Cowichan Tribes v Canada (AG), 2020 BCSC 1507

Cowichan Tribes is entitled to claim privilege over information that their Lands and Governance Director learned from Cowichan Elders during Treaty Committee meetings and during his involvement in a project-specific traditional land use study. The public interest in reconciliation through good faith treaty negotiations and the duty to consult favours case-by-case privilege in this case.

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This matter is in regards to an Aboriginal title and rights case, where the testimony of Mr. George, Lands and Governance Director for Cowichan Tribes, was questioned on communications that was learned of during Cowichan Tribes Treaty Committee meetings and related to traditional use interviews, over which the plaintiffs claim privilege. The Treaty Committee meetings were held to advise on Cowichan Tribes’ approaches to treaty negotiations and the pursuit of Aboriginal rights and title. Cowichan Tribes was advised on strategic use of oral history information including oral histories shared at Treaty Committee meetings.

In establishing confidentiality at common law, the Supreme Court of Canada first adopted the Wigmore’s four criterion in Slavutych v Baker, [1976] 1 SCR 254: 1) the communications must originate in confidence that they will not be disclosed; 2) this element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties; 3) the relation must be one which in the opinion of the community ought to be sedulously fostered; and 4) the injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation. The party seeking to protect the communication from disclosure must demonstrate that the authors of the communications possessed expectations of confidentiality (Northwest Organics, Limited Partnership v Roest, 2017 BCSC 673 [“Roest”]; Yahey v British Columbia, 2018 BCSC 123 [“Yahey”]).

The plaintiffs submit that the communications were made during these confidential Treaty Committee meetings which were conducted with an expectation that the information would not be disclosed. Confidentiality is essential to Cowichan Tribes’ relationship with its members and its ability to ask knowledge holders and Elders to share information about traditional use. This relationship of trust is essential to Cowichan Tribes’ ability to engage in good faith consultation with the Crown. The Cowichan community view this relationship as one that should be sedulously fostered. Allowing disclosure of the contents of the interviews in the litigation would undermine the constitutionally protected process while having minimal benefit to the disposal of this litigation.

The court in Roest held that the Wigmore criteria are not “carved in stone” but are a “general framework within which policy considerations and the requirements of fact-finding can be weighed and balanced on the basis of their relative importance in the particular case” (Roest; R v National Post, 2010 SCC 16). Case-by-case privilege may restrict disclosure where Wigmore’s four criteria for establishing confidentiality at common law exists. Those criteria seek to balance the protection of confidential communication with the public interest in the correct disposal of litigation (P(V) v Linde, [1996] 2 WWR 48).

The Wigmore criteria have been applied to preserve the confidentiality of interviews with Elders and community members undertaken in the course of traditional use studies (Yahey). These criteria must be applied to such interviews in a manner sensitive to the unique legal and constitutional context of the duty to consult, which is underpinned by the honour of the Crown and reconciliation, and involves reciprocal duties on the Crown and First Nations to participate in good faith in the consultation process. This application must also be viewed in the context of the Crown’s constitutional duty to consult and deal honourably with First Nations. This context includes Cowichan Tribes’ reciprocal duty to “express its interests and concerns regarding potential impacts to its rights, and to consult in good faith” and recognition of the fundamental importance of reconciliation between the Crown and First Nations in this process (Yahey; Mikisew Cree First Nation v Canada (Minister of Canadian Heritage), 2005 SCC 69).

In this case, the four Wigmore criteria for case-by-case privilege are met. The plaintiffs are not evincing an intention to rely on, or benefit from, the evidence they claim to be privileged. They are not seeking to adduce evidence about the substantive content of the Treaty Committee discussions. Nor do they seek to rely on the substantive content of some interviews conducted while shielding other interviews from disclosure. Rather, they adduced evidence of oral history from other sources. The question of what Mr. George learned in Cowichan Tribes Treaty Committee meetings regarding oral history of Cowichan Tribes Elders about fishing on the Fraser River is disallowed as the answers it would elicit are privileged.

Nunatsiavut Government v Newfoundland and Labrador, 2020 NLSC 129

The Court granted the Nunatsiavut Government declaratory relief in a dispute over the sharing of mineral taxation revenue from mining in Voisey’s Bay, Labrador under a Land Claims Agreement. These declarations clarified the 5% entitlement of the Nunatsiavut Government, that the provincial government should not be deducting certain costs incurred by the developer outside the Labrador Inuit Settlement Area, and that the provincial government breached its fiduciary duty in failing to provide adequate information to the Nunatsiavut Government regarding its negotiations with the developer.  

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The Inuit have been resident in Labrador since time immemorial. Traditionally they pursued hunting, fishing, whaling, sealing and gathering activities. The Inuit still have a heavy reliance on these traditional pursuits. Lithic materials were quarried to make stone implements such as harpoon heads and projectile points for arrows and spears. Soapstone was used for carving domestic items such as lamps and cooking vessels. Today many Inuit artists and craftspeople rely upon the quarrying of lithic materials to create sculptures and carvings.

The Labrador Inuit Association was formed for the purpose of negotiating the Labrador Inuit Land Claims Agreement [“Land Claims Agreement”]. It was ratified by all three levels of government: Canada, the Province of Newfoundland and Labrador and Nunatsiavut. The Land Claims Agreement is recognized as a modern-day treaty and came into force in 2005. The Labrador Inuit Association was replaced by the Nunatsiavut Government, which has the responsibility, on behalf of the Inuit, to implement the Land Claims Agreement. The Land Claims Agreement is a constitutionally protected modern treaty under s 35 of the Constitution Act, 1982. In case of conflict the provisions of the Land Claims Agreement prevail over federal and provincial legislation.

Voisey’s Bay is located in northern Labrador. The area was traditionally used by the Inuit in hunting, fishing and gathering activities. The Inuit’s Aboriginal interest in Voisey’s Bay was substantially affected by the Province declaring that the area was not available for selection by the Inuit once it learned that a world class nickel deposit lay beneath the surface. The Province’s de facto assumption of control over the area, and the successful negotiation of the Land Claims Agreement including a chapter relating to Voisey’s Bay, gave the Province responsibility for the management, calculation and disbursement of the Inuit Revenue share. In doing so, the Province owes the Inuit a duty of loyalty, good faith and full disclosure in the discharge of its obligations.

The Inuit negotiated under the Land Claims Agreement, and were granted, the right to be consulted by Canada and the Province in a number of areas including the Voisey’s Bay chapter. Under section 8.6.2 of the Land Claims Agreement the Province has a specific duty to consult with the Nunatsiavut Government prior to deciding an application for a permit or issuing an order pertaining to the Voisey’s Bay Project or to any other work or activity in the Voisey’s Bay Area. The duty to consult also exists outside the terms of the Land Claims Agreement. As explained by the Supreme Court of Canada, the duty to consult is imposed as a matter of law, irrespective of the parties’ “agreement”. It does not “affect” the agreement itself. It is simply part of the essential legal framework within which the treaty is to be interpreted and performed (Beckman v Little Salmon/Carmacks First Nation, 2010 SCC 53 [“Little Salmon”]).

The historic treaty between the Inuit and Newfoundland and Labrador is not a commercial contract, and should not be interpreted as one (First Nation of Nacho Nyak Dun v Yukon, 2017 SCC 58). It is a nation to nation agreement that deserves to be interpreted in a generous manner. It is an agreement that must be considered having regard to the treaty text as a whole and with a view to the treaty’s objectives.

The objective of modern land claims agreements is to bring about a reconciliation between the competing interests of the affected Aboriginal Peoples and the Crown. The establishment of a positive, long-term relationship is in everyone’s best interests (Little Salmon). To that extent, the terms of the modern treaty must be interpreted in a fashion that is sui generis. The honour of the Crown gives rise to a fiduciary obligation when the Crown assumes discretionary control over a specific or cognizable Aboriginal interest. The Crown’s fiduciary obligations include the fiduciary duties of loyalty, good faith and full disclosure (Williams Lake Indian Band v Canada (AAND), 2018 SCC 4).

Please see the Telegram link for news coverage regarding this case: https://www.thetelegram.com/news/provincial/an-expensive-loss-502108/

West Moberly First Nations v British Columbia, 2020 BCCA 138

Appeal dismissed. There is no reversible error of law or fact demonstrated in the trial judge’s analysis of a long-standing dispute over the western boundary of Treaty 8.

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In 2005, the West Moberly First Nations, Halfway River First Nation, Saulteaux First Nations, Prophet River First Nation and Doig River First Nation [“Respondent FNs”] commenced the underlying litigation and are the respondents on appeal. The interest of the Respondent FNs in obtaining the declaration granted stems from their position that the Treaty gives them hunting, trapping and fishing rights [“harvesting rights”] throughout a tract of land defined in a “metes and bounds clause” of Treaty 8 [“tract”]. However, whether the Treaty gives them such rights throughout that tract was not the subject matter of the litigation at trial.

Between 1871 and 1921, the Dominion of Canada (“Canada”) entered into 11 “numbered treaties” with Indigenous groups throughout the country. This appeal concerns Treaty 8, which was signed on June 21, 1899, at Lesser Slave Lake in the District of Athabasca. What the original signatories to the Treaty meant by the phrase “the central range of the Rocky Mountains” has been a vexing issue for over 100 years. In the underlying litigation, Respondent FNs represent descendants of Indigenous groups who signed adhesion agreements with Canada or individuals who were added to the rolls of the Treaty. The plaintiffs applied for a declaration that the western boundary of the tract described in the Treaty referred to the height of land along the continental divide between the Arctic and Pacific watersheds, approximately 48,000 square miles. The trial judge concluded this clause referred to the Arctic-Pacific Divide, which is located within the Rocky Mountains up until the 54th parallel north, then diverges west.

The dissent stated that no declaration was available in the circumstances of this case or in the alternative, the only declaration available was one stating the relevant provision refers to a watershed of the Rocky Mountains. The dissent views that declarations must affect a legal right and since it is unclear from the text of the Treaty alone that any rights are tied to the provision, and consequently, the declaration should not have been granted.

The majority favoured that the declaration of the trial judge is upheld, and that there was no error in law or fact in his judgement. The requested declaration clarifies legal rights and obligations and the trial judge had discretion to issue it. The Court should not interfere with the conclusions he reached from his vantage point at trial. There is no obligation in the law of declaratory relief to litigate the range of a declaration’s effects. The question is simply whether the declaration will have practical utility.

Regardless of the right or obligation being interpreted, if there is a possibility it could be affected by the location of the western boundary, the parties will be assisted by knowing that boundary. The Treaty 8 First Nations who assert rights within the tract may find the declaration clarifies their ability to protect those rights through the existing Treaty, rather than as s 35 rights stemming from historic use and occupation.

As well, under the majority’s view, the honour of the Crown may give rise to a remedy if this was breached in the setting of the boundary, but it should not change the interpretation of the evidence. There is ambiguity over whether Treaty 8 entitles signatories to hunt, trap, and fish throughout Treaty 8 or whether Treaty 8 only guarantees this right within their traditional territory (i.e. a subset of the Treaty). This again ties back into the effect of Treaty 8 on non-treaty First Nations in BC whose territories are covered by the western boundary accepted at trial. If Treaty 8 only guarantees harvesting rights within the traditional territories of the signatory First Nations then it will have no effect on the First Nations in the Rockies who were never consulted.

 Another legal issue discussed, was the relevance of the Indigenous perspective on treaty versus the trial judge’s heavy emphasis on the Crown’s perspective. All judges on appeal seem to agree that this is important but the majority decision found there to be very little evidence of the Indigenous perspective, hence the trial judge’s emphasis on the Crown’s perspective.

 

Gamlaxyeltexw v BC (Minister of Forests, Lands & Natural Resource Operations), 2020 BCCA 215

Appeal dismissed. The hereditary chiefs of the Gitanyow people are actively pursuing an Aboriginal title and rights claim that includes an area that overlaps with the Nisga’a Final Agreement. The concerns regard the decision of the Minister on the basis of a breach of the duty to consult. The lower court decision added an extra step to the Haida test in cases where there is an overlap between established treaty rights and ones yet unproven. The Court of Appeal rejects the need for any modification of the Haida test.

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The Appellants are hereditary chiefs of the Gitanyow people [collectively as “Gitanyow”]. The Gitanyow have an outstanding claim for s. 35 Aboriginal rights in an area described as the Gitanyow Lax’yip.

The Nisga’a Treaty sets out the s. 35 rights of the Nisga’a. It provides that nothing in the Treaty affects any s. 35 rights for any Aboriginal people other than the Nisga’a Nation. The Nisga’a Treaty established a hunting area known as the Nass Wildlife Area where the Nisga’a have non-exclusive rights to hunt. The Minister of Forests, Lands and Natural Resource Operations [“Minister”], has certain decision-making responsibilities in relation to determining the total allowable harvest in the Nass Wildlife Area and the annual management plan which regulates Nisga’a citizens’ hunting. The nature and scope of the decision-making responsibilities are set out within the Nisga’a Treaty.

The Gitanyow Lax’yip overlaps with the Nass Wildlife Area. As a result, decisions made concerning the Nass Wildlife Area may have the potential for affecting activities within the Gitanyow Lax’yip. In order to protect the rights of Indigenous groups such as the Gitanyow pending claims resolution, the Crown has a duty to consult and, where appropriate, accommodate in circumstances where the Crown has knowledge of the potential existence of an Aboriginal right and contemplates conduct that might adversely affect it. This is known as the Haida test (Haida Nation v British Columbia (Minister of Forests), [2005] 1 CNLR 72).

This appeal concerns two decisions of the Minister made in 2016 approving the total allowable harvest of moose and the annual management plan for the 2016-2017 hunting season in the Nass Wildlife Area. Prior to making these decisions, the Minister had consulted with the Gitanyow concerning the total allowable harvest, but not concerning the annual management plan.

On judicial review, the chambers judge held that the duty to consult was not triggered by the approval of the annual management plan, and that the consultation in relation to the total allowable harvest was adequate. In reviewing these issues, the chambers judge concluded that the Haida test to determine the existence of a duty to consult was not adequate to deal with the circumstance where a conflicting treaty right was at issue. She concluded that the Haida test required modification to preclude a duty to consult an Indigenous group claiming s. 35 rights when the recognition of such a duty would be inconsistent with the Crown’s duties and responsibilities to the Indigenous peoples with whom it has a treaty. It is unnecessary, however, to modify the Haida test in order to recognize the limits of accommodation that treaty rights impose. The Haida test that has been applied consistently over the past 15 years has sufficient flexibility within it to encompass these issues.

Despite the conclusion that the modification of the Haida test was unnecessary, the Court does not consider that the reviewing judge erred in her fundamental approach to the issue before her. The analysis of the chambers judge properly focused on the three-part Haida test, and in particular the third element, which asks whether the proposed Crown conduct has the potential for affecting the claimed right. This is primarily a question of fact, to be reviewed on a deferential basis. Applying the Haida test, the Minister did not err in concluding that the duty to consult was not triggered in relation to the annual management plan. The consultation undertaken by the Minister in relation to the total allowable harvest was adequate in the circumstances.

Fort McKay First Nation v Prosper Petroleum Ltd, 2020 ABCA 163

Appeal allowed. When administrative tribunals deal with “public interest” in respect to natural resource development, they should be looking at more than the duty to consult, as the honour of the Crown is a far broader doctrine. In this matter, the tribunal should have addressed an unfulfilled promise of a protected area that was being negotiated.

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This appeal arises out of negotiations that began in 2003 between the Government of Alberta and the Fort McKay First Nation [“FMFN”] to develop a Moose Lake Access Management Plan [“MLAMP”] to address the cumulative effects of oil sands development on the First Nation’s Treaty 8 rights. The MLAMP has not yet been finalized. The FMFN is an “[A]boriginal people of Canada” under s 35 of the Constitution Act, 1982 and a “band” within the meaning of the Indian Act, that has treaty rights to hunt, fish and trap within the Moose Lake Area, part of its traditional territory. The Moose Lake Area is of cultural importance to the FMFN.

The Alberta Energy Regulator [“AER”] approved an application by Prosper Petroleum Ltd [“Prosper”] in 2018 for the Rigel bitumen recovery project [“Project”], which would be located within 5 kilometers of the FMFN’s Moose Lake Reserves. The AER approval is subject to authorization by the Lieutenant Governor in Council [“Cabinet”], which has yet to be granted.

The FMFN was granted permission to appeal on the question of whether the AER erred by failing to consider the honour of the Crown and refusing to delay approval of the Project until the FMFN’s negotiations with Alberta on the MLAMP are completed. FMFN is concerned that the ability of its members to pursue their traditional way of life in the Moose Lake Area has been severely and adversely affected by the cumulative effect of oil sands development in the surrounding area. FMFN specifically sought a 10 km buffer zone from oil sands development around the Moose Lake Reserves. Alberta denied this request and in 2013 FMFN applied for a review. In 2014, Alberta’s then Premier, the late Jim Prentice, met with Chief Jim Boucher of FMFN to discuss the MLAMP. In 2015, Premier Prentice and Chief Boucher signed a Letter of Intent to confirm “our mutual commitment and interest in an expedited completion of the [MLAMP]”. Despite the 2015 Letter of Intent, the MLAMP has still not been finalized and is the subject of ongoing negotiations between Alberta and the FMFN.

The Project would be located within the 10-kilometer buffer zone surrounding the Moose Lake Reserves; that is, within the area covered by the MLAMP. After previously suspending the Project, in 2016 the AER resumed the approval process for the Project because “MLAMP is still not finalized, there is no indication that finalization of the MLAMP is imminent and there is no certainty when submission of the plan will occur”. The AER issued its decision in 2018 that found the Project to be in the public interest and approved the Project on conditions, subject to authorization by Cabinet. The panel declined to consider the MLAMP negotiations that contemplated the 10-kilometer buffer zone, the 2015 Letter of Intent, and whether it implicates the honour of the Crown. The AER concluded the status of the MLAMP negotiations was not a valid reason to deny Prosper’s application.

To review this decision, the Court used the standard of correctness. The AER is a public agency which exercises adjudicative functions pursuant to the Alberta Public Agencies Governance Act. As the regulator of energy development in Alberta, the AER is mandated to provide for the efficient, safe, orderly and environmentally responsible development of energy resources in the province. It has final decision-making power over many energy project applications, pending where Cabinet authorization is required.

The AER has broad powers of inquiry to consider the “public interest” in making its decisions. Tribunals have the explicit powers conferred upon them by their constituent statutes. However, where empowered to consider questions of law, tribunals also have the implied jurisdiction to consider issues of constitutional law as they arise, absent a clear demonstration the legislature intended to exclude such jurisdiction (Rio Tinto Alcan Inc v Carrier Sekani Tribal Council, [2010] 4 CNLR 250 [“Rio Tinto”]. This is all the more so where the tribunal is required to consider the “public interest”. In such circumstances, the regulatory agency has a duty to apply the Constitution and ensure its decision complies with s 35 of the Constitution Act, 1982 (Clyde River (Hamlet) v Petroleum Geo-Services Inc, 2017 SCC 40 [“Clyde River”]). As the Supreme Court of Canada [“SCC”] has noted, “[a] project authorization that breaches the constitutionally protected rights of Indigenous peoples cannot serve the public interest” (Clyde River). The tribunal cannot ignore that aspect of its public interest mandate.

The AER therefore has a broad implied jurisdiction to consider issues of constitutional law, including the honour of the Crown, as part of its determination of whether an application is in the “public interest”. The question raised by this appeal is whether the AER should have considered the honour of the Crown in relation to the MLAMP negotiations as part of this assessment. A conclusion that legislation precludes considering certain matters does not relieve the decision-maker of its obligation if that legislative interpretation proves incorrect. Nor can a decision-maker decline to consider issues that fall within its legislative mandate because it feels the matter can be better addressed by another body.

The responsibility to ensure the honour of the Crown is upheld remains with the Crown (Chippewas of the Thames First Nation v Enbridge Pipelines Inc, 2017 SCC 41). However, the Crown can determine how, and by whom, it will address its obligations to First Nations, meaning that aspects of its obligations can be delegated to regulatory bodies. Alberta has delegated procedural aspects of the duty to consult and to consider appropriate accommodation arising out of that consultation to the AER. The Government of Alberta has retained the responsibility to assess the adequacy of Crown consultation on AER-regulated projects. Are the matters that FMFN sought to put before the AER in relation to the MLAMP negotiations limited to the “adequacy of Crown consultation”? The Court finds they are not.

The honour of the Crown can give rise to duties beyond the duty to consult. It will give rise to different duties in different circumstances (Haida Nation v British Columbia (Minister of Forests) [2005] 1 CNLR 72; Mikisew Cree First Nation v Canada (Governor General in Council), 2018 SCC 40). In the present case, the honour of the Crown is implicated through treaty implementation (Manitoba Métis Federation Inc v Canada (AG), 2013 SCC 14; Mikisew Cree First Nation v Canada (Minister of Canadian Heritage), 2005 SCC 69). The honour of the Crown infuses the performance of every treaty obligation, and stresses the ongoing relationship between the Crown and First Nations brought on by the need to balance the exercise of treaty rights with development under Treaty 8.

There was no basis for the AER to decline to consider the MLAMP process as part of its assessment of the public interest rather than deferring the issue to Cabinet. The public interest mandate can and should encompass considerations of the effect of a project on [A]boriginal peoples, which in this case will include the state of negotiations between the FMFN and the Crown. To preclude such considerations entirely takes an unreasonably narrow view of what comprises the public interest, particularly given the direction to all government actors to foster reconciliation. The AER is directed to reconsider whether approval of the Project is in the public interest after taking into consideration the honour of the Crown and the MLAMP process.

Ross River Dena Council v Yukon, 2020 YKCA 10

Appeal dismissed. The Ross River Dena Council does not yet have established title, thereby no right to exclusive use and occupation of the claimed lands. It did not identify any adverse effect on its claim other than impacts on wildlife. The fact that hunters might enter the land is not, without more, an adverse effect.

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Ross River Dena Council [“RRDC”] appeals from an order dismissing its claim for declaratory relief. The key point of contention is the assertion that the Yukon’s issuance of hunting licences and seals under the Wildlife Act, adversely affects RRDC’s claim of Aboriginal title.

RRDC is part of the Kaska Nation, who are one of the “[A]boriginal peoples of Canada” referred to in s 35(1) of the Constitution Act, 1982. The land subject to RRDC’s title claim is traditional Kaska territory situated in the Yukon [“Ross River Area”] and it is acknolwledged that RRDC has a strong prima facie case for its claim to Aboriginal title over the Ross River Area. The strength of the claim requires the Yukon to engage in deep consultation with RRDC whenever the Yukon contemplates conduct that might adversely affect the title claimed (Haida Nation v British Columbia (Minister of Forests), [2005] 1 CNLR 72). The parties have been in negotiations for several years. To date, RRDC’s claim has not been resolved by either a treaty or a declaration.

RRDC asked specifically for a declaration that the issuance of hunting licences and seals might adversely affect the claimed Aboriginal title of RRDC’s members in the Ross River Area and that the Yukon must consult with respect to alleged potential adverse impacts on the “incidents of Aboriginal title” (Tsilhqot’in Nation v British Columbia, [2014] 3 CNLR 362).

There is a distinction between Aboriginal title that is established and that which is asserted. Established Aboriginal title confers ownership rights similar to those associated with fee simple. These ownership rights include the right to decide how the land will be used; the right to enjoy and occupy the land; the right to possess the land; the right to the economic benefits of the land; and the right to pro-actively use and manage it (Tsilhqot’in Nation; Delgamuukw v British Columbia, [1998] 1 CNLR 14).

A government must demonstrate that non-consensual incursions are undertaken in accordance with the duty to consult; that they are justified on the basis of a compelling and substantial public interest; and that they are consistent with the Crown’s fiduciary duty to the Aboriginal title holders (Tsilhqot’in Nation). RRDC’s title is not yet established. It has only a claimed title, albeit a strong one. Aboriginal title that is claimed, but not established, does not confer ownership rights.

Where title is not established, the duty to consult arises when the Crown has real or constructive knowledge of the potential existence of an Aboriginal right or title and contemplates action which might adversely affect that right or title (Haida Nation). The purpose of the duty to consult is not to provide claimants immediately with what they could be entitled to upon proving or settling their claims. Rather, it is intended as a mechanism to preserve Aboriginal interests while land and resource claims are ongoing, or where the proposed action may interfere with a claimed right or title (Rio Tinto Alcan Inc v Carrier Sekani Tribal Council, [2010] 4 CNLR 250 [“Rio Tinto”]).

The legal test for determining whether the duty to consult arises was broken down into three elements: 1) the Crown’s knowledge, actual or constructive, of a potential Aboriginal claim or right; 2) contemplated Crown conduct; and 3) the potential that the contemplated conduct may adversely affect an Aboriginal claim or right. The third element is at the heart of this appeal. RRDC argues that by issuing hunting licences and seals, the Yukon interferes with its claimed right to exclusive use and occupation of the land which has the potential to adversely affect the claimed title by allowing the land to be used and occupied for hunting by people other than RRDC members. RRDC’s position is not that hunters entering the land cause any cognizable harm to the land (aside from potential wildlife management harm), but that their presence on the land is itself a violation of the incidents of title which RRDC asserts, specifically the exclusive use and occupation of the land. This requires consultation.

The Court determined in this matter that issuing hunting licences does not, in and of itself, give the holder of the hunting licence the right to enter land that it could not otherwise enter. A right to hunt within a region does not confer a right to enter private property situated within that region. A hunting licence is not a defence to trespass (Wildlife Act). Also, RRDC’s argument is problematic in that it can assert a right, at the present time, to control who enters the claimed land and, therefore, Yukon must consult with RRDC whenever it contemplates action that would allow or encourage others to enter the land.

RRDC has not established Aboriginal title to the Ross River Area; the process is still at the claim stage. Without an established claim, RRDC does not have an exclusive right to control the use and occupation of the land at present, nor does it have a right to veto government action. What RRDC expressed is a concern that individuals to whom licences and seals have been issued will enter the Ross River Area. That is all. It did not identify how this would have an “appreciable adverse effect” on RRDC’s ability to control the use and occupation of the land in the future, or would otherwise adversely affect its rights or interests, other than potential impacts on wildlife.

No specific concerns have been articulated. There is only an argument that the issuance of hunting licences and seals interferes with RRDC’s right to exclusive use and occupancy of the Ross River Area at the present time. As noted, however, this is a right that RRDC does not currently have. Without explaining how the presence of hunters on its claimed territory could potentially adversely affect its claimed title, the duty to consult as a means to preserve interests in the interim is not engaged.

George Gordon First Nation v HMQ in Right of the Province of Saskatchewan and Canada (AG), 2020 SKQB 90

Application dismissed. The Government of Saskatchewan was not subject to a duty to consult with the First Nation regarding further mineral dispositions, as this was satisfied with the processes stipulated in the Treaty Land Entitlement agreement.

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George Gordon First Nation [“GGFN”] initiated this action by statement of claim, naming as defendants Her Majesty the Queen in Right of Saskatchewan [“Saskatchewan”] and Her Majesty the Queen in Right of Canada [“Canada”]. It claimed various relief, including an interim and permanent injunction against the defendants from granting further mineral dispositions in the Jansen Area or Evaporite Area, and ten billion dollars in damages. Where an Entitlement Band requests acquisition of Crown minerals, the Ministry places a temporary freeze on the minerals pending its review of the request. If approved, the freeze will continue to allow the Band time to acquire the surface rights. This freeze period can continue for up to three years.

This application had a long and complex history, but it had the benefit of case management by an experienced justice of this Court. The parties involved in this application are sophisticated and represented by experienced and able counsel. To determine if the summary judgement process was suitable to dispose of this matter, the Court answered three questions in the affirmative: 1) can the judge to make the necessary findings of fact; 2) can the judge to apply the law to the facts; and 3) if this is a proportionate, more expeditious and less expensive means to achieve a just result (Hryniak v Mauldin, 2014 SCC 7). This matter was determined suitable for summary judgment. A trial was not required to determine the issues.

The allegation is that both Saskatchewan and Canada had and have a duty to consult with GGFN before Saskatchewan makes any mineral disposition on lands which could be selected by GGFN to satisfy its treaty land entitlement. Canada and Saskatchewan argue there was, and is, no duty to consult. Saskatchewan also argues that the GGFN Treaty Land Entitlement agreement [“TLE”] was intended to conclude the dispute and barred any further claims, including this one.

Canada had a duty to consult with and, where proved, accommodate GGFN and other TLE Bands with respect to land claims under Treaty No. 4. This was done through treaty land entitlement negotiations and agreements, including the GGFN TLE. Saskatchewan had no corresponding duty to consult under Treaty No. 4. Saskatchewan’s obligations under the TLE were to Canada, not GGFN.

Canada and Saskatchewan satisfied any duty to consult through the negotiations leading to the TLE Framework Agreement and, in the case of GGFN, the negotiations resulting in the GGFN TLE. If Saskatchewan had a duty to consult with GGFN about Crown mineral dispositions, that duty was satisfied by its practice of providing information to TLE Bands. GGFN’s claim of a duty to consult that extended to both notice of any applications and a right to supersede those applications went beyond any required consultation and accommodation. This would amount to a veto which the courts have rejected.

Even without a duty to consult, the honour of the Crown would still apply to Saskatchewan’s implementation of the GGFN TLE. Saskatchewan’s practices were fair and balanced. The honour of the Crown, which did apply, was respected. GGFN received the payments to which it was entitled from Canada and was able to obtain within the prescribed period its shortfall acres and other land, with minerals.

The claim of GGFN against Saskatchewan is therefore dismissed. Its claim against Canada was based on a duty of Canada to compel or assist GGFN to enforce its claim against Saskatchewan. The foundation for this claim is lacking. Canada does not exercise supervisory jurisdiction over the provinces with respect to the exercise of their constitutional authority. Nor did the GGFN TLE provide a contractual basis for Canada to compel Saskatchewan to provide GGFN with the requested notice of mineral dispositions and right of first refusal. GGFN’s claim against Canada was premised on a breach of duty by Saskatchewan. Since the claim against Saskatchewan is dismissed, there is no basis for a claim against Canada.

 

 

Crate et al v Government of Manitoba, 2020 MBQB 9

Manitoba satisfied its duty to consult and accommodate a First Nation prior to granting a licence to a company to expand an existing peat harvesting and procession operation that would affect traditional activities of hunting, fishing and harvesting plants in the area.

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Sunterra Horticulture Inc [“Sunterra”] submitted a notice of alteration in relation to its existing license to allow expansion of its existing peat harvesting and processing operation on the Washow Bay Peninsula which is land within the traditional territory of the Fisher River Cree Nation [“FRCN”]. The Government of Manitoba invited FRCN to participate in consultations but ultimately granted the revised license to Sunterra.

FRCN appealed the issuance of the license but the appeal was dismissed. By way of an application for declaratory relief, the applicant’s sought a review of the Minister’s decision focused on two substantive issues: 1) the Sunterra license should not have been granted because Manitoba failed to satisfy its duty to consult with FRCN before issuance; and 2) the Minister’s decision to dismiss FRCN’s appeal was based on a failure of Manitoba to hold a public hearing and comply with section 11(10) of The Environment Act.

Whether Manitoba correctly assessed the extent of their duty to consult was reviewed on a standard of correctness. It was not disputed that peat harvesting could interfere with or disrupt the traditional activities of hunting, fishing and harvesting plants in the area. Manitoba correctly identified the level of consultation required as being at the medium to high level. It was significant that Manitoba had an established written policy regarding the level of consultation. Prior to consultation, Manitoba and FRCN agreed to and signed a Protocol respecting Crown-Aboriginal Consultations and a Consultation Funding Agreement with respect to the Sunterra project. These were examples consistent with those suggested in Haida Nation v British Columbia (Minister of Forests), [2005] 1 CNLR 72.

Whether Manitoba adequately discharged its duty to consult was reviewed on a standard of reasonableness. Based on the consultation record, Manitoba received and responded to FRCN’s concerns in relation to the exercise of its Aboriginal and treaty rights. Manitoba provided information to FCRN when it was requested. There was ongoing correspondence and dialogue. The conditions as set out by the record constituted adequate accommodations of FRCN’s concerns. While the FRCN may have received a response they did not want, it could not be said that Manitoba did not consider FCRN’s position and responded to it. Therefore, Manitoba satisfied its duty to consult and accommodate FRCN prior to granting the Sunterra licence.

As for the public hearing, it was not unreasonable for the Minister to conclude that the concerns raised by FRCN regarding the Sunterra project were addressed by the conditions imposed on the licence. There was no evidence that FCRN was prejudiced by the Director’s failure to comply with the twenty-one-day deadline. There was no evidence of bad faith, or a failure to recognize responsibilities of a disregard for public concerns, or of a dismissal of legitimate objections to the project. Although the failure to comply with the statutory timeline cannot be condoned, it was not basis for the court to invalidate the issuance of the Sunterra licence or the Minister’s conclusion that a public hearing was unnecessary.

Ressources Strateco inc c Procureure générale du Québec, 2020 QCCA 18

Appeal dismissed. The Minister has qualified immunity of the state to make his decision to refuse a certificate of authorization to a mining exploration company’s proposal due to a lack of social acceptability from the Cree community. This decision was not made lightly or in a manner indicative of bad faith or serious recklessness.

Indigenous Law Centre – CaseWatch Blog

Strateco Resources Inc [“Strateco”] is a mining exploration company listed on the Toronto Stock Exchange. In 2005 and 2006, when the price of uranium was on the rise, it acquired 559 mining claims in the Otish Mountains region in Northern Quebec, a region recognized for its uranium potential. The proposed mining area is located 210 km from Mistissini, a Cree community, and 275 km from Chibougamau, on territory covered by the James Bay and Northern Québec Agreement [“Agreement”].

The Agreement is a modern treaty designed to reconcile the rights and interests of Aboriginal peoples and those of non-Aboriginal peoples in Northern Quebec. The rights it grants Aboriginal peoples are referred to in s 35 of the Constitution Act, 1982, whose purpose is “[t]he reconciliation of Aboriginal and non-Aboriginal Canadians in a mutually respectful long-term relationship”.

After a number of consultations, the Minister refused to issue the certificate of authorization, stating that the proposal had not garnered social acceptability from the Cree community and has therefore not placed sufficient importance on the principles set out in s 152 of the Environment Quality Act [“EQA”].

Following this decision, Strateco filed legal proceedings against the Attorney General of Quebec [“AGQ”], seeking $182,684,575 in damages and $10,000,000 in punitive damages. Essentially, it argued that the Minister was not entitled to base his refusal to issue the certificate of authorization on the lack of social acceptability. It submitted that the Minister’s decision was not only illegal, but was tantamount to a disguised expropriation of its claims. It further argued that the government of Quebec and the Minister had breached their duty of coherence by announcing a moratorium after having encouraged companies to invest in uranium production in connection with the Plan Nord. The matter was dismissed and Strateco has appealed.

This Court is of the opinion that the appeal should be dismissed. While the Minister’s decision to refuse the issuance of the certificate of authorization does not clearly fall within the category of core policy decisions, it enjoys the qualified immunity of the state. Strateco therefore had to show that the Minister acted in bad faith or with serious carelessness or recklessness. It did not make such proof. The Minister was entitled to base his refusal on the lack of social acceptability of the project, without this being likened to a right of veto granted to the Cree. As for the moratorium announced by the Minister and his refusal to issue the certificate, they do not constitute a disguised expropriation of Strateco’s claims nor a breach of the duty of coherence.

Social acceptability is directly related to the perceived threat that a project may pose to the life or quality of life of a milieu. This perception depends on a multitude of factors, such that the social acceptability of a project, or in other words, its acceptance, does not necessarily correlate to its environmental and social effects. It follows that the Minister was entitled to base his refusal to issue the certificate of authorization on the lack of social acceptability. By giving decisive weight to this factor, he did not stray so far from the principles that ought to guide the exercise of his discretionary power that absence of good faith can be deduced and bad faith presumed. The Minister did not make his decision lightly or in a manner indicative of bad faith or serious recklessness.

Strateco knew from the outset the risk it ran in undertaking its uranium exploration project. It was fully aware that, ultimately, the Minister could either agree or refuse to issue the certificate of authorization. The evidence reveals that all the steps leading to the Minister’s decision were followed. In refusing to issue the certificate of authorization, the Minister merely exercised the right provided for in the EQA. There was no appropriation or stripping of Strateco’s claims. Moreover, Strateco was not dispossessed of the claims. Neither the announcement of a moratorium nor the Minister’s refusal to issue the certificate can be considered an absolute denial of its right of ownership.

Indeed, the evidence shows that uranium is a unique substance that gives rise to many concerns on the part of the public. There is an importance of properly informing the local populations in order to anticipate the factors that could foster the acceptability of the project for these populations. Strateco had fully grasped the fact that social acceptability was at the heart of the project’s feasibility. Strateco has failed to demonstrate that the judge committed a palpable and overriding error. Even if the Court were to find that the government did not expressly indicate to Strateco that social acceptability was a material element for the project’s authorization, the evidence reveals that Strateco had sufficient elements to draw that conclusion itself.

Yahey v British Columbia, 2020 BCSC 278

Application granted. Blueberry River First Nations is not subject to paying the hearing fees regime in this trial. The Court grants a declaration that Item 10 of Schedule 1 in Appendix C of the Supreme Court Civil Rules is of no force and effect insofar as it requires Indigenous peoples who are seeking to uphold or protect their s 35(1) Aboriginal and/or treaty rights from alleged infringements, and who are required to do so through a trial, to pay daily hearing fees to the Crown as the defendant in any such action. If this Court is wrong in reading down the hearing fee provision in the way set out above, then it would exercise its discretion contained in Item 10 of Schedule 1 in Appendix C to order the Crown to pay the hearing fees in this action.

Indigenous Law Centre – CaseWatch Blog

This application arises in the context of an action brought by the Blueberry River First Nations [“Blueberry”] against Her Majesty the Queen in Right of the Province of British Columbia [“Crown”] alleging infringements of their rights under Treaty 8. It addresses the cumulative impacts of a variety of Crown authorized activities occurring in their traditional territory. In this application, Blueberry seeks to be relieved from paying the daily hearing fees prescribed by the Supreme Court Civil Rules [“Rules”] and set out in Appendix C, Schedule 1, at Item 10 for the duration of the trial of the underlying action.

The underlying trial is currently set for 160 days. For Blueberry, that means paying over $120,000 in hearing fees to the Crown. Rule 20-5(1) provides for a waiver of fees in certain circumstances. Blueberry seeks an order under Appendix C, Schedule 1, Item 10 of the Rules that the Crown defendant pay the daily hearing fees; or, in the alternative, a constitutional exemption from paying the hearing fees based on s 35(1) of the Constitution Act, 1982; or, if necessary, a declaration that the hearing fees are constitutionally inapplicable under s 52(1) of the Constitution Act, 1982 to the extent they are inconsistent with s 35(1). They do not seek a waiver of fees based on undue hardship under Rule 20-5(1).

The Crown, as the defendant in this s 35(1) treaty rights claim, cannot charge the plaintiff First Nations substantial fees for access to the court to seek to enforce the Crown’s own treaty obligations. This, Blueberry argues, is inconsistent with the honour of the Crown and the Crown’s duties under s 35(1) to promote reconciliation.

Reconciliation takes place both inside and outside the courtroom. While consultation and negotiation are the primary methods of reconciliation, courts also have a role to play. The parties will not always be able to resolve the issues, and courts will be called on to determine rights and the attaching obligations. In the Aboriginal context, when considering statutes or rules that may bar, prevent or impede Indigenous peoples’ ability to pursue their claims, reconciliation must weigh heavily in the balance (Manitoba Métis Federation Inc v Canada (AG), [2013] 2 CNLR 281).

None of the cases relied on by the Crown dealt with s 35(1) in the context of hearing fees, or considered the impacts on Crown-Indigenous relations, the honour of the Crown, or reconciliation more broadly from charging such fees. This is the first case to consider the constitutionality of hearing fees from that perspective.

This Court does not agree with the Crown’s argument that recognizing the uniqueness of s 35(1) rights, and relieving litigants who seek to advance these rights of the obligation to pay hearing fees, would somehow be establishing a preferential system of access to justice. The charge of a substantial fee, which ultimately is for the Crown’s own benefit, to access the court to seek to uphold a constitutionally protected treaty right is antithetical to the purpose of s 35(1), the principle of honour of the Crown, and the objective of reconciliation. The fee creates an additional obstacle for Indigenous litigants whose claims often require long trials. It is apparent that requiring litigants who are pursuing cases dealing with s 35(1) to pay a hearing fee is in effect an advance that is paid by Indigenous peoples.

The requirement to pay daily hearing fees creates inequality in litigation in these circumstances and is inconsistent with the shared responsibility for reconciliation which is the overarching objective of s 35(1). The fees create unfairness, imposes financial obstacles to litigation (which can become significant in long trials), and reinforces the idea that the promise in s 35 still comes with strings attached. The Court can draw a legitimate distinction for Indigenous peoples in these circumstances based on the Crown’s unique obligation to Aboriginal people, and the unique status of Aboriginal and treaty rights in the Constitution Act, 1982.