Tag Archives: Aboriginal and Treaty Rights

Petahtegoose et al v Eacom Timber et al, 2016 ONSC 2481

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Reply

Motion dismissed. The applicants have failed to meet the test for an interlocutory injunction against sustainable forest licence holders.

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The applicants that operate Camp Eagle Nest, a not-for-profit corporation, seek an interlocutory injunction preventing sustainable forest licence holders to stop immediately any cutting, road building, or aerial spraying of herbicides on lands promised for survey by treaty in the Benny area. The Camp develops and delivers arts, wilderness education and Anishnawbek cultural and spiritual training sessions that improve First Nations cultural literacy, and also delivers employment training for First Nations youth and families.

The Atikameksheng Anishnawbek First Nation [“AAFN”] Reserve is located adjacent to the city of Sudbury and is outside of the Spanish Forest. In addition to rights to hunt and fish held under the Robinson-Huron Treaty, AAFN asserts that it has traditional territory rights in the area of Benny, within the Spanish Forest. Sagamok Anishnawbek First Nation is also a party to the Robinson-Huron Treaty, and also asserts traditional territory rights in this same area.

The three part test for an interlocutory injunction is set out as follows: 1) the applicant must demonstrate a serious question to be tried; 2) the applicant must convince the court that it will suffer irreparable harm if the relief is not granted; and 3) the balance of convenience must favour the applicant (RJR-MacDonald Inc v Canada, [1994] 1 SCR 311). The remedy of an injunction is an all-or-nothing solution. Either the project proceeds or not.

By contrast, the duty to consult assists in balancing Aboriginal interests and societal interests by reconciling Crown interests with Aboriginal interests. The jurisprudence makes it clear that in disputes involving First Nation peoples and the protection of First Nation culture and heritage, there is a duty to consult and to accommodate the concerns of First Nation peoples wherever possible (Haida Nation v British Columbia (Minister of Forests), [2005] 1 CNLR 72 [“Haida”]). The Supreme Court of Canada makes it clear in Haida that the duty to consult is paramount, but not the duty to agree.

Forest management plans for the removal of timber and the sustainability of forests are created after a long process of consultation and negotiation with stakeholders and people who would be directly affected. The consultative summary submitted to the Court is detailed and extensive. In this matter, there is overwhelming evidence that the duty to consult has been met by the Ministry of Natural Resources and Forestry in attempting to accommodate the concerns of the First Nations Peoples in the Spanish Forest Management Plan in and around the area of the hamlet of Benny. Even applying a low threshold, that threshold has not been met to establish that there is a serious question to be tried.

The applicants have not been specific about the harm that they would suffer if an injunction is not granted. They spoke in terms of generalities. Generalities do not satisfy the degree of proof required to establish irreparable harm. The Court concluded on the evidence and the facts of this case that the applicants have failed to establish all three requirements for an interlocutory injunction.

Further, a First Nations band may authorize an individual to represent its interest for the purpose of asserting the rights of the band, but that was not the situation in the case at bar. The applicants were not authorized by the AAFN to represent or speak for the band in its dealings with the Ministry of Natural Resources and Forestry concerning the Spanish Forest Management Unit in or around the hamlet of Benny. On the contrary, the AAFN was very much involved in the consultative process as seen by the consultative record. The applicants asserted that as First Nations people they are entitled to be consulted separate and apart from the AAFN. The duty to consult exists to protect the collective rights of First Nation peoples and therefore the duty to consult is owed to First Nation groups as a whole and not to individual members of the band (Behn v Moulton Contracting Ltd, 2013 SCC 26).

R v Marr, 2019 NSSC 327

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Trial adjournment in order for the Respondent’s to make a Rowbotham application for state-funded counsel quashed and remitted back to the trial judge. It is insufficient to simply assert a complex constitutional defence, when the charge itself is not serious.

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The Respondents are members of the Sipekne’katik First Nation and designated to partake in the Food, Social and Ceremonial fishery for lobster, which permits the fishing of 60 lobsters per day per fisher. The Respondents were charged with two sets of offences pertaining to catching and retaining more than 60 lobsters per day, contrary to s 7 of the Aboriginal Communal Fishing Licenses Regulations. The central issue was whether the trial judge erred in finding that a Rowbotham order was necessary to ensure a fair trial in the circumstances.

The complexity arised from the proposed constitutional defence. As per the air of reality to the defence put forward by the Respondents, there had been no indication of the substance of the defence, only a bare assertion of an Aboriginal or treaty right. There was no direction of how the Aboriginal or treaty rights are allegedly violated by the charges, and therefore impossible to say there was a proposed defence that is factually and legally relevant to the charges. The court on a Rowbotham application cannot simply assume that an Aboriginal person charged with a fisheries offence might have a treaty or Aboriginal rights defence as a basis to order state-funded counsel.

Further, with the bare assertion of an Aboriginal or treaty right, the court would have no way to assess the seriousness or complexity of the proposed defence. The charges were neither serious nor complex. They were straightforward, and there was no prospect of a sentence of imprisonment upon conviction. The only source of complexity was the potential defence to charges that are not, in themselves, serious or complex. Thus, the Respondents did not meet the Rowbotham test, and as such, the trial judge erred in law in finding that a Rowbotham order was necessary to ensure a fair trial.

The Respondents submit the application must be viewed through the prism of the United Nations Declaration on the Rights of Indigenous Peoples [“Declaration”]. As the Respondents provided no argument as to why the Declaration would mandate any particular result, as well as the Declaration is not legally binding, it is therefore not relevant on a Rowbotham application. The last argument raised by the Respondents pointed to sections 7 and 11(d) Charter violations. They did not provide authority for their argument that s 7 is engaged by an alleged violation of an Aboriginal or treaty right. As the court in Rowbotham effectively treated sections 7 and 11(d) as a joint guarantee of fair trial rights, the Respondents argument that a Rowbotham order can rest on a violation of section 11(d) alone, misconstrues the language of the decision.

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

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

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

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

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

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

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

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

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

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

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

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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”.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Athabasca Chipewyan First Nation v Alberta, 2019 ABCA 401

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

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

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

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

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

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

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

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

Ross River Dena Council v Yukon, 2019 YKSC 26

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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

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Reply

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.

Native Law Centre Case Watch

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.

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

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Reply

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

Wiyasiwewin Mikiwahp Native Law Centre

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

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

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

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

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

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