Canada: Aboriginal Law Newsflash - May 2011

Last Updated: May 10 2011

In this issue:

  • Consultation and Limitation Periods
  • The Duty to Consult in an Environmental Assessment, Land Claim and IBA
  • Provisions of Bill C-24, the First Nations Certainty of Land Titles Act in force
  • Consultation in the Context of Environmental Assessment

Consultation and Limitation Periods

Athabasca Chipewyan First Nation v. Alberta (Minister of Energy), 2011 ABCA 29

January 28, 2011

The Athabasca Chipewyan First Nation (ACFN) sought judicial review of five oil and gas leases granted to the respondent, Shell Canada Ltd. by the Minister of Energy.  The respondents sought summary dismissal on the basis that the judicial review had not been filed within the six months required by the Alberta Rules of Court.  The lower Court had dismissed the Appeal on the basis that Rule 753.11(2) excluded the Court's ability to enlarge or abridge timelines. 

In its interpretation of the relevant limitation period, the Court relied on Papaschase (the Court of Appeal decision later known as Lameman at the Supreme Court of Canada) on the issue of whether this is a distinction to be made when seeking damages or declarations that attack an administrative decision or legislation.  Slatter J. found that no distinction is to be drawn between a motion to quash an administrative decision and a motion seeking declaratory remedies.  The Supreme Court affirmed in Lameman that limitation laws apply to Aboriginal constitutional claims in the same way as they apply to any other claims affected by a limitation period.  The Legislature intended the limitation to operate without regard to potential applicant knowledge or constructive knowledge.   The courts have applied the rule consistently.

In the case at bar, the ACFN argued that the duty to consult required proof by the Minister that he gave actual notice to the community. In effect, it argued that the limitation had not yet started to run.  The Court of Appeal found for the province and held that the lower Court's decision was not palpably unreasonable and therefore could not be disturbed.  The Court of Appeal did not interfere with the lower Court conclusion that if there was no duty to consult, the limitation began to run from the date when the leases were granted.  If there was a duty to consult (and it was held by the Court of Appeal that there was) the limitation period would begin to run the day the oil sands leases were posted on the Aboriginal community link.  The Court concluded that this was sufficient in the circumstances.

This decision may well be challenged in future.  Arguably, there are some significant differences between a request for consultation on treaty lands for an oil sands lease and the underlying policy concerns expressed by the Supreme Court of Canada in the context of the historical claim in Lameman.  This is not a matter where historical documents may be lost and witnesses no longer available.  We are likely to see future arguments for a distinction between historic claims and a constitutional claims for consultation in future cases.

The Duty to Consult in an Environmental Assessment, Land Claim and IBA

Nunatukavut Community Council Inc. v.  Newfoundland and Labrador Hydro Electric Corporation (Nalcor Energy), 2011 NLTD (G) 44

Court dismisses Aboriginal corporation's interlocutory application for an injunction to stop environmental assessment public hearings for a proposed hydroelectric project.

Facts of the Case:

The Government of Newfoundland and Labrador engaged Nalcor Energy to develop a hydroelectric project at Muskrat Falls.  The project was undergoing an environmental assessment process which was at the public hearing stage.  The Nunatukavut Community Council Inc. of South/Central Labrador, filed a statement of claim seeking: a declaration that Nalcor, both the Federal and Provincial Governments and the Canadian Environmental Assessment Agency breached their duty to consult, an order that Nalcor and the Government negotiate an Impact Benefit Agreement, and direction on how consultations should be conducted.

In addition, Nunatukavut applied for an ex parte injunction to stop the public hearings until the Court could deal with its claims. 

Court Ruling

The Court dismissed Nunatukavut's interlocutory application for an injunction on the grounds that the losses incurred by Nalcor, if development of the project was halted, would be substantial and therefore the balance of convenience favoured Nalcor.  In addition, the Court found that Nunatukavut would not suffer irreparable harm as the EA process was not yet complete and the corporation would have further input to influence the character of the project going forward.  

In its reasons the Court also looked at whether the respective Governments and Nalcor had failed to consult and accommodate Nunatukavut throughout the environment assessment process.  After reviewing the timelines of correspondence and the information exchanged between the parties, the Court determined that Nunatukavut had been fully consulted and accommodated to this point in the environmental assessment process. 

The Court recognized that in addition to the EA process, Nunatukavut was also involved in a land claim and was negotiating an impact benefit agreement (IBA) for the same area in which the hydroelectric project was to be developed.  While the facts were not specifically before the Court, the Court noted that Nunatukavut may not have been consulted as fully or accommodated as appropriately for the land claim and IBA.

This case examines the parameters of the Crown's duty to consult and accommodate in the context of an environment assessment process.  The Court examined the duty to consult and determined that consultation and accommodation were dealt with in a sufficient manner.

Provisions of Bill C-24, the First Nations Certainty of Land Titles Act in force

March 1, 2011

Bill C-24, the First Nations Certainty of Land Titles Act ("Bill C-24") came into in force on March 1, 2011.  Most significantly, Bill C-24 amends the First Nations Commercial and Industrial Development Act ("FNCIDA") to allow for registration of on-reserve commercial developments within systems similar to provincial land title registration systems.  Amongst other amendments, the provisions of Bill C-24 will also make it possible for reserve land to be held in fee simple, in some circumstances. 

Prior to Bill C-24, the only option available to First Nations for registering interests in land was the federal Indian Lands Registry System (ILRS).  ILRS has been criticized for various inefficiencies and for increasing transactional  costs related to pursuing on-reserve projects, thereby constituting a significant barrier for commercial investment  and development on reserve land.

FNCIDA itself was developed in conjunction with First Nations governments and came into force in 2006.  It gives any First Nation pursuing an on-reserve commercial project the option of applying for the development of specific regulations intended to apply only to that on-reserve project.  Similarly, the provisions introduced by Bill C-24 are also optional and available to all First Nations.  Bill C-24's intent is to make the value of on-reserve development comparable to development on similar properties situated off-reserve.  However, in order for Bill C-24's  provisions to apply, a First Nation will first need to have a private-sector project proponent, a province willing to participate, and support from within the First Nations community itself. 

The Squamish Nation was one major advocate of Bill C-24, primarily to support a proposed new condominium development in West Vancouver intended to be situated on reserve land. 

Consultation in the Context of Environmental Assessment

Nlaka'pamux Nation Tribal Council v. British Columbia (Environmental Assessment Office), 2011 BCCA 78

Court of Appeal for British Columbia, February 18, 2011

Available at:

This case is an appeal of the decision of the British Columbia Supreme Court on a proposal to extend a landfill on land subject to claims for Aboriginal rights and title of the Nlaka'pamux Nation Tribal Council (the "NNTC").  The landfill extension was subject to an assessment under the provincial Environmental Assessment Act and the NNTC claimed a right to be consulted before the scope of the assessment was established.  The British Columbia Supreme Court had dismissed the NNTC's petition and found that the Environmental Assessment Office had acted reasonably in undertaking consultations with the NNTC. 

The British Columbia Court of Appeal could not agree with the chamber judge's conclusion that the Crown was entitled to "balance its obligations to consult with its obligation to carry out its statutory duty in an effective manner".  Instead the  Court of Appeal found that the duty to act honourably towards First Nations makes consultation a constitutional imperative.  Though difficult, the consultation duty could not be compromised in order to make the process more efficient.

The Court of Appeal held that the Supreme Court need not restrict itself to evidence that would be admissible in court.  The Crown is not conducting a trial.  It can rely on secondary sources including the history of the First Nation assertions and, in the present case, evidence that the site was more closely associated with another First Nation.  The Court of Appeal went on to find that in light of the Aboriginal rights at play, the appropriate level of consultation in this case was "deep consultation". 

In the circumstances of this case, the Project Assessment Director proceeded with an assessment process by drafting a s. 11 order under the Environmental Assessment Act, The s. 11 order  determines the scope and the procedures of the environmental assessment.  Citing the Supreme Court of Canada case of Mikisew Cree First Nation, the Court of Appeal held that the NNTC was well aware of what was happening and it was incumbent upon them to assert a right to participate in the process.  First Nations must carry their end of the consultation. 

One of the key issues was whether the Crown had failed to fulfill its duty to consult if it failed to specifically identify an affected First Nation entity in the s. 11 order.  On this issue, the NNTC argued that the offer to consult amounted to an unstructured discretionary administrative regime.  Both in R. v. Adams and in Haida, the Supreme Court of Canada had indicated that the exercise of discretion that is not targeted to the protection of Aboriginal rights would not satisfy the Crown's duty to act honourably.  At paragraph 89 of the present judgment, the Court of Appeal agreed with the Crown's position and indicated that a complex regulatory structure would not always be necessary.

At paragraph 97, the Court held that, while consultation outside of the assessment process is possible, it cannot substitute for consultation within the assessment process itself.  The Court confirmed the case law indicating that First Nations must be involved in early stages of high-level project planning.  At the same time, the Project Assessment Director should have provided for consultation with the NNTC within the amended s.11 order. 

The remedy in this matter was unique in that the Court solely resolved an issue of law.  While comfortable granting a declaration that s.11 order did not adequately establish a basis upon which the NNTC could be consulted, the s.11 order was not quashed.  While it is unusual for a Court to grant a bare declaration, the Court of Appeal relied on a precedent for such an order from MiningWatch v. Canada from the Supreme Court of Canada. 

This case is a demonstration of the interesting play between Aboriginal rights and environmental consultation process.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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