Canada: The Maturation Of The Duty To Consult - Top Ten Developments Of 2017 In Canadian Aboriginal Law

2017 in Canadian Aboriginal law proved to be a watershed moment for the Crown's duty to consult, with the confluence of a number of high-profile appellate decisions—including a new trilogy of consultation cases from the Supreme Court of Canada—and the promise of sweeping legislative reforms to relevant regulatory frameworks.

Listed in no particular order, below is Dentons' take on the top 10 developments in Canadian Aboriginal law in 2017:

10. The Supreme Court finds Yukon in breach of modern treaty

In First Nation of Nacho Nyak Dun, et al. v Government of Yukon,1 the Supreme Court of Canada concluded that the Yukon government had failed to respect the terms of its Umbrella Final Agreement ("UFA") with several Yukon First Nations. The case relates to the development of the Peel Watershed, a 68,000-square-kilometre area of wilderness covering almost a fifth of the territory's land mass. Recognizing that modern treaties "have assumed a vital place in our constitutional fabric," the Court concluded that Yukon's changes to a final development plan failed to respect the UFA's land use planning scheme, quashing the government's decision and returning the parties to an earlier stage of the approval process.

9. Federal Court finds mining company's exclusion from Aboriginal consultation process not a breach of procedural fairness

In a pair of decisions concurrently released in December,2 the Federal Court dismissed challenges by Taseko Mines Limited ("Taseko") to a Canadian Environmental Assessment Act, 2012 ("CEAA 2012") federal environmental assessment report for the New Prosperity Gold-Copper Mine Project southwest of Williams Lake, B.C. as well as the subsequent federal government's ultimate rejection of that project. Taseko's project was opposed by the Tsilhqot'in Nation, which in 2014 became the first B.C. First Nation to be able to claim a Supreme Court of Canada–confirmed tract of Aboriginal title land.3

The Federal Court rejected Taseko's claim that its exclusion from Aboriginal consultation meetings between the Minister and the Tsilhqot'in following the CEAA 2012 panel review constituted a breach of procedural fairness. The court noted that Taseko could not identify any information submitted by the Tsilhqot'in to the Minister as being new or different from what was previously before the CEAA 2012 panel (information to which Taseko had, therefore, an opportunity to respond). The decisions leave open certain questions regarding the scope of a proponent's right to be informed of submissions made by a First Nation during Crown consultation and to respond to these submissions when they raise new and prejudicial information. Taseko appealed both decisions to the Federal Court of Appeal.4

8. The Québec Court of Appeal confirms the jurisdiction of Québec courts to hear a case involving claimed Aboriginal rights and title in Labrador

On November 13, 2017, the Québec Court of Appeal confirmed the jurisdiction of courts in Québec to hear a claim in damages filed by two Aboriginal communities against private companies based on the alleged violation of claimed Aboriginal rights and title over a territory situated not only in Québec, but also in Labrador.5 In doing so, the Québec Court of Appeal dismissed the request of the Attorney General of Newfoundland and Labrador ("NL AG") that the portion of the dispute regarding the existence (or non-existence) of Aboriginal rights and title in Labrador be removed from the Québec proceedings and heard instead before the Newfoundland and Labrador courts. In January 2018, the NL AG filed an Application for leave to appeal this decision to the Supreme Court of Canada.6

7. The government outlines its proposed approach to reform of environmental assessment and the National Energy Board

As described in our bulletin, the government in June 2017 released a discussion paper following up on reports from expert panels tasked with reform of Canada's environmental assessment process and "modernization" of the National Energy Board ("NEB"). In the paper, the government, among other things, endorses the creation of a single government agency responsible for impact assessments and Aboriginal consultation for federally-designated projects, with joint reviews for projects subject to review by an existing life-cycle regulator (such as the NEB) and a new "early planning phase" carried out by proponents. The paper also notes plans for greater co-management of regulatory processes with Aboriginal groups, as well as increased capacity for groups' participation.

While the government endorsed several governance-related reforms with respect to the NEB, it remains to be seen whether a two-stage review for projects of "national consequence"—with a Governor-in-Council policy decision prior to, rather than following, a detailed NEB regulatory review—will be adopted, or whether the government will eliminate a more restrictive standing test introduced into the National Energy Board Act7 by its predecessor. Without many specifics, the paper notes plans for greater "dialogue" with Aboriginal groups on energy policy, increased capacity for Aboriginal participation in NEB processes and expanding groups' role in life-cycle monitoring of NEB-regulated infrastructure. More recently, on February 8, 2018, the government announced further specifics regarding its proposed environmental reforms; these will be the topic of a future Dentons bulletin.

6. The courts confirm that statutory limitations apply to Aboriginal claims

In its June 2017 refusal of leave to appeal from the Federal Court of Appeal's decision in Ermineskin v Canada; Buffalo v Canada8 and in the Saskatchewan case of Michel v Attorney General of Canada,9 the Supreme Court of Canada has allowed three decisions to stand concluding that ordinary civil statutory limitation periods apply to Aboriginal claims for damages. The Crown was granted summary judgment in all three cases, which were based on causes of action such as breach of fiduciary duty or of the duty to consult. Each of these cases revolved around Crown conduct decades into the past (Ermineskin and Buffalo relating to a 1973 federal oil export tax impacting First Nations royalties, and Michel, to flooding resulting from the construction of a hydro-electric dam in 1940). The refusals appear to significantly dim the prospects for similar historic wrong–based claims going forward.

5. Indigenous Affairs is split into two departments

In an August announcement, the Trudeau government declared that "the level of the ambition of this government cannot be achieved through existing colonial structures" and announced that it would be dissolving Indigenous and Northern Affairs Canada and establishing, in its place, two new departments under separate ministers. A Department of Crown-Indigenous Relations would focus on consultation, coordination and agreements with First Nations, while a Department of Indigenous Services would focus on First Nations services. This structural change responds to a longstanding recommendation from the 1996 report of the Royal Commission on Aboriginal Peoples.

4. Ottawa reaches $800 million settlement in relation to its role in the "Sixties Scoop"

In October, the federal government announced an $800 million settlement concerning its role in the so-called "Sixties Scoop," whereby Aboriginal children were forcibly removed from their homes and placed for adoption or into foster homes from the 1950s through to the 1980s. The settlement, which followed a February Ontario Superior Court ruling concluding that Canada breached a duty of care to the children, contemplates payments of $25,000–$50,000 for each person removed during the period and is expected to end some 18 lawsuits nationwide.

3. Ktunaxa spiritual-rights case affirms core Haida principles

As we previously reported in a bulletin, the Supreme Court of Canada in November decided Ktunaxa Nation v British Columbia (Minister of Forests),10 the third case in a trilogy of consultation decisions released in 2017 (the others being Chippewas and Clyde River, summarized below). Ktunaxa concerns a year-round ski resort project—first proposed in 1991—that faced allegations of inadequate consultation following the Ktunaxa Nation's assertion that the project would drive away the Grizzly Bear Spirit, an important spirit within its religious traditions.

In dismissing both a duty-to-consult and Charter religious freedom claim, the Court largely re-affirmed the governing Haida principles applicable to consultation, describing as "uncompromising" the Ktunaxa's position that impacts on its asserted rights could not be accommodated.11 The Court held that the Minister's refusal to offer the ultimate accommodation demanded by the Ktunaxa (namely complete rejection of the ski resort project) did not mean that the Crown failed to meet its duty to consult and accommodate. The Court reiterated that the constitutionally-protected right to consultation and accommodation "is a right to a process, not a right to a particular outcome," that this process "is one of give and take" and that "outcomes are not guaranteed."12

2. Chippewas and Clyde River confirm that consultation can be fulfilled by administrative bodies

In July, the Supreme Court of Canada released its decisions in Chippewas of the Thames First Nation v Enbridge Pipelines Inc.13 and Hamlet of Clyde River v TGS-NOPEC Geophysical Co,14 each considering claims of inadequate Aboriginal consultation in relation to an NEB decision (see, again, our bulletin). Chippewas considers a challenge by an Ontario First Nation to the NEB's approval of a pipeline project, while Clyde River considers a challenge by an Inuit hamlet to the NEB's authorization of underwater seismic testing in Baffin Bay.

While the Court determined consultation to be adequate in one case, where a full quasi-judicial hearing took place (Chippewas), and not in the other, where a less formal process was followed (Clyde River), the Court clarified—in the affirmative—the important question of whether a regulatory tribunal's process can be sufficient to fulfill the Crown's duty to consult. This holding, which resolves questions outstanding since the Court's 2010 decision in Rio Tinto Alcan v Carrier Sekani Tribal Council,15 has widespread implications for project-based Aboriginal consultation across the country.

1. The Trudeau government announces its support for UNDRIP Private Member's Bill

In 2016, Romeo Saganash, a Cree NDP MP, introduced a private member's bill, Bill C-262, aimed at the adoption of the United Nations Declaration on the Rights of Indigenous Peoples ("UNDRIP") into Canadian law. While UNDRIP's adoption was a landmark early promise of the Trudeau government, it was not fulfilled by government legislation in 2017. In December, however, the government announced support for Saganash's Bill C-262 at its second reading, noting that the bill would be "consistent with our government's commitment to advance the recognition and implementation of indigenous peoples' rights."

While the government added in debate that Bill B-262 "will not, on its own, operationalize [UNDRIP] in Canadian law," the bill expressly affirms UNDRIP "as a universal international human rights instrument with application in Canadian law" and calls for the government to take "all measures necessary" to ensure that Canada's laws are consistent with the document, including through the development of an action plan and annual reporting for a 20-year period.

What to watch for in 2018

The government's next steps on implementing its promise of a "renewed relationship" with Aboriginal peoples will continue to be closely watched in 2018—including in ongoing North American Free Trade Agreement negotiations, where Canada was reported in 2017 to have proposed a chapter (yet to be made public) on Aboriginal rights.

While the duty to consult's principles appeared to be becoming more settled in 2017, the Supreme Court of Canada stands to decide an important unresolved point following the January 2018 hearing of Courtoreille v Canada: whether the duty to consult applies to the legislative process itself.

Our top-ten list for 2016 can be found here.

Footnotes

1. 2017 SCC 58.

2. Taseko Mines Limited v Canada (Environment), 2017 FC 1099; Taseko Mines Limited v Canada (Environment), 2017 FC 1100.

3. See Tsilhqot'in Nation v Canada, 2014 SCC 44.

4. Files A-6-18 and A-7-18.

5. Procureur général de Terre-Neuve-et-Labrador v Uashaunnuat (Innus de Uashat et de Mani-Utenam) , 2017 QCCA 1791 .

6. Federal Court of Appeal File 37912.

7. RSC 1985, s 55.2.

8. 2016 FCA 223

9. 2016 SKCA 124.

10. 2017 SCC 54.

11. Ibid at para 6.

12. Ibid at para 114.

13. 2017 SCC 41.

14. 2017 SCC 40.

15. 2010 SCC 43.

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