts, as discussed below, did actually become part of the consultation. In this entire context, including an understanding of historical impacts, a determination that a low level duty to consult was triggered is a correct determination. 

[67]                                 As will be discussed further, should the determination that this low level consultation assessment is not correct in reality, consultation went much deeper than the low level consultation the WSA set out to undertake. As noted in Beckman v Little Salmon/Carmacks First Nation, 2010 SCC 53 at paras 38-39, [2010] 3 SCR 103, it is possible for a decision-maker to mischaracterize the scope of consultation and still fulfill the duty to consult.  

[68]                                 CHCN submits that SaskPower and the WSA failed to reasonably carry out meaningful consultation. CHCN says SaskPower and the WSA failed to understand the impacts on CHCN’s rights, accommodation measures were predetermined and unresponsive to CHCN’s concerns, and there was a failure to provide reasonable funding to permit CHCN to meaningfully engage in the consultation. As a result, CHCN says the WSA’s decision that the consultation and accommodation had been sufficient to satisfy s. 35 of the Constitution Act, 1982 was unreasonable which in turn rendered the decision to approve the licences unreasonable.

[69]                                 The court in Haida stated:

[70]                                 Ktunaxa Nation v British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54, [2017] 2 SCR 386 [Ktunaxa] also explained that the decision regarding whether an adequate consultation and accommodation process occurred, is entitled to deference, attracting a reasonableness review:

[71]                                 Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, [2019] 4 SCR 653 [Vavilov] provided direction to a court engaged in a reasonableness review. Reviewing courts are to refrain from deciding issues themselves and instead consider whether the decision made, which includes both the rationale for the decision and the outcome, was reasonable (Vavilov at para 83). A principled approach to a reasonableness review examines the reasons provided with “respectful attention”, seeking to understand the reasoning process followed by the decision-maker to arrive at its conclusion (Vavilov at para 84). Reasonableness means justification, transparency and intelligibility within the decision-making process as well as a decision that falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law (Vavilov at para 86).

[72]                                 The burden is on the party challenging the decision to demonstrate that the decision is unreasonable. As noted in Vavilov at para 100:

[73]                                 A perfect process is not the goal of consultation. As provided in Gitxaala:

[74]                                 Haida speaks of the good faith that is required of all parties participating in a consultation. Good faith, however, does not mean the parties must agree on the outcome. The requirement is only for a meaningful consultation. This is identified in para. 42 as follows:

[75]                                 Ktunaxa provides that s. 35 of the Constitution Act, 1982 provides a right to a process, not a particular outcome. The question then becomes whether the consultation process is consistent with the honour of the Crown, not whether the Aboriginal group being consulted obtained their desired outcome (para. 83).

[76]                                 Coldwater First Nation v Canada (Attorney General), 2020 FCA 34, [2020] 3 FCR 3 identifies that the duty to consult must be reasonable and meaningful (para. 40). As to what those terms mean, the court noted:

[77]                                 While it would be impossible to fully capture all communications and interactions between the parties, the following identifies some of the those.

[78]                                 On June 2, 2015, Mr. Hovdebo for the WSA wrote to CHCN to advise that SaskPower had applied to the WSA for the renewal of the final licence for EBC and for the issuance of a final licence for Nipawin. The letter provided notification that the duty to consult had been triggered and invited consultation with CHCN to identify potential adverse impacts on the exercise of treaty or Aboriginal rights and traditional uses. Further, Mr. Hovdebo noted:

[79]                                 On June 3, 2015, a meeting was held in Cumberland House between CHCN and SaskPower officials. On July 9, 2015, a further meeting was held in Cumberland House between Chief Stewart and SaskPower officials. On December 4, 2015, a meeting was conducted in Prince Albert, Saskatchewan between CHCN, the WSA and SaskPower representatives.

[80]                                 Correspondence between the parties provided information regarding the nature of the consultation.

[81]                                 On May 2, 2016 correspondence from SaskPower to CHCN, funding to a maximum of $15,000 was offered to CHCN. SaskPower indicated it wanted to continue to gather information from CHCN, discuss possible adverse impacts and then prepare its final report in September – October 2016. SaskPower provided a report to CHCN regarding a summary of fisheries/aquatic studies completed in the previous 10 years.

[82]                                 Dated October 7, 2016, SaskPower provided an interim report regarding consultation activities up to September 15, 2016 [Interim Report]. The Interim Report detailed the information provided to rights holders including CHCN such as the Consultation Framework, operating plans for EBC and consultation participation funding applications.

[83]                                 The Interim Report noted that some potential adverse impacts were identified but additional meetings would occur. The Interim Report made clear that SaskPower and the WSA took the position that only adverse impacts to treaty and Aboriginal rights and traditional uses as a result of new impacts to lands and resources from the licensing date onward would be considered as per the Consultation Framework.

[84]                                 On November 4, 2016, a meeting was held in Prince Albert with CHCN and SaskPower officials present. Again on December 1, 2016, a meeting was conducted in Saskatoon, Saskatchewan between CHCN and SaskPower. Further, on February 8, 2017, a meeting was held in Regina, Saskatchewan with CHCN and SaskPower officials in attendance.

[85]                                 A Duty to Consult Participation Funding Agreement was signed on January 10, 2017. The first release of funds to assist with consultation occurred on January 26, 2017.

[86]                                 On February 17, 2017, the WSA received a voice message from Tracy Campbell, consultant with Calliou Group, advising that she was assisting CHCN and wished to have some information from the WSA.

[87]                                 By letter to Ms. Ross, President of the WSA, dated March 3, 2017, Chief Stewart advised that he had concerns with the progress of the consultation as well as the consultation process. 

[88]                                 Chief Stewart sent a further letter dated March 24, 2017 to Mr. Hovdebo. Chief Stewart suggested meeting dates between CHCN and the WSA officials. CHCN also provided a list of information requests which included any environmental assessments or studies completed for EBC to support previous licensing processes, a copy of the “Pre-Consultation Assessment” by the WSA upon which it determined the scope of consultation and predicted impacts of EBC on CHCN’s s. 35 rights.

[89]                                 Ms. Ross replied to the March 3, 2017 correspondence by letter of March 24, 2017. Ms. Ross stated at page 3:

[90]                                 Further on the same page:

[91]                                 On the following page:

[92]                                 On page 5 of the letter, Ms. Ross points out:

[93]                                 And on the same page:

[94]                                 Finally at page 8:

[95]                                 The above paragraph is the indication as to why the additional funding of $158,700.00 and $253,700.00 requested by CHCN for a technical consultant, collection of information and legal fees was denied.

[96]                                 A telephone conference call occurred on April 5, 2017. Present on the call were CHCN and SaskPower representatives. While there was some disagreement surrounding the accuracy of the meeting notes taken by Ms. Campbell, it seems that during the call, CHCN and SaskPower agreed to do an inventory of the work/studies that had been done to date that addressed the effects of EBC. SaskPower observed that a number of interviews had already been conducted with elders, hunters, trappers and gatherers which could be used as a basis to determine treaty rights impacts.

[97]                                 One of those studies which all parties had access to, was the research work done by Professor Norman Smith, Professor Emeritus, Department of Earth and Atmospheric Sciences at the University of Nebraska who provided a research paper he had authored to the WSA on July 18, 2016 [Smith Report]. He also provided a copy to CHCN and Tim Jardine, who, noted below, also conducted research which the parties had access to.

[98]                                 The Smith Report was published (2016) in the journal Geomorphology and entitled “Dam-Induced and natural channel changes in the Saskatchewan River below the E.B. Campbell Dam, Canada”. Research for the report was conducted from 2003 to 2014. This research focused on sediment starvation and resulting impacts. The WSA provided in-kind support for the research. The first paragraph of that report reads:

[99]                                  A 2018 plain language summary of that published report was prepared at the request of the CHCN. Dr. Smith provided in the “Comments” section at page 4:

[100]                             Further at page 5:

[101]                             The “Overall Conclusion” of the plain language document reads:

[102]                             This plain language document was provided to the WSA in May 2018.

[103]                             In the fall of 2016, University of Saskatchewan Professor Dr. Tim Jardine disseminated a report [Jardine Report], which had been partly funded by SaskPower. The four years of research from which the report resulted examined how the Saskatchewan River and downstream environment are influenced by the operations of EBC. It attempted to provide guidance as to how EBC might be operated to minimize harmful effects and maximize beneficial ones. The report focused on hydrology, chemistry and biology.

[104]                             The second paragraph of the “Executive Summary” of the Jardine Report reads:

[105]                             The topics of analysis included water flows, water quality and sediment, algae, fish, waterfowl, moose and muskrat resulting from EBC operations and the condition of the SRD.

[106]                             Five recommendations resulted. In brief, they were:

[107]                             On April 13, 2017, SaskPower sent an email to Ms. Campbell as a follow up to the April 5, 2017 meeting, noting that most of the studies Ms. Campbell requested had already been provided to CHCN. SaskPower referenced the Jardine Report, advising that all parties were fortunate to already have in hand a long term study regarding EBC’s impacts, including those impacts on Treaty rights to hunt, fish and trap for food and the impact on traditional uses of the area. Further, it was noted that information regarding those impacts was gathered, in part, from CHCN members.  Arrangements were being made by SaskPower for Mr. Jardine to personally present this information to CHCN. Finally, it was noted that the Province of Saskatchewan had, in 2008, 2010 and 2014, provided CHCN with a total of $172,000.00 for a traditional land use [TLU] study. 

[108]                             Coming to the end of the April 13, 2017 email, Mr. Johnston for SaskPower stated:

[109]                             On April 5, 2017, a conference call occurred with the CHCN consultant and SaskPower.

[110]                             On April 18, 2017, CHCN sent a letter to Ms. Ross indicating they disagreed with the WSA’s assessment that the situation attracted low level consultation. CHCN also stated disagreement with the characterization that CHCN had been unresponsive to meeting.

[111]                             A few days later on April 24, 2017, Ms. Campbell sent a letter to Mr.  Johnston wanting funds to retain an expert to review the studies that had already been completed. She said CHCN was trying to determine how EBC might affect the river and downstream environment in the future. She also wanted to know what studies SaskPower had commissioned regarding the impacts on CHCN’s Aboriginal and treaty rights.

[112]                             On May 2, 2017, Mr. Johnston replied to Ms. Campbell’s letter regarding the issue of funding:

[113]                             This letter is followed by a May 5, 2017 letter from Ms. Campbell to Mr. Johnston in which CHCN asks for $8,000.00 in funding to enable a lawyer to be present at the next consultation meeting. Further, she stated that the $15,000.00 already provided to CHCN from SaskPower was thought to be initial funding only and that three other proposals had been made by CHCN for funding to pay for consultants and legal support.

[114]                             By letter of May 17, 2017, WSA’s Ms. Ross, responded to CHCN’s/ Ms. Campbell’s correspondence of April 18, April 21, April 28, May 1 and May 4, 2017. She noted that SaskPower had offered capacity funding up to $15,000.00 to assist with consultation participation, which included record management which was a concern of CHCN.  She reiterated that the initial assessment of the impacts of EBC were minor but occurring over a long period of time. This was because no operational changes to EBC were proposed by SaskPower and thus impacts would remain largely as they currently exist. The result was that consultation was low, as per the June 2, 2015 letter. She added that the WSA was open to hearing information from CHCN which would cause a reassessment of that conclusion. Ms. Ross later stated that the focus of the consultation process was regarding potential for new or novel impacts that may result from the decision to relicense. Ms. Ross stated that not all available funding had been used by CHCN.

[115]                             Consultation continued on June 27, 2017. CHCN, the WSA and SaskPower representatives participated. A power point deck utilized by SaskPower during the meeting reflected what adverse impacts CHCN had identified as a result of EBC:

[116]                             SaskPower noted that it had considered the following studies which contained research consistent with the CHCN information:

[117]                             Mr. Jardine’s Study Proposal was entitled: “We need more than just water: Assessing sediment limitation in a large freshwater delta”. Involved in the preparation of the proposal was Gary Carriere, President of the Cumberland House Fishermen’s Co-operative.

[118]                             The Jardine Study Proposal contained significant information regarding sedimentation and indicated what it was hoped would be accomplished. The research was to have occurred from 2019 to 2021. A summary portion of the proposal provides, in part:

[119]                             In the “Rationale” section of the Jardine Study Proposal, it is noted that:

[120]                             There were additional reports that the WSA had included: the report from Boothroyd & Associates [Boothroyd] on adverse effects of EBC, Nipawin and other dams [Boothroyd Report], as well as the report from DAL Projects [DAL] regarding the downstream effect of hydro and reservoir structures on the North and South Saskatchewan Rivers [DAL Report]. These two reports are discussed in more detail below.

[121]                             The WSA did not provide funding. The reason for that decision was given by Mr. Johnston in a July 5, 2017 email to Ms. Campbell:

[122]                             On July 12, 2017, Chief Chaboyer, who assumed that role subsequent to Chief Stewart, wrote to the WSA and SaskPower, covering a number of topics. Chief Chaboyer shared his view of the limited value of the Jardine Report as it was not meant to inform the consultation process. 

[123]                             In a September 11, 2017 letter to Mr. Johnston from Mr. Jardine, Mr. Jardine explained:

[124]                             A meeting was scheduled for September 15, 2017. A draft agenda was provided by Mr. Johnston to John Desjarlais of CHCN, on September 7, 2017. The agenda included discussion regarding impacts to s. 35 rights of the Constitutional Act, 1982, information SaskPower used to arrive at the identification of impacts and the methodology used to identify the impacts. Also on the agenda was an anticipated discussion regarding possible accommodation measures. CHCN sent a revised agenda that SaskPower was not prepared to proceed with. It was explained in a September 13, 2017 email from Mr. Johnston to Mr. Desjarlais that SaskPower was not prepared to provide MNP LLP with $128,896.00 for further research as SaskPower viewed it as unnecessary. SaskPower believed CHCN was taking the position that CHCN would not provide any further information without the MNP LLP study. Mr. Johnston suggested a conference call on September 15, 2017 instead.

[125]                             On September 14, 2017, Mr. Desjarlais wrote via email to Mr. Johnston advising that CHCN was willing to continue participating. Mr. Desjarlais reiterated that funding would be required to address gaps in information SaskPower had regarding impacts to treaty and Aboriginal rights.  This prompted a reply email from Mr. Johnston on September 14, 2017 reiterating that there would be no additional funding for further research. Mr. Johnston noted that SaskPower already had valuable information from the University of Saskatchewan research study of the SRD that it had contributed funding for. Further, Mr. Johnston wrote:

[126]                             Chief Chaboyer sent an email to Mr. Johnston on September 25, 2017 expressing disappointment that the meeting scheduled for September 15, 2017 had been cancelled. Further, Chief Chaboyer denied wishing to frustrate the consultation process.  He reiterated that the studies done to date were insufficient to inform the consultation process. In particular, regarding the University of Saskatchewan research, he stated that the research was undertaken prior to the triggering of the duty to consult and CHCN did not “have an opportunity to influence U of S research” (Record, page 990). He further wrote that the collection of information from CHCN was done without their consent. He pointed out that CHCN wanted a description from SaskPower as to the predicted condition of the Saskatchewan River, SRD, Cumberland Lake and CHCN Reserve in 10, 25 and 50 years. He reiterated that more funding was needed to predict the impacts “resulting from the future operation of the dams” (Record, page 991).

[127]                             In reply, on September 26, 2017, Mr. Johnston wrote to Chief Chaboyer, Ms. Campbell and Mr. Desjarlais that SaskPower would consider additional consultation participation funding to go out to the community to collect possible accommodation information. He stated that SaskPower would be happy to respond in writing to questions regarding issues CHCN raised about operating plans and licence terms and conditions. Finally, Mr. Johnston wrote:

[128]                             The Record also contained a letter from University of Saskatchewan Interim Associate Vice-President, Kevin Schneider of September 26, 2017 to Chief Chaboyer indicating that informed consent was actually obtained from all research participants. He noted that on May 1, 2012, verbal consent was provided by Cumberland House Cree Nation Chief and Council during a meeting. Further, consent was obtained in writing from all 42 Cumberland House area participants, including persons from Cumberland House Cree Nation. The consent included agreement to permit SaskPower to learn about how the SRD is used. He stated the University of Saskatchewan was not carrying out the Crown’s consultation duties, a position which aligned with SaskPower’s view of the research.

[129]                             SaskPower offered an additional $15,000.00 for funding to CHCN.  However, CHCN did not want to sign the agreement as they did not want to be seen as accepting that this was sufficient funding.  Further, on October 16, 2017, CHCN, through Mr. Desjarlais, said they were overwhelmed by the nature of the information SaskPower had provided regarding possible accommodations.

[130]                             Mr. Johnston, in reply on October 20, 2017, wrote that this consultation funding agreement was substantially the same as the one that had been signed on January 9, 2017. Further, he wrote that the overwhelm and confusion expressed through Mr. Desjarlais was inconsistent with the technical understanding displayed previously in questions CHCN had presented, as well as in the many pieces of correspondence received from CHCN and their consultants. SaskPower, he went on, was willing to fund the preparation of a report and presentation to the community on accommodation measures, which included $9,000.00 for professional fees. Finally, Mr. Johnston wrote that SaskPower was not anticipating a precise technical response from CHCN regarding the proposed accommodations but rather more general comments.

[131]                             Communication was exchanged between CHCN and SaskPower to arrange a further meeting. In the course of that exchange, Mr. Johnston, on November 10, 2017 advised CHCN:

[132]                             CHCN prepared a report entitled “E.B. Campbell and Nipawin Hydroelectric Facilities Impact Summary”. It was provided to SaskPower in November 2017.  The document’s Executive Summary identified that the Saskatchewan River, the SRD and the Delta wetland ecosystem were areas of cultural and traditional value to CHCN. The impacts identified in the document were meant to facilitate accommodation discussions between CHCN, the WSA and SaskPower.

[133]                             The purpose of the report, as stated on page 15, was to “provide SaskPower and the WSA with additional information on the anticipated impacts to Cumberland House Cree Nation’s Aboriginal and treaty rights from the licensing of these Facilities. This Summary includes information related to constructive and perceived impacts as understood by Cumberland House Cree Nation” (Affidavit of Jeff Hovdebo sworn August 28, 2020, Exhibit B).

[134]                             The report contained information regarding the effects of sediment starvation. The report read:

[135]                             The report summary reiterated the effects of sediment starvation.

[136]                             Changes resulting from “Facilities Structures” was addressed at page 18 (Record, page 1119).

[137]                             Tables were included in the summary that identified, in CHCN’s view, the impacts of the dams on CHCN’s constitutionally guaranteed rights, the accommodations suggested by SaskPower and identified gaps in the accommodation measures. The identified gaps throughout the summary were mainly:

[138]                             The very studies relied upon by SaskPower to inform the consultation process, were also relied upon by the authors of this report, including the Jardine Report and the Abu Report.

[139]                             The parties next met on November 28, 2017 in Nipawin. Subsequent to that meeting, on November 30, 2017, Mr. Desjarlais wrote to Mr. Johnston as follows:

[140]                              A lengthy letter dated December 20, 2017 was sent from Mr. Johnston to Chief Chaboyer which covered a number of topics raised by CHCN again including the explanation as to why the consultation was at a low level and that no information had been provided by CHCN to change that assessment. Mr. Johnston provided:

[141]                             It was confirmed, although the fact that capacity funding had been provided, that no funding was provided to CHCN to test “evidence put forward by SaskPower” (Record, page 1172).

[142]                             Further:

[143]                             Regarding sediment starvation, Mr. Johnston wrote: 

[144]                             The Jardine Report recommendations, the connection between those recommendations to the proposed accommodations, SaskPower and the WSA’s understanding of EBC’s impacts to treaty and Aboriginal rights and finally the reasons for the proposed accommodations in relation to the impacts raised by CHCN were discussed.

[145]                             This letter attracted a request for $25,500.00 in funding from CHCN for travel for CHCN leadership to meet in Saskatoon, for legal support, for professional support, for administrative support and a $7,000.00 amount to “review SaskPower accommodation submissions” (Record, page 1203). The request was denied on February 1, 2018 by SaskPower.

[146]                             The last meeting was held in Regina on March 2, 2018. Minutes of that meeting were taken by Emma Yang and edited by counsel for CHCN, Tim Dickson and Claire Truesdale. The following was stated:

[147]                             On March 16, 2018, Mr. Hovdebo of the WSA, sent a letter to CHCN counsel, Mr. Dickson, responding to comments or inquiries made during the March 2, 2018 meeting. Parts of that letter state:

[148]                             An email dated March 16, 2018 was sent from Mr. Johnston to Mr.  Desjarlais, CHCN counsel and others stating:

[149]                             A reply was received on March 26, 2018 by way of a letter from Mr. Desjarlais to Mr. Johnston seeking funding of $44,600.00 for technical support including the engagement of an expert or engineer if needed and to review the “Terms of Reference” of the Community Stewardship Committee [Community Stewardship Committee] and proposed accommodations.

[150]                             Mr. Johnston replied by letter to Mr. Desjarlais on April 19, 2018. He stated that after careful consideration, SaskPower declined to provide funding:

[151]                             An April 30, 2018 “Report of Consultation Activities” was prepared by SaskPower. It details the information gathered to inform the consultation process, which included the Jardine Study Proposal, the TLU study, and information provided by rights holders. It noted that the WSA explained that the consultation process was about the re-licensing decision regarding EBC and “not about past impacts resulting from the initial construction of the hydro facilities” (Record, page 1276). Potential adverse impacts were identified. A response to those impacts was detailed. Finally, it was noted that the proposed Terms of Reference for the Community Stewardship Committee had been provided on January 8, 2018 and feedback was requested.

[152]                             The Terms of Reference for the Community Stewardship Committee were included in the Consultation Activities Report. The scope of the Committee was to discuss matters raised by members relating to the operation of EBC. The Committee could make recommendations regarding water flow, water management objectives and the development of a management plan. That Committee was to include representatives from six affected First Nations communities as well as SaskPower, the WSA and the Saskatchewan Ministry of Environment. Meetings of the Committee were to occur at least two times per year. 

[153]                             Mr. Dickson wrote to Mr.  Hovdebo on May 10, 2018 stating that CHCN viewed the consultation to be “woefully insufficient” resulting in a superficial and cursory consultation with little funding being provided to CHCN. He noted that CHCN wanted a focus on sediment starvation, a process that was “well documented”. A number of papers regarding sediment starvation were attached. The Smith Report was referenced.

[154]                             On June 7, 2018, Mr. Desjarlais requested, via email, funding for technical support to review the Consultation Activities Record.

[155]                             Mr. Hovdebo replied to the May 10, 2018 letter of Mr. Dickson on June 8, 2018. The WSA reiterated that they had been open to modifying their low level consultation assessment had information come forward from CHCN that would have caused this to occur. The WSA noted that this consultation process was not a proxy for consultation on the initial construction of EBC. Those impacts were compensated under the Cumberland House Development Agreement of March 30, 1989 and the SaskPower Settlement Agreement of December 21, 1988.

[156]                             Regarding sediment starvation, Mr. Hovdebo wrote:

[157]                             Mr. Hovdebo took the view that CHCN had incorrectly conflated the duty to consult with the WSA legislative requirements pursuant to the Regulations. He stated that these are two different legal processes guided by different criteria and law and that the “consultation being conducted with CHCN will inform the decision being made by WSA on whether or not to grant a licence under this legislation. However, the legislative considerations set out in The Water Power Regulations are not criteria for consultation” (Condensed Book, page 275).

[158]                             Finally, Mr. Hovdebo noted that while the WSA had not funded experts chosen by CHCN, SaskPower and the WSA were nonetheless relying on expert advice.

[159]                             Mr. Hovdebo sent a further letter of July 3, 2018 to Chief Chaboyer. He noted:

[160]                             By letter dated October 12, 2018, Mr. Hovdebo wrote to Chief Chaboyer informing CHCN that the decision had been made to issue a licence to SaskPower for EBC and Nipawin. He noted that although the WSA thought the decision would be made in December 2015, the consultation process had been extended for a period of over three years in an effort to ensure a meaningful consultation. He further noted that a consultation report, consultation log and proposed accommodations were provided to CHCN on May 8, 2018. Comments were received from CHCN and the documents were corrected in accordance with CHCN’s suggestions.

[161]                             There were a number of specific concerns raised by CHCN regarding the consultation process.

[162]                             CHCN wanted the issue of sedimentation to be included in the consultation process. CHCN argues that the failure to do so resulted in an unreasonable consultation process.

[163]                             The position taken by SaskPower and the WSA was that sedimentation resulted from the original decision to build EBC and was therefore not appropriately part of the consultation process. Despite that position taken, the WSA says it actually adequately considered sedimentation in the course of consultation.

[164]                             In this instance, it is necessary to again identify the decision taken by the WSA with respect to EBC. The decision was to issue a licence for its continued operation in a manner that it had been operating for years, subject to accommodations. Appropriate consultation was to connect to that decision.

[165]                             The WSA, as expert in the management of water and water works in the province, determined that sedimentation did not result from the operations of dams but from the construction and existence of them. That meant sedimentation had occurred since the construction of EBC was completed in 1966. As such, the WSA characterized sedimentation as an historical impact. More specifically, the decision before the WSA regarding whether SaskPower would be permitted to continue operating EBC did not have any connection to sedimentation. This factual determination is squarely in the realm of the WSA’s expertise and is one to which deference is owed.

[166]                             With sedimentation viewed as an historical impact caused by EBC’s construction, and guided by the jurisprudence such as Rio Tinto and Peter Ballantyne, which indicates that new and novel impacts attract consultation, it is a reasonable conclusion that sedimentation was not to be included in the consultation process.

[167]                             Practically speaking, EBC was one dam in a system of dams. EBC was not the sole cause of sedimentation in the SRD. Modifying EBC, or even removing it, would not solve SRD’s sediment issue.

[168]                             Despite the fact that sedimentation did not need to form part of the consultation process, sedimentation was actually considered by SaskPower and the WSA a number of times during the consultation process and became the focus of an avenue of accommodation. This is borne out in the Record.

[169]                             The WSA considered the Smith Report which was mentioned a number of times in the Record. The paper is entitled “Dam-induced and natural channel changes in the Saskatchewan River below the E.B. Campbell Dam, Canada”. The research in that report focussed on sediment starvation and resulting impacts. The research was conducted in the period of 2003 to 2014. The WSA, in fact, provided in-kind support for the research.

[170]                             A plain language summary was prepared in 2018, two years after the release of the report. It was clear in that document there was a prediction that the main channel would be affected by sediment starvation as well as the distributary channels, surrounding wetlands, marshes and shallow lakes. Notably at page 5 of the plain language document, Dr. Smith’s research indicated that a number of factors were causing these changes in addition to EBC. Those factors included climate, irrigation, municipal consumption, channel perimeters and human disturbance.

[171]                             The Jardine Study Proposal for further research was to focus on sedimentation. Involved in the preparation of the report was Mr. Carriere, President of the Cumberland House Fisherman’s Co-operative. The proposal itself contains detailed information regarding changes to the SRD as a result of sedimentation, some of the particulars of which are noted above.  

[172]                             In the E.B. Campbell and Nipawin Hydroelectric Facilities Impact Summary prepared by CHCN, it indicated that the “effects of sediment starvation are well documented and understood for the Saskatchewan River Delta” (Condensed Book, page 1119). The effects of sediment starvation were detailed.

[173]                             In a meeting of the parties on November 28, 2017, sediment starvation was discussed, including the Smith Report. As noted by Mr. Desjarlais after the meeting: “…the content of this report dominated the discussion in the meeting and there appeared to be a shared concern on the severity of impact and corresponding of potential scope of remediation feasibility” (Record, page 1151).

[174]                             In a December 20, 2017 letter from Mr. Johnston to Chief Chaboyer, Mr. Johnston wrote about the issue of depositing sediment downstream of EBC. He explained that it was a complex issue that may cause destruction of fish habitat and spawning areas and may also cause toxins or mercury.

[175]                             At the March 2, 2018 meeting, Mr. Dickson raised the issue of sedimentation and sediment starvation, explaining what sediment starvation did. Marcy Bast with SaskPower acknowledged possible changes and also noted that there were three dams which contribute to the sedimentation. SaskPower recognized the impacts of sedimentation and sediment starvation by including channeling, bank erosion, and fish stranding through adaptive management. Further, SaskPower suggested sampling of the sediments to look at opportunities to resediment the river. At the March 2, 2018 meeting, Mr. Hovdebo said: “We can do sampling on the sediments and look at opportunities of dumping sediments in the river” (Condensed Book, page 234).

[176]                             Sedimentation was considered by the WSA throughout the consultation. Not addressing it in the manner CHCN wanted does not render the consultation unreasonable. The WSA was committed to addressing sedimentation in the accommodation measures. An important aspect of the accommodation measures was to create a Community Stewardship Committee that would continue to address issues raised by CHCN and other communities. Those issues would include sedimentation.

[177]                             The sedimentation issue was addressed in a reasonable manner. The manner in which sedimentation was addressed did not render the consultation process unreasonable.

[178]                             CHCN submits that impacts in addition to sedimentation were not appropriately considered by the WSA. Such further impacts include a decline in fish populations, habitat degradation, and changes in water quality. 

[179]                             This, again, was not borne out by the Record. The WSA considered a summary of fisheries/aquatic studies that covered a 10 year period. The Jardine Report addressed impacts which included water quality, algae, fish, waterfowl, moose and muskrat. Information regarding these impacts was gathered, in part, from CHCN members. The Jardine Study Proposal was reviewed. A TLU study was prepared with $172,000.00 of government funding from 2008 to 2014 which the WSA had. The WSA had also reviewed the Abu Report concerning long term ecological impacts in the SRD. WSA had in hand the DeBeer Report regarding climate, crysopheric and hydrological changes in Western Canada. CHCN provided a 49 page Impact Summary which detailed impacts of EBC and Nipawin and CHCN’s treaty and Aboriginal rights. Finally, the WSA had the Smith Report. 

[180]                             That the Jardine Report was not created for the purpose of consultation did not diminish the valuable information it contained. Any opposition to its use or value on that basis was irrelevant. So, too, was the suggestion that the CHCN report participants did not consent to the information they provided to be used beyond the creation of the report. As it turned out, that consent had been provided, as was confirmed by Mr. Schneider, University of Saskatchewan Interim Associate Vice President on September 26, 2017. The consent included permission for SaskPower to learn how the SRD was used.

[181]                             In addition to the information provided in the reports, numerous meetings were held and conference calls occurred in an effort to gather from CHCN their views as to what impact EBC would continue to have on their treaty and Aboriginal rights. There were occasions in 2016 when the WSA endeavoured to meet with CHCN but CHCN was not responsive to the requests or the scheduled meetings were canceled. The WSA persisted.

[182]                             By June 27, 2017, the WSA had identified a significant number of potential adverse impacts it itemized for CHCN to review in a meeting which occurred on that date. Information gathering continued after that.

[183]                             In Mikisew, the court said that “the Crown is nevertheless under an obligation to inform itself of the impact its project will have on the exercise by the Mikisew of their hunting and trapping rights, and to communicate its findings to the Mikisew” (para. 55).

[184]                             CHCN relies on this passage to impugn the efforts made by the WSA to determine the potential adverse impacts the licensing decision would have on treaty rights. That is, according to CHCN, the WSA ought to have made greater efforts to collect information on its own and present it to CHCN.

[185]                             Contrary to CHCN’s position, that portion of Mikisew must be placed in the context of the balance of the paragraph which goes on to speak about consultation, which is a process of information sharing. The very nature of consultation would require CHCN to provide its views and information regarding how the decision might impact treaty rights. To the extent that the WSA was required to “inform itself of the impact of its project”, it did so and additionally asked CHCN for its views. Had the WSA only gathered its own information to the exclusion of CHCN’s views, that would have created problems.

[186]                             In para. 64 of Mikisew, this direction was explicitly provided: “The Crown was required to solicit and to listen carefully to the Mikisew concerns”.

[187]                             The characterization that the WSA did not consider other impacts to treaty and Aboriginal rights in a meaningful and engaged way is inaccurate. The efforts expended to do so were, in fact, reasonable. Stated differently, the manner in which the WSA dealt with these impacts did not make the consultation unreasonable.  

[188]                             CHCN submits that the level of funding it received was insufficient.  Because of that, said CHCN, they could not provide adequate information and could not fully participate in the consultation process. In fact, on June 27, 2017, through their consultant Ms. Campbell, CHCN expressed a view that there should be no cap on funding provided to CHCN.

[189]                             All parties had a number of studies through which significant information was gathered. Those studies include the following and are listed again for convenience:

[190]                             Other studies were also considered.

[191]                             As previously noted, there were many meetings held in which information regarding potential adverse impacts were sought from CHCN. 

[192]                             CHCN requested funding from the WSA for legal, technical and participation support which included: $15,503.00 for a consultation meeting; $8,000.00 for legal counsel to attend a meeting; $126,896.00 for CHCN consultants to engage with the community about impacts of the dams and producing a technical report; $25,000.00 for legal and technical support to review the proposed accommodations.

[193]                             CHCN did receive $5,923.67 to prepare for and attend one meeting; $15,000.00 received through a funding agreement; and reimbursement for travel and meeting expenses. SaskPower offered an additional $15,000.00 in funding that CHCN turned down citing disagreement with the terms of the funding. Further, CHCN did not accept the funding because CHCN did not want SaskPower to later say that CHCN was satisfied with the funding. That funding was never used.

[194]                             In the course of the consultation, the WSA explained why additional funding requests were not agreed to. In Ms. Ross’ March 24, 2017 letter, she wrote that further environmental and TLU studies were not necessary. The information the WSA desired, she continued, was that which could be supplied directly from the community regarding the adverse impacts they were experiencing. In an April 5, 2017 telephone call between CHCN and SaskPower officials, SaskPower noted that a number of interviews had been conducted with elders, hunters, trappers and gatherers. The existing technical reports were discussed on a number of occasions, including the TLU study for which the Province of Saskatchewan had provided $172,000.00. On September 13, 2017, Mr. Johnston advised by email that further study was not necessary to inform of future operations and in a September 14, 2017 email, Mr. Johnston said that SaskPower had already contributed to the Jardine Report funding which was considered to contain valuable information.

[195]                             Additional funding of $15,000.00 was offered to CHCN on substantially the same terms as had been provided a number of months earlier. SaskPower was also willing to fund the preparation of a report for the community on accommodation measures, which included $9,000.00 for professional fees.

[196]                             On October 20, 2017, Mr. Johnston advised CHCN that SaskPower was looking for more general information, rather than precise technical information. He noted that they had studies which spoke to those more technical matters. On December 20, 2017, Mr. Johnston wrote to Chief Chaboyer that the consultation process was not about “dueling scientific perspectives” but “rather it is about the Crown explaining its proposed decision” and “seeking input from the community” (Condensed Book, pages 189-200).

[197]                             On April 19, 2018, Mr. Johnston advised CHCN that “credible identification of potential adverse impacts to Aboriginal and Treaty rights and traditional uses” was contained in the 49 page report prepared by CHCN (Record, page 1256).

[198]                             By letter of May 10, 2018, Mr. Hovdebo advised CHCN that even though the WSA had chosen not to fund CHCN experts, SaskPower and the WSA were nonetheless relying on expert information.

[199]                             The WSA’s collection and consideration of information from CHCN, both technical and non-technical, as well as a number of relevant studies led to a robust understanding of current and future adverse impacts on Aboriginal and treaty rights. There were a number of studies from which, and a number of meetings in which, impacts were made known to the WSA. The WSA concluded that further studies would provide little information to inform the decision they were tasked to make, though there was still willingness to provide $15,000.00 and $9,000.00 funding amounts. CHCN declined to use this funding and now submits that funding was inadequate.

[200]                             One of the reasons CHCN wanted funding was for further investigation around sedimentation. However, CHCN said on more than one occasion that the effects of sedimentation were well known. This view was also held by experts.

[201]                             Based on the nature and quantity of information the WSA had regarding the adverse impacts of both the ongoing operation of EBC and even regarding the dam structure itself, the WSA concluded that it was appropriately informed. Given the comprehensive information the WSA, and indeed all the parties, had, and the manner in which it was gathered through community engagement, the decisions the WSA made not to provide the funding CHCN requested falls within the range of reasonable decisions open to the WSA. The manner in which funding occurred did not render the consultation unreasonable.

[202]                             CHCN says the accommodations suggested by the WSA were predetermined and that the WSA proposed accommodations which were largely unresponsive to the impacts raised by CHCN.

[203]                             The WSA presented the Jardine Report recommendations as a starting point from which discussions were to occur. In July 2017, funding of $15,000.00 was offered to CHCN by SaskPower to discuss possible accommodations.  As noted, that money was declined by CHCN as CHCN took issue with the funding agreement though it was substantially the same as the agreement CHCN had previously signed.

[204]                             CHCN did provide a list of potential accommodation measures which were sent to the WSA on June 18, 2018. In CHCN’s view, these were not considered. CHCN says that the same accommodation measures that were ultimately identified were essentially the ones initially proposed by the WSA. 

[205]                             Five recommendations were made by Mr. Jardine. The first would not have allowed SaskPower to meet power generation needs. Recommendations two and three were aimed at mitigating against fish stranding. Recommendations four and five discussed communication with downstream communities about water releases and the flooding of the SRD, which provides some benefit.

[206]                             Recommendations two and three were implemented. Recommendations four and five were adopted and enhanced with the creation of the Adaptive Management Stewardship Committee which would continue to study impacts, including sediment starvation, and make recommendations to the WSA.

[207]                             Two more recommendations raised by First Nations groups were implemented. SaskPower would reduce the times that Tobin Lake would be drawn down as a flood protection measure and other benefits. In this dam system, water runs from west to east from Codette Lake reservoir, to Nipawin, to Tobin Lake reservoir and then to EBC. SaskPower would also reduce the difference between weekday and weekend power generation to decrease downstream water fluctuations. This would reduce shoreline impacts such as fish stranding and reduce concerns about navigation over water on ice and unsafe ice conditions.

[208]                             In the June 8, 2018 letter from Mr. Hovdebo to Chief Chaboyer, Mr. Hovdebo wrote:

[209]                             In the final correspondence to CHCN of October 12, 2018 regarding the decision to licence EBC, Mr. Hovdebo acknowledged the proposed accommodations set out in CHCN’s June 8, 2018 letter. Further, Mr. Hovdebo wrote:

[210]                             The plan outlined in these two pieces of correspondence is not one of ignoring the concerns CHCN had expressed. In fact, the WSA was responsive to those concerns when it modified the terms of reference of the Adaptive Management Stewardship Committee. The accommodations to that date would be monitored, rights holders had a further platform to identify ongoing adverse impacts, significant funding was forthcoming to ensure community participation annually and significant funding was available on an annual basis for data gathering to inform the work of the Committee and make recommendations to SaskPower and the WSA.   

[211]                             The accommodations were directed towards addressing impacts to Aboriginal and treaty rights identified by CHCN. They include ongoing funding, community dialogue, information gathering and willingness to modify operations to address, among other issues, flooding, unsafe ice conditions, fish stranding and sedimentation. SaskPower and the WSA were responsive to CHCN’s concerns. The reasons for the chosen accommodations were set out in the licences.

[212]                             Despite the fact that the WSA did not acquiesce to all of CHCN’s requests, the accommodations were reasonable. Consultation guarantees a reasonable process, not specific outcomes. The accommodations identified by the WSA did not cause an unreasonable consultation.

[213]                             In Gitxaala at para 214, it is noted:

[214]                             Assessing the consultation in its entirety leads to a conclusion that it was reasonably conducted. That is, the record shows that there were reasonable efforts at meaningful consultation.

[215]                             CHCN was given early notice of SaskPower’s request for a licence. Formal meetings were held in which information sharing occurred. Information was gathered from CHCN and other expert sources. The WSA appropriately assessed the relevant potential adverse impacts that would result from the decision. CHCN was given an opportunity to raise concerns and ask questions. Although the answers to those questions may not have been welcomed or considered sufficient by CHCN, the answers were provided. 

[216]                             Over time, answers to questions and the rationale for decisions, including the licensing decision, were provided in written form, whether in email or letters. Appropriate accommodations were identified. All of this occurred over a period of time that exceeded three years when the initial expectation by the WSA was that a decision could be reached in six months. While the time a consultation takes is not determinative of whether it was reasonably undertaken, in this instance, the protracted consultation time frame was an indication of the seriousness with which the WSA took the consultation process. As a result of the WSA’s intention to substantially address the concerns raised, accommodation measures were identified and put in place. Perfection is not required. Good faith is. Reasonable and meaningful efforts are.

[217]                             The WSA concluded that consultation efforts were appropriate and sufficient and that it fulfilled its duty to consult. These conclusions, in light of the entirety of the circumstances and jurisprudence, are reasonable. The honour of the Crown was maintained.

[218]                             CHCN challenges the licensing decision on administrative and constitutional grounds.

[219]                             The WSA referred the court to Da’naxda’xw/Awaetlala First Nation v British Columbia (Environment), 2011 BCSC 620, in which a decision of the Minister of Environment was challenged on administrative and duty to consult grounds. On the basis of administrative law principles, the court did not find anything untoward and, at para. 227 of that decision, directed that “matters raised here are more properly addressed in the further consultations with the Da’naxda’xw that will be required as a result of the Minister’s breach of the duty to consult”. However, it is not a clear statement that one remedy, on the basis of the duty to consult, precludes one based in administrative law principles.

[220]                             To the contrary, the process employed in Gitxaala was to make a determination regarding the reasonableness of the decision under review pursuant to administrative law principle and to also engage in a separate duty to consult analysis (paras. 158, 159 and 169).

[221]                             I accept that challenges to the licensing decision can be pursued on grounds of duty to consult as well as administrative grounds.

[222]                             Of greater significance, however, is the interplay, if any, between these two grounds. The content of the Regulations is important to bear in mind in this consideration.

[223]                             The WSA is a public authority empowered to make operational and policy decisions respecting the management of the province of Saskatchewan’s water resources. This is reflected in the broad mandate and powers vested in the WSA in
ss. 5 and 6 of the WSA Act. The broad mandate of the WSA Act is found in s. 5:

[224]                             Section 6 of the WSA Act sets out the WSA’s broad powers and includes the ability to regulate and control the flow of water on any body of water in the province, issue applications for water rights licences, undertake research, enter into agreements, collect data, develop policies and provide advice.

[225]                             During the process of determining the issue of the licences for the dams, The Regulations Governing the Administration of Provincial Water Powers and The Water Power Act, Reg 906/68 (rep) [Repealed Regulations] were repealed and replaced with the Regulations. The Regulations came into effect on November 24, 2016. 

[226]                             While the Repealed Regulations provided for a final operating licence, the maximum length of a final licence was 50 years. In the Regulations, a licence has no end, though in accordance with s. 8, the operating plan was to be reviewed at 20 year intervals.

[227]                             Additionally, in the Regulations, an interim licence granted pursuant to the Repealed Regulations continued as a licence, but expired three years after the Regulations came into force. That meant Nipawin had to be granted a further licence in accordance with the Regulations. 

[228]                             The provisions of the Regulations relevant to this discussion read, in part:

[229]                             These Regulations must be read in light of the broad discretion, expertise and mandate given to the WSA on matters of water regulation. Specifically, the decision to grant a licence by the WSA attaches to it a broad discretion, which is consistent with the WSA’s statutory authority as provided in the WSA Act, and particularly in ss. 5 and 6. The WSA is permitted to make a determination, relying upon its expertise, as to what is in the public interest as it relates to the management of water and water works in the province.

[230]                             The WSA’s expertise has been accrued through years of regulating water and water works throughout the province. The WSA is aware of the interconnected network of water works that operate within this jurisdiction and interprovincially.

[231]                             In CHCN’s view, the WSA did not comply with the requirements of s. 5 of the Regulations which obliged it to consider current and future impacts, including predicted future cumulative impacts, caused by the operations and infrastructure of EBC. Despite the s. 5 direction, the WSA, says CHCN, only considered new impacts. Those impacts did not include sedimentation and were therefore inappropriately overlooked. CHCN says the WSA did not exercise its statutory mandate in a reasonable manner.

[232]                             Further, CHCN says the WSA could have refused to issue the licence if, having regard to the s. 5 factors, issuing the licence was not appropriate or in the public interest. As long as the licence was in place, the WSA did not have the authority to mandate removal of EBC. With no licence, the WSA could have ordered the removal of EBC (s. 10(e)(i)).  

[233]                             CHCN submits that as a result, the licence cannot stand. It must be quashed and the matter remitted back to the WSA for consideration in a manner consistent with the statutory scheme.

[234]                             The standard of review for decisions such as the licensing decision made pursuant to the Regulations, where it is a discretionary one founded upon considerations of public interest, is reasonableness (see Dunsmuir v New Brunswick, 2008 SCC 9 at para 53, [2008] 1 SCR 190). Decisions made by administrative decision-makers lie within their expertise and experience, rather than in that of the court. For such decisions, courts are to afford administrative decision-makers with a greater margin of appreciation (see Gitxaala at para 147). 

[235]                             Reasonableness has been described as a range of acceptable and defensible decisions on the facts and the law or a margin of appreciation over the problem before it (see Gitxaala at para 146).

[236]                             Reviewing courts are to refrain from deciding issues themselves and instead consider whether the decision made, which includes both the rationale for the decision and the outcome, was reasonable (Vavilov at para 83).

[237]                             A principled approach to a reasonableness review examines the reasons provided with “respectful attention” and seeking to understand the reasoning process followed by the decision-maker to arrive at its conclusion (Vavilov at para 84). Reasonableness means justification, transparency and intelligibility within the decision-making process as well as a decision that falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law (Vavilov at para 86). In conducting a reasonableness review, the reviewing court should be attentive to the application of specialized knowledge by decision-makers, as demonstrated by their reasons (Vavilov at para 93).

[238]                             The burden is on the party challenging the decision to demonstrate that the decision is unreasonable.

[239]                             A reasonableness standard applies to statutory interpretation undertaken by the decision-maker (Vavilov at para 115). However, a reviewing court does not undertake a de novo analysis (Vavilov at para 116).  An approach to reasonableness that respects legislative intent must assume that those who interpret the law will do so in a manner consistent with the “modern principle” (Vavilov at para 118). 

[240]                             Regarding factual findings made by the decision-maker, the reviewing court must not interfere with such findings absent exceptional circumstances. The reviewing court must not reweigh and reassess the evidence considered by the decision-maker (Vavilov at para 125).

[241]                             In David Suzuki Foundation v Canada-Newfoundland and Labrador Offshore Petroleum Board, 2020 NLSC 94, 78 Admin LR (6^th) 118, expertise and deference in a reasonableness review was commented upon:

[242]                             The WSA’s view of its obligations pursuant to the Regulations is contained in the March 16, 2018 correspondence from Mr. Hovdebo to Mr. Dickson. In that correspondence, Mr. Hovdebo wrote that he would clarify the nature of the regulatory decision that the WSA was contemplating.  He stated, in part:

[243]                             Reasons for the decision were provided in the October 12, 2018 letter, which incorporated, by reference, the May 18, 2018 Consultation Report and Consultation Log, along with the amendments suggested by CHCN.

[244]                             The duty to consult jurisprudence makes clear what the parameters of consultation are. Consultation pursuant to s. 35 of the Constitution Act, 1982 does not require the Crown to consult on every aspect of a regulatory decision. Mr. Hovdebo characterized that appropriately in his June 8, 2018 letter to Chief Chaboyer. Were it otherwise, it would undermine the jurisprudential principles identified in the duty to consult cases. The Regulations cannot provide a vehicle for broader consultation than is set out in the case law. The Regulations do not extend the duty to consult.

[245]                             Similarly, a decision predicated upon legislative requirements or parameters does not become unreasonable because the consultation concerns and accommodation requests of a consultation participant were not considered in the administrative law sphere. The legislation sets out the matters to be taken into account.

[246]                             CHCN argues that the WSA did not satisfy the requirements of s. 5 of the Regulations, in that it unreasonably limited its considerations to the future impacts of the EBC and Nipawin’s operations, as opposed to the impacts of the dams themselves. In particular, CHCN says sedimentation had to be considered in the licensing analysis.

[247]                             WSA took the view that the wording in s. 5 regarding the “current and future impacts of the waterworks” did not include historic impacts. As noted, historical or past impacts were those caused when EBC was constructed, which included sedimentation. That is, sedimentation was caused by the dam structure itself, not from present and future operations of the dam. Sedimentation was caused by a decision which occurred years before and not as a result of a decision regarding whether to grant a licence to a particular entity to continue operating EBC.

[248]                             In assessing whether the WSA’s approach was reasonable, the contents of s. 2 of the Regulations are notable. Section 2 provides that a licence is required to “construct” or, separately, “operate” water power works. SaskPower applied to operate EBC. Construction of it had occurred years before. The focus of the licensing decision in this case was on the continued operation of EBC and by whom.

[249]                             The WSA’s interpretation was that it had to consider current and future impacts of the water power works, rather than historical ones, such as sedimentation, which is the product of EBC’s construction. The WSA analyzed the new Regulations which the WSA determined focussed on operations in the context of the already existing facility. If CHCN’s approach was adopted such that inclusion of “water power works” meant that sedimentation must be considered, then the inclusion of the words “current and future” would be rendered irrelevant. Had it been the case that past impacts were to be considered, the WSA’s view is that the Regulations would have explicitly said so. 

[250]                             CHCN relies on the Chippewas direction regarding cumulative effects to bolster its position that the WSA must consider the full historical context of EBC’s impacts. The Chippewas’ focus on cumulative effects and historical context connects to the discussion regarding the scope of the duty to consult, as discussed previously. That focus does not impact the parameters of what the WSA was to contemplate in its licensing decision.  

[251]                             In any event, as noted above, the WSA did consider the issue of sedimentation in the course of the consultation, prior to the decision to grant a licence. Sedimentation was also addressed in the accommodation measures. Despite what the WSA knew about the issue of sedimentation, the WSA chose to confer the licence pursuant to s. 6 of the Regulations having considered and balanced the s. 5 factors.

[252]                             CHCN argues that the WSA ought to have considered the “current and future impact of the water power works” on CHCN’s rights. Having detailed the nature and content of the consultation discussions, it is clear that the WSA did have the impacts of CHCN’s treaty and Aboriginal rights in the fore of its considerations as the process progressed. In fact, the WSA consistently requested information from CHCN regarding how rights were impacted.

[253]                             CHCN suggests that s. 5 made it mandatory for the WSA to have imposed mitigation measures for the impacts. However, contrary to that view, s. 5 obliges the WSA to “consider…whether the impacts…can be mitigated” (emphasis added). There is no requirement that mitigation measures be imposed by the WSA. What CHCN suggests, is an importation of the notion of accommodation from the duty to consult process. This is not required and having not done so does not make the WSA’s decision unreasonable.

[254]                             CHCN further argues that reasons for the approach taken by the WSA needed to be provided in order to make the decision reasonable. However, where a regulatory body makes a decision, reasons akin to those of an adjudicative body, are not always required. The reasonable analysis regarding a decision of a regulatory body may be conducted on a contextual analysis which could include consideration of the impact of the decision, the governing statute and the record read as a whole (Sagkeeng v Government of Manitoba, 2020 MBQB 83 at para 116). That is the case here.

[255]                             In Portnov v Canada (Attorney General), 2021 FCA 171, 461 DLR (4^th) 130, the Federal Court of Appeal provided that a court engaged in a reasonableness review may look at the reasons offered, associated documents that shed light on the reasoning process, any submissions made and the record before the decision-maker.  Reasons may be express or implied (para. 33). 

[256]                             Certainly the record as a whole does identify the extensive information considered by the WSA which aligned with the legislative requirements. The record also reveals the fulsome reasons provided by the WSA for the decision it made. Those reasons are contained in the identified correspondence. Information was assessed, the reasons provided and the decision made was undertaken through the lens of the WSA’s institutional knowledge, which included decades of information connected to the dams and a depth of experience considering the public interest.

[257]                             There may be a range of interpretations that s. 5 of the Regulations attracted. However, deference regarding whether the WSA’s interpretation of s. 5 must be given to this specialized regulatory body interpreting its own legislation. Further, wide discretion must be accorded the WSA in its interpretation of legislation that is meant to balance the benefits of water power against any potential impacts on property rights, water movement, water quality and potential mitigation measures, all in the public interest.

[258]                             The WSA’s interpretation falls squarely within the range of possible, acceptable outcomes. The WSA’s views, found within the Record, are justifiable, transparent and intelligible.  The decision to licence is justified in relation to the facts and the law. The WSA did not misapprehend or fail to account for evidence or information before it.

[259]                             The WSA’s interpretation of s. 5 of the Regulations is reasonable.

[260]                             CHCN submits that the WSA never actually considered whether to deny the licences or include terms in the licences to mitigate the impacts of the water power works. 

[261]                             The WSA is a regulator with decades of experience and knowledge regarding water works within the province and the placement of those water works interprovincially. Institutional knowledge exists that is beyond the scope of the consultation information. The WSA has been conducting the business of water works in the public interest for years and is uniquely positioned to understand what is in the public interest.

[262]                             Pursuant to s. 6 of the Regulations, the denial of a licence may occur if the applicant has not complied with the Regulations, the information provided by the applicant was deficient in some way or if the licence was not appropriate or in the public interest, in light of the s. 5 considerations. In those circumstances, the denial of a licence is permissive, not mandatory.

[263]                             The WSA was aware of the entirety of the Regulations, including s. 6. It is unimaginable that the WSA, with its years as a regulator of Saskatchewan water works, would simply chose to ignore part of its mandate, contained in the Regulations. This position also runs contrary to the facts.

[264]                             CHCN points to the March 2, 2018 meeting minutes taken by Ms. Yang in support of their position, at page 8:

[265]                             A fair interpretation of Ms. Eggerman’s comments, in context, is that the WSA was willing to hear the views of CHCN, but nothing they had heard lead to a conclusion that the licence should not be granted. Her statement cannot be taken as a comment that denying the licence was not considered.

[266]                             A fair interpretation of Mr. Hovdebo’s statement that shutting down EBC was not under consideration meant that the WSA was aware of what the Regulations permited, but with the knowledge it possessed, there was no reason to engage with that possibility. In fact, it is clear from the March 16, 2018 letter of Mr. Hovdebo that the WSA was fully attuned to the fact that the Regulations permitted the refusal of the licence application.

[267]                             Further, that decommissioning was not a consideration is a reasonable approach, given that the decision before the WSA was regarding whether SaskPower would be granted a licence to continue operating EBC without any changes. It is also reasonable in light of the legislative content. The only place where “decommissioning” or removal of water power works is mentioned, is in s. 8(e)(i) of the Regulations, where it reads:

[268]                             Removal of water power works is only possible after a licence has been granted. The licensee must provide an undertaking such that should the water power works not be operated in accordance with a licence, the corporation may order removal. This provision permits the corporation to intervene where an entity, having received a licence, does not operate the water power works in accordance with that licence. Contrary to CHCN’s suggestion, this provision does not mean that the WSA may order the removal of EBC when no licence has been conferred. Because of this provision, CHCN is also incorrect that not granting the licence would have enabled the decommissioning of EBC. As such, the WSA’s view that decommissioning was not being considered is reasonable.

[269]                             The conclusory paragraphs regarding s. 5 are also applicable here. In short, the WSA’s interpretation of s. 6 must be given deference. It falls within the realm of reasonable.

[270]                             CHCN submitted that the WSA was in breach of other provisions of the Regulations. CHCN is not seeking any relief with respect to these issues, though identifies them to support its position that they demonstrate “WSA’s lack of concern for applicable legislative requirements” (CHCN Brief of Law at para. 105). No analysis will be undertaken as to whether CHCN was accurate with respect to their position that the WSA breached other legislative provisions, however, even if CHCN is correct, this would not change the conclusion reached that the WSA’s interpretation of its Regulations was reasonable. 

[271]                             Again, while there may be a range of interpretations surrounding the Regulations, the WSA’s interpretation and subsequent decision to grant a licence to SaskPower to continue to operate EBC is reasonable. WSA’s decision is justifiable, transparent and intelligible. The Decision is justified in relation to the facts and law. No information was misapprehended or overlooked.

[272]                             CHCN’s application is dismissed in its entirety.

[273]                             OCN is a signatory to Treaty 5. Its principal reserve lands are located in The Pas in Manitoba, near the border with the Province of Saskatchewan. The reserve lies on the Saskatchewan River and connected waterways such as the Carrot River. OCN people exercise Aboriginal and treaty rights in the waters of the Saskatchewan River and connected waterways throughout the SRD. These rights include fishing, trapping, hunting and gathering.

[274]                             Jurisprudence previously identified, relevant facts including the nature of the WSA’s expertise as a regulatory body, the Consultation Framework, and the statutory framework, for example, form part of the considerations regarding OCN’s application as well as CHCN’s application. All other relevant information will also be considered. It will not necessarily be repeated in the OCN part of the court’s decision.

[275]                             On August 28, 2014, SaskPower sought to obtain a final operating licence for Nipawin, which had operated under an interim licence for almost three decades. SaskPower did not seek any operational changes or physical changes to Nipawin.

[276]                             OCN challenges the adequacy of the consultation process for both EBC and Nipawin as well as the decision to grant licences to SaskPower for both dams.

[277]                             OCN was notified of the duty to consult on June 2, 2015.  The notification and further information are the same as that which CHCN received.  OCN was advised that the WSA’s initial assessment was that the impacts of the relicensing decision were minor in nature. Past decisions would not form part of the consultation, which included the creation of EBC and Nipawin and those associated impacts. The consultation was to be limited to the WSA’s decision whether or not to grant a further operating licence to SaskPower for EBC and Nipawin.

[278]                             In May 7, 2015 correspondence from the WSA to SaskPower, the WSA stated that it had assessed the licensing decision as triggering the duty to consult at Level 3, pursuant to the Consultation Framework. This is the same assessment that was conveyed to CHCN. In that letter, the WSA advised SaskPower that it had options to consider regarding SaskPower’s licensing request, which included refusing the licensing request.

[279]                             The scope of the duty to consult was the same as that which was expressed to CHCN, resulting from the same initial assessment: impacts were likely to be minor in nature but occurring over a long period of time.

[280]                             OCN submits that the WSA ought to have consulted with OCN prior to making a determination regarding the scope of the duty to consult. However, there is no requirement that consultation occur at the outset to identify the initial assessment of the scope. The WSA indicated in correspondence that it was open to modifying their initial determination should information arise that would cause that to occur. OCN impugns the process because the WSA did not ultimately change its view regarding the scope of consultation. Disagreement regarding the scope of consultation does not render the approach taken by the WSA to be inappropriate.

[281]                             OCN suggests that the coming into force of the Regulations and the removal of a timeline for the expiry of the licences ought to have caused the WSA to revisit the scope of its duty to consult. However, the Regulations provide for regular reviews of dam operations and allow for, in s. 8, amendments, and the imposition of terms and conditions on those licences should the circumstances require. The Regulations have no effect on the assessed scope of the duty to consult.

[282]                             The scope of the duty to consult is a legal question to be reviewed on a correctness standard. Facts found to identify the duty to consult by a body with expertise in that area are owed deference, and are reviewed on a reasonableness standard (Haida at para 61).

[283]                             The relevant jurisprudence is found in the CHCN section, as is the conclusion regarding the correctness of the low level assessment of the consultation process. The conclusions are the same in the case of OCN’s application. In particular, it is correct that, in this case, there is no duty to consult on past infringements.

[284]                             The analysis and conclusion in the CHCN application apply here. The WSA correctly identified the scope of the duty to consult. Though assessed at a low level, the consultation process was actually conducted at a deeper level.

[285]                             OCN submits that the consultation process was inadequate for various reasons.

[286]                             The jurisprudence identified in the CHCN application applies.

[287]                             An assessment of the consultation process is carried out on a reasonableness standard (Haida at para 62). Perfection is not required.  Reasonableness is. Deference is required in the assessment. The burden is on the challenging party to demonstrate that the decision is unreasonable (Vavilov at para 100).

[288]                             Given the volume of information surrounding the consultation process, below are some of the relevant facts. 

[289]                             As with the CHCN consultation, the WSA delegated the procedural aspects to SaskPower, though remained responsible for the consultation.

[290]                             The WSA determined that a duty to consult had been triggered for Nipawin as well as for EBC. A number of First Nations and Métis communities, including OCN, were consulted. Again, the WSA determined, pursuant to the Consultation Framework, that the scope of consultation was low, relating only to “potential future impacts to Aboriginal rights and does not extend to the original construction” of the Dams” (Condensed Book, page 148, (Jeff Hovdebo letter of October 3, 2014)).

[291]                             Consultation began in June 2015 when the WSA wrote to OCN:

[292]                             Because consultation would not be concluded by the time the licence to operate EBC was set to expire on December 31, 2015, the WSA renewed the licence for a one year period. The WSA noted that should consultation requirements extend beyond one year, further extension or renewal of the licence could be granted. The renewed licence was to expire on January 1, 2016.  This information was conveyed to OCN.

[293]                             By letter of January 11, 2016, OCN Chief Michael Constant advised Mr. Hovdebo that the Chief and Council supported the one year extension to permit consultation to occur.

[294]                             On November 24, 2016, the WSA advised that the EBC licence was renewed for six months from December 31, 2016 to June 30, 2017.  The issuance of the renewal was contingent upon SaskPower continuing to carry out the procedural aspects of the consultation.

[295]                             This was conveyed to the new OCN Chief, Christian Sinclair, by letter of November 25, 2016. Chief Sinclair was invited to contact Mr. Hovdebo directly should any questions have arisen. None were conveyed.

[296]                             A further six month extension was permitted to December 31, 2017 in order to provide time for continued consultations. Chief Sinclair was advised by letter of June 22, 2017. OCN was invited to contact Mr. Hovdebo directly if there were concerns regarding the extension. No concerns were identified.  

[297]                             The licence was renewed for a further three months to March 31, 2018 for the same reason of continuing consultations. Again, if there were questions or concerns regarding the extension, Mr. Hovdebo was available to communicate with OCN officials. No communication in this regard occurred.

[298]                             No extension for Nipawin was required.

[299]                             By letter dated February 13, 2018, Chief Sinclair wrote to officials with Saskatchewan and SaskPower advising that consultation should cover not only adverse effects and accommodation measures related to future operations of EBC, but also past operations. Additionally, Chief Sinclair wrote:

[300]                             The EBC licence was renewed for another three months to June 30, 2018 to permit consultations to continue. OCN was advised. Mr. Hovdebo offered the same availability for discussion as he had previously should OCN have concern with the extension.

[301]                             A Consultation Activities Report was prepared and dated April 30, 2018. It detailed the consultation meetings:

[302]                             The Consultation Activities Report contained information that financial compensation for adverse impacts to rights and traditional uses arising from the construction and past operations of the dams, particularly EBC, had been raised but that the WSA and SaskPower had made clear that this was outside the scope of consultation. This difference in approach “led to challenging discussions and unrealistic expectations from some rights holders” (Record, page 1272).

[303]                             The Consultation Activities Report also indicated that “[o]n several occasions, OCN members made it known that they did not consider these meetings to be characterized as “consultations”, rather they see them as information sharing sessions.  SaskPower communicated to OCN that every communication and meeting regarding the relicensing was considered consultation under Saskatchewan’s Duty to Consult Policy”. (Record, page 1273)

[304]                             At the June 4, 2015 meeting, OCN advised that they wanted an agreement similar to what CHCN had negotiated in 1988 with Saskatchewan for financial compensation. OCN was advised by SaskPower that there was no opportunity for a similar agreement through the consultation process related to licensing.

[305]                             At the July 9, 2015 meeting, OCN and SaskPower representatives met to determine ways in which OCN members would be represented in the licensing process.

[306]                             During the December 8, 2015 meeting, OCN sought compensation for past impacts created by the building and operation of EBC.

[307]                             At the January 26, 2016 meeting, SaskPower reiterated consultation would focus on potential adverse impacts from future impacts. The parties agreed that the biological and hydrological studies needed to be completed and then the resource users would be engaged. OCN did advise that it had a September 2016 election process that might lead to a “slowdown” in the consultations.

[308]                             During the June 27, 2016 meeting, SaskPower encouraged OCN to identify all anticipated adverse impacts that the licensing may cause. OCN wanted a meeting with Manitoba Hydro to determine how Manitoba Hydro activities might affect OCN.

[309]                             As noted, meetings occurred in 2015 and 2016. OCN then went through an election and OCN leadership changed partway through the consultation process. As noted in the Consultation Activities Report:

[310]                             A meeting was set for July 18, 2017 but the OCN Chief and representatives failed to attend.

[311]                             SaskPower had difficulty receiving a response to the inquiries it made. On November 15, 2017, SaskPower was notified that OCN personnel who had been conducting the consultation for OCN had changed. In the following two months, SaskPower endeavoured to determine who would be taking over. 

[312]                             An OCN staff member eventually contacted SaskPower on January 22, 2018 regarding the consultations identifying who would represent OCN in the consultation process.

[313]                             On February 12, 2018, there was a meeting with OCN’s new representatives. The new OCN personnel advised that the former representatives had not shared any of the consultation information and materials with them. SaskPower later forwarded all of that information to the new representatives.

[314]                             During the February 12, 2018 meeting, OCN’s consultants presented their findings. SaskPower presented the proposed accommodations. OCN reiterated a desire for monetary compensation for past damages from the construction and operation of EBC and the Gardiner Dam. OCN also asked for another year of consultations on the licensing decision. SaskPower and the WSA advised that the consultations had been occurring since June 2015 and that they were not going to restart the process with the new administration.

[315]                             On February 13, 2018, OCN sent a letter to the WSA and SaskPower advising that consultation ought to include discussion regarding past, present and future impacts of EBC and the Gardiner Dam. OCN reiterated a desire for financial compensation.

[316]                             Potential adverse impacts were identified and were generally described as follows:

[317]                             The conclusion in the Consultation Activities Report provides:

[318]                             A copy of the Consultation Activities Report was mailed to OCN on May 9, 2018. The WSA asked for OCN’s comments. OCN was advised that funding was available to review the Consultation Activities Report. By email on May 23, 2018 and May 29, 2018, Mr. Hovdebo contacted OCN to advise that the letter was ready to be collected from the local post office.

[319]                             On June 28, 2018, the WSA renewed the EBC licence for another three months, until September 30, 2018. It was renewed for another two weeks until October 14, 2018. These two extensions occurred while the consultation process continued.

[320]                             By letter of October 12, 2018, OCN was advised that the licence for Nipawin was granted to SaskPower. General and special conditions attached to the licence.

[321]                             By letter of October 12, 2018, OCN was advised that the licence for EBC was granted to SaskPower. General and special conditions attached to that licence as well.

[322]                             OCN was advised of the revised terms and conditions of the Adaptive Management Stewardship Committee. It was noted that the Committee’s focus would be driven by rights holders. The terms and conditions are repeated for convenience:

[323]                             The same analysis applies here as it did with CHCN’s application.

[324]                             In sum, the WSA’s assessment that the duty to consult falls within low level consultation is correct. As with the CHCN consultation, the consultation process involving OCN was conducted at a level deeper than that.

[325]                             OCN submits that there were gaps in the information the WSA had and OCN’s calls for further studies were ignored. However, it bears noting again the significant amount of information the WSA had, in addition to the information accrued prior to the commencement of these consultations.

[326]                             As noted earlier in this decision, in 2012, as part of information gathering for the relicensing process, SaskPower entered into a research collaboration with the University of Saskatchewan to better understand and manage the downstream effects of EBC. This was the Jardine Report. The WSA had also gathered information from numerous other expert sources. For convenience, some are again listed: 

[327]                             In late 2016, OCN proposed two studies to aid them in identifying possible impacts. One was a hydrological study. One was a biological study. The studies were to assist OCN in determining how the proposed licensing might adversely impact their ability to hunt, fish and trap for food or carry out traditional uses. SaskPower agreed to fund the studies. A funding agreement was signed in February 2017. SaskPower supplied $71, 651.15 to fund the studies, which were completed in the summer of 2017. 

[328]                             Two consultants were engaged by OCN to lead the studies. DAL Projects of Vancouver, British Columbia, completed the hydrological study which included flow regime changes and adverse impacts. Boothroyd & Associates from Winnipeg, Manitoba, were engaged to complete a study identifying how the continued operation of EBC may adversely impact OCN members’ ability to hunt, fish and trap for food and carry out traditional uses.

[329]                             At the July 18, 2017 consultation meeting, SaskPower asked for copies of the research reports or updates on the progress. No information was received from OCN. SaskPower requested meetings in the fall of 2017 to review the reports. OCN advised that the reports were in draft form and time was needed to work with the consultants to finalize them.

[330]                             In January 2018, after the change in OCN leadership, SaskPower again requested copies of the reports.

[331]                             By letter of January 15, 2018, Chief Sinclair requested additional funding for a geomorphic analysis to quantify the changes to the Saskatchewan River and the SRD as a result of the construction of EBC.

[332]                             In February 2018, copies were provided to SaskPower. This was followed by a consultation meeting to discuss proposed accommodation measures on February 12, 2018. OCN advised that all the information previously provided regarding the consultation, which included files and records of the consultation meetings, was no longer available for the new staff members assigned to the consultation. SaskPower provided copies of all the missing documents. The consultants presented their findings to the group at this meeting. Based on the minutes taken from that meeting, both SaskPower and the WSA engaged with DAL and Boothroyd after their presentations.

[333]                             The Boothroyd Report documented adverse impacts reported in the literature as well as those experienced by OCN users.  Several OCN resource users were interviewed. Notes of the interviews were appended to the report. The report further provided detail regarding:

[334]                             These were not new or novel impacts arising from the licensing decision.  

[335]                             Financial accommodation was lobbied for in the report, cited as a “Legal and Moral Obligation” of Saskatchewan. The Jardine and Smith Reports were relied upon by Boothroyd as well as the DAL Report, along with many other reports. Also included was a report prepared by the WSA in 2007, though under the name of the Saskatchewan Watershed Authority, and a report of Watkinson et al prepared for SaskPower and the WSA in 2009.

[336]                             The DAL Report explained the change in monthly water flows since the construction of EBC and addressed sedimentation. No new or novel impacts arising from the licence renewal were identified.

[337]                             After the Boothroyd and DAL Reports were prepared, OCN requested further funding for a geomorphic analysis. However, the focus of such a study was to determine impacts caused by the construction of EBC. That funding was denied, and understandably given that past impacts were not part of the consultation process. 

[338]                             In Mr. Hovdebo’s August 28, 2020 affidavit, prepared for the strike applications to determine the Record, and subsequent August 5, 2021 affidavit, he stated that the Boothroyd and DAL Reports were not “explicitly considered by WSA in making the regulatory decision in relation to SaskPower’s licence request” (August 28, 2020 affidavit, para. 19). Mr. Hovdebo further provided that there were some documents that were not considered in making consultation decisions.

[339]                             OCN attempts to use Mr. Hovdebo’s averments to demonstrate that the WSA ignored the Boothroyd and DAL Reports rendering the consultation process and the decision to re-licence unreasonable.

[340]                             The contents of these reports are contained in detail in the Consultation Report. Part of the identified potential adverse impacts in the Consultation Activities Report reflect the contents of the Boothroyd Report. Further, SaskPower and the WSA were clearly aware of many of the reports relied upon to create the Boothroyd and DAL Reports. Significantly, Boothroyd and DAL officials were present at the February 12, 2018 meeting along with SaskPower and the WSA when the contents of the reports were presented. SaskPower and the WSA had questions for both the DAL and Boothroyd presenters at that meeting. 

[341]                             It may be that the Boothroyd and DAL Reports themselves were not “explicitly” considered, but it is simply inaccurate to suggest that the WSA did not consider the content of the reports when the WSA made decisions regarding the consultation or the licensing decisions.

[342]                             To the extent that there is argument the WSA did not consider the Jardine Report, the same is true. The WSA was acutely aware of the contents of the Jardine Report as has been identified in the Record. 

[343]                             OCN argues that because SaskPower did not provide meeting minutes to the WSA, the WSA was not aware of the specific adverse impacts identified by OCN in those meetings. However, the Boothroyd Report and the DAL Report contained a significant amount of detailed information, particularly information from OCN community members. OCN’s voice was not overlooked simply because meeting minutes were not provided to the WSA.  

[344]                             Additionally, the WSA had all the evidence provided by SaskPower, as well as its own internal knowledge and expertise as the authority in charge of the regulation of waterways, and the facilities affecting them, in the province. There can be no doubt that all this information, including the content of these reports, was considered prior to the licensing decisions being made. There were no identifiable gaps in the information the WSA had, and considered, in the course of the consultation and for the licensing decision.

[345]                             OCN wanted consultations to include the cumulative effects caused by EBC.  However, the WSA took the position that cumulative effects connected to historical infringements of the construction of EBC and historical operation of it. The WSA, reasonably concluded that consultation was to be aimed at future operations of EBC.

[346]                             As previously noted, the content of the Regulations does not permit an expansion of the parameters of the duty to consult. Additionally, and in any event, the Regulations do not cause the WSA to consider historical events simply because of the inclusion of the word “cumulative” in s. 5. That matter is discussed below.

[347]                             OCN submits that the WSA ought not have unilaterally terminated the consultation process.

[348]                             The Final Summary of the Duty to Consult and Accommodation Report prepared by SaskPower was forwarded to OCN for comment on May 9, 2018. OCN was asked to confirm:

[349]                             OCN did not provide any comments. OCN was given an opportunity to augment that information, correct inaccuracies and make further comment regarding proposed accommodations. It chose not to do any of that.

[350]                             The Community Stewardship Committee mandate was altered as a result of comments made by CHCN, demonstrating that the WSA was interested in responding to concerns.

[351]                             The consultation with OCN was thus at an end. The WSA stopped the process when it believed it had made sufficient efforts to consult with OCN and had the requisite information it needed to satisfy consultation duties and to ultimately make the decision about licensing.

[352]                             The licence was granted on October 12, 2018, five months after asking for OCN’s comments.

[353]                             Concluding the consultation in this manner was reasonable. 

[354]                             In the Consultation Activities Report, OCN’s participation is described:

[355]                             SaskPower and the WSA provided OCN with the necessary information in keeping with their obligation. SaskPower and the WSA also provided OCN with opportunities to engage in consultation and for OCN to fulfil its reciprocal duty. As identified in Prophet River First Nation v British Columbia (Minister of Forests, Lands and National Resource Operations), 2016 BCSC 2007:

[356]                             The consultation process was to be a cooperative one (Haida at para 50). Despite OCN’s lack of complete or timely participation throughout the process, the WSA and SaskPower continued to seek OCN’s engagement and act in good faith.

[357]                             Late in 2017, OCN elected a new Chief and Council. OCN wanted to start the consultation process afresh and sought a one year extension of the process. By this time, consultations had been occurring for over two years. OCN’s position on the consultation did not change during that time. The position taken by the new OCN Chief and Council in its February 13, 2018 letter was the same as had been the position in the previous two year period. The decision not to permit a one year extension was reasonable (Cold Lake First Nations v Alberta (Tourism, Parks and Recreation), 2013 ABCA 443 at paras 54 – 56, 566 AR 259).

[358]                             OCN submits the WSA was obliged to substantially address their concerns after having engaged in dialogue which demonstrates the WSA gave serious consideration to the concerns raised by OCN.

[359]                             Concerns, however, must be included within the parameters of the consultation. Accommodations which are meant to address the effects of past infringements are not caught by the consultation process. Further, accommodations arise where the outcome of the consultations suggest that accommodation is necessary. Accommodations are not necessary simply because a rights holder claims they are.

[360]                             OCN wanted sediment starvation addressed because of its impact on the downstream aquatic environment, fish habitat, spawning, furbearer food sources, waterfowl, moose, fishing, trapping and hunting rights. Also, OCN wanted the issue of flooding of reserve lands addressed.

[361]                             The WSA proposed the following accommodations:

[362]                             The Community Stewardship Committee was discussed in an earlier part of the court’s decision.

[363]                             The suggested accommodations do address the issue of flooding. Sediment starvation, though considered an historical impact that is not a subject about which consultation needed to occur, was included as a possible issue falling within the Community Stewardship Committee mandate.

[364]                             At the December 9, 2015 meeting, OCN wanted discussion regarding accommodations to include “anticipated impacts, unanticipated impacts and incremental impacts” (Condensed Book, page 738).

[365]                             As noted above, OCN wanted financial compensation as part of the accommodation measures. OCN relies on this portion of the Consultation Framework in support of that position:

[366]                             A few points bear noting from the Consultation Framework cited above. Compensation is not an accommodation for past actions. OCN, however, focused its request on past damages for the construction and operations of EBC and Gardner Dams. To the extent OCN may have sought compensation for ongoing impacts, the payment of financial compensation is not mandatory and is an issue that is determined on a case-by-case basis. Adequate accommodation does not mean that the rights holders must receive all that is asked for.

[367]                             OCN argues their position for compensation also finds support in the June 21, 2018 email from Mr. Hovdebo to Mr. Johnston in which Mr. Hovdebo stated:

[368]                             Efforts to equate compensation arising from the construction of EBC to compensation for lost gear or a compensation program are not fruitful. There is simply no information regarding the lost gear or the compensation program to know if there is any relevance to the type of compensation OCN seeks as a result of the construction of EBC. The statements in the email are simply not helpful. What this passage does indicate, however, is the extent to which the WSA endeavoured to respond to CHCN’s accommodation concerns.

[369]                             OCN relies on The Expropriation Act, RSS 1978, c E-15 to support its claim for compensation. Section 3 provides:

[370]                             The difficulty for OCN is that this provision applies to the taking of land which occurred years in the past. Just as the provisions in the Regulations do not expand the scope of consultation, the same holds true for The Expropriation Act, which does not expand the subject matter of the consultations.

[371]                             The WSA’s approach to the issue of compensation was reasonable.

[372]                             At the July 18, 2017 meeting, SaskPower asked OCN to review the Jardine Report recommendations, discuss them with their leadership and advise as to whether there were any concerns or additional suggested accommodations. No comments were received.

[373]                             In January 2018, SaskPower, by letter, again informed OCN of the proposed accommodations and asked for a response. OCN did not respond.

[374]                             Two weeks later, SaskPower sent a follow up letter. OCN did not respond.

[375]                             At the February 12, 2018 consultation meeting, the proposed recommendations were presented to OCN.

[376]                             As SaskPower noted, OCN’s focus tended to be on past infringements, such as those arising from the construction of EBC, resulting in little attention paid to providing input on accommodations. Now OCN argues that issues such as sediment impoundment were not included in the accommodations. That is not actually so. Sedimentation is included in the Community Stewardship Committee mandate even though sedimentation is the result of historical impacts. In any event, OCN’s lack of attention to the accommodations issue cannot now be used to argue that SaskPower’s and the WSA’s approach was deficient.

[377]                             The same analysis applies here as it did with regard to the CHCN application.

[378]                             The WSA’s reasons were found throughout the process, in written form and otherwise. The reasons are not meant to conform to those expected of a judicial decision-maker. Those reasons were responsive to concerns that were properly part of the consultation process. The reasons are intelligible, justifiable and transparently arrived at with full consideration of the information put before it. That information was appropriate and adequate.

[379]                             The consultation conducted was meaningful and appropriate. It did not have to be perfect.

[380]                             The WSA and SaskPower did not err in their assessment of the scope of the duty to consult. Further, they adequately and reasonably carried out the duty to consult and accommodate. Saskatchewan upheld the honour of the Crown.

[381]                             OCN submits that the licences should not have been extended and that there were gaps in the information the WSA had requiring further studies which OCN called for. OCN says that licences were to be provided only if the public interest allowed.

[382]                             The reason for the numerous licence extensions for EBC was because consultations with OCN were ongoing. This was made clear in the correspondence. Also included in the correspondence was an invitation by the WSA to make contact should concerns arise regarding the licence extensions.

[383]                             On the first occasion the licence was extended for one year, to expire on January 1, 2016, Chief Constant advised WSA that OCN Chief and Council supported the extension. Thereafter, when the extensions continued, OCN did not comment favourably or in opposition.

[384]                             The licence extensions were understandable and acceptable. They were certainly respectful of the ongoing consultation process and permitted it to continue without arbitrary parameters. A decision to extend the licences for this reason was reasonable.

[385]                             OCN relies on Clyde River (Hamlet) v Petroleum Geo-Services Inc., 2017 SCC 40 at para 40, [2017] 1 SCR 1069 [Clyde River] to support its position that the public interest consideration in s. 6 of the Regulations should have prohibited granting the licence. Clyde River provides that a “project authorization that breaches the constitutionally protected rights of Indigenous peoples cannot serve the public interest”.

[386]                             However, where, as in this instance, a consultation process upholds the honour of the Crown, no constitutionally protected rights of Indigenous peoples are infringed. The public interest component, therefore, is assessed on the basis of what the public interest is for Indigenous and non-Indigenous communities alike and balancing those interests where applicable. The WSA has much experience in, and a broad mandate to, identify that which is in the public interest. The WSA’s decision as to what constitutes the public interest is reasonable. 

[387]                             OCN submits the WSA had to consider historic cumulative impacts in its assessment as to whether the licence ought to have been issued. OCN relies on the wording in s. 5 of the Regulations, repeated here for convenience:

[388]                             As previously noted, the WSA is an entity experienced with, and given broad discretion to, interpret its own legislation.

[389]                             The reasonableness of the WSA’s view that the Regulations do not cause it to consider historical events when considering whether to issue a licence must be viewed in the context of all of the words in that subsection.

[390]                             “Cumulative” is modified by the words “future” and “predicted”. The inclusion of the word “future” necessarily excludes the notion of past. Additionally, the word “predicted” would be unnecessary for past events given that they would be known, without the necessity of predicting what they might be. Consideration of historical impacts, therefore, caused by the construction of EBC or the operations of EBC in years past, do not bear on the decision to issue a licence. The WSA’s approach to the issue of cumulative effects is reasonable.

[391]                             Similar to the conclusion in CHCN’s application, the WSA provided its reasons throughout the process both verbally and in correspondence. The WSA is a regulatory body not tasked with providing the type of reasons which would be expected of a judicial decision-maker.

[392]                             The same conclusion results here as with the CHCN application. In sum, the decision to issue a licence to SaskPower to continue operating EBC is reasonable, supported by the reasons found in the entirety of the Record.

[393]                             There is no order quashing the licensing decisions for EBC and Nipawin. There is no declaratory relief. There is no basis to prohibit the WSA from making licensing determinations or determinations regarding the duty to consult and accommodate. There is no legal basis to reduce the duration of the EBC and Nipawin licences to three years.

[394]                             OCN’S application is dismissed in its entirety.