Nunatsiavut Government v Newfoundland and Labrador, 2020 NLSC 129

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

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

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

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

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

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

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

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

West Moberly First Nations v British Columbia, 2020 BCCA 138

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

‘Namgis First Nation v Mowi Canada West Ltd and Canada (Fisheries, Oceans and Coast Guard), 2020 FCA 122

Application allowed. There were concerns from a First Nation involving a salmon farming licence after learning of new scientific evidence regarding potential spread of disease. A novel adverse impact that arises since an original consultation, creates a fresh duty to consult.

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‘Namgis First Nation’s traditional territory is at the north end of Vancouver Island and includes a number of the adjacent islands, including Swanson Island, which lie between Vancouver Island and the mainland. A number of distinct wild salmon populations are found in this area. These populations are critically important to ‘Namgis for food, social and ceremonial purposes. Mowi operates an open net salmon facility adjacent to Swanson Island. That facility has been there since the early 1990’s and has been stocked with salmon during that period except for fallow periods between harvesting and restocking.

Restocking open-net facilities is at the heart of this litigation because there is an uncircumscribed risk of introducing disease agents into the waters used by wild salmon. That risk arises from the transfer of immature salmon, or smolts, from inland fish stations to the open-net aquaculture facilities. If disease-bearing fish are introduced into these waters and if those diseases spread to the wild salmon stocks, the results could be calamitous and perhaps irreversible.

‘Namgis First Nation appeals from the decision of the Federal Court dismissing its application for judicial review of the Minister of Fisheries and Oceans’ [“Minister”] decision to issue a Salmonid Introductions and Transfer Licence [“Licence”] to Mowi Canada West Ltd. [“Mowi”]. The Federal Court had before it three separate but closely related applications for judicial review which it dealt with in one set of reasons (Morton v Canada (Fisheries and Oceans), 2019 FC 143).

All three applications revolved around two risk factors for wild Pacific salmon in ‘Namgis’ asserted territory. The first is Piscine Orthoreovirus [“PRV”], a highly infectious virus that is known to be present in Canada. PRV is found in both farmed and wild salmon in British Columbia. The second is Heart and Skeletal Muscle Inflammation [“HSMI”] which is an infectious disease found in farmed Atlantic Salmon and has appeared in one aquaculture facility in British Columbia. ‘Namgis is convinced that PRV and HSMI pose a threat to the wild salmon stocks which it relies on for food, social and ceremonial purposes. The Minister views the threat level as very low. The science as to the relationship between these two threats, their prevalence, and the risk they pose to wild (as opposed to farmed) salmon is evolving.

Given the history of consultation between these parties, the issue is not whether there is a duty to consult in the abstract but rather whether a fresh duty to consult arose. The Federal Court’s reasoning does not address the question of whether a novel adverse impact had arisen since the original consultation, which would create a fresh duty to consult.

The third element required in the test for a duty to consult calls for a generous, purposive approach recognizing that Crown action has the potential to irreversibly affect Aboriginal rights (Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73; Rio Tinto Alcan Inc v Carrier Sekani Tribal Council, 2010 SCC 43 [“Rio Tinto”]). The adverse affect cannot be merely speculative, and it must be relevant to the future exercise of the Aboriginal right. The assessment of the duty to consult is forward looking. Prior and continuing breaches, including prior failures to consult, will only trigger a duty to consult if the present decision has the potential of causing a novel adverse impact on a present claim or existing right (Rio Tinto).

The science around PRV and HSMI is rapidly evolving so that it was not specifically covered in the original consultations concerning fish health. The risk of harm to the native salmon stocks may be greater than the Minister previously contemplated, thus the finding of a novel adverse impact.

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

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

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

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

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

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

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

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

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

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

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

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

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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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.

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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.

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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.