Canada: Aboriginal Law @ Gowlings - July 28, 2011

Last Updated: August 4 2011

Edited by by Maxime Faille, Cynthia Westaway and François Dandonneau

Sinixt First Nation Unsuccessful in Injunction Against Logging in Ancestral Territory Due to Lack of Standing

Campbell v. British Columbia (Forest and Range), 2011 BCSC 448

On February 25, 2011, the Supreme Court of British Columbia refused to grant an order to cancel a timber sale license. The petition was launched by the Sngaytskstx ("Sinixt") First Nation seeking to stop the granting of the license by the Crown on their alleged ancestral lands, claiming ancestry to the Lakes Indians who once occupied the territory.

On October 5, 2010, the timber sale license was granted to Sunshine Logging Ltd. by the Province of British Columbia, permitting the harvesting of Crown timber from within four designated cut blocks on Perry Ridge within the Lakes Indian territory. The license also permitted Sunshine to construct, maintain, and use roads in the area.

On November 4, 2010, a petition was filed to quash the licence on the grounds that the Crown had failed to consult before issuing the licence. Relying on the Supreme Court of Canada decision of Haida Nation v. British Columbia (Minister of Forests), the First Nation sought an interim injunction restraining the Respondent from acting on the license.

The main issue in this petition, however, pertained to the ability of Sinixt to bring the case before the court (standing). The first issue was whether or not the petitioners could sufficiently define the contemporary rights-bearing collective for whom they purported to act, that is, the Sinixt people. A second issue was whether or not the petitioners had authority to act as representatives of that community.

In response to the first issue, the court determined that while the Crown does have an obligation to Aboriginal collectives to consult even on unproven claims or by unrecognized bands, there must be a defined collective based on objective criteria. The court looked to the history of the Sinixt and the contemporary Sinixt population and concluded that the petitioners did not meet this criterion. The evidence indicated that the closest descendants of the Lakes Indians in the territory were found on the Colville Reservation in Washington State. Numbers ranged from 1000-3200 for those living in the United States and who are not Canadian Citizens nor registered Indians under the Indian Act. Up to 3000 members purported to live in Canada as part of other Bands. This included those in the Okanagan Nation Alliance, or those who are not registered at all. The petitioners represent a group of only 300, and the Court held that they have no objective criteria for determining ancestry or criteria for membership.

On the second issue, the Court did not accept that the Petitioners had the requisite standing to represent the Sinixt collective. The Court found that the Petitioners represent only a subset of purported Sinixt people, and there are objections to their representatives by other Sinixt leaders. In order for the claim to succeed, the collective in its entirety must be able to benefit from a judgment in their favour.

B.C. Court of Appeal Upholds but Modifies Consultation and Accommodation Order

West Moberly First Nations v. British Columbia (Chief Inspector of Mines), 2011 BCCA 247


The B.C. Court of Appeal has upheld, in part, an order requiring further consultation and accommodation in relation to a proposed mining project in Treaty 8 territory. The order appealed from included a declaration that the Crown "failed to consult adequately and meaningfully and failed to accommodate reasonably [West Moberly's] hunting rights provided by Treaty No. 8 with respect to the [mining project]." The hunting rights in question related to a specific herd of caribou that has been decimated in modern times and whose habitat would potentially be threatened by the mining project in question.

The chambers judge who made the original order also directed the province to undertake an "active plan for the protection and augmentation of the Burnt Pine caribou herd."

On appeal, the majority of a divided Court stayed the mining permits and sent the parties back to undertake additional consultation, but held that the species-specific accommodation as ordered should be set aside (for different reasons, as explained below). Madam Justice Garson, in dissent, would have allowed the B.C. appeal because while "the outcome was not that which [West Moberly] desired ... it cannot be said that the outcome, given all the factors listed by the decision makers, was unreasonable." Madam Justice Garson cited various authorities to support her view that "It is not for a court on judicial review to mandate specific accommodation measures ... nor specific outcomes to the process." Therefore, in Madam Justice Garson's view, "the Crown [had] discharged its duty and ... the chambers judge erred in finding that consultation was inadequate and that a specific form of accommodation was required."


A. Is judicial review the appropriate procedure in which to allege, and remedy, the Crown's failure to consult and accommodate?

The province argued that the evidentiary record and procedures undertaken were insufficient to rule on the scope of a treaty right. The Court rejected these arguments, citing the recent Supreme Court decision in Beckman v. Little Salmon/Carmacks First Nation, [2010] 3 S.C.R. 103, where it was held that judicial review is "perfectly capable of taking into account the constitutional dimension of the rights asserted by [a] First Nation. There is no need to invent a new 'constitutional remedy.'"

B. Did the chambers judge err in holding that the Crown failed to act honourably by delegating to ministry officials the duty to consult and accommodate, without also providing those officials with the necessary powers to consider fully, and to accommodate reasonably, the petitioners' concerns?

The province contended that such a holding would compel a statutory decision maker, such as the B.C. Ministry of Energy, Mines and Petroleum Resources ("MEMPR"), to go potentially beyond its statutory mandates in discharging the duty to consult. Again, the Court disagreed, concluding that there was nothing in the legislation creating and governing MEMPR "that would prevent that body from consulting whatever resources were required in order to make a properly informed decision. A statutory decision maker may well require the assistance or advice of others with relevant expertise, whether from other government ministries, or from outside consultants." Citing again the Beckman decision, the Court further noted that "the Crown's duty to consult lies upstream of the statutory mandate of decision makers."

C. The Scope of the Duty to Consult

Based on the Supreme Court decision in Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, [2010] 2 S.C.R. 650, the coal mining project proponent asserted that the chambers judge erred by considering various "past wrongs" that affected the caribou herd in assessing accommodation and the sustainability of the caribou herd and, consequently, ordering implementation of a plan that addressed not only the protection but also the rehabilitation of the caribou herd. .The analogy in West Moberly, in essence, would be that the mining project proponents ought not to be held accountable for redress on past wrongs that impact Aboriginal rights or title. The Court, holding that the "historical context" was "essential to a proper understanding of the seriousness of the potential impacts on the petitioners' treaty right to hunt, distinguished the holding in Rio Tinto by framing the goal of the duty to consult in such instances as one of determining the reality of the situation at hand and "...not to attempt the redress of past wrongs [but] to recognize an existing state of affairs, and to address the consequences of what may result from pursuit of the exploration programs"

D. Interpreting the treaty right to hunt

The province asserted that the chambers judge erred in interpreting West Moberly's treaty right as a specific right to hunt caribou in its traditional area as part of its seasonal round. On this point, the Court held that the treaty right in question ought to be construed liberally and as the First Nation's ancestors would have understood it, while also juxtaposing the understanding that treaty provisions for "taking up land" and "mining" would have introduced. Citing Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), [2005] 3 S.C.R. 388, the Court held that the proper focus should be the "continuity in traditional patterns of economic activity" and "traditional patterns of activity and occupation" as guaranteed by Treaty 8. The Court therefore held that the proper question is "whether the proposed activity will adversely affect existing hunting rights" and, consequently, that the chambers judge "did not err in considering the specific location and species of the petitioners' hunting practices."

E. Was the Consultation Process Reasonable?

West Moberly asked that the project proponent's mining applications be rejected, the proposed mining activities relocated to another area where the caribou herd would not be affected and sought the implementation of a plan for the rehabilitation of the caribou herd. The Court, describing the consultation process as "two ships passing in the night", held that West Moberly should have been "provid[ed] an explanation that, not only had their position been fully considered, but that there were persuasive reasons why the course of action [they] proposed was either not necessary, was impractical, or was otherwise unreasonable. Without a reasoned basis for rejecting the [West Moberly] position, there cannot be said to have been a meaningful consultation." In the Court's view, MEMPR "entered into the consultation process without a full and clear understanding of what the Treaty meant" which doomed the resulting consultation process to being unmeaningful, and therefore unreasonable.

F. Was the chambers judge wrong in determining that only one form of accommodation was reasonable?

Both the province and the project proponent claimed that the chambers judge erred in limiting the West Moberly right to hunt to a single species of caribou or single geographic region. Because the consultation was not meaningful, the Chief Justice's view was that the proper remedy would be to set aside the order for specific accommodation and remit the issue back for further consultation between the parties. While the Chief Justice declined to give a definitive answer on the issue of the ambit of a judge's discretion, Justice Hinkson reasoned that the order for specific accommodation should be set aside because "the chambers judge conflat[ed] his consideration of the Crown's duty to consult with the West Moberly with what he considered to be a reasonable accommodation of the rights of the West Moberly ... the requirement that the Crown put in place a reasonable, active plan for more than the protection of the Burnt Pine caribou herd goes beyond the scope of the duty of reasonable accommodation."

Court of Appeal of Alberta Refuses to Hear Fishing Violation Appeal

R v. Cardinal, 2011 ABCA 72

On February 22, 2011, the Alberta Court of Appeal refused to hear an appeal from the summary convictions of Ernest Cardinal and William James Cardinal.

The applicants were members of the Beaver Lake Cree Nation in Alberta. They were charged and convicted after they sold fish on the Beaver Lake Indian reserve without a commercial license, contrary to Regulation 203/1997 of the General Fisheries (Alberta) Legislation. The case was dismissed on the basis that the issues raised had already been determined by earlier findings of both the Alberta Court of Appeal and the Supreme Court of Canada.

The applicants challenged the seminal case of Cardinal v. Alberta (Attorney General), [1974] SCR 695, 40 DLR (3d) 553 [Cardinal], arguing that it was wrongly decided. In the original Cardinal decision, it was determined that section 12 of the Alberta Natural Resources Transfer Agreement (NRTA) made the provisions of the provincial Wildlife Act applicable to all Indians, including those on reserves. They argued that Cardinal is no longer applicable since the adoption of s. 35 of the Constitution Act, 1982. They said that Alberta has no jurisdiction over fishing on an Indian reserve because of section 10 of the Alberta NRTA and the decision in R v. Blais, [2003] 2 SCR 236, arguing that the NRTA only modified the Treaty right to hunt commercially, not to fish commercially. Finally, they argued that Alberta lacks jurisdiction over commercial fishing on reserve because of the doctrine of interjurisdictional immunity, which prevents a law from applying outside the jurisdiction of the body that enacted it.

The court found that Cardinal had been affirmed in the 1990 decision of R v. Horseman, [1990] 1 SCR 901 [Horseman]. Horseman found that section 12 of the NRTA extinguished any treaty rights which previously allowed for commercial hunting, limiting Indians to hunting and fishing "for food" only. Since section 35 of the Constitution Act only protects existing treaty rights, any treaty rights that were altered by the 1930 NRTA are not protected.

The Court stated that Alberta has the power to regulate the sale of fish in the province as confirmed in section 9 of the NRTA and subsections 92(13) and 92(16) of the Constitution Act, 1967. Section 88 of the Indian Act gives jurisdiction to the province to legislate so long as it does not affect Treaty rights of Indians in the province. Interjurisdictional immunity was held not to be applicable as the province was given explicit authority to legislate in order to preserve wildlife and natural resources. Therefore, the treaty right to fish commercially as "reduced, modified or extinguished" by section 12 of the NRTA could not be infringed by provincial commercial hunting and fishing legislation.

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