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.

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.

Gitxaala Nation v Wolverine Terminals ULC et al, 2020 FC 382

Motion dismissed. The Metlakatla First Nation and Lax Kw’alaams should not be joined as respondents or interveners in the Gitxaala Nation’s underlying application for judicial review.

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Wolverine Terminals ULC, has proposed to construct and operate the Prince Rupert Marine Fuels Service Project [“Project”] in the Port of Prince Rupert. The Project is a floating refuelling station intended for refuelling vessels calling in the Port. It is located on federal lands and is subject to a review under the Canadian Environmental Assessment Act [“CEAA”]. Under the CEAA, the Prince Rupert Port Authority and Transport Canada [“Federal Authorities”] could not enable the Project to proceed unless a determination was made that the Project was not likely to cause significant adverse environmental effects. As part of its evaluation process, the Federal Authorities consulted the six First Nation communities with asserted rights and interests within the Project area regarding potential environmental effects that included the Gitxaala Nation [“Gitxaala”], Metlakatla First Nation, Lax Kw’alaams, Gitga’at First Nation, Kitsumkalum, and Kitselas.

In the underlying application for judicial review [“Application”], Gitxaala challenges the decision of the Federal Authorities that the Project will not cause significant adverse environmental effects pursuant to the CEAA, and that the Crown’s obligation to consult with respect to the Project has been fulfilled [“Decision”]. The Metlakatla First Nation and Lax Kw’alaams [“Moving First Nations”] have brought a motion for an order to allow them to be joined as party respondents in the Application. In the alternative, they seek an order to allow them to jointly intervene. This motion is dismissed.

If the Moving First Nations had a direct interest in quashing the Decision that was actually made, they could and should have asserted it by bringing their own application for judicial review on a timely basis. It would be an “impermissible end-run” for them to join the proceedings, in substance as co-applicants, well after the limitation period for applying has passed (Tsleil-Waututh Nation v Canada (AG), 2017 FCA 102).

The Court is not persuaded that the relief sought, if granted, will inevitably impose legal obligations on the Moving First Nations to re-engage in the consultation process. For example, if the Decision is set aside on the narrow basis that the Federal Authorities failed to adequately consult with Gitxaala, due to unique gaps or inadequacies in the specific consultation process undertaken with Gitxaala, it does not inevitably follow that the Federal Authorities will be required to also re-consult with the other five First Nation communities with asserted rights and interests within the Project area. Even if the relief sought by Gitxaala would require the Federal Authorities to re-engage with the Moving First Nations, the Court is not satisfied that the Moving First Nations would be directly affected by the relief sought in the Application.

The Moving First Nations argue that the relief sought will adversely and directly affect their legal rights by causing them to become legally obligated to participate in a more onerous statutory and consultative process, and incur additional time and expense to re-engage with the Federal Authorities. They rely on the legal principle of a reciprocal duty on First Nations to consult with the Crown in good faith and they cannot, by their conduct, place unnecessary obstacles in the way of the consultation process (Ahousaht First Nation v Canada (Fisheries and Oceans), [2008] 3 CNLR 67).

The reciprocal duty imposed on First Nations is significantly different in nature from the duty imposed on the Crown to consult with First Nations. The Crown’s duty to consult with First Nations gives rise to co-extensive right in First Nations to be consulted, and the breach of which is actionable in the Courts. The same cannot be said of the reciprocal duty on First Nations to engage in consultation with the Crown. Unlike the Crown’s duty to consult, the reciprocal duty imposed on First Nations is not an enforceable legal obligation.

The Moving First Nations have not satisfied the Court that their participation as respondents is necessary to determine the adequacy of Gitxaala’s consultation process, or demonstrated how this issue cannot be effectively and completely settled unless they are made respondents on the Application (Canada (Minister of Fisheries and Oceans) v Shubenacadie Indian Band, 2002 FCA 509).

As for being added as intervenors, acting under the guise of having a different perspective, an intervener cannot adduce fresh evidence or make submissions that are in reality fresh evidence (Canada (Citizenship and Immigration) v Ishaq, 2015 FCA 151). A proposed intervener must rely on the same evidence in the record that others are relying upon and focus on how they can assist the Court’s determination of the existing proceedings. The Moving First Nations’ proposed position appears to be an expansion of the issues raised in the existing Application. If they intend to argue, in effect, that Gitxaala has no valid asserted claim to the potential existence of Aboriginal title or rights in the project area, the corollary to that argument would be that no duty to consult arose. Gitxaala does not challenge the Decision based on any such finding, but rather on the basis that the Federal Authorities failed to adequately consult with Gitxaala. While the Moving First Nations assert that their participation will assist, it is the Court’s view they have not discharged the burden of proof to demonstrate how it will assist (Forest Ethics Advocacy Association v Canada (National Energy Board), 2013 FCA 236).

Maliseet Grand Council et al v New Brunswick et al, 2019 NBQB 198

Motion granted. The two applications for judicial review are dismissed. The applicants have not established standing. Judicial reviews are not an appropriate forum for how the dispute regarding s 35 Aboriginal rights is framed.

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In a bid to enhance winter tourism in northern New Brunswick, the Province decided to improve the snowmobile trail system, by proceeding with the development of a snowmobile grooming hub in 2015 at Mount Carleton Park. The two judicial review applications arose in the context of this decision made by the Province. The initial judicial review focused on whether the Province’s decision to develop the grooming hub was in violation of the Province’s Parks Act and to first conduct an environmental impact assessment. The second judicial review application challenged the Province’s decision to exempt work on, and the replacement of, two bridges from a subsequently conducted environmental impact assessment. In addition, all of the judicial review applicants alleged a breach of Aboriginal and Treaty rights. These lands were, according to the judicial review applicants, never ceded by treaty.

Central to this dispute is the Mascarene Treaty of 1725/26, the so-called Peace and Friendship Treaty. The Mascarene Treaty represented a negotiated end to the Dummer’s War between the British and the Wabanaki Confederacy. The Eastern Wabanaki Confederacy are a confederation of First Nation and Native American people from (present day) Eastern Canada and the State of Maine, USA. The Mascarene Treaty of 1725/26 was signed by the numerous traditional chiefs of the Eastern Wabanaki Confederacy. This included traditional chiefs of the Wolastoqewiyik (Maliseet) peoples located in present day New Brunswick. The Wabanaki Confederacy is said to also be in the process of “being rebuilt”.

Having carefully considered the substantive submissions of the parties and having reviewed all of the numerous authorities in the context of both Aboriginal and Treaty rights litigation across Canada, the Court concluded that the Province’s motion to dismiss the two applications for judicial review will succeed. It was determined the applicants on judicial review have not established standing, which is fatal to both judicial reviews. As well, judicial reviews are not an appropriate forum to determine the existence of an Aboriginal section 35 rights-bearing collective.

Counsel for the judicial review applicants acknowledges these to be unique circumstances, however, it does not require this Court to adopt unique and novel legal constructs. “Aboriginal rights exist within the general legal system of Canada” (R v Van der Peet, [1996] 4 CNLR 177 [R v Van der Peet]). There is ample and longstanding authoritative support for the notion that both Aboriginal and Treaty rights are collective or communal in nature (Haida Nation v British Columbia (Minister of Forests), [2005] 1 CNLR 72). While such rights may be exercised, in certain circumstances, by individual members of the community, these rights remain collective or communal (R v Powley, [2003] 4 CNLR 321). While the judicial review applicants initially based their claims against the Province over its failure to consult them, to a great degree, on “Aboriginal rights”, they now premise their relief on a breach of the Mascarene Treaty of 1725/26.

In the matter before this Court, the judicial review applicants believe a fair interpretation of the wording of the Mascarene Treaty allows for them to seek relief by way of judicial review for a breach of the Maliseets people’s rights. While they do not seek any declaratory relief specifically recognizing them as an authorized Aboriginal or Treaty rights holder for the Maliseet Nation, they do seek an order against the Province requiring it to fulfill a duty to consult prior to further work on the project continuing. Ostensibly, the judicial review applicants rely on the wording “any Indian” found in the Mascarene Treaty of 1725/26 so as to suggest they have “constitutional standing” to proceed. While creative, there is no merit to this argument. Even if this Court were satisfied with the specific interpretation of the wording found in the Mascarene Treaty of 1725/26, and in the manner now espoused by the judicial review applicants, there is an absence of evidence any of the judicial review applicants actually or actively pursued the very rights alleged to have been impacted and at the allegedly affected parts of Mount Carleton Park.

Even if the Court is in error with respect to standing, this dispute, as framed, is not appropriate for judicial review. A judicial review application should not be turned into a hearing de novo or an appeal. The Court’s role on judicial review is not to consider the matter anew or adjudicate conflicting expert opinions based on new evidence, but to review the decision on the basis of the material before the decision-maker. Aboriginal rights must be proven by tested evidence; they cannot be established as an incident of administrative law proceedings that centre on the adequacy of consultation and accommodation. To permit this would invite uncertainty and discourage final settlement of alleged rights through the proper processes. Aboriginal rights claims require that proper evidence be marshalled to meet specific legal tests in the context of a trial (R v Van der Peet; Delgamuukw v British Columbia, [1998] 1 CNLR 14; and Mitchell v MNR, [2001] 3 CNLR 122).

There are a few cases where standing was made an issue. In those few cases, it was held that the Aboriginal party must show it, in fact, has recognized authority to represent an Aboriginal collective, or portions thereof, for purposes of section 35 constitutional reconciliation or litigation. In this matter, the judicial review applicants argue that they need not do so as the Mascarene Treaty of 1725/26 expressly provides for their standing. Any Treaty interpretation, especially cases with such potentially broad application as in this case, must take into account all of the Aboriginal parties to the Treaty and the government(s). The judicial review applicants have chosen to proceed, not only without evidence of current representational authority for the collective Maliseet Nation, but they have done so in a forum to the exclusion of numerous recognized Maliseet entities, such as the First Nations communities in New Brunswick who quite likely may be affected by this proceeding and the relief sought.

Mi’kmaq of PEI v PEI (Her Majesty the Queen), 2019 PECA 26

Appeal dismissed. Prince Edward Island [“PEI”] satisfied the duty to consult with the Mi’kmaq in PEI, when it came to the transfer of the Mill River golf course property to private ownership.

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The Mi’kmaq in PEI [“Mi’kmaq”] have asserted Aboriginal title to all of the lands and waters of PEI. Their claim is based on exclusive occupancy at the time of first contact with Europeans and at the assertion of British sovereignty. The Province of PEI [“Province”] approved the conveyance of the Mill River golf course and resort to a private sector company. Since the Mill River property was Crown land, and the Mi’kmaq had previously given notice to the Province that it intends to bring a claim for Aboriginal title to all of PEI, the Government initiated consultation.

The Mi’kmaq brought an application for judicial review before the Supreme Court of Prince Edward Island. They sought declarations that the Province failed to adequately consult or accommodate and that the Orders-in-Council approving transfer for the properties are invalid and to be set aside. It was determined that the Province provided the Mi’kmaq with timely and appropriate information regarding its general intention to divest its four golf course properties, including requesting information and evidence in support of the Mi’kmaq claim to Aboriginal title and as to its concerns over potential adverse effect of the proposed conveyance.

The Mi’kmaq in PEI now appeal to this Court. They assert the reviewing judge made numerous errors. They challenge the finding that the Province gave adequate consultation. In this appeal they ask whether the government acted reasonably in carrying out consultation and if it was sufficient in the circumstances. This Court determined that the consultation was reasonable and also points out that the duty to consult was not triggered in the circumstances (Haida Nation v British Columbia (Minister of Forests), [2005] 1 CNLR 72). As to Aboriginal title, there was very little information or evidence provided in support of the assertion that, based on exclusive occupancy at the time of British sovereignty, it had Aboriginal title to all of PEI or the property.

Consultation is a two-way street. The Mi’kmaq provided little by way of evidence or information to show how its asserted title claim would be eventually proven or as to its historic connection with the property. The information provided was mainly repeated assertions with general statements of entitlement to title that did not materially contribute to an evidence-based assessment. The Mi’kmaq claim as presented to the Province was tenuous. A potential for adverse effect needs to be raised. There needs to be a nexus shown between the potential activity on or regarding the land and the interest sought to be protected (Rio Tinto Alcan Inc v Carrier Sekani Tribal Council, [2010] 4 CNLR 250). There was no information or evidence provided to show potential infringement or adverse impact on identified Mi’kmaq interest or association with the Mill River property as a result of conveyance of the property. The reviewing judge performed the proportionality test properly and without error.

Athabasca Chipewyan First Nation v Alberta, 2019 ABCA 401

Appeal dismissed. The chambers judge correctly declared that: 1) the Aboriginal Consultation Office has authority to decide whether the Crown’s duty to consult has been triggered; and 2) a “mere” taking up of land does not in itself adversely affect the treaty rights of a First Nation.

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The Athabasca Chipewyan First Nation (ACFN) sought judicial review of a decision of the Aboriginal Consultation Office (ACO) that the duty to consult was not triggered in relation to a pipeline project. The chambers judge did not judicially review the ACO’s Decision about the duty to consult. The ACFN, however, appeal two declarations out of the five that was made by the chambers judge: 1) whether the ACO has any authority in law to make the decision on whether the duty to consult is triggered; and 2) whether the “mere” act of taking up land by the Crown in a treaty area is sufficient to trigger the duty to consult.

TransCanada Pipelines Limited/Phoenix Energy Holdings Limited [“TransCanada”] contacted the predecessor to the ACO, the Alberta Department of Environment and Sustainable Resource Development, seeking guidance on consultation with First Nations for a proposed pipeline project [“Project”]. They were advised that consultation was required with eight First Nations in the affected area. The ACFN was not among these eight. TransCanada decided on its own initiative, however, to provide notice to thirty-three additional First Nations, including the ACFN. TransCanada shared information with respect to the Project and the regulatory process and consulted with the ACFN, funding a study relating to the Project.

Subsequently the ACO submitted its final report [“Decision”] to the Alberta Energy Regulator [“AER”], the decision-maker responsible for approving the construction and operation of the Project. It stated that consultation with the ACFN was not required with regard to the Project. The basis for the Decision was that the Project was outside the geographic area in which the ACO ordinarily requires consultation with the ACFN. The ACO advised that the ACFN was aware of its consultation area. If it wished to modify the area, the appropriate approach was through the GeoData Mapping Project, a cross-ministry initiative whose goal is to create standardized maps, continually updated with contributions from First Nations, of the areas in which First Nations exercise their treaty rights. The purpose of the maps is to provide assistance in determining whether a given project might adversely affect a First Nation’s treaty rights and, therefore, whether the Crown owes a duty to consult.

The AER decides whether to approve pipeline projects such as the Project. The Crown is represented by the Minister of Aboriginal Relations and the ACO is a branch of the Ministry established under the Government of Alberta’s Policy on Consultation with First Nations on Land and Natural Resource Management, 2013. The purpose of the ACO is to manage the consultation process for the Crown and to bring consultation matters under one Ministry, rather than several. It is the ACO’s responsibility to provide advice to the AER on the adequacy of such consultations.

The chambers judge correctly declared that the ACO has authority to decide whether the Crown’s duty to consult has been triggered. The duties of a Minister are normally exercised under the authority of the Minister by responsible officials of a department. Public business could not be carried on if that were not the case. Constitutionally, the decision of such an official is, of course, the decision of the Minister (Carltona Ltd v Commissioner of Works, [1943] 2 All ER 560 (CA)).

Treaty 8 is one of the most important of the post-Confederation treaties. Made in 1899, the First Nations who lived in the area surrendered to the Crown 840,000 square kilometres. The ACFN submits that Treaty 8 gives its members the right to hunt, trap and fish “throughout the tract surrendered excepting such tracts as may be required or taken up from time to time for settlement, mining, lumbering, trading or other purposes”. Therefore, whenever there is a taking up of land anywhere in the land surrendered in Treaty 8, this reduces the available land to Treaty 8 First Nations for hunting, trapping and fishing, and triggers the duty to consult. Any taking up of land triggers the duty.

This dispute is about the meaning of adverse effect. The ACFN’s position is that any taking up of Treaty 8 land automatically has an adverse effect on Treaty 8 rights because it reduces the total land in the Treaty area available to First Nations to exercise those rights. The Crown’s position is that a further step is required to determine if the taking up has, or potentially has, an adverse effect on ACFN’s treaty harvesting rights. The Court agrees that a contextual analysis is required. The signatories to Treaty 8 understood that land would be “taken up” when it was put to a “visible use that was incompatible with hunting” (R v Badger, [1996] 2 CNLR 77). This implies a certain degree of relationship between the taking up and the impact on the First Nation. It cannot be presumed that a First Nation suffers an adverse effect by a taking up anywhere in the treaty lands. A contextual analysis must occur to determine if the proposed taking up may have an adverse effect on the First Nation’s rights to hunt, fish and trap. If so, then the duty to consult is triggered.

Taseko Mines Limited v Tsilhqot’in National Government, 2019 BCSC 1507

Interlocutory injunction granted in favour of the Tsilhqot’in Nation against Taseko Mines Limited work permit, on the basis that it infringes their Aboriginal rights.

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Taseko Mines Limited [“Taseko”] applied to prohibit members of the Tsilhqot’in Nation [“Tsilhqot’in”] from blockading its access to an area where the mining company wants to carry out an exploratory drilling program [“NOW program”]. Taseko has access pursuant to a notice of work permit [“NOW permit”] issued under the Mines Act. That application is now moot since the Court decided Tsilhqot’in’s application will succeed for an injunction prohibiting Taseko from carrying out its NOW program until the Tsilqot’in’s underlying claim to quash the NOW permit is heard.

In this matter, the issue is whether granting Tsilqot’in the interim injunction prohibiting Taseko from undertaking the NOW program would amount to a final determination of the action, which would effectively remove any benefit of proceeding to trial. The NOW permit will expire in July 2020, and if Taseko is enjoined until the action is heard, it is very unlikely the trial could be completed in time to for the 4-6 weeks required to complete the NOW program. In the Court’s view, the extension is essentially mechanical and concludes that Taseko will have until July 2022 to complete the NOW program, because Taseko can extend the NOW permit by two years under s 5(1) of the Permit Regulation.

Issues pertaining to infringement and justification, which will be the focus of the trial, are not new to the parties. Because some of the factual and legal elements have been argued before different courts for years, the discovery process will not be as time consuming as it would be if the issues were new to the parties. Based on the evidence and submissions before the Court, if the parties prioritize the matter, the timeline should be adequate to prepare for trial. The injunction is not tantamount to granting relief nor is it bound to impose a hardship removing any benefit of trial. The threshold merits test is the serious question to be tried standard (R v Canadian Broadcasting Corp, 2018 SCC 5). This threshold is relatively low as a prolonged examination of the merits is generally neither necessary nor desirable (RJR-MacDonald Inc  v Canada, [1944] 1 SCR 311).

It was determined that given the nature of the harm to the Tsilhqot’in, and the waiving of the undertaking as to damages, there was a material risk of irreparable harm to both parties. When there is a risk of both parties suffering a material risk of irreparable harm, the court should favor the status quo (AG British Columbia v Wale (1986), 9 BCLR (2d) 333 (CA)). It was determined that the NOW program would change the status quo as it would disturb the land. The Tsilhqot’in stand to suffer greater irreparable harm if the injunction is not granted. Despite that the Tsilhqot’in pursued a self-help remedy of a blockade outside the courts, the imperative of reconciliation was such that the balance of convenience was in the Tsilhqot’in’s favour.

Fort McKay Métis Community Association v Alberta Energy Regulator, 2019 ABCA 15

Permission to appeal denied. The Fort McKay Métis Community Association expressed fears about the potential impact of a project on their Aboriginal rights. It is yet to be answered whether such subjective fears interfere with an undefined Aboriginal right.

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The Fort McKay Métis Community Association (Fort McKay Métis) applied for permission to appeal a decision of the Alberta Energy Regulator (AER) that approved Prosper Petroleum Ltd.’s (“Prosper”) oil sands project (the “Project”). The Fort McKay Métis asserts that it has Métis Aboriginal rights to harvest for food in its community and traditional harvesting area and that the Project would adversely affect these constitutionally protected rights. The Project would be located near and operate within part of the Fort McKay First Nation’s reserves. Prosper applied to the AER for approvals in 2013 so it could proceed with the Project under the Oil Sands Conservation Act, the Environmental Protection and Enhancement Act, and the Water Act, which was granted. The Project, however, still needs Cabinet approval, and at the time of this current application, it has not yet been issued.

The AER found the Project to be in the public interest and was consistent with statutory objectives of protecting the environment and promoting sustainable resource development while considering economic growth. It approved the Project on the condition that Prosper will seek input from the Fort McKay Métis with respect to reclamation. The AER found the fear of contamination and other potential impacts to Métis Aboriginal rights was genuine, but implicitly not justified. The content of an Aboriginal right is a legal issue. The AER has a legal obligation to carry out its regulatory responsibilities in a manner consistent with s 35 of the Constitution Act, 1982 (Chippewas of the Thames First Nation v Enbridge Pipelines Inc, [2017] 3 CNLR 45 (“Chippewas”)). The regulator must consider Aboriginal rights “as rights, rather than as an afterthought to the assessment” (Clyde River (Hamlet) v Petroleum Geo-Services Inc, [2017] 3 CNLR 65 (“Clyde River”)). None of the applicant’s authorities supported the view that genuine fears about the effects of the Project, which are not objectively reasonable, are sufficient by themselves to constitute interference with a right protected under s 35 of the Constitution Act, 1982. An independent regulatory agency’s approval of an energy project could trigger the Crown’s duty to consult Aboriginal groups whose treaty and Aboriginal rights might be adversely affected by the project, and this agency could fulfill the Crown’s duty to consult on its behalf (Clyde River; Chippewas).

Pictou Landing First Nation v Nova Scotia (Aboriginal Affairs), 2018 NSSC 306

Application granted. A potential for adverse impact suffices to trigger the duty to consult. Although the question is open on whether “government conduct” attracting the duty to consult includes the legislative process, the doctrine does extend to strategic, higher level decisions that may have an impact on Aboriginal claims and rights.

Wiyasiwewin Mikiwahp Native Law Centre

Located at Abercrombie Point, Pictou County, is a bleached kraft pulp mill (“the mill”) that is owned and operated by Northern Pulp Nova Scotia Corporation (“Northern Pulp”). The Boat Harbour Act(“BHA”), provides that the use of the mill must cease on January 31, 2020. Northern Pulp, however, is in the planning stages to apply for an Environmental Assessment (“EA”) (Environmental Act) for the design, construction and operation of a new Effluent Treatment Facility (“ETF”), otherwise the current ETF must be closed as required by the Act. The Province is currently in active consultation with the Pictou Landing First Nation (“PLFN”) regarding this application and has confirmed $70,000.00 in capacity funding to support PLFN’s meaningful participation in that process. The Province has disclosed it is also engaged in confidential discussions directly with Northern Pulp regarding potential Crown funding to support construction of the new ETF (“Potential Crown Funding”), but no such decision has yet been made.

PLFN applied for judicial review of a decision by the office of Provincial Minister of Aboriginal Affairs to deny consultation with respect to the issue of whether the Province may fund the construction of a new EFT. PLFN took the position that any such Potential Crown Funding by the Province is a separate decision that triggers an independent duty to consult with the PLFN, as this decision will have the effect of continuing the operation of the mill beyond the 2020 deadline. It could further impact the asserted rights and interests of the PLFN, but the Province disagrees that any form of Potential Crown Funding would trigger an independent duty to consult with the PLFN, as it does not meet the established legal test. There is yet no additional or potential adverse impact on the PLFN’s rights and interests.

The Court concluded upon the facts that: 1) the current ETF is an integral part of the current operation of the mill as a whole; 2) that the current ETF must close no later than January 31, 2020; 3) that the new ETF which will replace the existing facility will be integral to the continued operation of the mill beyond the deadline, and it must replace those functions discharged by the current ETF; 4) each additional potential source of funding that is available for the project makes it more likely that the new ETF project will happen; and 5) that as a consequence of a Provincial decision to fund the project, even if it is not the only potential source of funding, it would make it more likely that the mill will remain open.

An application for judicial review is the appropriate mechanism by which to seek a determination as to whether there has been a breach of the duty to consult. The Court, however, is not being asked to review a completed process of consultation replete with an extensive activity record. This would ordinarily trigger the application of a standard of reasonableness. But in these circumstances, the extant case law frames the applicable standard of review as one of correctness. Either the duty to consult exists or it does not (Mi’kmaq of Prince Edward Island v Prince Edward Island [2018] PESC 20). The duty to consult is triggered at a low threshold, but it must remain a meaningful threshold. There must be some appreciable or discernible impact flowing from the impugned Crown conduct before a duty to consult will arise. This is both logical and practical because there has to be something for the Crown and the Aboriginal group to consult about. It is conceivable that the Crown may proceed after consultation with a new ETF against the strong opposition of PLFN. But if it did, there becomes an issue of compatibility with the honour of the Crown. “Meaningful consultation” requires a “meaningful effort by the government to act in a manner that is consistent with the honour of the Crown in that particular context” (Mikisew Cree First Nation v Canada (GGC), [2019] 1 CNLR 277 (SCC)).

A potential for adverse impact suffices to trigger the duty to consult as it extends to strategic, higher level decisions that may have an impact on Aboriginal claims and rights (Rio Tinto Alcan Inc v Carrier Sekani Tribal Council, [2010] 4 CNLR 250 (SCC)). As to what constitutes an “adverse effect”, the claimant must show a causal relationship between the proposed government conduct or decision and a potential for adverse impacts on pending Aboriginal claims or rights. Although there is a generous, purposive approach to this element, past wrongs, including previous breaches of the duty to consult, and speculative impacts does not suffice to be an adverse effect (R v Douglas, [2007] 3 CNLR 277 (BCCA)). The adverse effect must be on the future exercise of the right itself, but an adverse effect on a First Nation’s future negotiating position also does not suffice. Adverse impacts extend to any effect that may prejudice a pending Aboriginal claim or right. Often the adverse effects are physical in nature, however, it could also be in connection with what constitutes Crown conduct, high-level management decisions or structural changes to the resource’s management, even if these decisions have no immediate impact. This is because such structural changes to the resources management may set the stage for further decisions that will have a direct adverse impact on land and resources.

The Province’s interest as lender funding the new ETF will undoubtedly influence “higher level” strategic decision making. If the Province is to become the lender, not only is it providing the means by which the ETF will be built, but it will have an interest to ensure that the mill will continue to remain in operation into the future so as to at least recover the taxpayers’ investment. Separation of the potential funding issue would result in the loss of an opportunity for the two sides to discuss whether the financing, if it was to be provided by the Province, should or could be tied into a system of penalties or rewards for achieving, or failing to achieve, proposed emission or effluent discharge targets. This may, potentially, impact upon the likelihood that these targets would be attained. The bifurcation of issues of the “design and construction” from the “actual funding” of the ETF, artificially compartmentalizes a process which should be treated more holistically.

Mikisew Cree First Nation v Canada (Governor General in Council), 2018 SCC 40

By Daniel Quainoo and Benjamin Ralston

The honour of the Crown is engaged in the development of legislation but not the Crown’s duty to consult

In Mikisew Cree the Supreme Court of Canada considered the question of whether the Crown’s duty to consult and accommodate Aboriginal peoples extends to the legislative process. Mikisew Cree First Nation sought a declaration acknowledging the role of ministers in developing policy for the formulation of legislation as “Crown conduct” that triggers the Crown’s duty to consult and accommodate. The Court also addressed whether s.18 of the Federal Courts Act provides the Federal Court with jurisdiction to review matters engaging the law-making process and whether enabling courts to review legislative processes would be in keeping with Canada’s constitutional order. While the Court was unanimous in deciding that the Federal Court lacked the jurisdiction to consider the question under s.18 of the Federal Courts Act, it was divided as to whether an executive actor could be said to have a duty to consult while participating in the legislative process and why.

In the result, a 7-2 majority of the Supreme Court of Canada ruled that the Crown’s duty to consult and accommodate Aboriginal peoples does not apply to any stage in the legislative process. At the same time, a 5-4 majority of the Supreme Court of Canada concluded that the constitutional principle of the honour of the Crown applies to legislative processes even if these justices disagreed over whether the duty to consult was the appropriate means to uphold the principle in this context.

Karakatsanis J, writing the judgment for herself, Wagner CJ and Gascon J, held that the duty to consult cannot apply to the law-making process as this would contradict the constitutional principles of the separation of powers, parliamentary sovereignty and parliamentary privilege. She added that as a matter of pragmatism, imposing a duty to consult on the policy development stage of the legislative process could limit the possibility of meaningful accommodation since a proposed bill can be freely amended once introduced into Parliament. It would also lead to incongruous treatment of private member bills that do not involve any comparable Crown conduct to trigger the duty. Karakatsanis J concluded that the duty to consult doctrine is ill-suited to be applied directly to the law-making process.

At the same time, Karakatsanis J held that the constitutional principle of the honour of the Crown applies to the law-making process and that it would undermine the endeavour of reconciliation to allow the Crown to use legislation to circumvent its duty to consult and accommodate Aboriginal peoples. She pointed out the Ross River decision of the Yukon Court of Appeal where it was stated that legislation will be unconstitutional to the extent that it prevents meaningful consultation and accommodation from occurring. Karakatsanis J left open the possibility of other remedies for breaches of the honour of the Crown in the legislative context and suggested that the extent of any consultation may be a relevant consideration to other forms of recourse.

Brown J affirmed the conclusion that the constitutional principles of the separation of powers and parliamentary privilege prevent the judiciary from applying the duty to consult to the law-making process. He also opined that Crown conduct necessarily excludes parliamentary functions of the state and thus these functions cannot be subject to a duty to consult. Finally, he indicated that by leaving open the possibility that there may be other doctrines developed to enable review of the legislative process, even in the absence of a successful claim that Aboriginal or treaty rights have been unjustifiably infringed, the judgment written by Karakatsanis J undermines the conclusion that constitutional powers prevent judicial review of the legislative process. He stated that this position leaves the law in a state of considerable uncertainty and invites Aboriginal peoples to return to the courts to identify what “other form of recourse” might be available as an alternative to the duty to consult in the legislative context.

Writing for himself along with Moldaver and Cote JJ, Rowe J affirmed the arguments articulated by Brown J, and elaborated on three further points. First, he indicated that Aboriginal claimants continue to have remedies pursuant to the SparrowHaida and Rio Tinto decisions once legislation is enacted. Second, he outlined how the recognition of the duty to consult in the legislative process could be disruptive to the legislative process and pointed to numerous questions that are raised by imposing a duty of consultation on legislatures. Finally, he argued that providing the Mikisew Cree with the declaration they sought would demand that courts become interventionist in a manner that is not in keeping with the principle of separation of powers.

Abella and Martin JJ articulated a different vision for the judicial review of the legislative process. Writing for both Martin J and herself, Abella J held that any consideration of the duty to consult must begin with the Honour of the Crown and the overriding goal of reconciliation. In that light, she stated that the Court must reconcile the need to protect the legislative process from judicial interference with the need to protect Aboriginal rights within the legislative process. Abella J acknowledged that recognizing the honour of the Crown and duty to consult in this context may impact the legislative process, but held that the need for adjustments could not justify the erasure of constitutionally mandated rights. She noted that section 35 was recognized as a constitutional limit on the exercise of parliamentary sovereignty in the Sparrow decision and objected to parliamentary sovereignty now being used as a shield to prevent a claim for consultation. Abella J’s reasons highlight the essential role that the honour of the Crown and the duty to consult play in reconciling Aboriginal and Crown sovereignty. Abella and Martin JJ reasoned that the courts ought to play a role in evaluating whether legislative processes are in keeping with the special relationship between Indigenous peoples and the Crown.

The full reasons of the Supreme Court of Canada can be found here and a short summary is provided here.