Canada: Consultation With First Nations – Highlights From 2011 Cases Decided By Canadian Courts

Various aboriginal law cases decided by Canadian courts in 2011 considered Crown and industry consultation with First Nations in the context of resource and project development. Most of these cases continue to be decided in British Columbia, where the majority of First Nations have unresolved aboriginal title claims that were not settled by treaty.

Some of the noteworthy 2011 consultation-related cases are summarized below.

British Columbia

West Moberly First Nations v. British Columbia (Chief Inspector of Mines)

The British Columbia Court of Appeal affirmed the suspension of coal exploration permits that had been obtained by First Coal. The court found inadequate Crown consultation concerning the potentially adverse impact on a caribou herd and the ability of the First Nation petitioners, as signatories of Treaty 8, to hunt this species in its feeding grounds. Leave to appeal has been sought from the Supreme Court of Canada. (Read the decision.)

Taseko Mines Limited v. Phillips

The British Columbia Supreme Court granted an injunction preventing the mining company from using exploration permits until the completion of the judicial review proceeding challenging the permits on the basis of inadequate consultation. (Read the decision.)

Hagwilneghl v. Canadian Forest Products Ltd.

The Court of Appeal gave the logging company the right to appeal an injunction restraining logging activity based on inadequate Crown consultation. (Read the decision.)

Adams Lake Indian Band v. British Columbia

The Court of Appeal allowed Sun Peaks Ski Resort to join an appeal of a decision that the Crown had failed to adequately consult regarding Sun Peaks' proposed resort development, as its interests were potentially affected. (Read the decision.)

Moulton Contracting Ltd. v. Behn

The Court of Appeal confirmed that the duty to consult is owed to First Nations as collective groups and not to individuals who do not represent the First Nation. (Read the decision.)

Louis v. British Columbia (Energy, Mines and Petroleum Resources)

The British Columbia Supreme Court assessed Crown consultation to have been adequately carried out on the proposed expansion of the Endako Mine. (Read the decision.)

Halalt First Nation v. British Columbia (Environment)

The British Columbia Supreme Court held that the province failed to adequately consult with Halalt First Nation in the course of an environmental assessment regarding the construction and operation of a well field adjacent to Halalt's reserve, and failed to reasonably accommodate the potential infringements posed by the project to Halalt's asserted aboriginal rights. (Read the decision.)


Athabasca Chipewyan First Nation v. Alberta (Minister of Energy)

The Alberta Court of Appeal confirmed that a First Nation challenge to certain oil sands leases that had been issued to Shell could not be maintained as the application was brought more than six months after the leases were issued. The First Nation's claim that the minister had a continuing duty to consult was not dismissed. Leave to appeal to the Supreme Court of Canada has been sought. (Read the decision.)

R. v. Hirsekorn

The Court of Queen's Bench upheld the Provincial Court conviction of two Métis persons in a test case seeking to clarify the extent of Métis hunting rights in Alberta. The Alberta Court of Appeal has granted leave to appeal. (Read the decisions: 2011 ABQB 682, 2012 ABCA 21.)

Lameman v. Alberta

The Beaver Lake Cree First Nation is challenging provincial authorization of land and resource development in east-central Alberta, based on the assertion of an infringement of Treaty 8 harvesting rights. The plaintiffs have not challenged the validity of individual authorizations, but have asserted an overall failure to consult by the Crown in managing the "taking up" of lands for development. Several interlocutory decisions have been rendered, but the case has not yet been heard on its merits. (Read the decisions: 2011 ABQB 40; 2011 ABQB 396; 2011 ABQB 532; 2011 ABQB 724.)

Peavine Métis Settlement v. Alberta (Energy)

The Peavine Métis are currently challenging by way of a judicial review application certain oil and gas leases issued by the province on the basis of a lack of prior Crown consultation. In the decision cited, the court addressed procedural matters raised by an intervener. The case has not yet been heard on its merits. (Read the decision.)


Wahgoshig First Nation v. Her Majesty the Queen in Right of Ontario et al.

The court issued a four-month injunction against Solid Gold Resources Corp. preventing further drilling and directing the company and the province to enter meaningful consultation with the First Nation. (Read the decision.)

Keewatin v. Minister of Natural Resources

At the conclusion of part one of a lengthy trial, the court held that the province could not issue the forestry licenses that had already been granted, and that only Canada could interfere with the First Nation's treaty harvesting rights based on the wording of Treaty 3. (Read the decision.)

Supreme Court of Canada

Lax Kw'alaams Indian Band v. Canada (Attorney General)

The Supreme Court of Canada held that the First Nation's historical trade of a product from a single fish species could not form the basis for an aboriginal right to a modern commercial fishery. (Read the decision.)

Regulatory decisions

Provident Energy Pipeline Inc. (Re)

The National Energy Board held that the proponent's aboriginal consultation program was appropriate, noting that the duty to consult did not cease with the approval, but continued through the life of the pipeline project.

KM LNG Operating General Partnership (Re)

The National Energy Board confirmed that KM LNG had adequately consulted with aboriginal groups affected by a liquefied natural gas export licence from Kitimat, B.C.

The authors wish to thank Beth Younggren, Martha Peden and John Cassell for their assistance in preparing these summaries.

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