Canada: Site C And The Honour Of The Crown: Prophet River First Nation v Canada (Attorney General)

Last Updated: March 1 2017
Article by Thomas Isaac and Arend J.A. Hoekstra

On January 23, 2017, the Federal Court of Appeal upheld the approval of the Site C Clean Energy Project (Site C) in Prophet River First Nation v Canada (Attorney General)1. The appeal was made by Prophet River First Nation (PRFN), who contended that the Governor in Council (GIC) failed to consider whether their treaty rights were infringed by Site C in accordance with the Sparrow2 framework. The Court concluded that the Sparrow framework had been superseded by the Haida Nation3 framework, which prioritizes consultation rather than the determination of Aboriginal rights.

Understanding Treaty Rights

Aboriginal and treaty rights are constitutionally protected rights. The protection owed to these rights by the Crown depends on where they fall on a spectrum, between claimed but unaffirmed rights and affirmed and recognized rights.4

The treaty rights asserted by PRFN fall between claimed and affirmed rights. While PRFN is a party to Treaty 8 which provides rights including hunting and fishing rights, "the scope of [treaty rights] on Aboriginal peoples' traditional territories still needs to be delineated."5 PRFN's treaty rights would only cover a fraction of the Treaty 8 lands which cover an area larger than Manitoba. According to the test set out in Sparrow, PRFN argued that it was the duty of the GIC to evaluate and conclude on PRFN's rights, and justify their infringement.6

Sparrow v Haida Nation – an Honourable Evolution

Under the Sparrow test, the impacted Aboriginal right must first be evaluated and proven. Once a right has been established, the Crown must then justify the infringement of the right.7 "[This] approach proved to be complex and often resulted in years of litigation."8

The 2004 Haida Nation decision provided a new and contrasting framework, intended to restore collaboration and the prominence of the honour of the Crown. The Haida Nation framework "imposed on the Crown a duty to consult and accommodate, if necessary, in the event a project might have a significant impact on claimed Aboriginal rights."9 Importantly, the Haida Nation framework does away with the intensive and adversarial requirement to prove Aboriginal rights.

The Court found that the Sparrow approach advocated by PRFN was irreconcilable with the process in Haida Nation as it would "considerably weaken the application of the duty to consult,"10 a fundamental attribute of the honour of the Crown.

The Honour of the Crown and Reciprocal Obligations

The Court noted that the Sparrow framework was not necessary in these circumstances since the PRFN's asserted rights could have been addressed and protected through the Haida Nation framework, with its focus on consultation. One function of consultation is to inform the Crown of the interests and rights of First Nations and to determine how those rights will be impacted. While the Crown has a right under Treaty 8 to take up land from time to time, the honour of the Crown limits how and to what degree Aboriginal rights may be impacted.11

The consultation and accommodation process related to the Project was, from the outset, "set at the deep end of the consultation spectrum."12 Yet the Court noted that the PRFN did not meaningfully engage in the consultation process. For example, a territorial map was provided which showed the aggregate territories of four First Nations covering more than 121,000 km2 and included a legend suggesting additional, unmarked territories.13 The Crown's request for a map specific to PRFN was refused.14 Moreover, among the documentation provided during consultation was evidence suggesting that PRFN principally exercised their treaty rights 200 km north of the Project area.15

The process of consultation set out in Haida Nation "require[s] good faith efforts to understand each other's concerns and move to address them."16 These are reciprocal duties intended to foster reconciliation through dialogue.17 "The appellants had the duty to provide information for the determination of their traditional territories and the scope of their treaty rights in order to demonstrate that the potential impact of the [Project] was so severe so as to constitute infringement."18

Had the PRFN engaged more fully in the Crown's consultations, they could have better informed the Crown. The honour of the Crown would have required the Crown to give additional consideration to this information and, if appropriate, limited its actions accordingly. By acting based on the information it had available and by requesting additional information from PRFN, the Crown satisfied its obligations to act in accordance with the honour of the Crown.

The Court also mentioned that "it is insufficient for the appellants to assert treaty rights by merely alleging preferred areas without any specification with respect to the traditional land use area in which the rights were historically and are currently exercised."19 While this assertion is consistent with the reciprocal duties discussed above, the wording is in direct contrast with the Sparrow framework20 and is further evidence that the Court is attempting shift to a new legal framework.

Other Determinations

Though Prophet River could have been addressed simply on the basis of the evolution from Sparrow to Haida Nation, the Court went on to conclude: (A) that the GIC is not the correct forum for evaluating and assessing treaty rights, as the GIC is not an adjudicative body21 and is "focused rather on a variety of considerations – often referred to as polycentric – and thereby seeks to balance a variety of interests"22; and (B) that a judicial review is not the appropriate forum for determining treaty rights, as the judicial review process "is a summary proceeding and, generally, the only material that is considered by the Court is the material that was before the decision-maker,"23 while an assessment of Aboriginal rights requires "a full discovery, examination of expert evidence, as well as historical testimonial and documentary evidence."24

Conclusions

This decision provides a unique analysis of the shift from the Sparrow framework to the Haida Nation framework and its implications for Aboriginal peoples and the Crown. Consultation consists of reciprocal obligations, the purpose of which are to inform the Crown and foster dialogue. The results of consultation will determine the Crown's obligations to Aboriginal peoples pursuant to the honour of the Crown. In addition to restating the present requirements under the Haida Nation framework, the Court's decision fits in to a larger and consistent theme in Aboriginal jurisprudence: the importance of reconciliation between Aboriginal peoples and the Crown.

Footnotes

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

2. R. v. Sparrow, [1990] 1 SCR 1075 [Sparrow]

3. Haida Nation v. British Columbia (Minister of Forests), [2004] 3 SCR 511 [Haida]

4. Prophet River, supra para 36.

5. Ibid.

6. Prophet River, supra para 1.

7. Sparrow, supra

8. Prophet River, supra para 57.

9. Prophet River, supra para 34.

10. Prophet River, supra para 57.

11. Prophet River, supra para 61.

12. Prophet River, supra para 11.

13. Prophet River, supra para 52.

14. Prophet River, supra para 52.

15. Prophet River, supra para 55.

16. Haida, supra para 49.

17. Prophet River, supra para 49.

18. Prophet River, supra para 51.

19. Prophet River, supra para 50.

20. Sparrow, supra

21. The GIC "lacks the necessary hallmarks associated with adjudicative bodies: public hearings, ability to summon witnesses and compel production of documents and the receipt of submissions by interested parties" [Prophet River, supra para 70].

22. Prophet River, supra para 70.

23. Prophet River, supra para 78.

24. Prophet River, supra para 78.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Thomas Isaac
Arend J.A. Hoekstra
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.