aboriginal law update, may 2015

Aboriginal Law Current IssuesPBLI Conference

Vancouver, May 26, 2015

Triggering the duty to consult

The issues based on Rio Tinto include:

• Are new physical impacts required to trigger the duty?

• What constitutes a causal link between the decision or conduct and the alleged impact?

• When is an alleged impact non-appreciable and merely speculative?

Huron-Wendat Nation of Wendake v. Canada, 2014 FC 1154

• Challenge to an agreement in principle between Canada and certain Innu First Nations.

• The court should take a generous, purposive approach to deciding whether there a causal relationship between conduct or decision and a potential for adverse impacts (102).

• It was obvious that the AIP “created a dynamic and raised expectations” (103)

• Court agreed with Sambaa K’e that the “inevitable impact” of signing the AIP

Da’naxda’xw/Awaetlala First Nation v. British Columbia Hydro and Power Authority, 2015 BCSC 16

• First Nation alleged that BC had failed to live up to its commitment to provide them with the opportunity to secure a electricity purchase agreement

• Regarding triggering and ‘past wrongs” the Court held that there was a “causal relationship between the government conduct and the potential for adverse impacts.” That was sufficient to answer the Province’s arguments based on Rio Tinto (240)

Taku River Tlingit First Nation v. British Columbia (Minister of Environment), 2014 BCSC 1278

• Question of whether the mine had been “substantially started” in order to finalize the Environmental Assessment Certificate

• Held that the decision would directly affect what happened at the site

• A no decision would mean there would be no development

• A yes decision meant that the EAC would be in effect for the life of the project.

Courtoreille v. Canada (Aboriginal Affairs and Northern Development), 2014 FC 1244

• Mikisew Cree challenge to the federal Omnibus bills assented to in 2012

• While "no actual harm has been shown but that is not the point." On the evidence there was "a sufficient potential risk to the fishing and trapping rights" to trigger the duty to consult (93).

• Re the Navigation Protection Act amendments: a "reasonable person would expect that a reduction in the number of waterways monitored carries with it the potential risk of harm." (101)

Courtoreille continued

• The amendments to the Fisheries Act "clearly increases the risk of harm to fish." (101).

• The Court held that in introducing the bills the FN should have been given notice "in respect to those provisions that reasonably might have been expected to possibly impact" on their treaty rights (103)

Hupacasath v Canada 2015 FCA 4

• Hupacasath challenge to Foreign Investment Protection Agreement (FIPA) between Canada and China.

• Duty to consult being aimed at "preventing a present, real possibility of harm caused by dishonourable conduct that cannot be addressed later“ (83)

• There needed to be the prospect of a decision prompted by the agreement as well as the ability to estimate the probability of the decision adversely affecting an Aboriginal right (99)

Buffalo River Dene Nation v Saskatchewan 2015 SKCA 31

• JR of exploration dispositions for subsurface oil sands and minerals

• To be more than speculative, a Crown decision or conduct had to have “some appreciable and current potential to adversely impact” a claimed right; here there was no “appreciable or current impact” (90)

• “If an adverse impacts are not possible until after a later-in-time, independent decision, then it is that later decision that triggers the duty to consult.” (104) Contrary to Kwikwetlem BCCA.

Peter Ballantyne Cree Nation v Canada (Attorney General), 2014 SKQB 327

• Claim for breach of the honour of the Crown, breach of fiduciary duty and trespass

• The FN argued that the construction and operation of the dam triggered a duty to consult at the time it was authorized as well as an ongoing obligation because of adverse impacts on hunting, fishing and trapping;

• Court rejected this as a new or novel impact because it was occurring on the same land regardless of how the dam was operated (43 see also 76)

Duty to Consult and Injunctive Relief

• When a First Nation alleges a failure to consult, can government or a company get an injunction against them?

• Does a failure to consult and accommodate equal irreparable harm?

• Must a First Nation prove Aboriginal title before it can seek an injunction in nuisance?

NunatuKavut Community Council Inc. v. Nalcor Energy, 2014 NLCA 46

• Injunction against the Metis for blockading a road leading to the Muskrat Falls hydroelectric development

• Issue of when injunctive relief is available against Aboriginal people when alleged lack of consultation.

• Fulfilling the duty was not a pre-condition to granting an injunction (41)

• But, if the Crown has not made an effort to consult it may not have ‘clean hands’ and therefore the court may decline to grant an injunction (43)

Tlicho Government v. Canada, 2015 NWTSC 9

• Challenge to the Northwest Territories Devolution Act which eliminated or changed the functions of water boards created under the 2003 Tlicho Agreement

• Breach of consultation can equal irreparable harm (71)

Haida Nation v DFO, 2015 FC 290

• Interlocutory injunction application to prevent reopening of commercial herring fishery

• The injunction could be based on a failure to consult and accommodate if there is evidence of harm to an Aboriginal right, not just harm in general (43)

Sapotaweyak Cree Nation v Manitoba 2015 MBQB 35

• Statement of claim against MB and MB Hydro re duty to consult and Bipole III; SCN sought an interlocutory injunction

• The First Nation argued that the failure to consult equaled irreparable harm

• The Court distinguished the Solid Gold decision on the facts and largely b/c there had a been deliberate refusal to consult by the company and effectively a “trampling” on the FN’s rights (229)

Saik’uz First Nation and Stellat’en First Nation v Rio Tinto 2015 BCCA 154

• First Nations sought interlocutory and permanent injunctions to restrain Alcan from committing the nuisance and interfering with their riparian rights

• The FN doesn’t have to wait until their rights are declared by a court or accepted by the Crown

• Like anyone else, they should be allowed to prove in the action the rights required to succeed in the claim

Enforcement of Modern Day Treaties

• Issue is to what degree is government decision making respect the processes laid down in modern treaties?

Corporation Makivik c. Québec (Procureure générale), 2014 QCCA 1455

• Prov gov’s arbitrary changes to James Bay Agreement hunting regulations

• Prov didn’t have a veto over the Coordinating Committee’s advice

• Both parties were “obligated to discuss, reconcile and compromise”

• Gov taking advantage of majority on committee would not sit well with honour of the Crown

The First Nation of Nacho Nyak Dun v. Yukon, 2014 YKSC 69

• Challenged approval of the Peel Watershed Plan

• Relied on Beckman for the treaty interpretation principle of 'equality between the parties' (149)

• Yukon had to respect the land use planning process under the treaty and participate in a collaborative, consultative and iterative process (154-55)

• Yukon’s process did not enhance the goal of reconciliation; was based on an ungenerous interpretation of the treaty inconsistent with the honour and integrity of the Crown (182)

• The requirement was for an "open and inclusive" process; "exchange or dialogue“

Duty to Consult and Standard of Review

• In Beckman Justice Binnie at para. 48 stated that a decision maker is expected to respect legal and constitutional limits. In establishing those limits no deference is owed to the decision maker.

• The standard of review in that respect, including adequacy of consultation, is correctness.

• A decision maker who proceeds on the basis of inadequate consultation errs in law.

• Within the limits of the law the Constitution a decision maker’s decision should be reviewed on a standard of reasonableness, i.e. adequacy.


• The Court adopted Beckman consultation being an upstream requirement.

• “A decision maker who proceeds on the basis of inadequate consultation errs in law.” (229)


• Yukon was expected to act honourably and respect its treaty obligations.

• If it fails to respect its constitutional limits it errs in law. It was obliged to interpret its constitutional obligations "broadly and purposively rather than narrowly"--this is a question of law and correctness.

• The issue of adequacy of consultation is a subsequent issue, i.e. downstream the preliminary issue of constitutional obligations (137)

Duty to Consult and Admissibility of Affidavit Evidence

• In a duty to consult case is the record limited to the record that was before the decision-maker?

Pimicikamak v Manitoba, 2014 MBQB 143

• The FNs wanted to file 11 additional affidavits, the contents of which was not before the decision maker

• The Court ruled the affidavits were inadmissible.

• Because MB had admitted the scope of the duty to consult was medium to high the Court held that the affidavits couldn’t be admitted on this issue (63)

• The Court referred to the FNs’ “reciprocal duty” to bring forth the information on historical use and impacts during the consultation process (66)


• In contrast to Pimicikamak , the Court took a flexible approach to the admissibility of evidence, noting that this was a duty to consult case and that the record went back to 2008.

• The court held that the record wasn’t limited to what was before the decision maker. Instead the FN was “entitled to put before the court evidence relevant to the arguments they are entitled to make, based on the grounds asserted for the judicial review.“ (177)

Adam v Canada, 2014 FC 1185

• Athabasca Chipewayn FN judicial review of two decisions under CEAA 2012 re Shell Canada Jackpine Mine Expansion project

• The Court ruled inadmissible an expert opinion affidavit the FN sought to adduce on the supposed inadequacy of the conditions.

• The Court concluded that this was not a situation similar to Yellowknives where Justice Phelan had allowed an affidavit on the existence of the duty to consult when there had been no opportunity to consult.

• Here they had been given plenty of opportunity and should have provided the Crown with the information during the consultation process (20-24).

Delegation of Consultation to Proponents

• Wabauskang First Nation v. Minister of Northern Development and Mines, 2014 ONSC 4424

• Fort McKay First Nation v Alberta (Minister of Environment and Sustainable Resource Development), 2014 ABQB 393

• In both, the court concluded that the duty to consult was not improperly delegated to the proponent.

• The courts did not set out when the line is crossed between delegating procedural aspects of consultation and substantive consultation

Duty to Consult and Self-Government Rights

• In Wabauskang the court rejected out of hand that the FN had any self-government rights

• In Hupacasath the Court acknowledged that if there was evidence of impacts on self-government rights the FN would have legal recourse (109).

Duty to Consult and Land Interests

• The Court in Buffalo River noted that there the FN didn’t assert a claim to the subsurface minerals.

• The FN did make a claim in Wabauskang but the court dismissed it out of hand.

Duty to Consult: Reconciliation vs Litigation

Are First Nations obligated to participate in reconciliation discussions before proceeding to court?

Saik’uz First Nation and Stellat’en First Nation v Rio Tinto 2015 BCCA 154

• Regarding the preference for reconciliation, the BCCA said that this was fine and good, but parties cannot be forced into negotiation if one prefers to resolve the dispute in court and more importantly, the goal of reconciliation cannot determine a question of law (78).

Sam v. British Columbia, 2014 BCSC 1783

• The Songhees sought an order that the BC and Canada negotiate with them to resolve their claims on the basis that Tsilhqot’in had imposed an obligation upon the Crown to negotiate in aboriginal cases

• The Court held that Tsilhqot’in had not created an obligation to negotiate and dismissed application

Duty to Consult and Remedies

• The continuing struggle for effective remedies in duty to consult cases.

Taku River Tlingit First Nation v. British Columbia (Minister of Environment), 2014 BCSC 1278

• Ordered decision to be made again with allowance for Taku to make written submissions


• The FN didn’t want simply an order for more consultation.

• The Court noted that courts were hesitant to order particular forms of accommodation (258).

• Consequently, the only remedy were declarations that the Province had failed in its duty to consult and that it had to consult “with a view to considering a reasonable accommodation.” (259)

Courtoreille v. Canada (Aboriginal Affairs and Northern Development), 2014 FC 1244

• The Court held based on Khadr SCC 2010 that the court should defer to the constitutional obligations of the legislative branch and in this case provide no remedy beyond a declaration.

• Declaratory relief was still of benefit if it would have some practical effect in resolving the issues (108)

• A declaration that the crown should have given the FN notice when the bills were introduced and a reasonable opportunity to make submissions might be helpful in the future (109)


• The Yukon's proposed remedy "would take it back to the drawing board and permit the Government of Yukon to benefit from its flawed process." (213 & 218)

• Yukon was not allowed to revisit the vague suggestions it originally made (221)

• Instead its approval was quashed and it was ordered to consult on its original detailed suggestions and any final modifications could not go beyond those details (222)

Hupacasath v Canada 2015 FCA 4

• Regarding relief for any future impacts, the Court noted that mandamus would be available if Canada should be involved and wasn't. (104)

Division of Powers

• Application of Doctrine of Interjurisdictional Immunity

• Divided provincial/federal responsibility for accommodation

Saik’uz First Nation and Stellat’en First Nation v Rio Tinto, 2015 BCCA 154

• In reply to Alcan's defence of statutory relief the FNs plead that the statutory authority relied on by Alcan including the Industrial Development Act, the 1950, 1987 and 1997 agreements are constitutionally inapplicable to their constitutional and proprietary rights to the extent they take away, diminish or extinguish those rights.

• Court held that it was arguable that the Water Act is constitutionally inapplicable to the extend that it purports to extinguish riparian rights held by the FNs based on Aboriginal title prior to 1892

Peter Ballantyne Cree Nation v Canada (Attorney General), 2014 SKQB 327

• The FN argued that prov limitations didn't apply to reserve lands b/c of IJI. The Court held that Tsilhqot'in "greatly narrows the application of interjurisdictional immunity in the context of claims of infringement of Aboriginal rights." (107).

• The court relied on para 140-44 of Tslihqot'in where the SCC discussed IJI and raised the analogy of the Charter. The Court concluded that IJI didn't apply to protect Aboriginal and treaty rights b/c they were not at the core of federal power under s. 91(24) (111).

Quebec (Attorney General) v Canada (Attorney General) 2015 SCC 14

• Long-gun registry decision

• Majority decision written by Justice Cromwell

• The Court held that the principle of cooperative federalism is not legally enforceable

• Cooperative federalism does not override the text of the Constitution, limit the scope of legislative authority or impose a positive obligation to cooperate (20)

Adam v Canada, 2014 FC 1185

• Athabasca Chipewayn FN judicial review of two decisions under CEAA 2012 re Shell Canada Jackpine Mine Expansion project

• The Court noted that the fed/prov division of powers limited the federal Crown’s ability to consult the FN (92).

• Relying on Tsilhqot’in, the Court held that many of the accommodations the FN sought were within the jurisdiction of Alberta (92). The FN should discuss many of its requests for accommodation with the prov (94).

Thank you for your time

Visit our website for our latest blog postings on Aboriginal Law

Contact Bruce: [email protected]

aboriginal law update, may 2015

Law

crown decision

potential risk of harm

hupacasath v canada

canada aboriginal affairs

sufficient potential

government conduct

dishonourable conduct

hupacasath challenge