Canada: Governor-In-Council Does Not Have The Authority To Determine Infringement Of Treaty Rights

Last Updated: February 22 2017
Article by Graham Ragan and Jordan Sewell

Most Read Contributor in Canada, October 2018

Case: Prophet River First Nation v. Canada (Attorney General) , 2017 FCA 15

On January 23, 2017, the Federal Court of Appeal ("Court") released its Reasons for Judgment regarding the scope of the Governor-in-Council's ("GIC") decision-making authority under subsection 52(4) of the Canada Environmental Assessment Act ("CEAA") in Prophet River First Nation v. Canada (Attorney General).1 The Court ultimately dismissed the appeal of Prophet River and West Moberly First Nations ("First Nations") finding that the GIC does not have the power to determine infringement of Aboriginal treaty rights under section 35 of the Constitution.


In 1899, the First Nations entered into Treaty 8, which expressly granted hunting, trapping and fishing rights within the territory subject to "such regulations as may from time to time be made by the Government".2 Further, the Crown was entitled to take up tracts of land for "settlement, mining, lumbering, trading or other purposes".3 BC Hydro purported to take up Treaty 8 lands for a hydroelectric dam on the Peace River Valley ("Project").

The Minister of the Environment ("Minister") concluded the Project would likely cause significant adverse environmental effects. Therefore, pursuant to subsection 52(4) of the CEAA, the matter had to be referred to the GIC who would decide whether or not those effects would be justified in the circumstances.4 The GIC determined the effects were justified concluding "the concerns and interests of Aboriginal groups have been reasonably balanced with other societal interests including social, economic, policy and the broader public interest".5

The First Nations brought an application for judicial review of the GIC's Order. The GIC's Order was affirmed and the First Nations appealed that decision to the Court.

Federal Court Decision

The lower court found the GIC did not have jurisdiction under subsection 52(4) of the CEAA to decide whether the Project infringed on treaty rights. A determination of that nature requires a developed evidentiary record, which is not available at the stage of a GIC Order or judicial review. While the duty to consult and the issue of treaty infringement had been considered in this case, it did not extend to a final determination by the GIC of treaty rights infringement.

Federal Court of Appeal Decision

1. The GIC was not required to determine treaty rights in making its decision under ss. 52(4) of CEAA

Since 2004, the courts have moved away from - though not replaced - the Sparrow-based infringement approach to a consultation and accommodation approach.6 The goal was to set the framework for dialogue between the Crown and Aboriginal peoples grounded on the central principle of the honour of the Crown.7

Given the magnitude of the Project, the Court of Appeal held that there was a deeper duty to consult with the First Nations based on their treaty rights.8 However, the environmental assessment process is one of information gathering and not for a final determination of treaty rights. Further, while treaty rights are established rights, the scope of their use on traditional territories still requires delineation.9 The Court of Appeal therefore held that is incumbent on the Aboriginal parties to specify which traditional land use areas were being used to exercise rights historically and contemporarily. In this case, the First Nations did not provide such information. Particularly, the Court found the First Nations failed to demonstrate that they exercised any rights in or near the area directly impacted by the proposed project.10

2.  Judicial review is not the appropriate forum to determine whether treaty rights have been infringed

A claim of treaty right infringement requires the full civil procedure to appropriately marshal and test the evidence, which had not yet been brought to the fore during judicial review. Nevertheless, the Court of Appeal noted that it remains open to any Aboriginal peoples to commence an action against the Crown for treaty infringement.


1 Prophet River First Nation v. Canada (Attorney General), 2017 FCA 15.

2 Ibid at para. 31.

3 Ibid.

4 Canada Environmental Assessment Act, 2012, S.C. 2012, c. 19 at s. 52(4).

5 Supra note 1 at para. 19.

6 Ibid at para. 34.

7 Ibid at para. 35.

8 Ibid at paras. 36 and 44.

9 Ibid at para. 36.

10 Ibid at paras. 55 and 56.

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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