Canada: Case Law Summaries – Aboriginal Law

Last Updated: March 22 2019
Article by McCarthy Tétrault's Mining Practice Group

Most Read Contributor in Canada, March 2019

ATHABASCA CHIPEWYAN FIRST NATION V. ALBERTA, 2018 ABQB 262

In this case, the Alberta Court of Queen's Bench judicially reviewed a decision of the Aboriginal Consultation Office (ACO) that the duty to consult with the Athabasca Chipewyan First Nation was not triggered in relation to the Grand Rapids pipeline project proposed in Treaty 8 territory. The Alberta Energy Regulator had approved the pipeline in 2014.

Athabasca, a Treaty 8 First Nation, sought to quash the ACO's decision, but, novelly, neither asked for the matter to be returned to the ACO for reconsideration, nor challenged the regulator's approval of the project. Instead, it sought declarations about the ACO's policies and procedures applicable to whether the duty to consult is triggered, including the ACO's use of "consultation maps" when making that determination. The ACO had found that the duty to consult was not triggered on the basis of the pipeline's location on a map that identified areas where a duty to consult may, or may not, arise.

Due to mootness, the Court declined to make a declaration about whether the duty to consult was triggered. However, the Court did confirm that the ACO, as a Crown servant, has authority to decide whether the duty is triggered. The duty does not arise solely because of the taking up of land in a treaty area. Rather, when the "taking up" process occurs, the question is whether it may adversely impact a First Nation's exercise of its treaty rights. If there is no potential impact, the duty is not engaged. With respect to consultation maps, the Court noted that a map alone cannot be used to determine whether a duty to consult is triggered. It is a tool, but the ACO must also engage the First Nation to assess its claim independently of the map.

The Court also held that procedural fairness is owed in the determination of whether a duty to consult is triggered. Here, once the ACO understood that Athabasca believed there was a duty to consult, the ACO should have provided notice that it would be making a final determination on the issue. The ACO should also have outlined the procedure it would undertake in making its determination, the evidence required to meet the trigger test, and the applicable deadlines. Finally, once the ACO made its decision, it should have provided reasons that show it fully and fairly considered the information and evidence submitted by the First Nation.

EABAMETOONG FIRST NATION V. MINISTER OF NORTHERN DEVELOPMENT AND MINES, 2018 ONSC 4316

In this decision, the Ontario Superior Court set aside a permit authorizing mining exploration on the basis that consultation with the affected First Nation had been inadequate.

The Ontario Ministry of Northern Development and Mines (Ministry) granted the permit to Landore Resource Canada Inc. in March 2016, allowing Landore to do exploration drilling in Northern Ontario within the Treaty 9 territory of the Eabametoong First Nation. Eabametoong challenged the issuance of the permit on the basis that the Ministry had not discharged its duty to consult.

In setting aside the permit, the Court noted that the Ministry and its delegate, Landore, had created clear expectations as to how the duty to consult would be fulfilled in this case, but had then changed the process without meeting those expectations or offering any explanation.

The Court confirmed that while the Ministry has the right to change the course of the consultation process, it must do so in a way that upholds the honour of the Crown. The Ministry had not met this standard, and had altered the consultation process, such that it could no longer be considered a genuine attempt at "talking together for mutual understanding."

Key to the Court's conclusion was a private meeting between Landore and the Ministry, at which Landore told the Ministry it was in negotiations with another mining company and needed the permit as soon as possible. Based on the consultation that had taken place prior to the private meeting, Eabametoong had a reasonable expectation of a further community meeting and the negotiation of a memorandum of understanding before a decision on the permit would be made. After the private meeting, however, the Ministry advised Eabametoong that it would be issuing the permit, did not attempt to set up a community meeting, and gave no reasons for the changed approach.

Landore's permit application was remitted to the Ministry pending completion of adequate consultation.

MIKISEW CREE FIRST NATION V. CANADA (GOVERNOR GENERAL IN COUNCIL), 2018 SCC 40

In this decision, the Supreme Court of Canada determined that there is no duty to consult Indigenous groups at any stage of the law-making process.

The appeal concerned a judicial review by the Mikisew Cree First Nation relating to the former Conservative government's introduction of omnibus legislation in 2012 that amended several Canadian environmental and regulatory laws. The Mikisew Cree were not consulted on the amendments. They argued that the lack of consultation was a breach of the duty to consult, which they said was triggered because in developing and introducing legislation that reduced federal oversight on projects that may affect their treaty rights, the Ministers were acting in an executive (rather than a legislative) capacity.

The Court unanimously dismissed the Mikisew Cree's appeal, finding that the Federal Court lacked jurisdiction over the Mikisew Cree's claim because the Federal Courts Act does not allow for judicial review of parliamentary activities and actions of Ministers in the parliamentary process. However, the Court was divided on whether legislation could be challenged, once enacted, for a failure to consult Indigenous groups.

The majority (in three separate concurring decisions) ruled that there could be no duty to consult at any stage of the legislative process, including royal assent. Even once enacted, legislation cannot be challenged on the basis of a failure to consult Indigenous groups whose Aboriginal or treaty rights may be adversely affected by the legislation. The majority recognized a duty to consult at any stage in the legislative process would be contrary to parliamentary sovereignty, parliamentary privilege, and/or the separation of powers, which protect the law-making process from judicial oversight. It would also pose significant practical difficulties for the legislative process.

In minority reasons, Justice Abella held that the enactment of legislation that has the potential to adversely affect asserted or established Aboriginal or treaty rights would give rise to a duty to consult and that legislation enacted in breach of that duty could be judicially challenged.

For more on the Court's multiple decisions in this case and their implications, see McCarthy Tétrault LLP's Canadian ERA Perspectives blog post entitled "No Duty to Consult Indigenous Groups on Legislation – Mikisew Cree First Nation v. Canada (Governor General in Council)."

WEST MOBERLY FIRST NATIONS V. BRITISH COLUMBIA, 2018 BCSC 1835

In this decision, the B.C. Supreme Court declined to grant the West Moberly First Nations an injunction prohibiting further work on the Site C hydropower project in B.C.

West Moberly is a signatory to Treaty 8, which grants traditional hunting, fishing and trapping rights. They oppose Site C on the basis that its environmental and ecological impacts will infringe these rights. West Moberly has previously challenged the project through a series of judicial reviews of the regulatory approvals Site C received. Those challenges were unsuccessful (see Mining in the Courts, Vol. VIII).

After the failed judicial reviews, West Moberly commenced an action against the province and B.C. Hydro in which they assert that Site C unjustifiably infringes their rights under Treaty 8. In the action, West Moberly seeks a permanent injunction prohibiting B.C. Hydro from continuing or completing work on Site C. In this particular application, West Moberly sought a temporary injunction, seeking to either prohibit all work on Site C for 24 months, or alternatively, work in 13 areas of critical importance to West Moberly's treaty rights.

The Court refused to grant an injunction in either form. While West Moberly's underlying action presented a serious question to be tried, and the project presented a risk of irreparable harm, the balance of convenience weighed against granting an injunction and delaying Site C. Among other things, the Court warned that West Moberly's underlying action was not strong in law or on the evidence, and noted that the action was "inexcusably commenced" over two years after construction on Site C commenced. Further, the Court agreed with B.C. Hydro that if the Site C project was halted it would create chaos and cause irreparable harm to B.C. Hydro and Site C's many stakeholders.

Although no injunctive relief was granted, the Court did direct that the trial of West Moberly's action against the province and B.C. Hydro must be scheduled such that it would end no later than mid-2023, which corresponds to a key milestone in the Site C construction process.

WILLIAM V. BRITISH COLUMBIA, 2018 BCSC 1425

In this decision, the B.C. Supreme Court dismissed a petition by two First Nations seeking to quash the province of B.C.'s approval of further exploratory drilling by Taseko Mines Limited.

The petition arose out of a complex series of events relating to Taseko's attempts to progress development of the New Prosperity mine. The area, south of Williams Lake, B.C., is also land on which the Xeni Gwet'in First Nations Government and the Tsilhqot'in Nation hold proven Aboriginal hunting, trapping and trade rights.

Taseko had submitted a proposed plan for the mine to the provincial and federal governments for environmental assessment purposes. The federal government's assessment concluded that the project would have significant adverse environmental impacts, which would impact the Tsilhqot'in's exercise of proven Aboriginal rights, and therefore rejected Taseko's proposal. While Taseko submitted a redesigned project proposal, the province approved Taseko's exploratory permits. The Xeni Gwet'in and Tsilhqot'in challenged the province's decision on the basis that the province had breached its duty to consult and accommodate.

The Court noted the strength of the Aboriginal rights (being proven) and the extent of the potential interference with those rights. Together, this put the claim at the upper end of the spectrum of consultation and accommodation, and therefore a deep level of consultation was required. The province accepted this standard and had engaged in intensive consultation. However, the petitioners argued that the only reasonable outcomes the province could have reached at the end of consultation were to deny further exploratory drilling, or defer it until, or make it conditional upon, the federal government's approval of Taseko's redesigned project proposal.

In dismissing the petition, the Court concluded that the province's approach in approving exploratory drilling fell within the range of reasonableness. The Court reached its determination despite the outstanding federal review of Taseko's redesigned project.

In the result, Taseko's exploratory drilling was allowed to proceed, although the Court noted that there are more hurdles for Taseko to clear and further opportunities for balancing the parties' interests.

For another decision concerning this project, see the case summary for Canada (Canadian Environmental Assessment Agency) v. Taseko Mines Limited, 2018 BCSC 1034 on page 42 of this publication.

YAHEY V. BRITISH COLUMBIA, 2018 BCSC 123

In this notable pre-trial decision, the B.C. Supreme Court ordered the Blueberry River First Nations (BRFN) to produce its private agreements with industry, among other documents.

The decision came in the course of BRFN's Treaty 8 infringement claim against the province. BRFN asserts that the province is in breach of its obligations under Treaty 8 due to the cumulative impacts of development in BRFN's traditional territory. This is one of the first claims to allege treaty infringement on the basis of cumulative impacts to a First Nation's entire traditional territory.

The province sought production of documents by BRFN, including industry benefits documents, such as impact benefit and revenue sharing agreements, donations, and revenue received by BRFN from companies. The province argued such documents were relevant to the litigation because they demonstrated the extent that BRFN was responsible for, or acquiesced to, industrial developments, and because they spoke to the nature of the change foreshadowed by Treaty 8, how BFRN had adapted to the change over time, and how the province had managed the change honourably.

The Court agreed these documents were material to the larger litigation and ordered their production with some exceptions. In particular, the Court declined to order disclosure of documents relating to: (i) projects that BRFN objected to but which proceeded despite the objection; (ii) BRFN's requests for, and receipt of, capacity funding from industrial proponents; and (iii) agreements between companies owned and controlled by BRFN members and industry.

When this decision was released, the trial was scheduled to commence in March 2018. Since then, BRFN and the province have twice agreed to postpone the trial in order to continue negotiations. As of the last postponement, the trial was scheduled to commence in April 2019. For more on this decision and the underlying litigation, see McCarthy Tétrault LLP's Canadian ERA Perspectives blog post entitled "First Nation ordered to produce private agreements with industry — update on Blueberry River First Nations Treaty 8 infringement proceedings."

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