pdf Colville Motion - ENR Submission 16-02-25 Popular

This is a legal opinion from ENR regarding the Colville motion on conflict of interest and bias. ENR requests that the Colville motion be dismissed, on the following basis:

• The Sahtú Renewable Resources Board is properly appointed.
• There is not a conflict of interest.
• The facts alleged by Colville do not meet the legal threshold for a reasonable apprehension of bias.
• A postponment of the hearing would be damaging to all parties.

The ENR submission includes two appendices:

• The Supreme Court of the Northwest Territories decision on the issue of bias in McMeekin v. GNWT 2010 NWTSC 56, citing a test for apprehension of bias that recognizes that the grounds for the apprehension "must be substantial. There must be a probability or reasoned suspicion of biased appraisal and judgment, unintended though it may be. This is to be determined on an objective, rational and informed basis. A mere suspicion of bias is not sufficient; there must be some factual basis to sustain the allegation. The party alleging bias has the onus of proving it on a balance of probabilities. And, it is important to reiterate that the test is not whether a party to the proceeding (such as the applicant) would apprehend bias but whether the reasonable and informed member of the public would apprehend it."
• R. v. S. (R.D.) - Court of Appeal for Nova Scotia (1997) 3 SCR 484 at. The section quoted is " ... the wisdom required of a judge is to recognize, consciously allow for, and perhaps to question, all the baggage of past attitudes and sympathies that fellow citizens are free to carry, untested, to the grave. True impartiality does not require that the judge have no sympathies or opinions; it requires that the judge nevertheless be free to entertain and act upon different point of view with an open mind".