Posted by

This legal update, presented on September 28, 2015 to the Annual General Assembly of the Union of B.C. Indian Chiefs, provides a round-up of some of the cases that have been decided in the last few months, and the trends these cases reveal.

I.             Consultation

Ktunaxa Nation v British Columbia (Forests, Lands and Natural Resource Operations), 2015 BCCA 352:  In this decision, the Court of Appeal agreed with the BC Supreme Court’s decision finding no breach of s. 2(a) of the Charter (religious freedom rights) in the Province’s decision to approve the Jumbo Glacier ski resort, which is located in an area of deep spiritual significance to the Ktunaxa.  The Court of Appeal concluded that s. 2(a) of the Charter could not be relied on to preclude development on the lands in issue because the Ktunaxa’s beliefs prohibited this type of development, or to force others to comply with a belief that they do not share. The Court of Appeal also concluded that the consultation process engaged in by the Minister was deep, meaningful, undertaken in good faith, flexible, and that the accommodation offered was reasonable in the circumstances.  This case reveals the difficulty in trying to protect First Nations’ spiritual and cultural rights through a Charter lens.

Chartrand v British Columbia (Forests, Lands and Natural Resource Operations), 2015 BCCA 345:  In this decision, the BC Court of Appeal overturned the decision of the BC Supreme Court, finding that the Province breached its duty to consult with the Kwakiutl First Nation (“KFN”) regarding the decisions to remove private lands from a Tree Farm Licence (affecting 8% of Kwakiutl territory), and to approve and renew a Forest Stewardship Plan in KFN’s Traditional Territory (affecting over 50% of the territory) (the “Decisions”).  The Court of Appeal rejected the lower court’s conclusion and held that the Province failed in the duty of consultation.  The Court held that the process “must be more than an available process; the process must be meaningful.”  The Court made clear that the approach of the Province towards the Douglas Treaties and Aboriginal title and rights is unconstitutional, and that significant changes in the relationship need to be made.  The Court rejected the government arguments that the Treaties were intended to extinguish KFN’s Aboriginal title throughout its traditional territory and upheld the finding of the BC Supreme Court that there is a prima facie case that the Douglas Treaties did not extinguish KFN’s Aboriginal title and rights.  This is the first time that a Canadian court has looked at the express language of sale or surrender in a Treaty, and construed this language against the drafters.  The Court also noted that the Crown has yet to fulfill its outstanding obligations to survey KFN’s village sites and enclosed fields reserved by the Treaties. The Court rejected Crown arguments that KFN did not meet its obligation to avail itself of opportunities to consult. First Nations cannot be faulted for not participating in consultation when the scope of consultation offered by the Crown is inappropriately narrow.  The Court of Appeal determined that KFN’s Treaty rights “occupy the high end of the spectrum of claims demanding deep consultation.”  The Court of Appeal made it clear that the Crown must proceed on a correct basis regarding the rights at issue, and provide a meaningful consultation process, before a First Nation can be faulted for not engaging. The Court of Appeal also made it clear that in consultation regarding high‐level decisions, First Nations need only demonstrate that the decisions would impact their decision‐making; they need not provide evidence of specific on the ground impacts. Lastly, the Court of Appeal noted that the Province had wrongfully denied economic accommodation to KFN that had been provided to non‐Douglas Treaty First Nations, and that this limited KFN’s ability to engage in consultation.

Long Plain v Canada, 2015 FCA 177: In this case, the Federal Court of Appeal (“FCA”) considered whether Canada had failed to fulfill its duty to consult with certain Treaty 1 First Nations when dealing with the disposition of the Kapyong Barracks, in Winnipeg.  The background to the case was this:  In entering into Treaty 1 in 1871, the First Nations were promised 160 acres of land for every family of five for their exclusive use and benefit, but the Crown did not follow through on this solemn promise.  In the 1990s, Canada sought to remedy its breach of Treaty 1 through a Treaty Land Entitlement (“TLE”) process.  Under the TLE process, the First Nations were provided with funds to enable them to purchase lands located within their traditional territories, and these lands would then be set aside as reserves.  When the Department of National Defence announced they were closing the Barracks, which is located within Treaty 1, the First Nations were obviously interested in obtaining these lands as part of the TLE process.  But Canada did not notify the First Nations of their decision to close the Barracks; did not treat the First Nations’ continued expressed interest in the lands on a priority basis; withheld information about the lands, including an appraisal, from the First Nations; and ultimately decided to transfer the lands to the Canada Lands Company.  The FCA found that Canada had breached its duty to consult with the First Nations, and that the property could not be disposed of until that duty had been fulfilled.  Whereas the Court Below had found that Canada’s conduct in the circumstances was “egregious,” the FCA did not go that far.  Instead, the FCA reasoned that the record showed a “repeated lack of understanding on the part of Canada about the nature and scope of the duty.”  The FCA also emphasized that the First Nations themselves need to be more proactive in upholding their reciprocal consultation duties (for example, replying in a timely manner, and requesting further information when needed).

II.            Regulatory Processes (NEB, EAO, EAB, and other Boards)

Hamlet of Clyde River v TGS-NOPEC Geophysical Company ASA (TGS), 2015 FCA 179: In this case, the FCA dismissed an application for judicial review brought by the Inuit of Clyde River regarding a decision by the National Energy Board (“NEB”) to grant a geophysical operations authorization (“GOA”) which would allow an offshore seismic survey program to proceed in Baffin Bay and Davis Strait.  The Inuit were concerned because they exercise hunting, fishing and harvesting rights under the Nunavut Land Claims Agreement in Baffin Bay and Davis Strait − the Project Area − and believed the airguns necessary for the Project would have a significant negative impact on marine mammals on which they rely for food security and their economic, cultural and spiritual well-being.  The NEB had proceeded on the basis that in depth consultation was required in these circumstances.  In the judicial review, the Inuit argued (1) that the absence of baseline data on the ecological area made it impossible to make an informed decision about the Project, yet the Crown refused to conduct a strategic environmental assessment as requested; and (2) that no formal consultation process had taken place, only public consultation, which they viewed as inadequate.  The FCA rejected these arguments.  On the first argument, the FCA reasoned that the GOA required annual, ongoing monitoring and reporting to Aboriginal communities, and that future input would be considered and gaps in scientific knowledge would be filled through observing the Project impacts.  On the second argument, the FCA reasoned that the nature of the consultation process offered through the NEB was sufficient to uphold the honour of the Crown.  In particular, the NEB imposed terms and conditions on the GOA requiring the proponent to file a marine mammal observer report, an environmental assessment and to conduct annual meetings in the communities.  The FCA was satisfied that, to date, the consultation process was sufficient.  The FCA was clear in stating that the issuance of the GOA was simply one step in the project approval process, and that the Crown is required to fulfill its duty to consult throughout all stages.  This decision is one more in a recent line of Federal Court and FCA decisions that defer heavily to Crown decision making as it relates to the duty to consult, affording the Crown wide discretion in crafting its consultative process. This case is also another prime example of the Federal Courts’ recent trend of downloading the duty to consult to later stages in the life of the project.  The Inuit are seeking leave to appeal to the SCC.

Fort Nelson First Nation v British Columbia (Environmental Assessment Office), 2015 BCSC 1180: This case deals with the duty of the provincial Environmental Assessment Office (“EAO”) to consult with First Nations in the context of designating a project as reviewable under the provincial Environmental Assessment Act (“Act”), and with an issue of statutory interpretation relating to the term “production capacity” under the Act.  The background is this:  the proponents sought to develop the Komie North Mine, intended for the extraction of “silica” or “frac” sand for use in the fracking process used in the extraction of natural gas.  The Mine was to be located in Treaty 8 territory.  Upon hearing of the proposed mine, the Fort Nelson First Nation (“FNFN”) asserted that the mine should be subject to an environmental assessment.  The FNFN were concerned, in particular, with the impacts of the Mine on its traditional territory and the exercise of its treaty rights.  Without consulting with the FNFN, the EAO determined that the Mine was not a reviewable project (because it would not meet the annual production threshold criteria set out in the Regulations), and so not subject to an environmental assessment under the Act.  The FNFN applied for judicial review the decision.  The BC Supreme Court held that the EAO had to consult with the FNFN before determining the Mine was not a reviewable project, and also rejected the EAO’s (absurd) interpretation of the Act, which would have allowed EAs to be avoided in many cases by defining the threshold for an EA as being how much sand and gravel the proponent intends to sell, not how much it proposes to excavate.  In this decision, the Court was not willing to allow the Province or proponents to avoid environmental assessments and thus consultation obligations by taking sneaky and unsound interpretations of the when the Act is triggered.

Environmental Appeal Board Decision No. 2012-WAT-013(c) (In the matter of an appeal under section 92 of the Water Act, RSBC 1996, c 483, between: Fort Nelson First Nation, and the Assistant Regional Water Manager, Nexen Inc., and EOG Resources Canada Inc., Devon Canada Corporation): In this long-awaited decision (it took 20 months to deliver), the Environmental Appeal Board (“EAB”) considered an appeal brought by the FNFN to a Conditional Water Licence issued to Nexen under the Water Act, which allowed Nexen to withdraw 2.5 million cubic metres of water per year from North Tsea Lake for storage and industrial uses to support fracking.  FNFN appealed the issuance of the Licence on two grounds: (1) the Manager failed to adequately assess the impacts of the Licence on the Tsea River watershed; and (2) it was issued in breach of the Province’s obligations to consult and accommodate FNFN regarding the potential impacts of the Licence on its treaty rights.  The EAB agreed with the FNFN.  On the first point, the EAB concluded that the hydrological aspects of the licence and water plan were “poorly rationalized.”  While there was limited data on the impacts of the water withdrawals on fish and fish habitat, it was clear that excessive withdrawals may adversely affect fish habitat and populations, including those the FNFN relied on to exercise their treaty fishing rights.  The EAB concluded that the Licence should be reversed because it was “fundamentally flawed in concept and operation”; it authorized a flow-weighted withdrawal scheme that was not supported by scientific precedent, appropriate modelling, or adequate field data.  And the Manager’s conclusion that the withdrawals would have no significant impacts on the environment was based on incorrect, inadequate, and mistaken factual information and modelling results.  On the second point, the Province agreed that consultation was required.  On the question of adequacy of consultation, the EAB concluded: (1) there was a logical causal relationship between the withdrawal and the potential to affect the habitat of fish and wildlife that the FNFN rely on for the exercise of their treaty rights; and (2) the Province’s information sharing was genuine up to a point, but when it came to consultation, the correspondence revealed that the Province was saying one thing to the FNFN, and another thing internally, showing an intention to issue the Licence regardless of any future discussions with the FNFN.  This, the EAB concluded, showed that the Province had no intention of substantially addressing the FNFN’s concerns, and was inconsistent with the honour of the Crown and the overall objective of reconciliation.  The EAB concluded that the consultation process was inadequate and fundamentally flawed.  Based on these flaws, the EAB Ordered that the Licence be reversed.  In sum, the Licence was based on bad science and bad faith and could not stand.

Yellowknives Dene First Nation v Minister of Aboriginal Affairs and Northern Development et al, 2015 FCA 148: This case concerns a decision made by the Mackenzie Valley Environmental Impact Review Board (“Board”) on an application by a proponent to conduct a diamond exploration project in the Drybones Bay area − an area of critical significance to the Yellowknives Dene, and where cultural impacts had been previously found to be at a critical threshold.  The Board concluded that the proposed development was not likely to have significant adverse impact on the environment or to be a cause of significant public concern, and therefore, an environmental impact review was not required, and the project could proceed to the regulatory phase for permitting and licensing.  The Yellowknives applied to the FCA for judicial review of the Board’s decision.  To be successful in challenging the Board’s findings of fact on significance of impact, the First Nation would have had to have shown that the conclusions reached “were not reasonably open” to it on the evidentiary record before it.  Here, the FCA found that the Board’s decision on significance of impact “was within the range of possible, acceptable outcomes defensible in respect of the fact and law.”  The FCA accordingly upheld the Board’s decision.  The Yellowknives also argued that land use planning was required as an accommodation, particularly because a previous decision of the Board on another proposal concluded that cumulative impacts in the area were at a critical threshold requiring management action.  The FCA rejected this submission, concluding that the duty to consult does not dictate a particular substantive outcome, does not give Aboriginal groups a veto over what can be done with land pending final proof of their claim, and does not equate to a duty to agree; rather, what is required is a commitment to a meaningful process of consultation. The FCA therefore concluded that it was not necessary for it to recommend measures similar to the land-use measures recommended in the previous decision on cumulative impacts. While focussed on process, the FCA did acknowledge that good faith consultation may reveal a duty to accommodate, where there is a strong prima facie case establishing the claim and the consequence of proposed conduct may adversely affect the claim in a significant way − in such cases the honour of the Crown may require steps to avoid irreparable harm or to minimize the effects of infringement.  The decision again shows the deference paid to reasonable findings of facts made by specialized boards.

III.           Cumulative Impacts

Yahey v Her Majesty the Queen, 2015 BCSC 1302: In this case, the Blueberry River First Nations (“BRFN”) (beneficiaries of Treaty 8) brought a claim against the Province arguing that the Province’s conduct over a period of many years of allowing industrial development to occur in their territory, has, through these cumulative effects, deprived them of their ability to meaningfully exercise their treaty rights.  BRFN sought declarations that the Crown had breached its treaty obligations, and also an injunction preventing the Province from proceeding with a planned auction of 15 timber sale licences.  The BC Supreme Court dealt only with the injunction application. The question of whether the time has come that BRFN can no longer meaningfully exercise their treaty rights was a matter for a future trial of the underlying action.  The BRFN lost on the balance of convenience aspect of the injunction test because, in the Court’s view, it had erred in framing the injunction as being against one part of a bigger problem of cumulative effects.  For the Court, the case turned on the fact that the irreparable harm alleged was the cumulative negative effect that infringes treaty rights, and the timber sales were only one part of that cumulative effect.  The Court noted that with these timber licences, less than 1/10 of 1% of BRFN’s traditional territory would be logged.  Notably, almost 90% of the ongoing industrial development complained of would be unaffected by this injunction. The Court recognized that, in certain circumstances, it could be argued that a single project is happening at such a critical time or place that it amounts to a “tipping point” beyond which the ability to meaningfully exercise treaty rights is lost – but that was not the evidence in this case.  The Court noted that most of BRFN’s evidence relied on in the injunction application was not specific to the cut blocks at issue, and the erosion of treaty rights was not limited to forestry impacts.  This meant that BRFN could, potentially, be bringing a series of injunction applications every time an activity could contribute to cumulative effects on treaty rights – creating a snowball effect where each injunction becomes an authority in support of the next – leading to a general moratorium on industrial activity. In the result, the Court was not prepared to take the first step that might lead to such a wide-ranging hold on industrial activity.  Justice Smith reasoned that if the Court is to consider making such a far-reaching order, it should be on an application that seeks that result and allows the Court to fully appreciate the implications and effects of what it is being asked to do.  It should not be done on a piecemeal, project-by-project basis.  The decision reinforces the need for the evidence supporting an injunction to be specific to the project sought to be enjoined, even if the larger backdrop is cumulative effects.

IV.          Limitation Periods

Samson Indian Nation and Band v Canada, 2015 FC 836: In this case the Federal Court considered whether equitable and statutory limitation periods apply to First Nations seeking remedy for the infringement of their constitutionally protected Aboriginal and Treaty rights, breach of Honour of the Crown, and/or breach of the Crown’s fiduciary duty.  The background is this:  The Crown brought motions for summary judgment seeking to dismiss claims brought by the Samson and Ermineskin Bands on the basis that they were time barred.  The Claims relate to oil royalties, and the Bands alleged various Crown breaches (trust, fiduciary, treaty, constitutional and other obligations) in its handling of royalty interests in the oil and gas produced on their reserve.  The decision is one of the first to apply the Supreme Court of Canada’s decision in Manitoba Métis Federation.  The Federal Court made two key findings vis-à-vis limitation periods and their application to First Nations’ claims: (1) Aboriginal claims are not constitutionally immune from the operation of limitation periods; and (2) First Nations are only exempted from limitation periods where they are seeking a declaration that the Crown has not acted honourably in implementing an express constitutional obligation, not in cases where a First Nation is seeking a remedy for a breach.  From this, the Court appears to have adopted the view that the policy rationales underlying limitation periods (i.e., the need for certainty and diligence) take precedence over the need to resolve historical injustices, reconciliation, and to uphold the honour of the Crown.

V.            Specific Claims

Lac La Ronge and Montreal Lake Cree Nation, 2015 FCA 154: This was the first application for judicial review brought by a First Nation challenging a decision made by the Specific Claims Tribunal.  The background is this, in a claim brought by the First Nations the Tribunal found that the Crown breached its fiduciary duty in allowing unlicensed harvesting of timber on their reserve lands between 1904 and 1910.  The Tribunal found that the Crown did not properly manage the timber on the reserve, in part due to its failure to make use of any of the enforcement measures that were available to it under the Indian Act. Although the First Nations were largely successful in having their claim validated by the Tribunal, they sought judicial review on a few narrow issues, including: (1) whether the Tribunal erred in finding that the Crown’s decision not to prosecute an unlicensed harvester under s. 26 of the 1886 Indian Act was excluded from its fiduciary duty; and (2) whether in one paragraph of the decision in which the Tribunal questioned whether a loss had been proven, the Tribunal had pre-judged the question of compensation, giving rise to a reasonable apprehension of bias.  The FCA dismissed the judicial review.  On the facts, no prosecution was started with respect to the unlicensed harvesting, so the principle of prosecutorial discretion wasn’t engaged in the Claim.  There were tools, other than a criminal prosecution, to deal with unauthorized harvesting and protect the reserve.  The FCA upheld the Tribunal’s finding that the Crown breached its fiduciary duty, and there was no reason to interfere with its reasoning. The FCA also found that the Tribunal’s comments in para. 127 did not rise to the level of showing a reasonable apprehension of bias.  The Tribunal expressly recognized that the question of loss was not relevant to the first phase of the proceedings, and that the issue could not be prejudged.

VI.          Site C Challenges

Prophet River First Nation and West Moberly First Nations v Attorney General of Canada et al, 2015 FC 1030: Here, the Prophet River and West Moberly First Nations (“FNs”) brought an application for judicial review challenging the decision made by Governor in Council (“GIC”) finding that the significant adverse environmental effects that would likely result from the construction of Site C were “justified in the circumstances.”  The background is this: in 2011 BC Hydro submitted a Project Description to the BC EAO and the Canadian Environmental Assessment Agency (“EAA”) regarding Site C; the EAO and EAA decided to conduct a cooperative environmental assessment, which included a Joint Review Panel (“JRP”); in 2013 and 2014 the JRP held hearings; on May 1, 2014 the JRP released its report finding, among other things, that Site C would likely cause significant adverse effects on fishing, hunting, trapping, and other traditional uses practiced by Treaty 8 First Nations; on October 14, 2014 the GIC issued a 10-paragraph Order in Council setting out its decision that the potential significant adverse environmental effects likely to ensue should Site C proceed were “justified in the circumstances.”  Also on October 14, 2014 the Province issued an environmental assessment certificate (“EAC”) for Site C.  (The FNs also challenged the provincial certificate in BC Supreme Court, and in a recent decision Justice Sewell dismissed their petition to have the EAC quashed.)  In this Federal Court application, the First Nations challenged the GIC decision on several grounds including: the Crown’s failure to meet its duty to consult and accommodate; and the unreasonableness of the GIC’s justification decision.  This judicial review was heard alongside one brought by the Peace Valley Landowner Association, also challenging the GIC’s decision, but on the basis that any justification decision would need to be based on an unambiguous need for power, and that the Order in Council failed to address the economic value of the Project, as required. The Court dismissed both applications for judicial review, and in both decisions focused on the level of deference due to the GIC as an elected body.  In particular, the Court emphasized that the GIC makes decisions based on polycentric considerations and is charged with balancing individual and public interests (including First Nations interests) meaning its decisions are afforded deference, and its decision-making process is entitled to privilege.  Therefore, even if we don’t know what information the GIC considered, we must assume it considered all reports and all viewpoints and didn’t ignore any impacts.  In the Peace Valley decision, the Court reasoned that while the GIC’s brief decision “could have been better articulated and more transparent” the Court must presume that all relevant information was before the GIC, and that it considered all this information in reaching its decision.  The Court suggested that if the FNs wanted a determination that their treaty rights were infringed, they should pursue an action on the merits of the infringement question, on a full evidentiary record.  The Court did not address the utility of such an action in the context of a Project that is now rolling ahead, and seemed to think that such could be brought on short notice and pursued expeditiously.

VII.         Mandatory Mediation

Matsqui First Nation v Canada (Attorney General), 2015 BCSC 1409: In this decision the BC Supreme Court found that the Crown should be required to participate in a mediation session initiated by Matsqui in the context of a civil claim dealing fishing rights. The background is this: Matsqui commenced a civil claim in BC Supreme Court seeking a declaration of its rights to fish for food, social and ceremonial (“FSC”) purposes, a declaration that the Department of Fisheries and Oceans (“DFO”) unjustifiably infringed those rights by not granting them particular licences in 2010, and damages.   DFO views the claim as a test case with broad implications as it challenges DFO’s management approach on the Lower Fraser River, and is accordingly putting Matsqui to strict proof of their FSC rights. The trial was scheduled to begin at the end of September.  In May, Matsqui served the Crown with a Notice to Mediate.  Under the Court Rules, this triggered a mandatory mediation session.  The Crown, however, brought an application seeking to get out of the mediation.  In order to be exempted from mediation, the Crown was required to demonstrate “material impracticability or unfairness.”  The Crown made two arguments: (1) that it was important to proceed to trial given the precedential value of the case; and (2) in any event, the Crown did not have a mandate to settle or resolve Aboriginal rights claims until after the federal election.  The Court rejected the Crown’s arguments and dismissed its application.  The Court was not convinced that mediation was either impracticable or unfair in this case.  Although Matsqui argued that the Crown’s position was entirely inconsistent with reconciliation and the honour of the Crown, the Court did not address this argument and decided the case solely on the basis of the wording of the Rule.