Canada: Aboriginal Consultation: Recent Highlights - May 2013

We enclose an update of some recent noteworthy cases and developments concerning aboriginal law and the duty to consult.

Alberta

Métis Nation of Alberta Region 1 v Joint Review Panel, 2012

The Joint Review Panel held that it did not have statutory authority to consider the adequacy of Crown consultation in relation to the proposed project. The duty to consult with First Nations rests with the Crown and, as there was no contemplated Crown conduct before the panel, the Joint Review Panel's approval and conditions for the project could not direct the Crown's conduct with respect to consultation. In any event, discussing the adequacy of Crown consultation was premature, given that consultation was ongoing and had not been deemed complete by the Crown. The Alberta Court of Appeal dismissed the First Nations' application for leave to appeal, holding that the Joint Review Panel had discretion to decide not to consider the adequacy of consultation and in any event, it was inappropriate to review the panel's decision before completion of the hearing. (Read the decision.)

The Supreme Court of Canada dismissed the First Nations' leave to appeal application on April 11, 2013.

Cold Lake First Nations v Alberta (Energy Resources and Conservation Board)

The Cold Lake First Nation sought leave to appeal an ERCB decision that held it did not have jurisdiction to determine whether the Crown discharged its duty to consult and accommodate the First Nation in relation to adverse impacts on treaty rights. The Alberta Court of Appeal dismissed the leave application on the basis that the issue was now moot as the First Nation had subsequently withdrawn its objection to the development. The court noted, however, that as there was ongoing consultation between the First Nation and the province, the issue would come before the ERCB in the future in the context of an actual dispute. (Read the decision.)

Cold Lake First Nation v Alberta (Minister of Tourism, Parks and Recreation)

The Alberta Court of Queen's Bench held that Alberta breached its duty to consult by unilaterally terminating a negotiation process regarding the expansion of a recreational area into traditional First Nations territory. Specifically, Alberta had concluded consultation arbitrarily and had failed to take into account the First Nation's government election, which prevented the First Nation from properly commenting on the proposed expansion before construction was commenced. The appeal of this decision is scheduled to be heard by the Court of Appeal in June 2013. (Read the decision.)

Alberta Consultation Policy/Proposed Legislation

The province of Alberta has released drafts of its proposed updated First Nations consultation documents for review and comment. The proposed documents include an updated First Nations Consultation Policy, First Nations Consultation Corporate Guidelines and a First Nations Consultation Matrix.

Bill 22, the Aboriginal Consultation Levy Act, has received first reading. The proposed legislation would establish a Consultation Levy Fund from the levies paid by proponents with respect to provincially regulated activity. The Consultation Levy Fund would be used to make grants to First Nations to assist in developing capacity to participate in and meet the costs of required Crown consultation.

British Columbia

Behn v Moulton Contracting Ltd.

The issue in this case was whether certain individual members of a First Nation had standing to argue that logging licenses were issued in breach of a constitutional duty to consult and therefore void. The individual First Nation members raised the alleged breach of aboriginal and treaty rights as a defence to the tort action brought against them by the logging company.

The Supreme Court of Canada confirmed that as the duty to consult exists to protect the collective rights of Aboriginal Peoples, the individual First Nation members could not assert a breach of this duty based on the pleadings and absent authorization from the First Nation. The court left open, without deciding, whether the individuals could challenge the legality of the authorizations on the basis that they breached individual as opposed to collective rights to hunt and trap under Treaty No. 8. Finally, the court held that the defence alleging a breach of the duty to consult was an abuse of process as no attempt had been made to legally challenge the authorizations by way of judicial review or injunction at the time they were issued. (Read the decision.)

Neskonlith Indian Band v Salmon Arm (City)

The British Columbia Court of Appeal upheld the dismissal of a petition brought by the Neskonlith Indian Band to quash a development permit issued by the City of Salmon Arm to a shopping centre developer. The band had argued that the city had a duty to consult prior to issuing the permit. The Court of Appeal held that municipalities, as creatures of statute, do not generally have any authority or duty to consult with and accommodate First Nations unless such duty or authority is contained in specific legislation. (Read the decision.)

Adams Lake Indian Band v British Columbia (Lieutenant Governor in Council)

The province of British Columbia was found to have discharged its duty to consult with the Adams Lake Indian Band in relation to the incorporation of Sun Peaks Mountain Resort Municipality. The British Columbia Court of Appeal found that the decision to incorporate was a discrete issue that could be separated from larger outstanding land claims issues. (Read the decision.)

The Supreme Court of Canada dismissed the First Nation's leave to appeal application on April 11, 2013.

Halalt First Nation v British Columbia (Minister of Environment)

The British Columbia Court of Appeal allowed an appeal by the minister of environment from a decision that concluded the province failed to adequately consult and accommodate the Halalt First Nation before issuing an environment certificate for a well project. The court held that the First Nation was not entitled to be consulted with respect to its aboriginal title claim in the environmental assessment. In addition, the Crown is not required to consult First Nations about proposed future plans to modify or extend a project. Consultation is only required with respect to the aspects of the project to be approved at any particular point in time. (Read the decision.)

Taseko Mines Limited v Phillips

The Xeni Gwet'in and Tsilhqot'in First Nations sought an interim injunction to prevent Taseko Mines from proceeding with mining exploration work until there had been a hearing of the First Nations' application for judicial review of the Crown's decision to issue the underlying permits. Taseko sought its own injunction after an attempt to carry out the work was stopped by a First Nation blockade. The First Nations' application for an injunction was granted while Taseko's was dismissed. The question of whether the Crown had satisfied its duty to consult was a serious question to be tried. Without an injunction, the First Nations would lose their right to be consulted deeply in relation to the exploration program. (Read the decision.)

Ontario

Keewatin v Ontario (Natural Resources)

The Ontario Court of Appeal held that the province of Ontario did not require the federal government's approval to "take up" lands under a harvesting clause of Treaty 3 of October 3, 1873, which granted the Ojibway the right to hunt and fish throughout the surrendered lands, except on those tracts "required or taken up for settlement, mining, lumbering or other purposes by [the] Government of the Dominion of Canada."

Overturning the trial judge's decision, the Court of Appeal emphasized that the Ojibway's treaty partner is the Crown, not any particular level of government, and that since ownership of the treaty lands had devolved to Ontario, so had the power to take up lands and responsibility for discharging the Crown's treaty obligations. The Court of Appeal also held that subsection 91(24) of the Constitution Act, 1867 did not include a supervisory power over the taking up of treaty lands, as it would render illusory provincial jurisdiction over the disposition of management of public lands and forests within the province. (Read the decision.)

Mining Act modernization

On April 1, 2013, new regulations under Ontario's Mining Act took effect. The Exploration Plans and Exploration Permits regulation sets out new requirements for notification of surface rights owners, aboriginal consultation and rehabilitation in respect of exploration activities.

The regulatory scheme is graduated, with higher-impact activities, such as line cutting, mechanized drilling and pitting and trenching, requiring an exploration permit, which is subject to the approval of the Ministry of Northern Development and Mines (MNDM). Prior to granting a permit, the MNDM must consider comments from aboriginal communities and other stakeholders on the permit application and the consultation conducted by the proponent. The MNDM has the authority to order further consultation, to temporarily put a pending application on "hold," or to deny a permit altogether.

Low-impact activities, on the other hand, require the submission of an exploration plan, which the MNDM provides to affected aboriginal communities for their comment and review. Prior consultation is encouraged, but not required. Such low-impact activities may commence 30 days after circulation of the plan unless the director of exploration requires that a permit be obtained for one or more of the activities, which the director has the discretion to require if, for example, there are significant issues raised by aboriginal communities in response to the plan. The regulation also sets forth a dispute resolution mechanism for disputes between aboriginal communities and the proponents related to a permit application.

Mining Act modernization also comprised a number of amending regulations, which came into effect on November 1, 2012. The Assessment Work regulation was amended to make aboriginal consultation costs eligible for assessment work credits (provided that geoscience assessment work has been performed and is reported at the same time). Amendments to the Mine Development and Closure regulation require that aboriginal consultation be conducted in accordance with a written direction from the director of mine rehabilitation, prior to a proponent submitting a certified closure plan. The direction will include which aboriginal communities are to be consulted, whether a proposed plan for consultation is required to be prepared, and when interim reports are required. As with the exploration regulations, the amendments also impose a dispute resolution process to govern disputes between proponents and affected aboriginal communities.

Yukon

Ross River Dena Council v Yukon

The Ross River Dena Council appealed a decision concluding that mere notice of newly recorded quartz mining claims within their traditional territory satisfied the Crown's duty to consult. The Quartz Mining Act only required a party seeking to acquire mineral rights to physically stake a claim and record it with the Mining Recorder. The Court of Appeal held that the statutory regime for acquiring quartz mining claims failed to provide a mechanism for consultation with First Nations, and therefore it was necessary for the Crown to augment the statutory requirements to ensure that adequate consultation had taken place. (Read the decision.)

Federal Court

Sambaa K'e Dene Band v Duncan

The Federal Court held that the Crown breached its duty to consult with two of three First Nations bands who had overlapping claims in the Northwest Territories. The federal minister of Indian affairs had postponed consultation with the two bands until an agreement in principle was reached between the Crown and the third band. The Federal Court held that the Crown had a duty to consult in good faith with all three bands given their overlapping land claims. (Read the decision.)

Ka'a'Gee Tu First Nation v Canada (Attorney General)

This case dealt with an application for judicial review of the Crown's decision to terminate a court-ordered consultation process with the Ka'a'Gee Tu First Nation in relation to an oil and gas development in the Northwest Territories. The application was dismissed, as the court held that First Nations are not entitled to use the re-opening of the consultation process by court order to renegotiate issues that go beyond the scope of the order. (Read the decision.)

Gitxaala Nation v Canada (Minister of Transport, Infrastructure and Communities)

The Gitxaala First Nation applied for an order quashing a safety review of the Northern Gateway Pipeline Project, used by the Joint Review Panel in assessing environmental risk of the project. The First Nation took the position that the Crown had breached its duty to consult by excluding the First Nation from participating in preparing this report. The Federal Court refused to quash the safety review report and stated that the Joint Review Panel's process was sufficient to allow the First Nation to address any weaknesses in the report. In addition, it was premature for the court to interfere before the Joint Review Panel had considered the report and come to its conclusions regarding the approval of the project. (Read the decision.)

The authors wish to thank Erin Greenan and Tina Sun, articling students, for their help in preparing this legal update.

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