mccarthy tétrault llp / mccarthy.ca aboriginal and consultation law update 2012 - 2013 stephanie...

McCarthy Tétrault LLP / mccarthy.ca

Aboriginal and Consultation Law Update2012 - 2013

Stephanie Axmann


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Outline

I. SCC Framework: Duty to Consult

II. Consultation Law Update

III. Notable Treaty and Title Cases

IV. Development of Métis Rights


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¬ Section 35, Constitution Act, 1982:

“The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.”

¬ Purpose of Section 35: reconciliation of prior presence of aboriginal peoples with Crown sovereignty

¬ Reconciliation is composed of two distinct aspects:¬ reconciliation between Crown and aboriginal peoples; and¬ reconciliation by Crown of aboriginal and competing societal

interests

¬ The Crown’s Duty to Consult is a constitutional duty flowing from Section 35 and the principle of the “honour of the Crown”

I. SCC Framework


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I. SCC Framework

6 decisions to date from Supreme Court of Canada (SCC) regarding the Crown’s Duty to Consult:

¬ Haida Nation v. B.C. and Weyerhaeuser, 2004 SCC 73

¬ Taku River Tlingit First Nation v. B.C. (Project Assessment Director), 2004 SCC 74

¬ Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69

¬ Rio Tinto Alcan v. Carrier Sekani Tribal Counsel, 2010 SCC 43

¬ Beckman v. Little Salmon/Carmacks First Nation, 2010 SCC 53

¬ Behn v. Moulton Contracting Ltd., 2013 SCC 26


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I. SCC Framework

Haida Nation v. B.C. and Weyerhaeuser, 2004 SCC 73

¬ November 18, 2004 — unanimous SCC confirmed:

Crown has a duty to consult and, where appropriate, accommodate aboriginal peoples where the interests of aboriginal peoples may be affected by a Crown action or decision.

¬ “Interest” is a possible Aboriginal right supported by prima facie evidence; proven rights are not required to trigger the duty

¬ Weyerhaeuser’s appeal allowed: No third party duty to consult

¬ Reciprocal obligation on Aboriginal peoples not to thwart Crown’s good faith efforts to consult


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I. SCC Framework

The “honour of the Crown” is the basis of the Duty to Consult

¬ Crown must always act honourably and in good faith, in dealing with Aboriginal peoples

¬ not Crown’s fiduciary relationship with Aboriginal peoples

¬ Crown is not rendered “impotent”; may continue to “manage the resource in question”

¬ Crown must balance broader societal interests with those of Aboriginal peoples

¬ Crown may not always meet Aboriginal expectations; no “veto”

Haida Nation v. B.C. and Weyerhaeuser


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I. SCC Framework

Scope of Duty to Consult

¬ Varies with circumstances; consultation must be proportionate to:

(i) strength of the Aboriginal claims; and

(ii) potential adverse effect on Aboriginal right or title.

Spectrum of Consultation

¬ At one end: weak Aboriginal claims and potential infringement minor: notice may be sufficient

¬ At other end: strong prima facie case for Aboriginal right/title and potential for significant infringement and non-compensable damage: “deep consultation” may be required, such as: (a) submissions by Aboriginal peoples (b) formal Aboriginal participation in decision-making, and (c) written reasons demonstrating consideration of Aboriginal concerns



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I. SCC Framework

Assessing Adequacy of Consultation: a Two-Stage Process

(1) Preliminary assessment of strength of Aboriginal claims

¬ Seriousness with which Crown will consider Aboriginal claims and impact of potential infringement — i.e. where on the spectrum will Crown deal with a particular Aboriginal claim — proportionality

¬ Standard of correctness

(2) Adequacy of consultation

¬ Need not be perfect: Crown must make reasonable efforts to inform and consult

¬ Focus is on process, not outcomes¬ Standard of reasonableness



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I. SCC Framework

No substantive right of Accommodation

¬ Duty to Consult may require, in an appropriate case, accommodation.¬ Elaborated in Beckman v. Little Salmon/Carmacks First Nation: “The test

is not… a duty to accommodate to the point of undue hardship for the non-Aboriginal population.”

Deference to the Decision-Maker

¬ Little Salmon: Director did not err in law in concluding consultation was adequate. The material filed by the parties “does not demonstrate any palpable error of fact in his conclusion.”

¬ “Whether or not a court would have reached a different conclusion on the facts is not relevant. The decision to approve or not to approve the grant was given by the Legislature to the Minister who, in the usual way, delegated the authority to the Director. His disposition was not unreasonable.”


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II. Consultation Update

Background

¬ BC Ministry of Forests granted licences and a road permit (Authorizations) to Moulton Contracting Ltd. (Moulton) to harvest timber in Treaty 8 territory and in trapline areas of the Behn family, members of Fort Nelson First Nation (FNFN).

¬ The Behns were notified of the proposed new harvesting blocks, but did not raise concerns until after the Authorizations were issued. They then set up a road blockade, preventing Moulton from accessing logging sites.

¬ Moulton commenced a tort action against Behns, FNFN Chief, FNFN, and Crown for damages due to its inability to complete a timber delivery contract.

¬ In defence, the Behns argued that the Authorizations were illegal, by alleging:

(i) the Crown failed to fulfill its duty to consult in issuing Authorizations; and

(ii) the licences infringed their Treaty 8 hunting and trapping rights.

Behn v. Moulton Contracting Ltd., 2013 SCC 26


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Both the BC Supreme Court and the BC Court of Appeal (BCCA) held:

¬The Behns did not have standing to assert the collective rights of the FNFN in their defence, as they were not authorized to do so by FNFN. (Saunders J.A. of the BCCA noted that she was not suggesting that collective rights could never provide a defence to individual members of an Aboriginal community).

¬The Behns’ challenge to the validity of the Authorizations amounted to a collateral attack, or an abuse of process, since the Behns had failed to challenge the validity of the Authorizations earlier, through proper legal channels.



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The SCC considered the following 3 issues:

1. Whether the individual members of an Aboriginal community have standing to assert on their own a breach of the duty to consult;

2. Whether the individual members of an Aboriginal community have standing to allege a breach of Aboriginal or treaty rights; and

3. Whether it amounts to an abuse of process for the Behns to challenge the validity of the Authorizations in defence of Moulton’s action, after the Behns failed to take legal action when the Authorizations were first issued.



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SCC Decision

1. Individuals’ standing to allege breach of the duty to consult

¬ The purpose of the duty to consult is to protect the s. 35 rights of Aboriginal peoples, which are collective in nature. Therefore, the duty is owed to the Aboriginal group that holds such rights.

¬ An Aboriginal group can authorize an individual or organization to represent it for the purpose of asserting its s. 35 rights.

¬ However, there was no allegation in the pleadings that FNFN had authorized the individuals to represent it to oppose the Authorizations or assert a breach of the duty.



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SCC Decision

2. Individuals’ standing to allege breach of Aboriginal or treaty rights

¬ While Aboriginal and treaty rights are collective in nature, certain rights are exercised by individuals and may also have individual aspects.

¬ SCC declined to decide whether the Behns could raise a breach of their Treaty 8 rights as individuals, as the third issue regarding abuse of process was determinative.



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SCC Decision

3. Abuse of Process

¬ Behns’ appeal dismissed. In the circumstances, "raising a breach of the duty to consult and of treaty rights as a defence was an abuse of process." Neither the Behns nor FNFN attempted to legally challenge the Authorizations when granted by the Ministry, through judicial review, by seeking injunctive relief or otherwise, and they did not raise any concerns with Moulton.

¬ To allow the individuals to raise their defence based on treaty rights and a breach of the duty to consult now would be “tantamount to condoning self-help remedies and would bring the administration of justice into disrepute. It would also amount to a repudiation of the duty of mutual good faith that animates the discharge of the Crown’s constitutional duty to consult First Nations.”



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Observations

¬ By requiring individuals to be authorized by an Aboriginal group to allege a breach of the duty to consult, this decision confirms previous pronouncements from the SCC that the duty to consult is owed to an Aboriginal group, and not to individual members of such group.

¬ In finding an abuse of process, SCC focused on theh unfairness and significant prejudice that would be caused to Moulton if the defences were allowed. This is consistent with other SCC decisions that have stressed the balancing of rights and interests of Aboriginal and non-Aboriginal peoples, and that reconciliation involves the rights and interests of both.

¬ SCC commented on the mutual duty of good faith on the part of both the Crown and Aboriginal peoples.



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Background

¬ The Agreement between the Government of Canada and the Government of the People’s Republic of China for the Promotion and Reciprocal Protection of Investments (CCFIPPA) is a pending bilateral treaty between Canada and China intended to protect and promote investment (similarities with NAFTA).

¬ It features provisions for national treatment, most-favoured nation treatment, a minimum standard of treatment, protection against expropriation, obligations for the free transfer of funds, and investor–State dispute settlement mechanism.

¬ Canada signed CCFIPPA on September 9, 2012, but it has yet to ratify the treaty, and the treaty is not in force. No legislative amendments are required.

Hupacasath First Nation v. Canada (Minister of Foreign Affairs), [2013] FCJ No. 927


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Application for Judicial Review

¬ Hupacasath First Nation (HFN) (among others) requested that CCFIPPA ratification be postponed until there has been full and proper consultation with First Nations.

¬ HFN submitted an application for judicial review to the federal court, seeking a declaration that Canada is required to consult and accommodate.

¬ HFN argued that CCFIPPA would negatively impact the exercise of its rights, could constrain treaty negotiations, that international trade and investment law would not have the same constitutional protections for Aboriginal rights.



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Federal Court Decision

¬ Court’s analysis was confined to whether a duty to consult was owed to HFN. Analysis concerned whether there was potential for adverse effects, rather than “mere speculative impacts” (i.e. Rio Tinto).

¬ Held: None of the evidence demonstrated such adverse impacts. The adverse impacts alleged by HFN were “speculative, remote and non-appreciable” and the required causal link had not been demonstrated.

¬ Court distinguished the matter before it from cases referenced by HFN that addressed high-level decisions or structural changes that triggered a duty to consult; unlike matters addressed in those cases, the treaty does not relate directly to any specific lands or resources.



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Background

¬ 1965: Thompson Creek Metal Company Inc. (Thompson Creek) began operating Endako Mine under Mines Act Permit (M-4 Permit).

¬ 2008: Thompson Creek sought amendments to M-4 Permit and other permits to build a new mill and extend closure date. Would not significantly expand Mine footprint.

¬ Stellat’en First Nation asserts Aboriginal title and exclusive rights to use and occupy surrounding lands; argued Crown failed to consult and accommodate.

Louis v. BC (Minister of Energy, Mines and Petroleum Resources), 2013 BCCA 412


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BCSC Decision – August 5, 2011

¬ Dismissed Stellat’en’s petition: the Crown correctly considered strength of Stellat’en’s claim; consultation was reasonable; no accommodation was required.

¬ Stellat’en did not fulfill reciprocal duty to participate in consultation. They were duty-bound “to express their interests and concerns” and to consult in good faith by whatever means are available to them”, and “cannot frustrate the consultation process by refusing to meet or participate, or by imposing unreasonable conditions”.

Louis v. BC (Minister of Energy, Mines and Petroleum Resources), 2013 BCCA 412


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On appeal to the BCCA, Stellat’en argued:

1.The extension of the operating life of the mine from the initial anticipated shutdown date of 2013 to 2025 was a novel, adverse impact that required consultation.

2.Province failed to address the historic interference of the mine with claimed Aboriginal rights.

3.Province should have consulted in respect of the overall mine, being a strategic, high level decision. Rather, the Crown improperly engaged in incremental consultation on individual permits.

4.The proposed economic community development agreement (ECDA) of the Province did not meet the honour of the Crown as an appropriate form of accommodation.

Louis v. British Columbia, 2013 BCCA 412


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BCCA Decision

1.Extension of the life of the mine was not a novel, adverse impact:

¬ The original closure plan under the M-4 Permit contemplated extensions, and closure date decision was Thompson Creek’s, not the Crown’s.

¬ The Crown cannot “abuse its regulatory discretion by using the application as a tool to undermine the existing rights of the applicant.”

2.Consultation regarding historical infringements was not required.

¬ The opening of the mine and past impacts were not the subject of consultation (Rio Tinto). Past infringements are not revived by present government decisions.



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BCCA Decision

3. Incremental consultation was appropriate:

¬ Consultation on high level, strategic planning (as discussed in Rio Tinto) means consultation from the earliest phases of a project.

¬ However, Crown does not need to restructure its statutory duties to engage in consultation where it has no role in strategic planning – in this case, the decisions were made by Thompson Creek.

4. ECDA discussions were not a part of the consultation process

Held: Consultation in the circumstances was reasonable: MEMPR repeatedly attempted to engage with Stellat’en, but could not due to Stellat’en’s failure to participate or express specific concerns. In such circumstances, consultation was “as deep as it could be”.



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BCCA Decision

Reciprocal Duty?

¬BCCA stated that a First Nation is not under any duty to participate or cooperate in a consultation process. However, since Stellat’en failed to raise specific concerns that MEMPR could address, it could not then argue that consultation was inadequate.¬These comments are seemingly at odds with previous court decisions (e.g. Haida, Halfway River, R. v. Douglas) that have held that Aboriginal groups have a "reciprocal duty" to express their interests and concerns, and to consult in good faith by whatever means are available to them. They cannot frustrate the consultation process by refusing to meet or participate or by imposing unreasonable conditions. ¬BCCA’s statement could be reconciled if it is clear that Aboriginal groups cannot allege a lack of consultation if they fail to participate in the process.



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Background

¬Province made decisions to (1) allow a forestry company to remove private lands from a tree farm licence and (2) approve and extend a forest stewardship plan.

¬Province restricted its consultation with Kwakiutl First Nation (KFN) to impacts on KFN’s treaty rights and lands under the treaty.

¬KFN argued that consultation should be in respect of all of its traditional territory, not just those subject to the Douglas Treaty.

¬KFN applied for judicial review, based on impacts to its asserted Aboriginal rights and title. KFN asserts land rights on Vancouver Island under the Douglas Treaty, which were the subject matter of other, ongoing litigation.

Chartrand v. The District Manager, 2013 BCSC 1068


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BCSC Decision

¬Province had a duty to consult regarding the entire asserted traditional territory and was not confined to the lands conveyed to KFN under the Douglas Treaty (consultation is triggered at a low threshold).¬Potential adverse impacts were significant, could potentially affect KFN’s access to lands, and could cause harm to KFN’s ability to exercise traditional activities. ¬However, despite the Province’s claim that it did not need to consult in respect of the entire traditional territory, it satisfied its duty to consult (less emphasis on correctness of preliminary assessment). A condition for removing the private lands from the tree farm licence was to allow KFN access to the lands. ¬KFN failed to engage in meaningful consultation or to provide specific information regarding potential adverse effects. BCSC noted the reciprocal responsibilities of Aboriginal groups to engage in consultation - “reasonable consultation is a two-way street”. Aboriginal groups have a responsibility to “express their interests and concerns in a meaningful and substantive way”. (Contrast with the Louie decision).

Chartrand v. The District Manager, 2013 BCSC 1068


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Background

¬ In an earlier decision, the Federal Court held that the Crown breached its duty to consult with KTFN before approving an oil and gas development project of Paramount Resources Ltd. in the Northwest Territories. The judge ordered a process of meaningful consultation, and if necessary, accommodation (the Order).

¬ KTFN enjoy Treaty 11 harvesting rights, and also assert a claim to Aboriginal title that the first judge considered to be reasonably arguable.

¬ The consultation process carried out in accordance with the Order lasted almost 2 years and was extensive. However, KTFN and Canada had different views on the correct scope of consultation. KTFN asked for (i) a satisfactory consultation framework protocol; (ii) consultation funding; and (iii) a proper traditional land use study. KTFN also asserted that economic accommodation was required given its strong case for Aboriginal title.

Ka'A'Gee Tu First Nation v. Canada (Attorney General), 2012 FC 297


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Application for Judicial Review

¬ Canada had determined that in the circumstances, negotiating financial compensation for any potential infringement of KTFN’s asserted Aboriginal title was not a reasonable part of the consultation process.

¬ Therefore, KTFN subsequently applied to the Federal Court alleging that Canada failed to engage in good faith consultation in accordance with the Order, regarding potential impacts of the last project phase, the “Extension Project”.

¬ KTFN asserted there was an economic component to their asserted Aboriginal title interests that required accommodation, which should occur by way of agreement between KTFN and Paramount. Failing such agreement, KTFN argued that it should be financially compensated by Canada.



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New Issue under Judicial Review¬Whether Canada (as represented by INAC) fulfilled its duty to consult and, if appropriate, to accommodate, in accordance with the Order (and whether economic accommodation based on KTFN’s assertion of Aboriginal title was appropriate in the circumstances).


¬Application of KTFN dismissed. ¬Canada correctly identified the scope and extent of the consultations in the Order. The consultation process was meaningful and transparent. Canada made a genuine effort to address KTFN’s views about proposed accommodation measures. ¬“The record before the Court shows that the KTFN were preoccupied throughout the consultation process with assertions that monetary compensation is required for their asserted title.”



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¬ Economic accommodation was inappropriate at the pre-proof stage: “Aboriginal title undoubtedly entails an ownership interest and a correlative right to compensation for interference with that interest. It does not follow, however, that prior to the determination of title, consultations must include meaningful discussions and accommodation of the impacts to the economic component of that title.”

¬ “The fact that Canada and the KTFN were unable to agree on this particular aspect of the KTFN’s demands does not amount to bad faith. After all, one must not lose sight of the fact that the duty to consult does not translate into a duty to accommodate or a duty to agree on any specific measure to alleviate the potential impact of a project or of a decision.”

¬ “The duty to accommodate is not a free-standing legal right. It is an adjunct of the duty to consult, the purpose of which is to prevent irreversible damages to claimed Aboriginal interests pending proof or determination through treaty negotiations.”



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¬“The duty to consult is not intended to provide Aboriginal people immediately with what they could be entitled to, if and when they prove their claims or settle them through treaty. Otherwise, there would be no incentive for Aboriginal people to negotiate treaties or seek to prove their claims. The duty to consult, therefore, is not meant to be an alternative to comprehensive land claims settlements, but a means to ensure that the land and the resources that are the subject of the negotiations will not have been irremediably depleted or alienated by the time an agreement is reached.”

¬“Of, course, the implementation of the duty to consult is not to be assessed by the dollar figures contributed by the Crown nor by the procedural framework put in place to conduct the discussions. In the present case, however, the bona fides of the discussion did lead to agreements on accommodating measures to address the concerns of the KTFN with the Extension Project’s impacts on their treaty rights and asserted Aboriginal rights.”



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Background

¬ A 2012 decision of the BCCA held, among other things, that the incorporation of a municipality (Sun Peaks ski resort) did not attract the duty to consult, as any potential effects were insubstantial. Consultation in respect of the incorporation had been reasonable.

¬ The BCCA, following the SCC’s decision in Rio Tinto, held that it was appropriate to limit the consultation to what was required to address the impact from the specific decision before the Crown (i.e. incorporation). It was not necessary to enter into broad consultation to address all other outstanding issues between the Band and the Province.

¬ Band was denied leave to appeal the 2012 decision to the SCC on April 11, 2013.

Adams Lake Indian Band v. B.C. (Min. of Forests, Lands and Natural Resources Operations), 2013 BCSC 877


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2013 BCSC Decision

¬ How does the Duty to Consult apply to a phased development?

¬ The Band applied for judicial review of the Province’s decision to issue a licence of occupation to the Sun Peaks Resort Corporation in furtherance of the development of ski runs, without adequate consultation.

¬ The Province and Resort claimed that consultation was not required because the licence was part of a previously approved development plan. They argued that there was no new decision, and submitted that the previous approvals authorized the entire resort development.



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2013 BCSC Decision

¬ Province had a duty to consult regarding the issuance of the licence. The earlier Crown decisions were not definitive, and the current grant of licences and authorizations was an exercise of statutory power and decision-making.

¬ The Court stated that “the honour of the Crown is always at stake in its dealing with Aboriginal peoples and the obligation must be understood generously. In my view it is not honourable for the Crown to refuse to address potential impacts of its operational decisions on the basis that those decisions flow from a planning decision made before the duty to consult was articulated” (i.e. in 1993).

¬ In summary, the Province had a duty to consult the Band on “in stream decisions” that may have an adverse impact on the Band’s claimed rights.



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2013 BCSC decision

¬ However, in the circumstances, the Province’s consultation and decision to restrict the scope of consultation to the current decision in issues was reasonable. Consultation about cumulative effects of the development as a whole did not need to be addressed.

¬ The Band’s application to quash and enjoin the issuance of the licence was dismissed.

Accommodation:

¬ The Band also argued that proper accommodation in this case must include economic compensation or revenue sharing.

¬ Citing Ka’A’Gee Tu First Nation v. Canada (A.G), the Court held that “judicial review proceedings are not the appropriate avenue to consider whether First Nations should be compensated for adverse impacts to asserted rights and title.”

¬ “Accommodation requires that First Nations’ concerns be balanced reasonably with the potential impact of the particular decision on those concerns and with competing societal concerns”.



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Background

¬ In 2011, the BCSC held that BC failed to adequately consult Halalt First Nation in deep consultation regarding an environmental assessment process for modifications to groundwater extraction project.

BCCA Decision

¬ Appeal allowed – the BCSC erred in concluding that the Crown failed to meet its duty to consult.

¬ The BCCA questioned whether a strength of claim assessment must always be conducted at the start of consultation. Rather, the subject matter of the consultation should be the most important consideration, Assessing strength of claim is not necessary if there is deep consultation.

SCC Dismisses Application for Leave to Appeal in Halalt First Nation, 2012 BCCA 472 (April 11, 2013)


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Supreme Court of Yukon Decision¬RRDC applied for declaration that Yukon had a duty to consult RRDC prior to recording quartz mineral claims (recording of claims is non-discretionary in Yukon).¬Held: Test is whether there is any Crown conduct, not whether the conduct involves discretion. In this case, appropriate consultation was limited to notice by Yukon that mineral claim had been recorded.

BCCA Decision¬Free entry must be modified to align the Crown’s actions with its constitutional obligations. ¬Further, mere notice is insufficient. A more elaborate regime is required under the Quartz Mining Act. “Statutory regimes that do not allow for consultation and fail to provide any other equally effective means to acknowledge and accommodate Aboriginal claims are defective and cannot be allowed to subsist.”¬Declarations suspended for 1 year to allow for legislative changes.

SCC Dismisses Application for Leave to Appeal in Ross River Dena Council v. Government of Yukon, 2012 YKCA 14 (September 2013)


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Background¬ Under Treaty 3 in Ontario, the Ojibway surrendered their interest in the lands in

exchange for certain benefits, including rights to hunt and fish, except on tracts "required or taken up for settlement, mining, lumbering or other purposes by [the] Government of the Dominion of Canada" (Harvesting Rights).

¬ Ontario issued licences to Abitibi-Consolidated Inc. to clear cut forests on Crown lands in plaintiffs' trap line areas

Issues framed by lower court (ONSC)¬ Did Ontario have authority to “take up” certain tracts of land for forestry, so as

to limit plaintiffs’ Treaty right to hunt or fish?¬ If not, did Ontario nevertheless have power pursuant to division of powers to

justifiably infringe plaintiffs’ right if it meets Sparrow test?

.

Keewatin v. Ontario (Natural Resources), 2013 ONCA 158


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ONSC Decision

¬ Ontario does not have authority to “take up lands” under the Treaty. “Dominion of Canada” does not include Ontario.

¬ Ontario does not have constitutional power pursuant to division of powers to infringe upon Plaintiffs’ rights on the basis of the Sparrow justification test.

¬ Potentially serious consequences for provincial powers.

Ontario Court of Appeal

¬ Overturned the ONSC’s decision and answered "yes" to Question One: Ontario can avail itself of the "taking up" powers under Treaty 3, so as to limit the Plaintiffs’ Harvesting Rights, without authorization from the federal government.

¬ Having answered Question One in the affirmative, the ONCA held that it did not need to answer Question Two.

.



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¬ The Harvesting Clause must be interpreted within the proper constitutional framework, including the divided legislative authority between Canada and the provinces set out in the Constitution Act, 1867:

¬ Canada has exclusive legislative jurisdiction over "Indians, and Lands reserved for the Indians" under s. 91(24), however:

¬ S. 109 gives beneficial ownership to Ontario of Crown lands within Ontario, subject to any trust or other interest in those lands (including existing aboriginal interests);

¬ s. 92(5) gives Ontario exclusive legislative jurisdiction to manage and sell public lands and the timber and wood thereon; and

¬ s. 92A grants further legislative powers to Ontario in respect of non-renewable natural resources, forestry resources and electrical energy.

.



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¬ Significant constitutional protections are already in place for Aboriginal peoples, without placing Canada in a supervisory role over Ontario. These protections are grounded in the principle of the honour of the Crown and s. 35 including the Crown’s duty to consult.

¬ Ontario must recognize the rights of First Nations in the Keewatin lands to the same extent that Canada did prior to 1912. In exercising its rights to take up lands, Ontario must uphold the honour of the Crown, consult with First Nations and accommodate treaty rights as appropriate.

¬ In our view, the ONCA’s decision confirms and clarifies the state of the law as it has existed since Treaty 3 was signed; it does not create new law.

SCC allowed the Plaintiffs’ application for leave to appeal in September 2013.

.



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BCSC Decision - Tsilhqot’in Nation v. British Columbia, 2007 BCSC 1700

¬ Concerned claims by the former chief of Tsilhqot’in Nation for Aboriginal rights and title in two areas (the “Claim Area”). Plaintiffs opposed decision of Province to grant a forestry licence and cutting permit to Carrier Lumber Ltd. in the Claim Area.

¬ Mr. Justice Vickers dismissed the Plaintiffs’ claims to Aboriginal title, relying on the test for Aboriginal title in Delgamuukw, requiring proof of exclusive occupation at time of the assertion of Crown sovereignty: occasional entry and use of land is insufficient to found a claim to title.

¬ Procedural issue: There was sufficient evidence of occupation in certain parts of the Claim Area to establish title, but the BCSC did not grant a declaration on the basis of the Plaintiffs’ pleadings of an “all or nothing claim” over entire area. However, the BCSC confirmed Aboriginal rights to hunt and trap.

.

William v. British Columbia, 2012 BCCA 285


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BCCA Decision - June 27, 2012

¬ BCCA’s analysis differed from BCSC, but it upheld the BCSC’s order in its entirety: dismissing the Plaintiff’s claim for Aboriginal title over the Claim Area, but affirming that the Tsilhqot’in enjoyed Aboriginal rights throughout the Claim Area.

¬ The BCCA considered principles from the SCC to found a claim of title:¬ Delgamuukw: land must have been of central significance to the culture, and

an intensive presence at a particular site was required;¬ Marshall; Bernard: exclusive possession similar to that of title at common law.

Demonstrated through regular occupancy or use of definite tracts of land.

¬ A broad, “territorial claim” of title is not viable. Such claims do not fit the purposes of s. 35 and are “antiethical to the goal of reconciliation” which demands respect for Aboriginal rights “without placing unnecessary limitations on the Crown or the aspirations of others”.



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BCCA Decision

¬ Where traditional use and occupation of land was less intensive, Aboriginal rights less than title may be sufficient to preserve an Aboriginal group’s traditional activities, lifestyle and culture. This is commensurate with reconciliation.

SCC granted leave to appeal to the Plaintiffs in January 2013

¬ Issues will be Aboriginal title and constitutional considerations ¬ Appeal is scheduled to commence in November 2013



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III. Development of Métis Rights

Background

¬ Plaintiffs were 3 individuals who identified as Métis or non-status Indians (MNSI), and the Congress of Aboriginal Peoples, an organization that represents the interests of MNSI in Canada. They sought 3 declarations from the FCC:

1. that MNSI are “Indians” within the meaning of sub-section 91(24) of the Constitution Act, 1867 (which grants the federal government exclusive authority to legislate in relation to "Indians and Lands Reserved for the Indians";

2. that the Queen (in right of Canada) owes a fiduciary duty to the MNSI as Aboriginal peoples; and

3. that MNSI have a right to be consulted and negotiated with, in good faith, by the federal government on a collective basis through representatives of their choice, representing all of their rights, interests and needs as Aboriginal peoples.

Daniels v. Canada (Min. Indian Affairs and Northern Development), 2013 FC 6


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Federal Court Decision (now on appeal to Federal Court of Appeal)

¬ The FCC granted the first declaration and held that MNSI fall within the category of "Indians" within the meaning of S. 91(24), and as such, are within the jurisdiction of the federal government of Canada.

¬ However, the FCC declined to make the other two declarations, as the Plaintiffs did not raise specific facts on which to base their claim or on which it would be appropriate for the Court to issue a declaration.



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Federal Court Decision - Observations

¬In practical terms (and subject to a different outcome on appeal), Daniels removes the uncertainty regarding whether MNSI are under the jurisdiction of the federal or provincial governments and confirms that the federal government has jurisdiction to legislate specifically in respect of MNSI peoples in their capacity as MNSI.

¬in our view, the recognition of MNSI within S. 91(24) does not create any new rights for either group, or any immediate or identifiable legal obligations or responsibilities for the federal government to create laws to provide specific benefits to MNSI peoples. If any new rights are to be created for MNSI, this will be the result of Parliament’s decision to exercise its legislative jurisdiction over MNSI.



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Background

¬ Section 31 of the Manitoba Act, 1870 provided that Canada would grant 1.4 million acres of land in the new province of Manitoba to children of the existing heads of families of the Métis people.

¬ The land was set aside but a series of errors and delays led to various problems with dividing the land among eligible recipients.

¬ Manitoba Métis Federation and individual Métis claimants brought an action seeking declarations that: (1) in implementing the Act, the federal Crown breached its fiduciary obligations; and (2) the federal Crown failed to implement the Manitoba Act in a manner consistent with the honour of the Crown.

Manitoba Métis Federation Inc. v. Canada (A.G.), 2013 SCC 14


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SCC Decision

¬ The honour of the Crown was an independent duty of the Crown, which it failed to fulfill in implementing the Manitoba Act, and discussed the duties imposed by the honour of the Crown at length.

¬ The honour of the Crown was engaged when the Crown made a promise of land rights to the Métis people under s. 31, and gave rise to a duty of “diligent, purposive fulfillment”. When the Crown failed to live up to its promise in various ways, it failed to act in accordance with the honour of the Crown.

Manitoba Métis Federation Inc. v. Canada (A.G.), 2013 SCC 14


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mccarthy tétrault llp / mccarthy.ca aboriginal and consultation law update 2012 - 2013 stephanie...

Documents

crown of aboriginal

aboriginal peoples crown

aboriginal peoples of

aboriginal righttitle

aboriginal expectations

scc framework slide

weak aboriginal claims

possible aboriginal