Ahousaht Indian Band and Nation v Canada (AG), 2018 BCSC 633

Wiyasiwewin Mikiwahp Native Law Centre Case Watch

Declaratory relief allowed for Aboriginal right to right-based “all species” commercial fishery.

The plaintiffs are five First Nations whose territories are located on a strip of varying widths along the West Coast of Vancouver Island and are part of the fourteen Nuu-chah-nulth group of Nations. This trial took place in two stages, which was unanticipated by either party when it began. The first part of the trial was heard by a different judge who issued reasons in Ahousaht Indian Band and Nation v Canada (AG), [2010] 1 CNLR 1 (BCSC), as well as declarations. There were originally eleven plaintiffs in this action. However, the initial Statement of Claim claimed Aboriginal title on behalf of each of the eleven Nations, as well as Aboriginal rights. Because some of the title claims overlapped, it was ordered that the plaintiffs choose one or more Nations whose claims to title did not overlap, and the claims of those plaintiffs would proceed in this action. The present five plaintiffs proceeded to trial with their claims but the remaining claims have yet to be tried.

The plaintiffs asserted an Aboriginal right to harvest fisheries resources for a variety of purposes including for food, social and ceremonial purposes, commercial purposes, and so on. It was declared in 2009 that the plaintiffs have an Aboriginal right in these terms: “to fish for any species of fish within their Fishing Territories and to sell that fish”. However, the Fishing Territories were limited to a nine-mile strip or Court Defined Area (“CDA”). It was also declared that the entire fisheries management regime, consisting of legislation, regulations, and policies, constituted a prima facie infringement of that right. The trial was then adjourned to allow the parties to negotiate a fishery based on this declaration. In the event the negotiations (“Negotiations”) were unsuccessful, they could return to court on the issue of whether Canada could justify its legislative, regulatory and policy regimes as they apply to the plaintiffs’ Aboriginal fishery, named T’aaq-wiihak, which means “permission to fish”.

The history of this action is complex and interwoven with another action on Aboriginal fishing rights (Lax Kw’alaams Indian Band v Canada (AG), [2011] 4 CNLR 346 (SCC)) (“Lax Kw’alaams”), which proceeded slightly ahead of this action, and this Supreme Court of Canada (“SCC”) decision has influenced the course of the present action. After the 2009 judgment, the Negotiations began in 2010, but soon led to a reactivation of the litigation. The Negotiations have continued and are ongoing. Meanwhile, following the first stage of the trial, Canada appealed the 2009 decision. That appeal was dismissed by the Court of Appeal in 2011 (Ahousaht Indian Band v Canada (AG), [2011] 3 CNLR 1 (BCCA)). The Court of Appeal upheld the trial decision but removed geoduck species from the “any species” list of the right-based fishery and included other minor variations. Canada then appealed to the SCC. The SCC remanded this present case back to the Court of Appeal in 2012 with no reasons, but with a direction that the case be reconsidered in accordance with their recent decision in Lax Kw’alaams. After reconsideration, the Court of Appeal once again dismissed the appeal and confirmed its order from 2011 (Ahousaht Indian Band v Canada (AG), [2013] 4 CNLR 31 (BCCA)). Canada applied to the SCC for leave to appeal the reconsideration decision but was denied in 2014. This court is bound by the Court of Appeal’s 2013 reconsideration decision. The stage of this trial then began in 2015 where the parties agreed that a justification analysis is required for each species of fish for which the plaintiffs have submitted fishing proposals.

This case as it stands can only be concerned with the justification analysis. The 2009 declared Aboriginal right cannot be redefined, despite being general without any qualifiers. However, in order for the justification analysis to take place, the Court held that the right has to be clearly described. The only way to circumscribe the right-based fishery at this stage of trial was by using what could be inferred from reading the 2009 reasons as a whole. Although the Court rendered general comments regarding the infringement and justification analysis in the present case, it found that a justification analysis had to be done in a species-specific manner. An analysis of continuity in respect of each individual species, however, could not result in subtraction of species from the “any species” declaration, despite the 2011 Court of Appeal’s removal of the geoduck species, which was eliminated on the basis of fishing technique.

The 2009 declaration has been described as a two-edged sword. Canada is bound by the right as declared, but the plaintiffs are bound as well, and unhappy with the nine-mile limit for a right-based fishery. They cannot exercise their right within the CDA in a way that is satisfactory to them. The conclusion to be drawn from interpreting the 2009 reasons as a whole, despite the lack of parameters in the declarations, is that the declared right to fish for any species and to sell that fish is to be interpreted as a small-scale, artisanal, local, multi-species, right-based fishery, to be conducted in a nine-mile strip from shore, using small, low-cost boats with limited technology and restricted catching power, and aimed at wide community participation.

Canada, however, did not take the position that the entire regime, found to be a prima facie infringement, could be justified and should remain unchanged. Given all the circumstances and complexity surrounding the procedural history and subsequent Negotiations, it was considered inappropriate or unnecessary to make a general declaration in respect of a failure of the duty to consult in good faith either under the common law or under the declaration. There were stumbling blocks presented by both sides, and the process is still in progress. The Court also noted the Department of Fisheries and Oceans’ commitment to ongoing deep consultation, and therefore did not see this as an issue upon which the justification analysis should stand or fall.

Editor’s Note: Six First Nations governments and three industry groups sought leave to intervene on the basis that each has a public interest in a public law issue and each can bring a valuable perspective to the Court. On November 7, 2018, leave for all nine applicants was granted by the British Columbia Court of Appeal but limited to issues that will not be repetitive and will be helpful to the Court (Ahousaht Indian Band and Nation v Canada (AG), 2018 BCCA 413).

MRC de Roussillon v MRN, 2017 QCCS 3744

Wiyasiwewin Mikiwahp Native Law Centre Case Watch

Application dismissed. There is no duty to consult between the province and its municipalities about lands being transferred to the Federal government for the purposes of adding to a First Nation reserve.

The Applicants sought to have an Order in Council of the Government of Québec declared invalid on the basis of bad faith or abuse of power by the Québec government. The Order concerns vacant lands located on the territory of the Municipalité Régionale de Comté de Roussillon (“RCM”) and adjacent to the Kahnawake Reserve (the “Lands”), which the Ministère des Transports du Québec (“MTQ”) acquired several years ago to extend a highway. With the extension completed, the Lands were no longer needed for road purposes. The Order transfers the usufruct of the Lands to the Government of Canada for a possible addition to the territory of the Kahnawake Reserve. In the alternative, the Applicants also argued that condition No. 3 of the Order is ambiguous and void, as it has the effect of expanding the Kahnawake Reserve. They claim the Province does not have the legislative authority to create an Indian Reserve.

The Order transfers the usufruct of the Lands free of charge to the federal government for the benefit of the Kahnawake Mohawk Indian Band. Some of the Lands and the extension of the highway were located on the territory of the Seigneurie du Sault-Sault-Louis (SSSL), for which the Mohawks of Kahnawake filed a specific claim in the early 1990’s, alleging that the King of France gave them the territory. Since 2003, this specific claim has been under discussion with the federal government and is still ongoing.

The mechanism for transferring lands of the Québec province in order to reserve them for Indians is regulated under Québec and federal laws. The Minister of Natural Resources and Wildlife first designates the lands, and then the Québec government may “reserve and allot” the lands by adopting an order to transfer, gratuitously, the usufruct of the lands to the Government of Canada, with a view to administering it in trust for the Indian bands. No other legislative condition limits the exercise of the Québec government’s discretion in this regard. The Order, however, is only the first step in an administrative process by which the provincial lands will be added to the Kahnawake reserve as “designated lands” within the meaning of section 2(1) of the Indian Act. The process of creating an Indian reserve or adding to an existing reserve (known as “ATR” – Additions to Reserves) is subject to a specific legislative framework. A federal directive also regulates the ATR process including “an early and healthy dialogue between the First Nation, the public and affected individuals and interest groups to increase awareness and deal with potential issues”. However, “municipal governments do not have a general or unilateral veto over the granting of reserve status” and discussions with municipal governments “should not unreasonably delay the proposal” of an ATR.

The Order is political and therefore a purely administrative decision of the Québec government, or Cabinet, which is the top of the administrative and political power hierarchy. The adoption of the Order is a political decision and carries no obligation of procedural fairness or consultation with regard to the individuals affected. In respect of the autonomy, latitude and discretion enjoyed by the government in this area, any challenge to such a decision can be based only on very limited grounds. In making a political decision, the government cannot act against the law or abuse its discretion. The Order does not contravene any law. As for the rest, the government must answer for its political decisions to the electors and not the courts.

Da’naxda’xw/Awaetlala First Nation v BC Hydro, 2017 BCSC 2179

Wiyasiwewin Mikiwahp Native Law Centre Case Watch

Application for judicial review dismissed. A party seeking a remedy in damages must do so in an action, not in an application for judicial review.

Kleana Power Corporation [KPC], proposed a run-of-the-river hydro-electric project on the Klinaklini River (the “Project”) in 2008 within the asserted traditional territory of the Da’naxda’xw/Awaetlala First Nation [DAFN]. KPC wished to submit a proposal in the 2008 “Clean Power Call” issued by British Columbia Hydro and Power Authority (“BC Hydro”), with a view to being awarded an energy purchase agreement for the sale of electricity generated from the Project to BC Hydro. The DAFN considered the Project to be an economic opportunity consistent with their cultural and ecological interests. The proposed boundary of a protected conservancy, however, was within the traditional territory claimed by the DAFN, which created a barrier to the Project. Both petitioners say that in 2008 they received an assurance from the respondent Minister of Energy, Mines and Natural Gas (the “Energy Minister”). The assurance was that when the Project could proceed, but if KPC lost the opportunity to participate in the 2008 Clean Power Call due to a delay in amending the conservancy boundary, then the Energy Minister would direct BC Hydro to enter into negotiations with KPC for an energy purchase agreement at a price for power that was linked to the results of the winning bids in the call. The petitioners say that the Energy Minister’s assurance was clear, unambiguous and unqualified, therefore they acted in reliance on the Energy Minister’s assurance. They spent time and resources pursuing the boundary amendment necessary for the Project to proceed.

The petitioners sought judicial review in 2010, of the refusal of the then Environment Minister to recommend to the Lieutenant Governor in Council an amendment to the conservancy boundary. The reviewing judge found that the Environment Minister had a legal duty to consult with the DAFN concerning their request for an amendment to the boundary with a view to considering a reasonable accommodation and had failed to fulfill this duty to consult (Da’naxda’xw/Awaetlala First Nation v British Columbia (Environment), [2011] 3 CNLR 188 (BCSC) “Da’naxda’xw 2011”). The Court concluded in Da’naxda’xw/Awaetlala First Nation v British Columbia Hydro and Power Authority, 2015 BCSC 16 (“Da’naxda’xw 2015”) that the petitioners had not established that they were entitled to any remedy on the administrative law grounds raised. But declarations were issued to the effect that the DAFN were entitled to further relief and a remedy in respect of the original breaches of the duty to consult. The petitioners appealed and the Energy Minister and Province cross-appealed with respect to the declaratory relief that was ordered. In Da’naxda’xw/Awaetlala First Nation v. British Columbia (Energy, Mines and Natural Gas), 2016 BCCA 163 (“Da’naxda’xw CA”), the Court of Appeal dismissed the petitioners’ appeal and ordered that the declaration be set aside. The cross-appeal was allowed and the petition was remitted for reconsideration of the remedy for the DAFN. This proceeding was an application for a judicial review.

The Amended Petition was in part premised on the asserted failure of the Energy Minister to give a direction to BC Hydro consistent with what the DAFN alleged was the commitment given to them in 2008, and was how the application was framed, responded to, and argued. This petition has never been further amended nor was the Environment Minister named as a respondent. No relief was sought in respect of the consultation ordered in Da’naxda’xw 2011, or the actions of the Environment Minister in 2008. There was no pleaded case of a failure to comply with the Da’naxda’xw 2011 order. Since Da’naxda’xw have never sought leave to further amend the Amended Petition in any respect, no further remedy can now be granted as it is res judicata.

Given the conclusions in Da’naxda’xw 2015 regarding the scope of the Minister’s commitment, and the dismissal by the Court of Appeal of the petitioners’ appeal, there are only two grounds on which to possibly grant a remedy for the DAFN: (1) the Environment Minister’s 2010 breach of the duty to consult regarding the request by the DAFN for an amendment to the conservancy boundary; and (2) the consultation that followed the Da’naxda’xw 2011 order, up to and including the Order-in-Council amending the conservancy boundary in June 2012. Neither can provide support for a remedy for the DAFN in the circumstances of this case. Whether the Environment Minister breached the duty to consult the DAFN in 2010 was the central issue in Da’naxda’xw 2011 and led to the remedy granted in that matter. It is a final order, and neither the Environment Minister nor the DAFN appealed. These cannot now be relitigated based on the outcome of Da’naxda’xw 2015 and the subsequent dismissal of the DAFN’s appeal in Da’naxda’xw CA.

Where a pleading fails to fulfill its function, that defect should not be overlooked, even in Aboriginal litigation. “The trial of an action should not resemble a voyage on the Flying Dutchman with a crew condemned to roam the seas interminably with no set destination and no end in sight” (Lax Kw’alaams Indian Band v. Canada (Attorney General), 2011 SCC 56. The Amended Petition sought judicial review and relief only in respect of the conduct of the Energy Minister. The petitioners have never sought leave to further amend the Amended Petition. There was no complaint that there was a failure to comply with the order for further consultation or a breach of the duty owed to the DAFN that followed the Da’naxda’xw 2011order, nor was it asserted that the consultation was inadequate. A failure to plead the adequacy of consultation results in the issue not being properly before the court (Adams Lake Indian Band v Lieutenant Governor in Council, 2012 BCCA 333). Any further consultation concerning the decisions made by the Environment Minister in 2008 and 2010 could not lead to anything other than a discussion about some measure of compensation, in other words, monetary damages.

 

Lac Seul First Nation v Canada, 2017 FC 906

Wiyasiwewin Mikiwahp Native Law Centre Case Watch

Canada breached its fiduciary duty to the Plaintiffs and must pay equitable damages of $30 million; third party claims against Ontario and Manitoba dismissed.

The Lac Seul First Nation [LSFN] claimed that Canada breached its treaty with the LSFN (Treaty No. 3), the Indian Act, and its fiduciary duties and obligations. LSFN sought damages from Canada for losses from the flooding of part of the LSFN Reserve following the construction of the Ear Falls Storage Dam where Lac Seul drains into the English River. LSFN requested punitive damages and costs along with equitable compensation for a loss of opportunity for hydroelectric benefits, past present and future, in the amount of $506.6 million including avoidable losses due to erosion, loss of timber and community infrastructure in the amount of $40 million.

The Lac Seul Storage Project provided the water reservoir necessary to permit power generation for the City of Winnipeg and Northwestern Ontario. In 1929, the Ear Falls Storage Dam was completed, as part of a project to maximize the potential for hydroelectric developments on the Winnipeg River in Manitoba to provide power to the City of Winnipeg. The parties agreed that this part of the LSFN Reserve land is now under water. With the flooding, the LSFN lost the use and enjoyment of this portion of its Reserve. Other impacts from flooding on the LSFN included lost houses, wild rice fields, and the separation by water of two of its communities, Kejick Bay and Whitefish Bay.

Ultimately the Court assessed the Plaintiffs’ equitable damages at $30 million. The factors considered included the amount of the calculable losses and that many of the non-quantifiable losses created in 1929 persisted over decades, and some still continue. The failure to remove the timber from the foreshore created an eyesore and impacted the natural beauty of the Reserve land. This created a long-term water hazard effecting travel and fishing for members of the LSFN. The flooding negatively affected hunting and trapping. Although Canada supplied the materials to build the replacement houses, the LSFN members supplied their own labour. The LSFN docks were not replaced, as well hay land, gardens and rice fields were destroyed. Two LSFN communities were separated by water and one became an island, impacting the ease of movement of the people who lived there. Canada failed to keep the LSFN informed and never consulted with the band on any of the flood related matters that affected it, creating uncertainty and anxiety for the band. Canada failed to act in a prompt and effective manner to deal with compensation with the LSFN prior to the flooding and many years after the flooding, despite being aware of the negative impact on the band members.

It was determined that this $30 million in equitable compensation would be sufficient to put LSFN back in the place they would have been but for the breach and would meet the objectives of retribution, deterrence, and denunciation, as there have been no punitive damages awarded in an Aboriginal law context. A declaration was also sought that the LSFN legal interests in the flooded lands and the freeboard area have not been encumbered or extinguished. Canada admitted and accepted that LSFN had “retained the flooded Reserve lands.” A declaration would therefore serve no purpose. Canada claimed a defence of laches, but this defence does not apply as the trial record revealed a singular failure of Canadian government departments to communicate with the members of the LSFN. Similarly, the decisions made regarding the cutting of timber on the foreshore, the use of the unemployed men as a relief project, and its later abandonment were events that also occurred with little or no communication with the LSFN. Lastly, the negotiation of a payment to the LSFN was done in 1943 and accepted by Canada with no evidence that the LSFN was ever informed of the structure of the settlement, or its amount.

It is inexplicable in the evidence as to why Canada took no steps either at the time of the first flooding or subsequently to legally authorize the expropriation through flooding of these Reserve lands. Moreover, no compensation was paid to LSFN relating to the flooded lands or consequent damages suffered until November 17, 1943, which was not an appropriate amount and was in breach of Canada’s fiduciary duty to LSFN. Canada defended the main action and commenced third party claims against both Ontario and Manitoba for contribution and indemnity, pursuant to the terms of the Lac Seul Conservation Act (Canada) and An Act Respecting Lac Seul Storage (Ontario). Where the third parties have no fiduciary duty to the beneficiary, the defendant cannot apportion its liability for equitable compensation to them. Canada is not being asked to pay more than its share of the losses as it is solely responsible for them.