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.

Indigenous Law Centre – CaseWatch Blog

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.

Neshkiwe v Hare, 2020 ONCJ 42

Motion granted for the M’Chigeeng First Nation to be added as a party to the proceedings in keeping with the best interests of the child. This matter will eventually involve constitutional questions surrounding the children’s custody.

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CaseWatch Blog

Following the parent’s separation, an Indigenous mother left Toronto with her two children. Shortly after the father, who is also Indigenous but from a different community than the mother, launched an ex parte motion for temporary custody, that was granted. The ex parte motion ordered the children’s return to Toronto and for police assistance from various police forces to enforce this Court’s order. The mother and M’Chigeeng First Nation [“MFN”] advised the Court they intended to challenge the Court’s jurisdiction to make any orders for custody or access, asserting exclusive jurisdiction of the children.

In the meantime, the Court’s ex parte Order had not been followed. The father initially only served the Order for enforcement on UCCM Anishnaabe Police Service [“UCCM”] and did not serve it on OPP until the term for police enforcement was about to expire. The mother nor the MFN had prepared Notices of Constitutional Questions, while still raising a challenge and taking steps outside the Court consistent with that position. On December 5, the Court directed all Constitutional Question were to be served and filed before December 19 and granted leave to MFN to bring a motion to be added as a party to this proceeding. The enforcement term was stayed on a without prejudice basis.

MFN is asserting exclusive jurisdiction of the children. Both the mother and the MFN have advised the Court that they intend to challenge the Court’s jurisdiction to make any orders for custody or access. They anticipated advancing this claim based on an existing Aboriginal and Treaty right under s 35 of the Constitution Act, 1982. However, neither has been pleaded, nor any Notices of Constitutional Question been served or filed. The mother also took the position that the Court lacked jurisdiction based on the application of an existing By-Law and a Band Council Resolution, both of which had been passed by the MFN, as an alternative legal basis from the anticipated section claims.

Until such arguments could be sorted out, a practical problem unfolded that still exists. The mother indicated to the Court that she would not comply with the Court’s Order. The MFN prohibited the father from coming onto its territory. UCCM refused to enforce the Order, as it had been instructed by the MFN to act in that fashion. The OPP, however, would enforce the Order, but brought the Court’s attention to certain potential negative consequences for the Court to consider. It was suggested to suspend the operation of the police enforcement term until the legal questions are resolved.

The Court has issued another Endorsement containing further directions for the conduct of this case and has asked that a litigation plan be presented. Regarding the police enforcement term, the Court stayed enforcement, which was about to expire anyway, on a without prejudice basis.

The overarching consideration in deciding to add the MFN as a party to the proceedings was in keeping with the best interests of the children. It was not seriously disputed that the First Nation should be added as a party. The s 35 claims have both individual and collective aspects to them. Adding the First Nation to the proceedings was also in the best interests of the children as they have a position to take and to offer evidence surrounding these particular children. Lastly, they have a legal interest. Once that position has been clarified after a full hearing, then they may call into question the Court’s jurisdiction.

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.

Siksika Health Services v Health Sciences Association of Alberta, 2019 ABCA 494

Appeal dismissed. The chambers judge did not err in denying judicial review and affirming the decision of the Alberta Labour Relations Board in accepting jurisdiction over labour relations issues involving the parties.

Indigenous Law Centre
Indigenous CaseWatch Blog

The appellant [“Employer”] appeals the chambers judge’s decision denying judicial review and affirming the decision of the Alberta Labour Relations Board to accept jurisdiction over labour relations issues involving the parties.

The specific operation of Siksika Emergency Medical Services [“SEMS”] is governed by an agreement between the Employer and Alberta Health Services, the provincial health authority. SEMS provides emergency medical services based in the First Nation in accordance with provincial regulation in return for monthly provincial payments. The Employer is also able to direct bill patients for services. The agreement between Alberta Health Services and Siksika Health Services Corporation [“Agreement”] includes the following policy and interpretive statement: “The parties acknowledge the historical and contemporary importance of the treaties to the relationship between the Crown, Canada and Siksika Nation. It is intended that nothing in this Agreement shall have the effect of, or be interpreted as, limiting or expanding any fiduciary relationship between Canada and the First Nations people.”

The respondent [“Union”] was not a party to the Agreement but the Union did not challenge this background philosophy. In this respect, both Canada and the province are expected to live up to the honour of the Crown in their dealings with Treaty and Aboriginal rights. The Union sought certification as the bargaining agent for all ambulance attendants employed with SEMS.

The Employer takes the position that all of the workers in SEMS and under its authority are performing tasks which amount to carrying out a federal undertaking respecting the supply of health and medical services to the people covered by the Treaty and to the First Nation. As such, the Employer argues that it is a federally regulated employer and any labour matters should be dealt with under federal rather than provincial legislation. The Board and the chambers judge had found otherwise.

The role of this Court is to step into the shoes of the chambers judge when it comes to reviewing the decision of the Board (Agraira v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36). A court must first apply the functional test to examine the nature, operations and habitual activities of the entity to see if it is a federal undertaking. If so, its labour relations will be federally regulated. Only if this inquiry is inconclusive should a court proceed to an examination of whether provincial regulation of the entity’s labour relations would impair the core of the federal head of power at issue (NIL/TU,O Child and Family Services Society v BC Government and Service Employees’ Union, [2010] 4 CNLR 284 [“NIL/TU,O”]).

The chambers judge concluded that the functional analysis in NIL/TU,O did not support the Employer’s position and dismissed the application for judicial review. It was concluded that the Board correctly found that the presumption of provincial regulation of labour relations was not rebutted in this case and that the Board correctly determined it had jurisdiction over the Union’s certification application.

The Employer argues that because the Indian Act included certain provisions related to the medical and health services for the First Nation, then Parliament had made “provision” for the subject of medical and health services for the First Nation. The Employer said the duty of Canada to provide medical and health services to the First Nation could in part be derived from the “medicine chest” reference in Treaty No 6. That concept has evidently been accepted by Canada as influencing the promises to “take care of you” in the development of Treaty No 7 governing the lands in Alberta where this First Nation is located. The Employer referred to the language of Treaty No 7, which attracts a liberal reading in relation to the promises made to Aboriginal people as re-affirmed by s 35 of the Constitution Act, 1982.

The Court’s role on this appeal of a judicial review decision is restricted to determining whether the chambers judge erred and whether the Board erred in taking jurisdiction to the extent that it did so. This Court will not express any opinion beyond a legality determination respecting what the Board did, let alone express any policy perspective on any aspect of the ongoing effort to achieve social and legal reconciliation of Canadian society with Indigenous peoples.

The Court found no error in the chambers judge conclusion that the Employer’s position was without merit after applying the functional analysis in NIL/TU,O. Funding by Canada alone would not constitute direction of the work being done. The Agreement sets standards and links the service to compliance with laws and guidance applicable otherwise to similar medical and health services in Alberta.

Application of the functional test to the facts found here does not lead to the conclusion that SEMS is a federal undertaking under NIL/TU,O. Section 88 of the Indian Act extends provincial laws to Indians ex proprio vigore except to the extent those laws impair “the status and rights of Indians” (NIL/TU,O). The provision of medical and health services to members of the First Nation arises from their position as human beings, not from any specific ethnicity. While the duty of Canada to Aboriginal people is more general, the specific topic of medical and health services for Indigenous peoples is to their benefit as people living in Alberta. The Employer has not shown that the application of provincial labour relations laws to the SEMS work force impairs in any serious sense the “status or rights of Indians”.

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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Indigenous CaseWatch Blog

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.

Native Law Centre CaseWatch Blog

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.

Ross River Dena Council v Yukon, 2019 YKSC 26

Application dismissed. Yukon has engaged in “deep consultation” with the RRDC in respect to wildlife matters. There has been no breach of the duty to consult, and where appropriate, to accommodate.

Native Law Centre CaseWatch Blog

Ross River Dena Council [“RRDC”] applied pursuant to Rule 31(6) of the Rules of Court, for the following order: 1) A declaration that the issuance of hunting licences and seals might adversely affect the Aboriginal title of the RRDC members in and to the Ross River Area by permitting conduct in that Area inconsistent with Aboriginal title; 2) A declaration that the Government of Yukon has a duty to consult with, and where indicated, accommodate the RRDC prior to issuing hunting licences and seals; and 3) A declaration that, in respect of each of the 2016/2017, 2017/2018 and 2018/2019 hunting seasons, the Government of Yukon failed to consult with and, where indicated, accommodate the RRDC prior to issuing hunting licences and seals. The Government of Yukon [“Yukon”] opposed the application and relied on RRDC v Yukon, 2015 YKSC 45 [“RRDC 2015 wildlife case”], where this court refused to grant a declaration of a constitutional duty to consult on wildlife matters as it was unnecessary when Yukon was ready, willing, and able to negotiate and consult on wildlife matters as set out in Haida Nation v British Columbia (Minister of Forests), [2005] 1 CNLR 72 [“Haida Nation“].

The context and content of Yukon’s duty to consult with RRDC in wildlife matters required a consideration of the previous decisions. In Ross River Dena Council v Yukon, 2012 YKCA 14 the Court of Appeal recognized that the Yukon had a duty to consult with RRDC in determining whether mineral rights on Crown land within lands compromising the Ross River Area are to be made available to third parties. Further, that Yukon has a duty to notify, and where appropriate, consult with and accommodate RRDC before allowing any mining exploration activities to take place within the Ross River Area. In the RRDC 2015 wildlife case, it was concluded that the Haida Nation test for the duty to consult, had been met.

After reviewing the principles set out in Haida Nation, there were a number of reasons why deep consultation was required by Yukon. First, in Ross River Dena Council v Canada (Attorney General), 2019 YKCA 3, the Court of Appeal confirmed the constitutional obligation in the Rupert’s Land and North-Western Territory Order (UK) which was important for the case at bar to recognize the historic and legal nature of the RRDC claim to title and its application to Yukon. Second, there have been significant impacts on the RRDC traditional territory ongoing for at least 50 years. Third, Yukon and the RRDC have been negotiating land claims on and off from 1973 to 2002 which supports the strength of the claim as negotiations would only proceed on the understanding that there was an asserted but as yet undefined underlying claim to title. Fourth, the strength of the claim was enhanced by the lands set aside, on an interim basis, for settlement purposes. Last, the comprehensive nature of the Framework for a Government-to-Government Agreement between representatives of the Kaska Nation, including RRDC.

RRDC was at the claim stage of asserting Aboriginal title. Yukon had consulted extensively with RRDC representatives through sharing the harvest results, the population surveys, and discussing wildlife management issues. Yukon had further provided RRDC with notification of planned wildlife initiatives; shared specific wildlife data and information; and provided funding to RRDC to participate in discussions and negotiations. RRDC had acknowledged the correspondence. While RRDC believes that the entire Ross River Area should be a permit hunt area, Yukon saw this as a way to limit hunting access rather than a useful wildlife management tool. It must be remembered that failure to agree does not necessarily result in a breach of the duty to consult. Yukon was also prepared to continue discussing the proposal. After responding to concerns from RRDC indicating a decline in the Finlayson Caribou Herd, Yukon closed the permit hunt for the Finlayson Caribou Herd and set the outfitter quota to zero for the 2019/2020 hunting season which was seen as significant accommodation. For these reasons, there had been “deep consultation” with RRDC with respect to wildlife matters and no breach of the duty to consult, and where appropriate, to accommodate. RRDC’s application was dismissed.

R v Desautel, 2019 BCCA 151

Appeal dismissed. The Respondent is not prevented from claiming an Aboriginal right to hunt in British Columbia pursuant to s 35 even though he resides in the United States of America.

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Richard Desautel was charged under the Wildlife Act after hunting an elk without a license in the Arrow Lakes area of British Columbia. He admitted the actus reus but asserted that he has a s 35 Aboriginal right to hunt in the territory despite being a citizen of the United States of America [“USA”]. Mr. Desautel has never resided in British Columbia but is a member of the Lakes Tribe of the Colville Confederated Tribes in Washington State. His Sinixt ancestors had occupied territory above and below the 49th parallel, including the area in which he was hunting. At the time of contact with Europeans, they hunted, fished, and gathered throughout their territory.

Does the meaning of the phrase “the Aboriginal peoples of Canada” in s 35(1) of the Constitution Act, 1982 include only Aboriginal peoples who are resident or citizens of Canada, or also Aboriginal peoples whose ancestors occupied territory that became Canada? S 35 is directed towards the reconciliation of pre-existing Indigenous societies with the assertion of Crown sovereignty. A practice, custom, or tradition that is central and significant to the distinctive culture of an Indigenous society pre-contact that has not been voluntarily surrendered, abandoned, or extinguished, may be exercised by Indigenous members of modern collectives if they can establish that: 1) the modern collective is descended from the historic collective that exercised the practice, custom or tradition in that territory; and 2) there has been continuity between the practice of the modern collective with the practice of the historic collective pre-contact (R v Van der Peet, [1996] 4 CNLR 177 [“Van der Peet”]).

S 35(1) provides the constitutional framework to acknowledge the fact that Aboriginals lived on the land in distinctive societies, with their own practices, traditions and culture and to reconcile this with the sovereignty of the Crown. The burden of proof was on Mr. Desautel to establish the Aboriginal right claimed and a prima facie infringement of that right (R v Sparrow, [1990] 3 CNLR 160 [“Sparrow”]). The meaning and scope of s 35(1) is derived from the general principles of constitutional interpretation relating to [A]boriginal rights, and the purposes behind the constitutional provision itself. Sparrow also requires that s 35(1) be construed in a purposive way and that the words in s 35(1) be afforded a generous, liberal interpretation. Further, in Van der Peet it was instructed that the courts take into account the perspective of the Aboriginal peoples claiming the right and any doubt or ambiguity as to what falls within the scope of s 35 must be resolved in their favour. Applying the Van der Peet test, the concept of continuity must have a necessary connection between the historic collective and the modern-day community. Therefore, claimants who are resident or citizens of the USA can be “Aboriginal peoples of Canada” where they can establish the requirements set out in Van der Peet.

Courts adjudicating Aboriginal rights claims must be sensitive to the Aboriginal perspective, but also aware that Aboriginal rights exist within the general legal system of Canada. The time period integral to the Aboriginal community claiming the right is the period prior to contact. Where an Aboriginal community can demonstrate that a particular practice, custom or tradition has continuity with those of pre-contact times, that community will have demonstrated that the practice, custom or tradition is an Aboriginal right for the purposes of s 35(1). The concept of continuity is the means by which a “frozen rights” approach to s 35(1) will be avoided. Continuity does not require evidence of an unbroken chain of continuity. Aboriginal rights are constitutional rights, but that does not negate the central fact that the interests that the rights are intended to protect, relate to the specific history of the group claiming the right. Aboriginal rights are not general and universal as their scope and content must be determined on a case-by-case basis. The existence of the right will be specific to each Aboriginal community.

Mr. Desautel’s right to hunt in the traditional territory of his ancestors in that geographical area were never voluntarily surrendered, abandoned or extinguished. This Court will not modify the Van der Peet test to add a geographic requirement that would prevent members of Indigenous communities, who may have been displaced, from the opportunity of establishing their Aboriginal rights in areas their ancestors had occupied pre-contact. This matter is distinguishable from R v Powley, [2003] 4 CNLR 321 [“Powley”] where in order to accommodate the unique history of the Métis communities that evolved post-contact, the time period analysis in Van der Peet was focused on pre-European control. Powley requires an Aboriginal rights claimant to be a member of a contemporary community in the geographic area where the right was exercised. It is also distinguished from R v Bernard, [2018] 1 CNLR 79, where a Mi’kmaq member of the Sipekne’katik First Nation in New Brunswick was charged with contravening the Fish and Wildlife Act, for hunting deer. The trial judge found Mr. Bernard had failed to establish that he was a member of a modern collective descended from the original rights-bearing Mi’kmaq community that hunted at the mouth of the St. John River. Unlike Mr. Bernard, Mr. Desautel has established a connection to the historic community that hunted in the traditional territory where the claimed Aboriginal right was exercised.

It has been determined that there is continuity of the practice of hunting in the area where Mr. Desautel shot the elk. Members of the Lakes Tribe are the modern-day successor collective of the Sinixt peoples and Mr. Desautel was exercising his lawful Aboriginal right to hunt for ceremonial purposes in the traditional territory of his Sinixt ancestors, pursuant to s 35(1). The issues raised by the Crown regarding the Lakes Tribe’s legal status in the USA, or the extent of any potential duty to consult and accommodate, raises ancillary questions that, in the Court’s view, are not material to the central issue.

Her Majesty the Queen v Boyer, 2018 SKPC 70

The Métis are not included in the term “Indians” in the NRTA under paragraph 12. To harvest for food pursuant to s 35 (1) of the Constitution Act, 1982, there must be an ancestral connection to an historic Métis community in the areas that the defendants were charged for harvesting, before Europeans established effective control.

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Three Métis defendants, Mr. Boyer, charged with unlawfully fishing, and Mr. Myette and Mr. Poitras, charged with unlawfully hunting for food, invoked their Aboriginal rights to harvest for food pursuant to s 35(1) of the Constitution Act, 1982. They acknowledge that each of their offences is proven and have been tried together given the similarity of the issues. Fishing and hunting are undisputed practices integral to Métis life. Each of them claim to have Métis harvesting rights in their respective area and that they have harvesting rights as “Indians” under paragraph 12 of the Natural Resources Transfer Agreement 1930 (NRTA).

The Court found that the Métis are not included in the term “Indians” in paragraph 12 of the NRTA entered into between Saskatchewan and the Federal government. In R v Blais, [2003] 4 CNLR 219, the Supreme Court of Canada (“SCC”) held that the Métis in Manitoba were not included in the term “Indians” in the identical provision of the NRTA entered into between Manitoba and the Federal government. In Daniels v Canada, [2016] 3 CNLR 56 (“Daniels”), the SCC held that the Métis are “Indians” for purposes of s 91(24) of the Constitution Act, 1867, but it also held that a completely different interpretive exercise is involved under the NRTA. Paragraph 12 is under the heading “Indian Reserves” with paragraphs 10 and 11, that cover Canada’s Treaty obligation to create and administer Indian reserves. While the SCC’s decision in Manitoba Metis Federation v Canada, [2013] 2 CNLR 281, refers to fiduciary duty, it held Canada did not owe a fiduciary duty in its express constitutional obligation under s 31 of the Manitoba Act, 1870 to provide lands for the benefit of the Métis children in Manitoba. Canada had no express constitutional obligation to the Métis in Saskatchewan from which a fiduciary or any related legal obligation could arise and no power to include the Métis in the NRTA, a negotiated agreement, without Saskatchewan’s agreement.

It was established that all three defendants have an ancestral connection to the historic Métis community of northwest Saskatchewan (“HMCONWS”). The areas that the defendants were charged for harvesting, however, must be determined to be part of the HMCONWS. Applying the test set out by the SCC in R v Powley, [2003] 4 CNLR 321, is to determine when Europeans established political and legal control in those areas. In R v Langan, 2013 SKQB 256, the test was confirmed as being when colonial policy shifted from one of discouraging settlements to one of negotiating treaties and encouraging settlement. While it was shown that some time was spent at Pelican Lake, it was not established that a Métis community existed there prior to European effective control or was part of HMCONWS, therefore Mr. Boyer was found guilty of the offence charged. Given the proximity of Rush Lake to Green Lake, and the evidence that hunting and fishing happened in and around identified historic Métis communities, this area was found to be geographically indistinguishable from Green Lake and a part of HMCONWS, therefore, Mr. Myette is not guilty of his charge. Alcott Creek, and Jackfish Lake/Cochin, were not part of HMCONWS, resulting in finding Mr. Poitras guilty of the offence charged.