Aboriginal and Consultation Law Update

Aboriginal and Consultation Law Update

November 2012

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Outline

I. SCC Framework: The Duty to Consult

II. Consultation Law Update

III. Regulatory Boards & Tribunals

IV. Modern & Historic Treaties

V. Aboriginal Rights

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¬ Section 35, Constitution Act, 1982:

“The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.”

¬ Purpose of Section 35: reconciliation of prior presence of aboriginal peoples with Crown sovereignty

¬ Reconciliation is composed of two distinct aspects:

¬ reconciliation between Crown and aboriginal peoples; and

¬ reconciliation by Crown of aboriginal and competing societal interests

¬ Crown’s Duty to Consult is a constitutional duty flowing from Section 35 and the principle of the “honour of the Crown”

I. SCC Framework

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I. SCC Framework, cont.

5 decisions to date from Supreme Court of Canada (“SCC”) regarding Crown’s Duty to Consult

¬ Haida Nation v. B.C. and Weyerhaeuser (2004)

¬ Taku River Tlingit v. B.C. (2004)

¬ Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage) (2005)

¬ Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council (2010)

¬ Beckman v. Little Salmon/Carmacks First Nation (2010)

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Haida Nation v. B.C. and Weyerhaeuser, 2004 SCC 73

¬ November 18, 2004 — unanimous SCC confirmed:

Crown has a duty to consult and, where appropriate, accommodate aboriginal peoples where the interests of aboriginal peoples may be affected by a Crown action or decision.

¬ “Interest” is a possible aboriginal right supported by prima facie evidence; proven rights are not required to trigger the duty

¬ Weyerhaeuser’s appeal allowed: No third party duty to consult

¬ Reciprocal obligation on aboriginal peoples not to thwart Crown’s good faith efforts to consult

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The “honour of the Crown” is the basis of the Duty to Consult

¬ Crown must always act honourably and in good faith, in dealing with aboriginal peoples

¬ not Crown’s fiduciary relationship with aboriginal peoples

¬ Crown is not rendered “impotent”; may continue to “manage the resource in question”

¬ Crown must balance broader societal interests with those of aboriginal peoples

¬ Crown may not always meet aboriginal expectations; no “veto”

Haida Nation v. B.C. and Weyerhaeuser

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Scope of Duty to Consult

¬ Varies with circumstances; consultation must be proportionate to

(i) strength of the aboriginal claims; and

(ii) potential adverse effect on aboriginal right or title.

Spectrum of Consultation

¬ At one end: weak aboriginal claims and potential infringement minor: notice may be sufficient

¬ At other end: strong prima facie case for aboriginal right/title and potential for significant infringement and non-compensable damage: “deep consultation” may be required, such as: (a) submissions by aboriginal peoples (b) formal aboriginal participation in decision-making, and (c) written reasons demonstrating consideration of aboriginal concerns


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Assessing Adequacy of Consultation

Two Stage Process: (Administrative law principles)

(1) Preliminary assessment of strength of aboriginal claims

¬ Seriousness with which Crown will consider aboriginal claims and impact of potential infringement — i.e. where on the spectrum will Crown deal with a particular aboriginal claim — proportionality

¬ Standard of Correctness

(2) Adequacy of consultation

¬ Need not be perfect: Crown must make reasonable efforts to inform and consult

¬ Focus is on process, not outcomes

¬ Standard of Reasonableness


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No substantive right of accommodation

¬ Duty to Consult may require, in an appropriate case, accommodation.

¬ “The test is not… a duty to accommodate to the point of undue hardship for the non-Aboriginal population.”

No Palpable Error

¬ Director did not err in law in concluding consultation was adequate. The material filed by the parties “does not demonstrate any palpable error of fact in his conclusion.”

¬ “Whether or not a court would have reached a different conclusion on the facts is not relevant. The decision to approve or not to approve the grant was given by the Legislature to the Minister who, in the usual way, delegated the authority to the Director. His disposition was not unreasonable.”

Accommodation – recently addressed in Beckman v. Little Salmon/Carmacks First Nation

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II. Consultation Update

Background

¬ 1950s: Construction of Kenney Dam in area claimed by Carrier Sekani First Nations (“CSTC”)

¬ 2007: BC Hydro proposed to purchase excess power from dam from Rio Tinto Alcan through an electricity purchase agreement (“2007 EPA”). 2007 EPA would have no physical impact on existing water levels in Nechako River and would not change current management of fishery

¬ CSTC claimed they were not consulted in 1950s regarding construction of the dam, and that 2007 EPA was subject to consultation

Lower Courts

¬ BCUC: EPA would have no adverse impact on CSTC, therefore no need for BCUC to assess adequacy of consultation at hearing

¬ BCCA overturned BCUC’s decision: BCUC needed to reconsider whether Duty to Consult was triggered and whether Duty had been met

Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43

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II. Consultation Update, cont.

Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council

SCC – October 29, 2010

¬ Unanimously overturned BCCA decision and upheld BCUC decision

¬ Affirmed Haida approach, with clarifications:

¬ Government action triggering the Duty is not limited to the exercise of statutory powers and extends to strategic, higher level decisions that may have an impact on aboriginal claims and rights

¬ Past wrongs or continuing breaches of a claim or right, including prior failures to consult, will NOT trigger Duty to Consult unless the present decision causes a novel adverse effect on Aboriginal interests

¬ Aboriginal groups must show a causal relationship between Crown conduct and the potential for adverse effects on an Aboriginal interest (speculative impacts and impacts on future negotiating positions do not trigger the Duty)

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Role of Regulatory Tribunals

¬ Did BCUC have jurisdiction to assess whether Crown consultation regarding 2007 EPA was adequate?

¬ Tribunal’s powers must be explicitly or implicitly delegated by the legislature. Jurisdiction is limited by enabling legislation to:

(1) assessing adequacy of consultation (incl. questions of law); and/or

(2) carrying out consultation (must have remedial powers and explicit or implicit authority to engage in consultation); or

(3) none of the above

¬ BCUC has jurisdiction under Utilities Commission Act to assess consultation, but not to carry out consultation. BC Hydro (Crown Corporation) acted in place of the Crown and its EPA proposal (not BCUC’s decision) attracted the Duty to Consult

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Role of Regulatory Tribunals – Concerns

¬ SCC gives no support to proposition that tribunals’ publicly available hearing processes are a form of consultation, although many tribunals rely on such hearing processes to assist Crown in carrying out its duty

¬ SCC acknowledges governments could try to avoid consultation by limiting a tribunal’s statutory mandate. However, SCC cites Haida for proposition that aboriginal peoples must then seek appropriate remedies in the courts. Unclear on what basis: for infringement of a proven aboriginal right (high burden), or another cause of action?

¬ Where is the Crown conduct if BCUC considered an application by a private proponent rather than a Crown corporation?

¬ May cause uncertainty for governments and industry proponents in determining whether a tribunal has authority to decide questions relating to consultation and/or carry out consultation

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“Damages” as Remedy¬ Crown’s failure to consult can lead to a variety of remedies including injunctive

relief, order to carry our additional consultation, and compensation or damages. ¬ SCC cites Haida as authority, however Haida did not expressly discuss

"damages" as a potential remedy for Crown’s failure to consult in respect of potential impacts on asserted yet unproven rights

¬ Unclear whether SCC intended damages to apply in respect of unproven rights. If so, are damages related to the infringement of an unproven right or limited to the fact that consultation did not occur?

Q: How to establish harm/damage to unproven rights?

Q: Why need to establish an aboriginal right at all if compensation is payable simply upon not being consulted?

¬ SCC did not discuss the nature of the cause of action to support a compensation/damages remedy


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Beckman v. Little Salmon/Carmacks First Nation, 2010 SCC 53

Background¬ First SCC decision to address modern treaties in context of Duty to Consult¬ Application for judicial review of Yukon Territory government decision in 2004

approving grant of 65 ha of surrendered Crown land to Yukon resident (Paulsen). Land is part of First Nation’s traditional territory, borders treaty settlement lands

¬ Paulsen’s application was granted, although First Nation sent a letter of opposition and no First Nation members were present at meeting

Issue¬ Did Little Salmon/Carmacks First Nation Final Agreement preclude Duty to

Consult? No express requirement for such consultation in Final Agreement

Trial Judge/Yukon Court of Appeal¬ Final Agreement did not exclude Crown’s Duty to Consult, which was at lower end

of the consultation spectrum. Court of Appeal held that Crown met its duty

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Beckman v. Little Salmon/Carmacks First Nation

SCC – November 19, 2010¬ Unanimous SCC dismissed First Nation’s appeal. Crown met its Duty to Consult

and no accommodation was necessary¬ Modern Treaties

¬ Final Agreement is not a “complete code”. Consultation is appropriate to fill in procedural gaps in Final Agreement

¬ Scope of Duty to Consult will be shaped by a treaty’s provisions and the agreement reached by parties, however it does not displace overarching application of the honour of the Crown

¬ The honour of the Crown is a constitutional principle that exists independently of contract or treaty. Crown cannot contract out of honourable dealings with Aboriginal peoples, by treaty or otherwise

¬ Duty to Consult is part of “essential legal framework” within which the Treaty is to be interpreted and performed, and treaties are simply on step along the “long journey of reconciliation”. Final Agreement to be interpreted generously

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II. Consultation Update, cont.Beckman v. Little Salmon/Carmacks First Nation

¬ Standard of Review¬ Standard of correctness applies to legal and constitutional limits of a director’s

decision. Director errs in law and is owed no deference if in making a decision relies on a consultation process that was inadequate.

¬ If director’s decision “falls within the limits established by the law and the Constitution” (ie if director based decision on adequate consultation and did not err in law), director’s decision is then reviewed on a standard of reasonableness. Director’s decision or action must fall within a “range of reasonable outcomes”

¬ No Palpable Error

¬ Director did not err in law in concluding consultation was adequate. The material filed by the parties “does not demonstrate any palpable error of fact in his conclusion.”“Whether or not a court would have reached a different conclusion on the facts is not relevant.”

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II. Consultation Update, cont.Beckman v. Little Salmon/Carmacks First Nation

¬ Accommodation

¬ No substantive right. Nothing in the treaty or circumstances gave rise to a requirement of accommodation. Government was "taking up" surrendered Crown land for agricultural purposes as contemplated in the treaty

¬ Consultation with Individuals¬ Individual First Nation members are not necessary parties to consultation where

it is clear that First Nation holds collective interests of its members. However, administrative law procedural fairness may give rise to a duty to consult individual rights holders

¬ Balancing Theme

¬ SCC framed issue as also involving rights and expectations of other Yukon residents to “good government”. Paulson was entitled to a procedurally fair decision made within a “reasonable timeframe”

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Background¬ Halalt challenged EA certificate issued for construction and operation of well field

to extract groundwater from Chemainus Aquifer. Claimed Province failed to adequately consult and accommodate

BCSC¬ July 13, 2011: Crown had a duty of deep consultation and failed to adequately

consult about modifications to Project

Preliminary Assessment: ¬ Crown failed to “assess strength of Halalt’s claims and engage in consultation

in accordance with that assessment” in a timely way. Crown should also have considered potential future impacts and effect of year-round operations

¬ Crown argued that it decided to engage Halalt in deep consultation, therefore its assessment of the strength of Halalt’s title claim was irrelevant

¬ BCSC disagreed: the one practical means for Crown to manage expectation regarding strength of claim assessments is to err on side of treating most assertions of rights seriously and not downplay nature or importance of claims being made

Halalt First Nation v. B.C. ( Environment), 2011 BCSC 945

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Compensation as Accommodation

¬ Crown argued Haida suggests that accommodation is not intended to be compensation where Aboriginal rights or title are unproven, as compensation does not meet objective of preserving asserted Aboriginal rights and title

¬ However, BCSC stated: “there is no rule or principle of law which suggests that financial compensation as a form of compensation in pre-proof circumstances is not available in pre-proof circumstances.”

¬ In the circumstances, financial compensation was “one of several options that ought to have been available as a means of accommodation for discussion between Halalt and the Province.”

Halalt First Nation v. B.C. ( Environment)

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¬ District of North Cowichan applied for a stay of the injunctive order pending appeal. It argued that the trial judge erred in:

¬ assessing Halalt’s prima facie case for a proprietary interest in the aquifer’s water;¬ holding that the revisions to the Project were not reasonable accommodation;¬ making unsupported factual findings and exceeding jurisdiction.

¬ BCCA Decision¬ Dismissed the District’s application and upheld the injunction.¬ Considered test for injunctive relief:

¬ agreed there was a serious issue to be tried;¬ disagreed there was irreparable harm to District without best drinking water;¬ concluded the balance of convenience favoured Halalt.

¬ “this case was about the rights of [Halalt] to consultation with and accommodation from the Province before it issued the environmental assessment certificate, which is necessary before pumping can occur.”

Halalt First Nation v. North Cowichan (District), 2011 BCCA 544

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Background:

¬ Solid Gold Resources Corp. staked mineral claims between 2007 and 2010 through “free entry” system under Ontario’s Mining Act.

¬ Crown advised Solid Gold to consult with Wahgoshig regarding its intended mineral exploration. Solid Gold did not consult with Wahgoshig before commencing exploration drilling in 2011.

¬ Wahgoshig attempted to contact Solid Gold to consult when it became aware of the drilling, and the Crown advised Solid Gold that consultation must occur, however no meaningful consultation occurred, and drilling activities increased.

¬ Wahgoshig applied for an interlocutory injunction. Solid Gold argued the duty to consult rested with the Crown. Crown argued it had delegated operational aspects of the duty to Solid Gold.

ONSC Decision:

¬ January 3, 2012: Applying the test for injunctive relief, the ONSC granted the injunction against Solid Gold.

Wahgoshig First Nation v. Ontario et al., 2011 ONSC 778

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ONSC applied test for injunctive relief and held:

¬ there was a serious question to be tried;

¬ without meaningful consultation and accommodation regarding the mineral exploration activities, there was a significant possibility of irreparable harm to Wahgoshig’s rights, and damages would not suffice as compensation; and

¬ the balance of convenience favoured Wahgoshig, despite Solid Gold arguing its harm was real and substantial, whereas Wahgoshig’s harm was speculative.

Failure to Consult

¬ The ONSC concluded that on the evidence, Solid Gold made a concerted, wilful effort not to consult with any Aboriginal peoples until after completion of an IPO.

¬ Solid Gold failed to meet industry standards (of Prospectors and Developers Association of Canada) for responsible exploration with respect to First Nations engagement.

¬ Citing Platinex; Taseko Mines Ltd. v. Phillips, 2011 BCSC 1675, the ONSC stated that industry proponents like Solid Gold may be liable for their own failure to consult.

Wahgoshig First Nation v. Ontario et al., 2011 ONSC 778

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ONSC decision re: leave to appeal¬ Solid Gold argued: (1) no viable claim by Wahgoshig, and (2) it is not subject to the duty

to consult, and the Mining Act permits exploration as a right pertaining to its claims. Therefore, no prima facie case can be made against it and no injunctive relief available.

Held: ¬ September 4, 2012: ONSC granted Solid Gold leave to appeal the interim injunction. ¬ The ONSC noted there was conflicting case law and reason to doubt the correctness of

the injunction decision, particularly in respect of whether there is a duty to consult in respect of the free entry system in Ontario.

¬ The ONSC saw no basis for the imposition of a duty to consult on Solid Gold, and noted the difference between delegation of procedural aspects of consultation versus imposition of the duty to consult. The Mining Act does not have a scheme for requiring a third party to consult.

Notes:¬ This decision raises serious issues regarding the Duty to Consult as it applies to third

parties/industry proponents¬ Proposed amendments to Mining Act regarding the duty to consult are not yet in force.

Wahgoshig First Nation v. Solid Gold, 2012 ONSC 2323

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Quartz Mining Act

¬ Upon receiving application to record a mining claim, Mining Recorder must record claim – no discretion

¬ Recording a claim allows claim holder to carry out a number of “Class 1” exploration activities without obtaining additional permits/approvals (including construction of camps, lines and corridors, fuel storage, and clearing and trenching)

Issue

¬ Ross River Dena Council (“RRDC”) applied for declaration that Yukon had a duty to consult RRDC prior to recording quartz mineral claims

¬ Does non-discretionary action by Mining Recorder trigger Crown’s duty to consult as a result of potential adverse impact of Class 1 exploration activities on RRDC’s asserted aboriginal rights?

Ross River Dena Council v. Government of Yukon, 2011 YKSC 84

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Supreme Court of Yukon – November 15, 2011

¬ Rejected Yukon’s argument that the Act does not give rise to Crown conduct or decision based on discretion, or that since staking only triggered a statutory duty to record, no actual Crown action was taken. Too narrow: “duty to consult is a constitutional principle that applies “upstream” of a statute like the [Act]. It would be surprising if a statute could be sheltered … merely by eliminating discretion in government action”.

¬ Test is whether there is any Crown conduct, not only if the conduct involves discretion.

¬ Rejected Yukon’s argument that impact was speculative because of no evidentiary basis to assess the proposed conduct: “it is not difficult to see the potential for adverse impact … if all of the activities permitted in a Class 1 exploration program took place”.

¬ Rejected Yukon’s argument that no causality existed between recording and potential adverse impacts also rejected – “duty does not require an immediate physical impact on lands and resources to be triggered, but rather the potential for adverse impacts on aboriginal claims or title”.


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Remedy¬ Court concluded that “appropriate time for consultation is after the grant of the

mineral claim”. Appears inconsistent with Haida and Rio Tinto.¬ Appropriate consultation was limited to notice by Yukon that mineral claim had been

recorded. Declaration suspended for one year.

Discussion¬ In most Canadian jurisdictions, exploration activities are not automatically granted

upon claim registration. Decision does not stand for proposition that recording a mineral claim by itself triggers duty to consult.

¬ Result not surprising since grant of claim also has right to carry out activities which can potentially adversely impact upon aboriginal rights/interests. Unfortunate that Yukon mineral claim regime expressly ties right of free entry to Class 1 activities.

¬ Meaningful consultation requires possibility of accommodation but the Act does not appear to provide authority for Yukon to impose conditions on or prevent a mineral claims holder from carrying out Class 1 exploration activities once claim is granted.

¬ Yukon should revisit Act to ensure tenuring regime is consistent with duty to consult by separating free entry from Class 1 exploration activities.


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Adams Lake Indian Band v. Lieutenant Governor in Council, 2012 BCCA 333

Background

¬ Sun Peaks mountain resort sought to attain status as an incorporated municipality. Band alleged failure to consult in respect of its incorporation

BCSC decision, 2011 BCSC 266

¬ March 4, 2011: Petition allowed. Province did not fulfill Duty to Consult regarding incorporation of the Municipality. Deep consultation was required

¬ Province “failed to adequately fulfill the first stage of the consultation process”: It did not conduct a preliminary assessment of the strength of the aboriginal claim, give Band opportunity to comment, or make inquiries of Band.

¬ Province misconceived the significant potential impact a change in local government might have on aboriginal interests. Incorporation of the municipality could affect Band’s ability to consult with the Province.

¬ However, municipalities are not considered Crown for the purposes of the Duty to Consult. The honour of the Crown is not engaged by local governments and the Sun Peaks municipality had no independent constitutional duty to consult with the Band (Gardner v. Williams Lake (City), 2006 BCCA 307).

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BCCA Decision, August 9, 2012

¬ The Province argued that the BCSC erred in declaring inadequate consultation, by:

¬ failing to confine the duty to potential adverse impacts flowing from the incorporation decision alone;

¬ holding that the Province was required to make a preliminary strength of claim assessment in addition to assessing potential adverse impacts;

¬ misinterpreting the Local Government Act when identifying potential accommodation.

¬ The BCCA stated that the Province had to balance the interests of the residents and property owners for incorporation with the interests of Adams Lake and other Bands, and this required consultation with the Bands, and possibly accommodation of their Aboriginal interests.

¬ Citing Rio Tinto, the duty to consult concerns “the specific crown proposal at issue” and its impact on the claimed right, not the “larger adverse impacts of the project of which it is a part.”

Adams Lake Indian Band v. Lieutenant Governor in Council

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BCCA held:

¬The BCSC erred in not confining the consultation and accommodation analysis to incorporation as a stand-alone matter. The Province did not breach its duty by treating the incorporation of the Municipality as a stand-alone issue. Consultation and accommodation were adequate.

¬There was no reason for requiring the executive decision on the incorporation of the Municipality to await completion of consultation on other issues. The Chiefs did not present focused arguments on the issue of incorporation per se, thus the Province was not required to complete consultation on all issues before resolving the incorporation matter.

¬BCCA agreed it was not necessary in this case to do an analysis of the strength of the claim to Aboriginal rights ant title – the impact of incorporation on the Band’s rights and title was insubstantial and the effect was minimal, regardless of the strength of the claim.

¬Citing Rio Tinto: there must be a “demonstration of a causal connection between the proposed Crown conduct and a potential adverse impact on an Aboriginal claim or right” in order for the duty to arise. It was difficult to see a causal connection between the incorporation of the Municipality and the assertion of an adverse impact. Incorporation did not change in a material way the obligation of the Province to consult or the right of Adams Lake to be consulted.

Adams Lake Indian Band v. Lieutenant Governor in Council

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¬ First decision in Canada to directly consider whether a municipality owes a duty to consult.

Background

¬ The Neskonlith Indian Band appealed the BCSC decision (2012 BCSC 499) that the City of Salmon Arm (the “Municipality”) did not owe a duty to consult in respect of the issuance of a development permit to Salmon Arm Shopping Centres Limited to build a shopping centre on fee simple land located in a floodplain.

¬ Neskonlith argued on appeal that the Municipality owed a duty to consult and failed. The Band argued that the constraints of the Charter should apply to First Nations’ rights under s. 35.

¬ The Developer argued: (1) municipality owed no duty, (2) even if a duty arose, the harm alleged was speculative and the duty would not have been triggered, and (3) consultation was adequate in any event.

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II. Consultation Update, cont.Neskonlith Indian Band v. Salmon Arm (City), 2012 BCCA 379

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BCCA: Appeal dismissed

¬Haida Nation and Rio Tinto make it clear that the appeal must fail as a matter of law - the honour of the Crown is non-delegable and rests at all times with the Province. While “procedural aspects” of the duty may be delegated to third parties, such authority must be expressly or impliedly conferred by statute. No such authorization existed in this case.

¬Municipalities do not have sufficient “remedial powers” to carry out meaningful consultation. The Municipality lacked the necessary authority to "engage in the nuanced and complex constitutional process involving ‘facts, law, policy and compromise.’"

¬The ‘push-down’ of the Crown’s duty to consult from Crown to local governments would be “completely impractical”. “Daily life would be seriously bogged down” if consultation were required in the context of “mundane decisions regarding licenses, permits, zoning restrictions and local bylaws”.

¬The duty to consult is not analogous to the duty to apply the Charter.

¬The potential adverse effect of potential flood risk in this case was purely speculative: “Mere speculative impacts ... will not suffice” (Rio Tinto); there must be an “appreciable adverse effect on the First Nations’ ability to exercise their Aboriginal right” (R. v. Douglas, 2007 BCCA 265)

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II. Consultation Update, cont.Neskonlith Indian Band v. Salmon Arm (City), 2012 BCCA 379

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Background

¬ West Moberly sought to quash Crown decisions regarding permit amendments for advanced exploration program proposed by First Coal Corporation on basis of inadequate consultation and accommodation regarding their Treaty 8 hunting rights

¬ Primary concern: effect of decisions on Burnt Pine caribou herd, which over time, had been reduced to 11 caribou in total

BCSC

¬ Crown failed to consult and accommodate. Consultation was not meaningful. Crown failed to put into place an active plan for protection and rehabilitation of the Burnt Pine herd – this was a failure to accommodate reasonably

West Moberly First Nation v. B.C. (Min. of Energy, Mines and Petroleum Resources), 2011 BCCA 247

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BCCA – May 25, 2011

¬ Upheld decision of trial judge that consultation was not reasonable, but set aside accommodation ordered.

¬ Applied Rio Tinto: Duty to Consult is confined to adverse impacts flowing from current Crown proposal at issue. Does not include cumulative effects of past wrongs and potential future developments.

¬ 3 opinions from BCCA.

Finch C.J.B.C. (majority)

¬ Distinguished Rio Tinto, in which there was no adverse effect on First Nation’s rights, whereas in this case exploration and sampling would have an adverse impact, and historical context is essential to understanding seriousness of potential impacts on treaty right to hunt

¬ Crown failed to accommodate reasonably West Moberly’s hunting rights. Stayed implementation of permits, set aside accommodation and remitted matter for further consultation

West Moberly First Nation v. B.C.

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Concurring reasons of Hinkson J.A.¬ Agreed with Finch’s conclusions: including an historic perspective recognizing

depletion of herd was proper consideration in consultation¬ However, plan to rehabilitate and increase herd was beyond scope of reasonable

accommodation. Accommodation should only address potential adverse effects of current Crown conduct, not remedy harm caused by past events

Dissenting reasons of Garson J.A. ¬ Consultation was reasonable, trial judge interpreted duty to consult and

accommodate too broadly¬ Agreed Rio Tinto was distinguishable: in Rio Tinto, EPA had no adverse effect,

whereas in this case there was a link between adverse impacts of First Coal’s project and “past wrongs”. “It could not be ignored that this caribou herd was fragile and vulnerable to any further incursions by development in its habitat", and result of past incursions into caribou habitat could not be ignored

¬ Crown reasonably proceeded with consultation and did not implement a recovery plan "because the need for recovery did not emanate from, or was not causally related to, the permits sought"


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Discussion

¬ BCCA appears to have substituted its own judgment on proper outcome of consultation rather than considering whether the process had been reasonable

¬ Majority decision appears to impose a higher standard on consultation than reasonableness

¬ BCCA agrees that past wrongs, including previous breaches of the duty to consult, do not on their own, trigger the duty to consult with respect to Crown’s current conduct, but each judge distinguished Rio Tinto on facts

¬ Leave to appeal to SCC was dismissed, February 23, 2012


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Background

¬ Environmental Assessment Office (“EAO”) made s.11 order under Environmental Assessment Act regarding EA process for extension of Cache Creek landfill over land which NNTC claimed Aboriginal rights and title

¬ EAO did not request input from NNTC before determining scope of EA, though it invited input from various bands. NNTC purported to be entitled to assert claims on behalf of Nlaka'pamux First Nation

BCSC (in Chambers)

¬ NNTC applied for judicial review of s.11 order, claimed order wrongly lacked requirement for EAO or proponents to consult with NNTC

¬ Crown met its Duty to Consult. Sufficient for EAO to amend s.11 order to provide that consultation with First Nations could be done on a government-to-government basis. Not necessary to grant same consultation rights to NNTC as Ashcroft and Bonaparte Bands

Nlaka'pamux Nation Tribal Council v. B.C. (Project Assessment Director, EAO), 2011 BCCA 78

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BCCA – February 18, 2011¬ Overturned BCSC: Honour of the Crown could not be compromised to make

process more efficient. Crown had ongoing obligations to consult with NNTC. When Director became aware of NNTC’s demands, he should have considered whether consultation was required, and if so, to establish appropriate procedure

¬ Consultation outside the scope of s. 11 order was not a substitute for consultation within the EA process

Unusual Remedy ¬ Declaration that s.11 order was procedurally defective because it did not

adequately establish basis upon which NNTC was to be consulted ¬ No purpose quashing s.11 order as EA was concluded and certificate was issued

Conflicting views within a First Nation¬ Highlights difficulties in discharging Duty to Consult when there are conflicting

views within a First Nation regarding (i) subject matter of consultation and (ii) proper representative of First Nation’s interests

¬ Lesson: cautious, inclusive approach to consultation

Nlaka'pamux Nation Tribal Council v. B.C.

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Background

¬ 1965: Thompson Creek Metal Company Inc. (“TCMC”) began operating Endako Mine under Mines Act Permit (“M-4 Permit”).

¬ 2008: TCMC sought amendments to M-4 Permit and other permits to build a new mill less than 100 metres from first mill - would not significantly expand Mine footprint

¬ Stellat’en First Nation asserts aboriginal title and exclusive rights to use and occupy surrounding lands; argued Crown failed to consult and accommodate with respect to M-4 Permit amendment

BCSC – August 5, 2011

¬ Stellat’en’s petition dismissed: Crown correctly considered strength of Stellat’en’s claim; consultation was reasonable; no accommodation was required

¬ Stellat’en did not fulfill its reciprocal duty to participate in consultation process

Louis v. B.C. (Energy, Mines and Petroleum Resources), 2011 BCSC 1070

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Preliminary Assessment

¬ Crown was correct to temper initial assessment towards less consultation given new evidence of overlapping territorial claims between Stellat’en and Nadleh Whut’en, and fact that new mill was on private land held by TCMC in fee simple

Reasonable Consultation

¬ Focus on process, not outcome; no duty to agree. Crown properly balanced competing societal interests and consultation was in a reasonable range of outcomes: Crown shared information, gave explanations, made postponements and amendments in a timely manner in response to First Nation concerns

Role of Third Parties

¬ The “precise extent to which the Crown may delegate procedural aspects of the consultation process remains unclear”. If Crown chooses to delegate consultation, it must do so explicitly, so that aboriginal communities know when they are engaged in a consultative process

Louis v. B.C. (Energy, Mines and Petroleum Resources)

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Reciprocal Duty of First Nations

¬ Stellat’en failed in reciprocal duty to engage in consultation in good faith: failed to voice specific concerns over new mill, attend stakeholder meetings and respond to information received from Crown

¬ Duty-bound “to express their interests and concerns” and to consult in good faith by whatever means are available to them”; they “cannot frustrate the consultation process by refusing to meet or participate, or by imposing unreasonable conditions”

Past Wrongs and Rio Tinto

¬ Stellat’en wanted consultation to include consideration of past infringements of asserted aboriginal title and rights with respect to opening of original mine in 1965 and its continuing operation

¬ Crown was not obliged to consult on historic presence and use of Mine: “Stellat’en’s submission regarding past infringements is analogous to that made but later rejected” in Rio Tinto. Past infringements are not revived by present government decisions

Louis v. B.C. (Energy, Mines and Petroleum Resources)

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III. Regulatory Boards & Tribunals

Canadian Nuclear Safety Commission (CNSC)

Athabasca Regional Government v. Canada (A.G.) and Areva Resources Canada Inc. 2012 FCA 73

¬ Application by several First Nations to overturn CNSC decision to renew operating licence ("McClean Licence") for Areva’s McClean Lake Uranium mine and mill

¬ First Nations’ appeal based in part on whether CNSC had jurisdiction to consider whether Crown’s duty to consult was owed, and if owed, met

Federal Court

¬ CNSC could address consultation issues within the scope of its legal mandate. CNSC can assess adequacy of consultation: authority under governing legislation to decide questions of law, and subject matter of consultation (i.e. nuclear safety issues) fell within the Commission’s mandate and expertise

¬ Duty to consult was not triggered since no adverse effect.

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III. Regulatory Boards & Tribunals, cont.

Canadian Nuclear Safety Commission (CNSC)

Athabasca Regional Government v. Canada (A.G.) and Areva Resources Canada Inc.

Federal Court of Appeal – March 5, 2012

¬ Appeal dismissed: CNSC had implicit jurisdiction to determine whether the First Nations had a right to be consulted, and if so, whether duty was met.

¬ No evidence of any potential harm to First Nations: It is "mere speculation" to allege licence renewal might contaminate wildlife as to harm the Appellants' Treaty rights to hunt and fish.

¬ "A duty to consult only arises when there is evidence of a possibility that the proposed action may harm an Aboriginal or treaty right."

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III. Regulatory Boards & Tribunals, cont.Ontario Energy Board (OEB)

Re ACH Limited Partnership, 2011 LNONOEB 154

Background¬ Companies applied to OEB to amend hydroelectric generating station licences to

reflect new operators. Twelve affected First Nations sought intervenor status, arguing Crown breached Duty to Consult by creating conditions for increased hydroelectric generation, which could impact water flows

OEB decision¬ May 27, 2011: OEB’s mandate under Ontario Energy Board Act, 1998 gives it

authority to assess adequacy of consultation in certain circumstances. However, OEB is not Crown for purposes of consultation and lacks a “clear statutory mandate” to engage in consultation

¬ Misapplies Rio Tinto test, whereby a tribunal may be expressly or impliedly authorized to carry out consultation

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III. Regulatory Boards & Tribunals, cont.

Re Union Gas Ltd. (25 July 2011), Gas Decision EB 2011-0040Background ¬ Union Gas Ltd. (“Union Gas”) applied for approvals for proposed natural gas

facilities and services, including construction of a natural gas pipeline and ancillary facilities

OEB Decision

¬ OEB is not Crown for the purposes of consultation: no clear empowering language in enabling statute. OEB’s role is limited to assessing adequacy of such consultation – This is inconsistent with Rio Tinto (express or implied authority)

¬ Artificial distinction? Union Gas was complying with guidelines for consultation promulgated by OEB and OEB found that its EA processes can be relied upon for fulfilling consultation

OEB decisions are not determinative on whether OEB has jurisdiction to consult

Ontario Energy Board (OEB)

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William v. British Columbia, 2012 BCCA 285

Background to Litigation

¬ Appeal of Tsilhqot’in Nation v. British Columbia, 2007 BCSC 1700, a lengthy trial that lasted 339 days over 5 years.

¬ The litigation concerned claims by former chief of Tsilhqot’in Nation for Aboriginal rights and title in two areas (the “Claim Area”).

¬ Plaintiffs opposed decision of Province to grant a forest licence and cutting permit to Carrier Lumber Ltd. in the Claim Area.

BCSC Decision:

¬ Mr. Justice Vickers dismissed the Plaintiffs’ claims to Aboriginal title, relying on the test for Aboriginal title in Delgamuukw, requiring proof of exclusive occupation of the lands at the time of the assertion of Crown sovereignty: occasional entry and use of land is insufficient to found a claim to title.

¬ Procedural issue: There was sufficient evidence of occupation in certain parts of the Claim Area to establish title, but the BCSC did not grant a declaration on the basis of the Plaintiffs’ pleadings of an “all or nothing claim” over entire area, and the finding would be prejudicial. However, the BCSC confirmed Aboriginal rights to hunt and trap.

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William v. British Columbia

BCCA Decision

¬ June 27, 2012: BCCA’s analysis differed, but it upheld the BCSC’s order in its entirety: dismissed the Plaintiff’s claim for Aboriginal title over the Claim Area, but affirmed that the Tsilhoqot’in enjoyed Aboriginal rights throughout the Claim Area.

¬ The BCCA considered principles from the SCC to found a claim of title:

¬ Delgamuukw: land must have been of central significance to the culture, and an intensive presence at a particular site was required;

¬ Marshall; Bernard: exclusive possession similar to that of title at common law. Demonstrated through regular occupancy or use of definite tracts of land.

¬ Where traditional use and occupation of land was less intensive, Aboriginal rights less than title may be sufficient to preserve an Aboriginal group’s traditional activities, lifestyle and culture. This is commensurate with reconciliation.

¬ A broad, “territorial claim” of title is not viable. Such claims do not fit the purposes of S. 35 and are “antiethical to the goal of reconciliation” which demands respect for Aboriginal rights “without placing unnecessary limitations on the Crown or the aspirations of others”.

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William v. British Columbia

¬ Aboriginal title cannot be proven based on a limited presence in a broad territory. It must be proven on a site-specific basis, defined by a particular occupancy or intensive use. In all cases, “Aboriginal title can only be proven over a definite tract of land the boundaries of which are reasonably capable of definition”.

¬ As the Plaintiffs’ claim was a “territorial” claim rather than a claim to a definite tract of land, it was not a viable claim to found title.

¬ The Plaintiff’s opposition to the so-called “postage stamp” approach to Aboriginal title incorrectly ignored the “importance of Aboriginal rights other than title in protecting traditional culture and lifestyles”, and the fact that “title is not the only tool available to provide cultural security to the Tsilhqot’in”.

¬ There is a need to reach a “practical compromise that can protect Aboriginal traditions without unnecessarily interfering with Crown sovereignty and with the well-being of all Canadians”. An overbroad recognition of Aboriginal title is not conducive to these goals.

¬ Tsilhqot’in maintain right to raise future, specific title claims.

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Chief Mountain v. British Columbia (A.G.), 2011 BCSC 1394

Background

¬ Nisga’a Final Agreement made on April 27, 1999 (“NFA”).

¬ Plaintiffs, members of Nisga’a Nation, sought declaration that NFA was of no force or effect. Argued NFA was inconsistent with certain provisions of Constitution Act, 1867

BCSC – October 19, 2011

¬ NFA is constitutional, action dismissed:¬ NFA consistent with division of powers because they are not exhaustive;¬ S. 35 guarantees limited form of Aboriginal right to self-government. it can be

infringed if infringement meets the justification test and is consistent with the honour of the Crown;

¬ Court relies on similar case, Campbell v. British Columbia (A.G.), 2000 BCSC 1123, as authority to dismiss claims

¬ Court noted SCC’s emphasis in Little Salmon on importance of modern treaty-making as furthering objective of reconciliation, and importance of courts respecting sophisticated treaty-making by parties

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Chief Mountain v. British Columbia (A.G.)

Leave to Appeal granted, 2012

¬ The appellants argue that the Nisga’a Final Agreement and enabling legislation are inconsistent with Constitution Act, 1867 by creating a third order of government that is not contemplated by the Constitution.

¬ The appellants claim that the Nisga'a government has been granted authority over taxation, health care, wildlife management, justice and other matters that should have been left under federal and provincial control.

¬ Opposition due in part to surrender of large tracts of traditional lands.

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IV. Modern & Historic Treaties, cont.Keewatin v. Ontario (Min. of Natural Resources), 2011 ONSC 4801

Background¬ Plaintiffs were members of Grassy Narrows First Nation. They enjoyed hunting

and fishing rights under Treaty 3 made in 1873:

.. they, the said Indians, shall have the right to pursue their avocations of hunting and fishing throughout the said tract surrendered as hereinbefore described ... and saving and excepting such tracts as may, from time to time, be required or taken up for settlement, mining, lumbering or other purposes by Her said Government of the Dominion of Canada, or by any of the subjects thereof, duly authorized therefor by the said Government.

¬ Plaintiffs’ hunting and fishing rights did not apply to land “taken up” by “Dominion of Canada”

¬ Ontario issued licences to Abitibi-Consolidated Inc. to clear cut forests on Crown lands in plaintiffs' trap line areas

Issues framed by ONSC

(1) Did Ontario have authority to “take up” certain tracts of land for forestry, so as to limit plaintiffs’ Treaty right to hunt or fish?

(2) If not, did Ontario nevertheless have power pursuant to division of powers to justifiably infringe plaintiffs’ right if it meets Sparrow test?

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IV. Modern & Historic Treaties, cont.Keewatin v. Ontario (Min. of Natural Resources)

ONSC - August 16, 2011

(1) Ontario does not have authority to “take up lands” under the Treaty. “Dominion of Canada” does not include Ontario. Ontario has jurisdiction to issue forestry licences under s. 109 of Constitution only to extent that it does not limit Treaty harvesting rights. Otherwise, Ontario violates division of powers and doctrine of inter-jurisdictional immunity.

(2) Ontario does not have constitutional power pursuant to division of powers to infringe upon Plaintiffs’ rights on the basis of the Sparrow justification test. Relies on SCC decision in R. v. Morris, 2006 SCC 59 to conclude that "Indians and Lands Reserved for the Indians" is exclusively within the jurisdiction of the federal government and since hunting was and is central to the “Indianness” of the Treaty 3 First Nation peoples, the Province exceeded its jurisdiction by infringing on their hunting rights.

The doctrine of interjurisdictional immunity and s. 88 of Indian Act (subject to the terms of any treaty, provincial laws apply to and in respect of Indians…) have the combined effect that only Canada can justifiably extinguish/infringe Treaty rights if it satisfies Sparrow test; Ontario cannot.

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IV. Modern & Historic Treaties, cont.Keewatin v. Ontario (Min. of Natural Resources)

Errors in Judgment

¬ Harvesting clause in Treaty could not unilaterally limit the Province’s powers under its provincial heads of power. Ontario was not a party to the treaty and it would be unconstitutional.

¬ ONSC asked the wrong question under question 2 – misapplied the division of powers analysis set out in Morris decision:

¬ Did not correctly consider the pith and substance of any specific provisions in the Crown Forests Sustainability Act. Pith and substance dealt with forestry, not hunting.

¬ Did not consider whether the Act caused simply an insignificant interference with aboriginal treaty rights (which provinces are permitted to do), or a prima facie infringement (which provinces are not permitted to do).

Discussion

¬ Potentially serious consequences for provincial powers if decision is upheld.

¬ Under appeal to Ontario Court of Appeal

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V. Aboriginal Rights

Background

¬ Lax Kw’alaams and other First Nations claimed aboriginal right to commercially harvest all species of fish – also claimed “lesser right” for sufficient fish to develop and maintain a prosperous economy and a right to fish for food, social and ceremonial purposes

¬ Trial judge and BC Court of Appeal dismissed claims in their entirety - Lax Kw’alaams did not engage in any significant trade in fish or fish products except for eulachon grease, harvested for a few weeks every spring

SCC – November 10, 2011

¬ Binnie J. for unanimous seven member SCC; upheld lower courts’ decisions and dismissed appeal

Lax Kw’alaams Indian Band v. Canada (A.G.), 2011 SCC 56

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V. Aboriginal Rights, cont.

Evolution of Aboriginal rights¬ Aboriginal rights must be permitted to evolve from pre-contact society to modern

times, but such evolution has limits. To allow very limited trade in eulachon grease to be transformed into anything broader would not be logical: "The Lax Kw'alaams live in the twenty-first century, not the eighteenth, and are entitled to the benefits (as well as the burdens) of changing times. However, allowance for natural evolution does not justify the award of a quantitatively and qualitatively different right."

¬ Binnie J. provided examples: "A "gathering right" to berries based on pre-contact times would not, for example, "evolve" into a right to "gather" natural gas within the traditional territory. The surface gathering of copper from the Coppermine River in the Northwest Territories in pre-contact times would not, I think, support an "Aboriginal right" to exploit deep shaft diamond mining in the same territory."

Lax Kw’alaams Indian Band v. Canada (A.G.)

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Importance of Aboriginal-related litigation¬ "At this point in the evolution of Aboriginal rights litigation, the contending parties

are generally well resourced and represented by experienced counsel. …It is true, of course, that Aboriginal law has as its fundamental objective the reconciliation of Canada’s Aboriginal and non-Aboriginal communities, and that the special relationship that exists between the Crown and Aboriginal peoples has no equivalent to the usual courtroom antagonism of warring commercial entities. Nevertheless, Aboriginal rights litigation is of great importance to non-Aboriginal communities as well as to Aboriginal communities, and to the economic well being of both. The existence and scope of Aboriginal rights protected as they are under s. 35(1) […] must be determined after a full hearing that is fair to all the stakeholders.“

¬ Theme of balancing rights of Aboriginal peoples and non-Aboriginal peoples


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Rules of Civil Procedure¬ SCC rejected notion that a court must first inquire and make findings about pre-contact

practices and way of life of claimant First Nation. Approach is contrary to authority and defies rules of civil procedure by not giving adequate of fair notice or description of issues to be tried. Such an approach is illogical: "The trial of an action should not resemble a voyage on the Flying Dutchman with a crew condemned to roam the seas interminably with no set destination and no end in sight.”

Binnie J. set out the test for dealing with S. 35 claim of rights¬ Court needs to characterize the right being claimed; this could inform a refinement of

the claimed right on terms that are fair to all parties;¬ First Nation must prove, based on evidence adduced, existence of a pre-contact

practice, tradition, or custom advanced in its pleadings to support asserted right, and that this practice was integral to the distinctive pre-contact Aboriginal society;

¬ Determine whether modern right has reasonable degree of continuity with integral pre-contact custom or practice - court should take a "generous though realistic" approach to matching pre-contact practices to a claimed modern right; and

¬ Finally, if an aboriginal right to trade commercially is found, the rights of non-aboriginal Canadians should also be considered, including economic and regional fairness and the industry or resource by non-aboriginal persons, among others.


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BCCA’s finding regarding Aboriginal rights¬ Despite the Plaintiffs’ failed claims to Aboriginal title, the BCCA upheld the BCSC’s finding

that the Tsilhqot’in had Aboriginal rights to hunt and trap, and that the forestry activities (logging, silviculture) unjustifiably infringed the Tsilhqot’in’s Aborigal rights.

¬ BCCA applied the Sparrow test for infringement of an Aboriginal right, recently applied in Lax Kwa’alaams, and agreed that the forestry activities would have a serious detrimental effect on wildlife, thereby affecting rights to the point of prima facie infringement.

¬ The acts of planning and authorizing logging were incompatible with Tsilqot’in’s rights. However, the BCCA was clear that this case is not authority for the proposition that any industrial activity that affects wildlife necessarily will be incompatible or infringe Aboriginal rights. Cases must be analyzed based on the nature and scope of the Aboriginal right and the nature of the Crown conduct.

¬ The prima facie infringement was not justified: there was no valid governmental objective for logging in the Claim Area, no evidence it was economically viable, and the impacts were disproportionate.

¬ Although the Province acknowledged the Aboriginal rights of the Tsilhqot’in, it failed to treat the claim seriously by making a preliminary evaluation of its strength and consulting commensurate with that evaluation.

William v. British Columbia, 2012 BCCA 285

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Documents

Aboriginal and Consultation Law Update