Cowichan Tribes v Canada (AG), 2020 BCSC 1507

Posted on October 22, 2020 by thp151

Cowichan Tribes is entitled to claim privilege over information that their Lands and Governance Director learned from Cowichan Elders during Treaty Committee meetings and during his involvement in a project-specific traditional land use study. The public interest in reconciliation through good faith treaty negotiations and the duty to consult favours case-by-case privilege in this case.

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This matter is in regards to an Aboriginal title and rights case, where the testimony of Mr. George, Lands and Governance Director for Cowichan Tribes, was questioned on communications that was learned of during Cowichan Tribes Treaty Committee meetings and related to traditional use interviews, over which the plaintiffs claim privilege. The Treaty Committee meetings were held to advise on Cowichan Tribes’ approaches to treaty negotiations and the pursuit of Aboriginal rights and title. Cowichan Tribes was advised on strategic use of oral history information including oral histories shared at Treaty Committee meetings.

In establishing confidentiality at common law, the Supreme Court of Canada first adopted the Wigmore’s four criterion in Slavutych v Baker, [1976] 1 SCR 254: 1) the communications must originate in confidence that they will not be disclosed; 2) this element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties; 3) the relation must be one which in the opinion of the community ought to be sedulously fostered; and 4) the injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation. The party seeking to protect the communication from disclosure must demonstrate that the authors of the communications possessed expectations of confidentiality (Northwest Organics, Limited Partnership v Roest, 2017 BCSC 673 [“Roest”]; Yahey v British Columbia, 2018 BCSC 123 [“Yahey”]).

The plaintiffs submit that the communications were made during these confidential Treaty Committee meetings which were conducted with an expectation that the information would not be disclosed. Confidentiality is essential to Cowichan Tribes’ relationship with its members and its ability to ask knowledge holders and Elders to share information about traditional use. This relationship of trust is essential to Cowichan Tribes’ ability to engage in good faith consultation with the Crown. The Cowichan community view this relationship as one that should be sedulously fostered. Allowing disclosure of the contents of the interviews in the litigation would undermine the constitutionally protected process while having minimal benefit to the disposal of this litigation.

The court in Roest held that the Wigmore criteria are not “carved in stone” but are a “general framework within which policy considerations and the requirements of fact-finding can be weighed and balanced on the basis of their relative importance in the particular case” (Roest; R v National Post, 2010 SCC 16). Case-by-case privilege may restrict disclosure where Wigmore’s four criteria for establishing confidentiality at common law exists. Those criteria seek to balance the protection of confidential communication with the public interest in the correct disposal of litigation (P(V) v Linde, [1996] 2 WWR 48).

The Wigmore criteria have been applied to preserve the confidentiality of interviews with Elders and community members undertaken in the course of traditional use studies (Yahey). These criteria must be applied to such interviews in a manner sensitive to the unique legal and constitutional context of the duty to consult, which is underpinned by the honour of the Crown and reconciliation, and involves reciprocal duties on the Crown and First Nations to participate in good faith in the consultation process. This application must also be viewed in the context of the Crown’s constitutional duty to consult and deal honourably with First Nations. This context includes Cowichan Tribes’ reciprocal duty to “express its interests and concerns regarding potential impacts to its rights, and to consult in good faith” and recognition of the fundamental importance of reconciliation between the Crown and First Nations in this process (Yahey; Mikisew Cree First Nation v Canada (Minister of Canadian Heritage), 2005 SCC 69).

In this case, the four Wigmore criteria for case-by-case privilege are met. The plaintiffs are not evincing an intention to rely on, or benefit from, the evidence they claim to be privileged. They are not seeking to adduce evidence about the substantive content of the Treaty Committee discussions. Nor do they seek to rely on the substantive content of some interviews conducted while shielding other interviews from disclosure. Rather, they adduced evidence of oral history from other sources. The question of what Mr. George learned in Cowichan Tribes Treaty Committee meetings regarding oral history of Cowichan Tribes Elders about fishing on the Fraser River is disallowed as the answers it would elicit are privileged.

Nunatsiavut Government v Newfoundland and Labrador, 2020 NLSC 129

Posted on October 14, 2020 by thp151

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/

R v Turtle, 2020 ONCJ 429

Posted on October 7, 2020 by thp151

The Court held that the unavailability of an intermittent sentence for on-reserve members of the Pikangikum First Nation, and those similarly situated, for mandatory minimum sentences under s 255 of the Criminal Code, breaches s 15 of the Charter. Alternative arguments under ss 7 and 12 of the Charter were dismissed.

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Six band members of the Pikangikum First Nation have pled guilty to a drinking and driving offense that, in their circumstances, carries with it a mandatory minimum jail sentence of not more than ninety days. Each of the accused live, together with their young children, on the First Nation Territory of Pikangikum.

The parties to these proceedings agree it would be open to each of these accused, in the normal course, to request an order of this Court allowing them to serve their sentences intermittently. The challenge for these defendants is that the Pikangikum First Nation Territory is an isolated fly in community hundreds of kilometers from the nearest district jail in the City of Kenora and it is financially and logistically prohibitive for them to travel to and from there, from weekend to weekend, at their own expense, to serve out their sentences.

Faced with this obstacle, the defendants each brought applications alleging that their inability to mitigate the effect of a mandatory jail sentence because of the practical unavailability of an intermittent sentence violates their right to equal protection under the law, constitutes cruel and unusual punishment and an abuse of the court’s process. Given the common ground of these applications, the desirability of using resources efficiently and with the consent of the parties, this Court has directed these applications be heard in one joined proceeding.

The question at the heart of this joint application is whether particular Criminal Code provisions of general application have an unconstitutional impact on Pikangikum First Nation residents, their place in Canadian confederation and what it means for them to be equal under the law. The recognition that First Nations, like Pikangikum, lived in distinctive societies, that their members are described in s 35(2) of the Constitution Act, 1982 as “peoples” who have been recognized by our highest Court as holders of community based rights, by virtue of their connection to their land, strongly suggests that the defendants, as on-reserve members of the Pikangikum First Nation, belong to a group enumerated in s 15 of the Charter, namely, a nation.

Being deprived of the opportunity to serve a jail sentence intermittently because of their status as on-reserve band members of the Pikangikum First Nation, constitutes the deprivation of a legal benefit. It also creates a distinction in law between themselves and other members of the general public. Most of the offending behavior in Pikangikum, like the offences the defendants have pled guilty to, is related to alcohol or solvent abuse. Pikangikum First Nation reserve is, and always has been, an ostensibly dry community. The effects of alcohol abuse in Pikangikum are rampant and have become devastating.

Mandatory minimum sentences under s 255 of the Criminal Code, breaches s 15 of the Charter. Any s 1 justification must fail at the minimal impairment stage of the analysis given this Court is deprived of any other sentencing options for the defendants by virtue of their facing mandatory sentences. The deleterious effects of this constitutional violation are egregious and cannot be outweighed by the salutary effect of a uniform sentencing regime (R v Sharma, 2020 ONCA 478). Alternative arguments under ss 7 and 12 of the Charter are dismissed.

Pikangikum and other Treaty #5 nations had traditional means of keeping the peace in their communities that pre-date contact with Europeans by thousands of years. Pikangikum’s integration into Canadian confederation is a textbook example of the negative effects of colonialism on an isolated hunter-gatherer society. The people of Pikangikum were a healthy, self-sufficient band of families, who, in the lifetime of the current Chief’s grandmother, became the suicide capital of the world. The legal regime the Court has been asked to consider in this application, though neutral on its face, treats the people of Treaty #5 as second-class citizens. The Government is not fulfilling its treaty obligations and young Indigenous people are taking their lives in shocking numbers.

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

Posted on July 28, 2020 by thp151

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.

Ross River Dena Council v Yukon, 2020 YKCA 10

Posted on May 8, 2020 by thp151

Appeal dismissed. The Ross River Dena Council does not yet have established title, thereby no right to exclusive use and occupation of the claimed lands. It did not identify any adverse effect on its claim other than impacts on wildlife. The fact that hunters might enter the land is not, without more, an adverse effect.

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Ross River Dena Council [“RRDC”] appeals from an order dismissing its claim for declaratory relief. The key point of contention is the assertion that the Yukon’s issuance of hunting licences and seals under the Wildlife Act, adversely affects RRDC’s claim of Aboriginal title.

RRDC is part of the Kaska Nation, who are one of the “[A]boriginal peoples of Canada” referred to in s 35(1) of the Constitution Act, 1982. The land subject to RRDC’s title claim is traditional Kaska territory situated in the Yukon [“Ross River Area”] and it is acknolwledged that RRDC has a strong prima facie case for its claim to Aboriginal title over the Ross River Area. The strength of the claim requires the Yukon to engage in deep consultation with RRDC whenever the Yukon contemplates conduct that might adversely affect the title claimed (Haida Nation v British Columbia (Minister of Forests), [2005] 1 CNLR 72). The parties have been in negotiations for several years. To date, RRDC’s claim has not been resolved by either a treaty or a declaration.

RRDC asked specifically for a declaration that the issuance of hunting licences and seals might adversely affect the claimed Aboriginal title of RRDC’s members in the Ross River Area and that the Yukon must consult with respect to alleged potential adverse impacts on the “incidents of Aboriginal title” (Tsilhqot’in Nation v British Columbia, [2014] 3 CNLR 362).

There is a distinction between Aboriginal title that is established and that which is asserted. Established Aboriginal title confers ownership rights similar to those associated with fee simple. These ownership rights include the right to decide how the land will be used; the right to enjoy and occupy the land; the right to possess the land; the right to the economic benefits of the land; and the right to pro-actively use and manage it (Tsilhqot’in Nation; Delgamuukw v British Columbia, [1998] 1 CNLR 14).

A government must demonstrate that non-consensual incursions are undertaken in accordance with the duty to consult; that they are justified on the basis of a compelling and substantial public interest; and that they are consistent with the Crown’s fiduciary duty to the Aboriginal title holders (Tsilhqot’in Nation). RRDC’s title is not yet established. It has only a claimed title, albeit a strong one. Aboriginal title that is claimed, but not established, does not confer ownership rights.

Where title is not established, the duty to consult arises when the Crown has real or constructive knowledge of the potential existence of an Aboriginal right or title and contemplates action which might adversely affect that right or title (Haida Nation). The purpose of the duty to consult is not to provide claimants immediately with what they could be entitled to upon proving or settling their claims. Rather, it is intended as a mechanism to preserve Aboriginal interests while land and resource claims are ongoing, or where the proposed action may interfere with a claimed right or title (Rio Tinto Alcan Inc v Carrier Sekani Tribal Council, [2010] 4 CNLR 250 [“Rio Tinto”]).

The legal test for determining whether the duty to consult arises was broken down into three elements: 1) the Crown’s knowledge, actual or constructive, of a potential Aboriginal claim or right; 2) contemplated Crown conduct; and 3) the potential that the contemplated conduct may adversely affect an Aboriginal claim or right. The third element is at the heart of this appeal. RRDC argues that by issuing hunting licences and seals, the Yukon interferes with its claimed right to exclusive use and occupation of the land which has the potential to adversely affect the claimed title by allowing the land to be used and occupied for hunting by people other than RRDC members. RRDC’s position is not that hunters entering the land cause any cognizable harm to the land (aside from potential wildlife management harm), but that their presence on the land is itself a violation of the incidents of title which RRDC asserts, specifically the exclusive use and occupation of the land. This requires consultation.

The Court determined in this matter that issuing hunting licences does not, in and of itself, give the holder of the hunting licence the right to enter land that it could not otherwise enter. A right to hunt within a region does not confer a right to enter private property situated within that region. A hunting licence is not a defence to trespass (Wildlife Act). Also, RRDC’s argument is problematic in that it can assert a right, at the present time, to control who enters the claimed land and, therefore, Yukon must consult with RRDC whenever it contemplates action that would allow or encourage others to enter the land.

RRDC has not established Aboriginal title to the Ross River Area; the process is still at the claim stage. Without an established claim, RRDC does not have an exclusive right to control the use and occupation of the land at present, nor does it have a right to veto government action. What RRDC expressed is a concern that individuals to whom licences and seals have been issued will enter the Ross River Area. That is all. It did not identify how this would have an “appreciable adverse effect” on RRDC’s ability to control the use and occupation of the land in the future, or would otherwise adversely affect its rights or interests, other than potential impacts on wildlife.

No specific concerns have been articulated. There is only an argument that the issuance of hunting licences and seals interferes with RRDC’s right to exclusive use and occupancy of the Ross River Area at the present time. As noted, however, this is a right that RRDC does not currently have. Without explaining how the presence of hunters on its claimed territory could potentially adversely affect its claimed title, the duty to consult as a means to preserve interests in the interim is not engaged.

Crate et al v Government of Manitoba, 2020 MBQB 9

Posted on March 30, 2020 by thp151

Manitoba satisfied its duty to consult and accommodate a First Nation prior to granting a licence to a company to expand an existing peat harvesting and procession operation that would affect traditional activities of hunting, fishing and harvesting plants in the area.

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Sunterra Horticulture Inc [“Sunterra”] submitted a notice of alteration in relation to its existing license to allow expansion of its existing peat harvesting and processing operation on the Washow Bay Peninsula which is land within the traditional territory of the Fisher River Cree Nation [“FRCN”]. The Government of Manitoba invited FRCN to participate in consultations but ultimately granted the revised license to Sunterra.

FRCN appealed the issuance of the license but the appeal was dismissed. By way of an application for declaratory relief, the applicant’s sought a review of the Minister’s decision focused on two substantive issues: 1) the Sunterra license should not have been granted because Manitoba failed to satisfy its duty to consult with FRCN before issuance; and 2) the Minister’s decision to dismiss FRCN’s appeal was based on a failure of Manitoba to hold a public hearing and comply with section 11(10) of The Environment Act.

Whether Manitoba correctly assessed the extent of their duty to consult was reviewed on a standard of correctness. It was not disputed that peat harvesting could interfere with or disrupt the traditional activities of hunting, fishing and harvesting plants in the area. Manitoba correctly identified the level of consultation required as being at the medium to high level. It was significant that Manitoba had an established written policy regarding the level of consultation. Prior to consultation, Manitoba and FRCN agreed to and signed a Protocol respecting Crown-Aboriginal Consultations and a Consultation Funding Agreement with respect to the Sunterra project. These were examples consistent with those suggested in Haida Nation v British Columbia (Minister of Forests), [2005] 1 CNLR 72.

Whether Manitoba adequately discharged its duty to consult was reviewed on a standard of reasonableness. Based on the consultation record, Manitoba received and responded to FRCN’s concerns in relation to the exercise of its Aboriginal and treaty rights. Manitoba provided information to FCRN when it was requested. There was ongoing correspondence and dialogue. The conditions as set out by the record constituted adequate accommodations of FRCN’s concerns. While the FRCN may have received a response they did not want, it could not be said that Manitoba did not consider FCRN’s position and responded to it. Therefore, Manitoba satisfied its duty to consult and accommodate FRCN prior to granting the Sunterra licence.

As for the public hearing, it was not unreasonable for the Minister to conclude that the concerns raised by FRCN regarding the Sunterra project were addressed by the conditions imposed on the licence. There was no evidence that FCRN was prejudiced by the Director’s failure to comply with the twenty-one-day deadline. There was no evidence of bad faith, or a failure to recognize responsibilities of a disregard for public concerns, or of a dismissal of legitimate objections to the project. Although the failure to comply with the statutory timeline cannot be condoned, it was not basis for the court to invalidate the issuance of the Sunterra licence or the Minister’s conclusion that a public hearing was unnecessary.

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

Posted on January 17, 2020 by thp151

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

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

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

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

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

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

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

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

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

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

Posted on January 9, 2020 by thp151

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

Posted on December 16, 2019 by thp151

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.

Indigenous Law Centre
Indigenous CaseWatch Blog

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

Posted on December 2, 2019 by thp151

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.

Indigenous Law Centre
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.