Canada: Treaty Rights And The Crown's Duty To Consult Remain At Forefront Of Legal Discourse

Last Updated: February 14 2018
Article by Sarah R. Levine

In 2017, several significant decisions were released that keep the treaty rights of Indigenous peoples and the Crown's duty to consult at the forefront of legal discourse.  While the importance of treaty rights is now consistently espoused by all levels of courts in Canada, the scope of those rights, and exactly what it takes to fulfill the Crown's duty in any given situation, continues to be a hotbed of litigation.  

Regulatory Tribunals Must Heed Crown Consultation Obligations

In June 2017, the Supreme Court of Canada delivered two rulings with respect to the scope of the duty to consult, Clyde River (Hamlet) v. Petroleum Geo-Services Inc. ("Clyde River")1  and Chippewas of the Thames First Nation v. Enbridge Pipelines Inc. ("Chippewas of the Thames").2  These decisions clarify that the Crown's duty must be fulfilled prior to a project's final approval.  If the Crown's duty remains unfulfilled, the decision maker must withhold the approval.

Both Clyde River and Chippewas of the Thames concerned appeals of project approvals by the National Energy Board ("NEB") on the grounds of inadequate consultation.  In both instances, the appeals to Canada's Federal Court of Appeal were dismissed.  Given the similar legal issues involved, the Supreme Court of Canada released its decisions on the two cases concurrently. 

The two cases differed on the facts.  In Clyde River, minimal effort was made to assess the potential impact of the proposed seismic project on the rights of the affected Inuit and the NEB did not hold a public hearing.  In Chippewas of the Thames, the First Nation participated fully in a public hearing held by the NEB, for which they applied for and received participant funding.  The Supreme Court allowed the Inuit's appeal in Clyde River, finding that the consultation carried out by the NEB on the Crown's behalf was inadequate due to the lack of opportunity to participate meaningfully in the environmental assessment and regulatory review processes.  In contrast, the appeal in Chippewas of the Thames was dismissed as the Court found that the First Nation's full participation in the NEB public hearing process constituted effective consultation, which discharged the Crown's duty to consult. 

The differing results in these two cases do not take away from the overarching message, namely that the Crown's consultation obligation must be fulfilled prior to a final decision on a project. In Chippewas of the Thames, the First Nation's receipt of participant funding and full participation in the NEB's public hearing fulfilled this requirement, but in Clyde River, the lack of a meaningful consultation process on the potential environmental impacts as well as the absence of a public hearing process in which the Inuit could participate was found by the Supreme Court to be inadequate consultation.

In British Columbia, the Fort Nelson First Nation filed a judicial review of a decision by the British Columbia Oil and Gas Commission ("OGC") to approve a 39 kilometre gas pipeline and storage facility located in an area of British Columbia known as the Fortune Core, traditional territory of the First Nation. In its judicial review, the First Nation cited an "inadequate, unlawful and wholly unacceptable approach to consultation" by the OGC.  The First Nation challenged the OGC's consultation process on the basis that the OGC refused to seriously consider and address its concerns regarding the health and abundance of the Maxhamish caribou herd present in the area and the ongoing disturbance to its habitat.

On December 15, 2017, the British Columbia Supreme Court delivered an oral ruling,3  finding that the Fort Nelson First Nation was not properly consulted by the OGC, nor were their concerns about the environmental impacts of the project properly addressed.  The Court pointed to the fact that, at the outset of the OGC's communications with the First Nation, the OGC improperly limited the scope of consultation by indicating they would not comment on the expert report on caribou population health and migration submitted to them by the First Nation.  By not being willing to engage the First Nation in a discussion of the potential cumulative impacts of the project on treaty rights or the specific impact that the project could have on the health of the caribou population or linear density, the Court found that the OGC acted unreasonably.  As a result, and following the Supreme Court of Canada's guidance in Clyde River, the Court quashed the OGC's approval of the pipeline. 

The OGC has responded with an information bulletin indicating that it will study the judicial review decision and is committed to making any necessary improvements to its consultation and decision-making processes.

Modern Treaties Are To Be Adhered To and Respected

In December 2017, the Supreme Court of Canada also reiterated the importance of modern treaties in, First Nation of Nacho Nyak Dun v. Yukon,4  making it clear that they are constitutional documents to be respected and adhered to.  This case centered around the Peel Watershed region in the Yukon, which is not only a pristine swath of sub-Artic wilderness, but it is also home to a biodiverse cross-section of fish, plants and wildlife, significant mineral wealth and is the traditional territory of the Tr'ondëk Hwëch'in, Na-Cho Nyäk Dün, and Vuntut Gwitchin First Nations.

The Peel Watershed is also the subject of a land-use plan with the Yukon government.  A land-use commission ("Commission") was established by the Yukon government and the First Nations to govern the Peel Watershed, as required by the Umbrella Final Agreement between the Government of Canada, the Council for Yukon Indians, and the Government of the Yukon ("UFA" or "treaty").  In 2011, after several years of consultation and work, the Commission settled on a Final Recommended Plan that would see 80% of the region protected from development (55% would be permanently protected and a further 25% would have interim protection).  Upon receipt of the Final Recommended Plan, the territorial government had the power to approve, modify, or reject the plan.  The dispute arose when the government proceeded to significantly modify the land-use plan by determining that 70% of the watershed would instead be open to development, effectively usurping the planning process and the role of the Commission.

At trial, the Yukon government conceded that it had failed to uphold its treaty obligations and attempted to overhaul the land-use planning process to achieve their desired result.  The lower court found that the Yukon government disrupted the planning process by disregarding the Commission's Final Recommended Plan in favour of its own and ordered the parties to return to the second round of consultation.

On appeal, the Yukon Court of Appeal found that Yukon had failed to properly exercise its rights to propose modifications to the Recommended Plan and directed the return of the parties to an earlier stage in the planning process than what was ordered at the trial level.  This direction to return to an earlier stage of planning is what the Supreme Court of Canada took issue with.

The Supreme Court of Canada unanimously overturned the Yukon Court of Appeal decision, holding that the appeal court "improperly inserted itself into the heart of the ongoing treaty relationship between Yukon and the First Nations".  Instead, the Supreme Court upheld the trial judge's ruling to quash the government's final land-use plan and ordered the planning process to resume from the consideration stage of the Final Recommended Plan.

The Supreme Court stated that the relevant portion of the UFA, dealing with the land-use planning process, was to be interpreted in light of modern treaty interpretation principles.  These espouse interpretations that are deferential to the treaty text. Section 11.6.3.2 of the UFA sets out Yukon's right to modify a Final Recommended Plan and authorizes Yukon to make modifications that are based on those it proposed earlier in the process or respond to changing circumstances.  This is not a green light for Yukon to completely overhaul the Final Recommended Plan. Yukon's power to modify in accordance with section 11.6.3.2 is also subject to "prior consultation".

The Court went on to proclaim that the government's unilateral overhauling of the Final Recommended Plan not only disrespected the land-use planning process, but it was conduct "not becoming of the honour of the Crown".  These strong statements made by Canada's highest court not only assert the authority of Yukon's land claim agreements, but serve as a reminder to provincial and territorial governments, as well as the federal Crown, of the government's obligations under the treaties.

No Injunction for Cumulative Effects

While the Courts have recently handed down some strong commentary on the Crown's duty to consult and the protections owed to the treaty rights of Indigenous peoples, the Courts are also demonstrating a willingness to uphold limits on the protection of treaty rights. 

In late 2017, the BCSC denied a second interim injunction application by the Blueberry River First Nations ("BRFN"), who sought an order against the Province prohibiting further industrial development on the BRFN's traditional lands.5   The BRFN put forward evidence of the cumulative effects of industrial disturbance on their traditional territory and the corresponding impacts on the exercise of their treaty rights to hunt and trap.  The Province, in response, tendered evidence showing that granting the injunction would have a significant impact on government revenue and the regional economy in and around Fort St. John.


While the Court in Yahey v. British Columbia6 agreed that the BRFN was being irreparably harmed by the cumulative effects of industrial development on its treaty right to hunt, fish, and trap, the Court ultimately concluded that the balance of convenience did not favour the granting of an injunction. On the facts of this case, the Court found that, on balance, the irreparable harm  and cumulative effects of energy development on the ability to exercise treaty rights did not outweigh the economic harm an injunction would have on the Province and third party businesses. 

While an injunction was denied in this case, with the right facts, it is possible that the cumulative impact on the treaty right to hunt, fish, or trap may be found to tip the balance of convenience away from development and in the Indigenous community's favour. 

Whether Duty to Consult Extends to Legislation

In thinking about what the future holds for the treaty rights of Indigenous peoples, an appeal currently before the Supreme Court of Canada is certainly one to watch.  Canada's highest court began hearing an appeal by Alberta's Mikisew Cree First Nation ("MCFN") on January 15, 2018, that has the potential to make Canada's lawmakers give Indigenous peoples a seat at the drafting table when it comes to legislation that affects their treaty rights.  The case Chief Steve Courtoreille on behalf of himself and the members of the Mikisew Cree First Nation v. Governor General in Council, et al. ("Courtoreille") poses a fundamental question about the scope of the Crown duty to consult:  Does the duty to consult extend to consultation on proposed legislation?

Courtoreille challenges the government's amendments (under the prior Conservative government) to  key pieces of federal environmental protection legislation that the MCFN argue were likely to affect their treaty rights.  The MCFN assert that the government had a duty to consult the MCFN on these changes.  This is a novel and interesting legal argument, as the Crown's duty to consult is typically only considered and extended in situations where a specific decision potentially affecting treaty rights is being made by a government department or regulatory body.

In 2014, the Federal Court agreed with the MCFN and found that governments have a legally binding duty to consult First Nations when they are developing legislation that may impact their treaty rights. This finding was overturned by the Federal Court of Appeal in late 2016. The MCFN is now appealing this decision to the Supreme Court of Canada.

The MCFN's position is that if First Nation voices can be heard and the protection of their rights incorporated at the drafting stage of legislation, rather than when they appear before regulatory boards who are applying legislation that is already the law, First Nations might be able to ensure that their treaty rights are truly and meaningfully considered.  However, the government's stance is that forcing First Nations involvement upon them will fetter Parliament's law-making process and will not necessarily lead to better legislation, but may impede or otherwise negatively affect their ability to govern.  Canada also argues that allowing the MCFN's appeal would improperly send a message that there is a higher value on treaty rights than other constitutionally-protected rights, such as Charter rights.

This appeal has potentially serious and sweeping implications not only for the law-making process and the protection of treaty rights in Canada, but also for the future of reconciliation.  In the context of this appeal, the MCFN's Chief Archie Waquan provided an emphatic caution against not considering consultation with First Nations at the drafting table, where they can have the power to ensure their treaty rights are protected as new laws are created:

Law making is the most important form of Crown decision making. It is corrosive to the process of Reconciliation for the government to say that it does not need to consult with First Nations on legislation that may adversely affect our Treaty Rights. It is our hope that the Supreme Court of Canada will confirm that the federal government and all other governments in Canada must consult with First Nations on legislation that may adversely affect our rights. Ultimately, this will benefit all Canadians.

There is no question that how the rights of Indigenous peoples are reconciled with the process of law-making will be a significant and historical finding for our Canadian democracy.  The direction we take is now in the hands of the Supreme Court of Canada.

Footnotes

1 2017 SCC 40.
2 2017 SCC 41.
3 The written decision has since been released:  The Fort Nelson First Nation v. BC Oil and Gas Commission, 2017 BCSC 2500.
4 2017 SCC 58.
5 Note that the application for an injunction was made in the context of their underlying lawsuit for the breach of treaty rights, which is scheduled to be heard in March 2018.
6 2017 BCSC 899.

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
Sarah R. Levine
Events from this Firm
19 Dec 2017, Webinar, Calgary, Canada

McLennan Ross previously conducted a webinar on June 6, 2017 about the passage of Bill 17, during which we reviewed the changes to the Employment Standards Code and the Labour Relations Code. During that webinar, we identified a number of issues which would depend upon the language of the Regulations, which had not yet been developed.

24 Oct 2018, Webinar, Calgary, Canada

A written employment agreement is an often ignored best practice for non-union employers. A written agreement can be a critical risk management tool if it properly sets out duties, rights and expectations both during the employment relationship and after it ends.

5 Nov 2018, Webinar, Calgary, Canada

Who Should Attend: This webinar is intended for superintendents of schools, central office personnel, HR personnel, in house counsel and school board trustees.

Similar Articles
Relevancy Powered by MondaqAI
Olthuis Kleer Townshend
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Olthuis Kleer Townshend
Related Articles
 
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
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions