Tag Archives: Honour of the Crown

Yahey v British Columbia, 2020 BCSC 278

Posted on by
Reply

Application granted. Blueberry River First Nations is not subject to paying the hearing fees regime in this trial. The Court grants a declaration that Item 10 of Schedule 1 in Appendix C of the Supreme Court Civil Rules is of no force and effect insofar as it requires Indigenous peoples who are seeking to uphold or protect their s 35(1) Aboriginal and/or treaty rights from alleged infringements, and who are required to do so through a trial, to pay daily hearing fees to the Crown as the defendant in any such action. If this Court is wrong in reading down the hearing fee provision in the way set out above, then it would exercise its discretion contained in Item 10 of Schedule 1 in Appendix C to order the Crown to pay the hearing fees in this action.

Indigenous Law Centre – CaseWatch Blog

This application arises in the context of an action brought by the Blueberry River First Nations [“Blueberry”] against Her Majesty the Queen in Right of the Province of British Columbia [“Crown”] alleging infringements of their rights under Treaty 8. It addresses the cumulative impacts of a variety of Crown authorized activities occurring in their traditional territory. In this application, Blueberry seeks to be relieved from paying the daily hearing fees prescribed by the Supreme Court Civil Rules [“Rules”] and set out in Appendix C, Schedule 1, at Item 10 for the duration of the trial of the underlying action.

The underlying trial is currently set for 160 days. For Blueberry, that means paying over $120,000 in hearing fees to the Crown. Rule 20-5(1) provides for a waiver of fees in certain circumstances. Blueberry seeks an order under Appendix C, Schedule 1, Item 10 of the Rules that the Crown defendant pay the daily hearing fees; or, in the alternative, a constitutional exemption from paying the hearing fees based on s 35(1) of the Constitution Act, 1982; or, if necessary, a declaration that the hearing fees are constitutionally inapplicable under s 52(1) of the Constitution Act, 1982 to the extent they are inconsistent with s 35(1). They do not seek a waiver of fees based on undue hardship under Rule 20-5(1).

The Crown, as the defendant in this s 35(1) treaty rights claim, cannot charge the plaintiff First Nations substantial fees for access to the court to seek to enforce the Crown’s own treaty obligations. This, Blueberry argues, is inconsistent with the honour of the Crown and the Crown’s duties under s 35(1) to promote reconciliation.

Reconciliation takes place both inside and outside the courtroom. While consultation and negotiation are the primary methods of reconciliation, courts also have a role to play. The parties will not always be able to resolve the issues, and courts will be called on to determine rights and the attaching obligations. In the Aboriginal context, when considering statutes or rules that may bar, prevent or impede Indigenous peoples’ ability to pursue their claims, reconciliation must weigh heavily in the balance (Manitoba Métis Federation Inc v Canada (AG), [2013] 2 CNLR 281).

None of the cases relied on by the Crown dealt with s 35(1) in the context of hearing fees, or considered the impacts on Crown-Indigenous relations, the honour of the Crown, or reconciliation more broadly from charging such fees. This is the first case to consider the constitutionality of hearing fees from that perspective.

This Court does not agree with the Crown’s argument that recognizing the uniqueness of s 35(1) rights, and relieving litigants who seek to advance these rights of the obligation to pay hearing fees, would somehow be establishing a preferential system of access to justice. The charge of a substantial fee, which ultimately is for the Crown’s own benefit, to access the court to seek to uphold a constitutionally protected treaty right is antithetical to the purpose of s 35(1), the principle of honour of the Crown, and the objective of reconciliation. The fee creates an additional obstacle for Indigenous litigants whose claims often require long trials. It is apparent that requiring litigants who are pursuing cases dealing with s 35(1) to pay a hearing fee is in effect an advance that is paid by Indigenous peoples.

The requirement to pay daily hearing fees creates inequality in litigation in these circumstances and is inconsistent with the shared responsibility for reconciliation which is the overarching objective of s 35(1). The fees create unfairness, imposes financial obstacles to litigation (which can become significant in long trials), and reinforces the idea that the promise in s 35 still comes with strings attached. The Court can draw a legitimate distinction for Indigenous peoples in these circumstances based on the Crown’s unique obligation to Aboriginal people, and the unique status of Aboriginal and treaty rights in the Constitution Act, 1982.

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

Posted on by
Reply

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 by
Reply

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.

Ross River Dena Council v Yukon, 2019 YKSC 26

Posted on by
Reply

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.

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

Posted on by
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.

A Summary of the Attorney General of Canada’s Directive on Civil Litigation Involving Indigenous Peoples

Posted on by
Reply

This document provides a summary of the Attorney General of Canada’s Directive on Civil Litigation Involving Indigenous Peoples (the Directive).

The Directive was written by Jody Wilson-Raybould, the former Attorney General of Canada, in response to her mandate letter from Prime Minister Justin Trudeau. It outlines a series of litigation guidelines instructing Crown counsel as to how the Principles Respecting the Government of Canada’s Relationship with Indigenous Peoples (the Principles) must be applied in civil litigation involving Indigenous peoples.

The former Attorney General articulates that the guidelines are intended to reflect a significant shift in Crown-Indigenous relations. In particular, the Directive recognizes the limited ability of litigation to achieve the sort of reconciliation and renewal required in Crown-Indigenous relationships. The former Attorney General recognized that Indigenous peoples are entitled to select their own forum to resolve legal issues while also reiterating that where litigation is important, the guidelines should direct the Government’s positions and strategies.

The former Attorney General went on to outline that the Directive applies to section 35 of the Constitution Act, 1982, which entrenches Aboriginal and Treaty rights, as well as other Crown obligations towards Indigenous peoples. It is intended to animate the advice provided by departments and Cabinet towards the goal of reconciliation with Indigenous peoples, which is the fundamental purpose of section 35 of the Constitution. Importantly, the Directive indicates that the honour of the Crown is reflected not just in the substance of positions taken by the Crown in litigation, but also in how those positions are expressed. This broader goal is grounded in four main objectives: (1) advancing reconciliation; (2) recognizing rights; (3) upholding the honour of the Crown; and (4) respecting and advancing Indigenous self-determination and self-governance.

The Litigation Guidelines are as follows:

Litigation Guideline #1 – Counsel must understand the Principles and apply them throughout a file’s lifespan.

Counsel must seek to understand and apply Indigenous perspectives, recognizing the diversity of Indigenous perspectives and the rights underlying these varied relationships.

Litigation Guideline #2 – Litigation strategy must reflect a whole-of-government approach.

Principle 3 requires the Government to act with honour, integrity, good faith and fairness in all dealings with Indigenous peoples. To this end, counsel must endeavour to engage in discussions between Indigenous peoples and the departments and agencies about the way in which litigation might affect their relationship. This guideline calls for litigation strategies that are firmly rooted in the policies of the Crown and advocates awareness of government-wide implications of judicial decisions or settlements. This will necessitate broad consultation from government actors.

Litigation Guideline #3 – Early and continuous engagement with legal services counsel and client departments is necessary to seek to avoid litigation.

In order for conflict and litigation to become the exception and not the rule, counsel must engage with client departments and agencies as soon as they become aware of a conflict that may result in litigation, and endeavour to develop coordinated approaches that aim to resolve disputes without litigation.

Litigation Guideline #4: Counsel should vigorously pursue all appropriate forms of resolution throughout the litigation process.

The primary goal of counsel must be to resolve issues, using the court process as a forum of last resort. Forms of resolution such as alternative dispute resolution processes (such as negotiations and mediations) must be considered including the invocation of Indigenous legal traditions or other traditional Indigenous approaches. Consideration must also be given to creative solutions with other department counsel and other government departments or agencies.

Litigation Guideline #5: Recognizing Aboriginal rights advances reconciliation.

This guideline recognizes that the Principles necessitate a change in the interpretation and governing of Aboriginal rights. It specifically points to Principles 1 and 2, which call on the Government of Canada to ensure its dealing with Indigenous peoples are based on the recognition and implementation of the right to self-determination and state that reconciliation requires hard work, changes in perspectives and action, compromise, and good faith. It also specifically points to the need to recognize Aboriginal rights, including Aboriginal title, wherever these can be recognized. Litigation counsel is advised to avoid taking positions or adding parties to litigation that undermine the ability of Indigenous groups to resolve disputes amongst themselves.

Litigation Guideline #6: Positions must be thoroughly vetted, and counsel should not advise client departments and agencies to pursue weak legal positions.

Counsel should resolve differences of opinion on available arguments and the strength of legal positions through discussion. Where discussion fails, consultation and approval must be done in an appropriate manner.

Litigation Guideline #7: Counsel must seek to simplify and expedite the litigation as much as possible.

Counsel must ensure that litigation is dealt with promptly and consider resource imbalances between parties.

Litigation Guideline #8: All communication and submissions must be regarded as an important tool for pursuing reconciliation.

This guideline emphasizes the role of written and oral submissions as an instrument of communication between the parties, the Attorney General, Indigenous peoples, the judicial system and the public. In these pleadings, efforts must be made to advance reconciliation through the application of the Principles.

Litigation Guideline #9: Counsel must use respectful and clear language in their written work.

The Attorney General is expected to be a model litigant, upholding the expectation and maintaining high standards of civility and advocacy in their communication with the courts, Indigenous peoples or their counsel.

Litigation Guideline #10: Legal terminology must be consistent with constitutional and statutory language.

Counsel should abide by the specific terms used in the Constitution, by Parliament, and by the legislatures relating to Indigenous peoples, including the term Aboriginal as defined by section 35 of the Constitution Act, 1982, the term “Indian” as it appears in subsection 91(24) of the Constitution Act, 1867, and the term First Nation in reference to the First Nations Land Management Act, S.C.

Litigation Guideline #11: Overviews must be used to concisely state Canada’s position and narrow the issues.

An overview of Canada’s position, whether in pleadings or in factums, is an important communicative tool. The overview must be used to plainly explain Canada’s position, outlining what is and what is not an issue.

Litigation Guideline #12: To narrow the scope of litigation, admissions ought to be made, where possible.

Admissions of facts that support claims of historical harm should be acknowledged, with approval from the client and Assistant Deputy Attorney General. In pleadings, facts that are known to support the statements in the Indigenous party’s pleading and that may advance reconciliation should be explicitly stated and not just admitted where appropriate. For example, instead of only listing those paragraphs with such facts in a generic statement of admission, counsel should affirmatively plead those facts:

In response to paragraph x of the statement of claim, since at least the date of contact, the plaintiffs and their ancestors have lived at various sites in the vicinity of the identified area.

Litigation Guideline #13: Denials must be reviewed throughout the litigation process.

Denials made at early stages of litigation, when the facts may be unknown and when it would be imprudent to admit too much, must be withdrawn if and when it becomes clear that such denials are inconsistent with the available evidence.

Litigation Guideline #14: Limitations and equitable defences should be pleaded only where there is a principled basis and evidence to support the defence.

Long-standing federal positions such as extinguishment, surrender and abandonment are discouraged by the Principles. These defences should only be pleaded where there is a principled basis and evidence to support to the defence. Moreover, where litigation has been long delayed, defences such as laches and acquiescence are preferable to limitation defences.

Litigation Guideline #15: A large and liberal approach should be taken to the question of who is the proper rights holder.

This guideline speaks to the right of Indigenous peoples and nations to define for themselves who the rights-bearing collective is. Canada should not object to the entitlement of a group to bring litigation when rights are asserted on behalf of larger entities where no conflicting interests exist.

Litigation Guideline #16: Where litigation involves Federal and Provincial jurisdiction, counsel should seek to ensure that the litigation focuses as much as possible on the substance of the complaint.

Litigation Guideline #17: Oral history evidence should be a matter of weight, not admissibility.

Litigation Guideline #18: Decisions on judicial reviews and appeals should be subject to full consultation within government and be limited to important questions.

Litigation Guideline #19: Intervention should be used to pursue important questions of principle.

This guideline indicates that intervention requires consideration of whether the Attorney General’s intervention can assist the course through the provision of legal or constitutional perspective not addressed by the parties to the dispute.

Litigation Guideline #20: All files must be reviewed to determine what lessons can be learned about how the Principles can best be applied in litigation.

The final guideline suggests a review process that will enable counsel and the client department to learn from each litigation case by reflecting on how similar litigation cases can be avoided in the future.

For more information on the Principles see: Principles respecting the Government of Canada’s relationship with Indigenous Peoples.

For more information on the Directive see: The Attorney General of Canada’s Directive on Civil Litigation Involving Indigenous Peoples.

Editor’s Note: Professor Larry Chartrand of the University of Ottawa and former Director of the Wiyasiwewin Mikiwahp Native Law Centre, contributed his thoughts and expertise that assisted the improvement of the Directive.

Yahey v British Columbia, 2018 BCSC 278

Posted on by
Reply

Wiyasiwewin Mikiwahp Native Law Centre
Case Watch

First Nation granted stay of hearing fees for treaty litigation, until question of whether these are contrary to the Honour of the Crown can be resolved.

In the case of Yahey, the Blueberry River First Nation (BRFN) brought an application to stay hearing fees on the basis that there are unsettled legal issues surrounding the provincial hearing fee scheme. Procedurally, relief from fees can be sought either by way of a court order or an application based on undue hardship under Rule 20-5 of British Columbia’s Supreme Court Civil Rules. By way of background, this application came on the heels of an amendment to Rule 20-5 to allow for an undue hardship exemption from hearing fees. Justice Burke concluded that the stay ought to be provided.

BRFN’s position was that there are open questions as to whether it is dishonourable for the Crown to require First Nations to pay a fee to litigate their treaty rights. In addition, BRFN pointed out that conclusions from other ongoing constitutional litigation regarding the breadth of the term “undue hardship” (Cambie Surgeries Corp. v British Columbia) would bring greater clarity to its application for relief from fees. In determining whether or not a stay could be provided, Justice Burke applied the legal test set out in the case of RJR-MacDonald Inc. v Canada (Attorney General). This test requires a court to consider whether (a) there is a serious question to be tried; (b) irreparable harm will result if the stay is not granted; and (c) the balance of convenience favours granting the stay.

Justice Burke found that the application of this test favoured providing BRFN with the stay they sought. Justice Burke concluded that BRFN established there was a serious issue to be tried—that is, whether the Honour of the Crown demands Indigenous peoples to not pay a fee in order to have their constitutional rights adjudicated. This question was not addressed in Cambie Surgeries and remains unaddressed to date. Justice Burke went on to find that the irreparability of harm and balance of convenience in this case weighed in favour of providing the stay. She found BRFN would have to either allocate resources to pay the hearing fees, or bring an application for relief from paying the fees, or bring an application for relief on unsettled law. Further, she noted that if Cambie Surgeries could provide some guidance, then requiring the payment of fees would be an inefficient use of resources. Finally, Justice Burke raised a question of fairness of process. Citing RJR MacDonald, she indicated that a perception of unfairness might arise from the fact that losses associated with paying the fees prematurely might not be cured later. These factors meant that the balance of convenience weighed in favour of BRFN.

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

Posted on by
Reply

By Daniel Quainoo and Benjamin Ralston

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

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

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

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

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

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

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

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

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