Canada | Publication | February 2024
This publication summarizes key decisions and legislative developments in Indigenous law over 2022 and 2023. The field of Indigenous law has seen significant changes and developments over the preceding decade. The past two years continued this trend.
Over this period, courts broke new ground on major topics in the field and clarified longstanding precedents. It was also a busy time for the federal and provincial governments, with important legislative and policy developments as well as new agreements with First Nations. The pace of development in the field is likely to continue into 2024, as the Supreme Court of Canada is expected to issue important decisions in Dickson, Jim Shot Both Sides and Restoule. We survey these developments and cases to watch in the coming year below.
Areas covered in this year’s publication include:
Highlights from the case law over the period include:
Indigenous law is a broad and complex area such that a single publication (such as this one) cannot be a comprehensive list of every important case from the last year. Other significant Indigenous law cases were heard and decided last year, and the resulting appeal processes are continuing. The cases below represent a selection of those decisions that will likely shape the field in the years to come.
In 2023, British Columbia and Blueberry River First Nation announced an agreement to implement changes to the province’s scheme for regulating natural resources following Blueberry’s victory in Yahey v British Columbia, 2021 BCSC 1287. The agreement has already begun to reshape the province’s approach to managing resource development and has national implications, as similar agreements may be pursued by First Nations in other provinces as part of a rise in cumulative effects cases throughout the country.
The British Columbia Supreme Court in Yahey concluded the cumulative effects of development in Blueberry’s traditional territory (in the province’s north-west) breached the First Nation’s treaty rights. The court took issue with the province’s regulatory approach to managing cumulative effects in oil and gas, forestry, and other resource developments. The court directed British Columbia and Blueberry to negotiate changes to the province’s regulatory approach. British Columbia did not appeal the decision.
In February 2023, the parties announced the results of these negotiations. Among other things, British Columbia committed to:
The province also agreed to a large financial package for and royalty sharing with Blueberry.
While many of the specific details of the regulatory scheme need to be worked out in the next few years, Yahey and the resulting agreement herald major regulatory shifts in British Columbia.
Yahey was the first decision on alleged treaty infringements arising from the cumulative effects of development. Many aspects of the decision are novel. It is, however, by no means the only cumulative effects claim in Canada. Two claims that pre-date the Yahey decision have yet to be tried (Beaver Lake Cree Nation’s claim in Alberta, filed in 2008, and Carry the Kettle First Nation’s claim in Saskatchewan, filed in 2017). Several more claims were filed over 2022 and 2023 in Yahey’s aftermath by First Nations in Alberta, Saskatchewan and Ontario, suggesting that Yahey has encouraged further litigation across the country.
Update on UNDRIP-Related Legislation & Policies
The Federal United Nations Declaration on the Rights of Indigenous Peoples Act (the UNDRIPA) has been in force since June 21, 2021. It affirms the Declaration (UNDRIP) as a universal human rights instrument with application in Canadian law and provides a framework for implementation. Under UNDRIPA the Government of Canada must “take all measures necessary to ensure that the laws of Canada are consistent with the Declaration” and the minister to prepare and implement an action plan. To that end, the Government of Canada tabled Bill C-29 National Council for Reconciliation Act to establish a National Council for Reconciliation, which would act as a non-political, arm’s length, permanent institution that would monitor and report on government actions supporting reconciliation. The House of Commons is currently considering amendments made by the Senate.
In 2023, the Federal Action Plan was released. The action plan is a starting point for ongoing consultation and cooperation with Indigenous peoples on UN Declaration implementation. It includes 181 action items in an “evergreen” document, which includes:
In 2023, British Columbia also entered several agreements with Indigenous groups regarding environmental assessments entered into under and in furtherance of the British Columbia Declaration on the Rights of Indigenous Peoples Act, (DRIPA) which provides for alignment with UNDRIP, an action plan, agreements with Indigenous governments and shared statutory decision making.
Specifically, the Tahltan Central Government (TCG) and British Columbia entered into a second consent-based decision-making agreement under section 7 of the DRIPA, this time in relation to the future operation of the Red Chris gold and copper mine located in Tahltan Territory. The agreement outlines consent-based decision-making for reviewing any substantial changes proposed by the mine operator to the Red Chris mine 2005 environmental assessment certificate, and follows on a consent-based decision-making agreement concluded in June 2021 between the TCG and British Columbia regarding the Eskay Creek Revitalization Project.
In November 2023, British Columbia and TCG committed to begin discussions regarding a decision-making agreement related to the collaborative assessment of proposed changes to the previously approved Galore Creek copper and gold mine.
Kitselas First Nation (KFN) and the province signed an agreement that establishes a government-to-government framework for co-ordinating governance and decision-making processes during an environmental assessment (the Environmental Assessment Agreement). Of note, the Environmental Assessment Agreement is signed under section 41 of the Environmental Assessment Act and is designed to support the Environmental Assessment Office and KFN in their shared goal of conducting efficient, effective, transparent and rigorous environmental assessment processes. It also supports KFN’s ability to exercise its consent for projects in a manner consistent with the UNDRIP.
On December 15, 2022, the Framework Agreement on First Nations Land Management Act came into force to repeal and replace the First Nations Land Management Act. The Framework Agreement supports First Nations transitioning away from the 44 lands-related sections of the Indian Act, and returning the authority to govern their First Nation lands and environment through community-approved land codes. The Framework Agreement aligns with articles 26, 29 and 32 of the UNDRIP related to land management and Indigenous-led processes.
In 2023, the courts discussed UNDRIP and DRIPA respectively in R v White and Montour, 2023 QCCS 4154 and Gitxaala v British Columbia (Chief Gold Commissioner), 2023 BCSC 1680, summaries of which are included in this publication.
Other Notable Legislation
Amendments to the First Nations Fiscal Management Act received royal assent on June 20, 2023. The amendments expand law-making power to enable First Nations to make laws respecting the provision of services provided on reserve lands by or on behalf of First Nations. The enactment also establishes a First Nations Infrastructure Institute that will provide First Nations and other interested Indigenous groups and organizations with tools and support, including best practices, to implement and manage their infrastructure.
In June 2023, the Government of Canada introduced Bill C-53, Recognition of Certain Métis Governments in Alberta, Ontario and Saskatchewan and Métis Self-Government Act, which has passed second reading in the House of Commons and is currently in committee. Bill C-53 is implementation legislation for the self-government recognition and implementation agreements signed between Canada and the Métis Nations of Alberta, Ontario and Saskatchewan.
The Self-Government Treaty Recognizing the Whitecap Dakota Nation / Wapaha Ska Dakota Oyate Act came into force (with the exception of section 16) on September 1, 2023. This is the first agreement to be signed under the new federal treaty policy.2
Looking forward to 2024, the Supreme Court of Canada (SCC) has heard and is sitting in reserve of its judgment on one case: Dickson v Vuntut Gwitchin First Nation, 2021 YKCA 5. That case involves the appellant’s candidacy for councillor of the Vuntut Gwitchin First Nation (VGFN), pitting the appellant’s rights under section 15(1) of the Charter (discrimination based on place of residence) against a requirement in VGFN’s constitution (requiring councillors to reside on VGFN settlement lands).
The Court of Appeal of Yukon held that the residency requirement infringed the appellant’s section 15(1) Charter right to equality but section 25 “shielded” VGFN’s right to impose the residency requirement based on its traditional method of selecting leaders. The appeal to the SCC was heard on February 7, 2023, and the decision will address the scope of “other rights and freedoms” that “pertain to aboriginal peoples of Canada” as set out in section 25 of the Charter, and how section 25 should be applied, as well as the question of whether the Charter applies to a provision of a constitution of a self-governing First Nation.
The SCC granted leave in the Ontario Court of Appeal decision of Restoule v Canada, 2021 ONCA 779. That case involves actions that were commenced against Canada and Ontario by the Anishinaabe Nation about annuity payments under certain treaties that effected the ceding of territories in northern Ontario. The plaintiffs sought declaratory and compensatory relief related to the interpretation, implementation and alleged breaches of the treaties' annuity provisions. The trial judge held that the Crown has an obligation under the treaties and was bound by its honour to review the annuities based on a consultation process and economic circumstances. The trial judge also rejected the Crown’s defences of Crown immunity and limitations. The Court of Appeal unanimously rejected the majority of the arguments raised on appeal, allowing only a small component of the appeal that modified certain of the trial judge’s declarations, and amending the costs award. Ontario’s application for leave to appeal to the SCC was granted and the matter was heard on November 7-8, 2023.
The SCC granted leave to appeal the Federal Court of Appeal’s decision in Jim Shot Both Sides v Canada, 2022 FCA 20, which was heard October 12, 2023, a summary of which is included in this publication.
The BC Court of Appeal is also expected to release its decision in the appeal of Thomas & Saik’uz First Nation v Rio Tinto Alcan Inc., 2022 BCSC 15, the first major common law tort claim against private industry to proceed to trial, grounded in interference with asserted Aboriginal rights and title. The two Saik’uz and Stellat’en First Nations appealed the BC Supreme Court dismissal of the environmental tort claims they brought against Rio Tinto Alcan Inc. While the BC Supreme Court found that Aboriginal rights can serve as a basis for a common law action in private nuisance against non-government entities, it also found the defence of statutory authorization insulated Rio Tinto from liability.
Canada v Jim Shot Both Sides, 2022 FCA 20
Limitations defence applies to treaty rights that were discoverable and actionable before 1982
Treaty 7 conferred an entitlement to reserve lands. However, the Blood Tribe claimed that the size of its reserve did not accord with the treaty’s population-based formula. A treaty land entitlement (TLE) claim was launched in 1980, leading to a trial in the Federal Court decades later.
Two main issues at trial were: whether the Crown breached its treaty obligations on reserve land allocation and whether the TLE claim was time-barred by limitations legislation.
The trial judge found that the Crown breached its treaty obligations by under-sizing the reserve. He further found that the TLE claim was not limitations-barred because breaches of treaty could not be pursued in Canadian courts until treaty rights were constitutionalized in 1982. Canada’s limitations defence was not given effect because the Blood Tribe’s TLE claim could not have expired before it could be pursued.
The Federal Court of Appeal allowed Canada’s appeal on limitations, holding that breaches of treaty rights were actionable before they were constitutionalized in 1982. The TLE claim was discoverable and actionable by 1971, such that the Blood Tribe’s limitation period to sue Canada had expired before the TLE claim was brought in 1980.
The case confirms that section 35 of the Constitution Act, 1982 does not create new treaty rights. Rather, it gives constitutional protection to existing treaty rights and therefore limitation defences are available against claims for breach of Treaty rights regardless of whether the claim arose before or after 1982.
Leave to appeal to the SCC was granted on February 2, 2023.
Relatedly, the Alberta Court of King’s Bench gave effect to the limitations defences of Canada and Alberta in Wesley v Alberta, 2022 ABKB 713, which were raised in defence of a broadly scoped Indigenous title and rights claim by the Stoney Nakoda Nations. All claimed “remedial” relief was dismissed, whereas certain Stoney declaratory claims were allowed to survive. Appeals by the Stoney and Alberta will be heard in February 2024.
Gitxaala v British Columbia (Chief Gold Commissioner), 2023 BCSC 1680
Mineral dispositions for exploration purposes in British Columbia trigger the duty to consult. DRIPA does not implement UNDRIP into the domestic law of BC or create justiciable rights
Mineral exploration in British Columbia is regulated by the Mineral Tenure Act (MTA) and the Mines Act. Companies seeking to mine Crown lands can register “mineral claims,” which permit collecting a relatively limited amount of ore for exploration purposes, via an online system without any requirement to take any further steps to notify, engage, or consult potentially affected First Nations. Greater amounts for exploration can be collected with a “mineral lease.” Once a company is ready to proceed to commercial extraction, it can apply for a mining permit. Under the regime, British Columbia does not consult First Nations when mineral claims were registered in their traditional territory, although consultation is conducted when companies proceed to greater levels of extraction (at the mineral lease and permit stage).
Two First Nations, the Gitxaala and Ehattesaht Nations (collectively, the petitioners), argued the failure to consult on mineral claims resulted in a breach of the province’s duty to consult and was contrary to the province’s Declaration of the Rights of Indigenous Peoples Act (DRIPA), which governs UNDRIP’s implementation in the province.
The Supreme Court of British Columbia agreed with the petitioners and concluded the duty to consult is triggered by the registration of a mineral claim.
As the province conceded the first two branches of the test for when the duty is triggered, the court’s analysis focused on the third: whether the Crown’s decision or conduct has the possibility of affecting an asserted Aboriginal claim or right.
The province argued registering a mineral claim had a “negligible or nil” impact on the petitioners’ rights, as no machinery is involved at the mineral claim level. Workers use hand tools to drill and sample, and residence for workers while this activity occurs is temporary.
The court disagreed with the province’s position and found the “adverse impact” needed to be viewed from an Indigenous perspective. The court noted several negative effects from mineral claims from the viewpoint of First Nations:
The court, however, determined DRIPA did not provide the petitioners any relief. The court noted the decision was the first judicial consideration of DRIPA’s legal effects but went on to find the statute offered no remedy as: 1. DRIPA did not implement UNDRIP in British Columbia and 2. The province’s obligation under s 3 of DRIPA to cooperate with Indigenous groups to identify laws inconsistent with UNDRIP did not confer authority on a court to adjudicate a law’s consistency with UNDRIP.
The court gave 18 months to the province to consult with Indigenous groups and stakeholders in the minerals industry to modernize and update the mineral tenure system to account for the Crown’s duty to consult. In the meantime, the current system is still in operation. The court further clarified that its decision does not affect existing projects and the court explicitly stated that, “All mineral claims registered under the existing system are valid.”
The outcome in Gixtaala departs from another recent appellate decision, George Gordon First Nation v Saskatchewan, 2022 SKCA 41. In George Gordon, the Saskatchewan Court of Appeal concluded no duty to consult arose when a disposition of mineral rights is made (similar to the MTA’s “mineral claim”). George Gordon is distinguishable insofar as the decision did not concern impacts on Aboriginal title, which generally confers a broader set of property interests than do the treaty rights at issue in George Gordon. The concern for protecting Aboriginal title appears to have underscored Gixtaala’s reasons.
Saskatchewan (Attorney General) v Witchekan Lake First Nation, 2023 FCA 105
Court cannot rewrite modern agreements negotiated between sophisticated parties when interpreting them through the lenses of reconciliation or the Honour of the Crown
Witchekan Lake First Nation (WLFN) commenced an action in Federal Court against Saskatchewan around the sale of vacant land and alleged lack of opportunity for WLFN to purchase the land. A tripartite framework agreement was reached in 1992 between the federal government, Saskatchewan and several Saskatchewan First Nations, including WLFN, to provide for a process for the purchase of provincial and federal Crown lands to fulfil the Crown’s outstanding treaty land entitlement obligations. WLFN alleged Saskatchewan breached an implied term of the framework agreement to provide notice of an impending sale of land and an opportunity for WLFN to purchase the land.
Saskatchewan sought summary dismissal of WLFN’s claim on the grounds the implied notice term contradicted the express terms of the framework agreement. The Federal Court declined to grant the motion and Saskatchewan appealed.
The Federal Court of Appeal (FCA) allowed the appeal and granted the motion for summary dismissal. The FCA made clear that the appeal was granted not on the grounds that the Crown discharged its duty to consult around sale of public lands, but on its interpretation of an implied term, specifically the right to receive notice. WLFN’s interpretation would “collide, directly with express terms of the Agreement.” The implied term of “notice” by WLFN was problematic, as the Court of Appeal found the “amorphous” nature of the implied term was inconsistent “with the precise, carefully delineated terms of the Agreement that address when and how bands may purchase land.”
The FCA added that the interpretation of the framework agreement by the WLFN would amount to a rewriting of the agreement. The FCA described “[t]he role of the courts in the interpretation of agreements such as this is to interpret the agreement generously and purposefully, but not to rewrite, under the guise of reconciliation, the bargain struck.” The Honour of the Crown cannot be used in interpreting agreements to effectively “reopen and rewrite the settled terms of a modern agreement negotiated between sophisticated parties over many years and with independent legal advice.”
WLFN’s leave to appeal to the SCC was dismissed in December 2023.
Chippewas of Nawash Unceded First Nation v Canada (Attorney General), 2023 ONCA 565
Treaty and fiduciary obligations are distinct and constructive trust is not an appropriate remedy for Crown breaches of treaty duties
The Court of Appeal for Ontario allowed in part the Chippewas of Nawash Unceded First Nation and Saugeen First Nation (SON)’s appeal of a trial decision that found SON did not have Aboriginal title to certain submerged lands in Lake Huron and Georgian Bay.
Beginning with SON’s Aboriginal title claim to the submerged lands, the trial judge declined to grant Aboriginal title to the area claimed, citing the fundamental inconsistency between Aboriginal title and common law rights. However, the Court of Appeal held that the issue of whether Aboriginal title to a portion of the Great Lakes is compatible with the right of public navigation could not be assessed until the extent of Aboriginal title in the submerged lands was determined. The Court of Appeal remitted back the alternate claim for Aboriginal title over a subset of the claim area.
Regarding SON’s treaty claim, the Court of Appeal also upheld the trial decision that found the Crown breached the honour of the Crown and treaty obligations by failing to prevent settler encroachment on SON lands, but it did not owe or breach a fiduciary duty to SON. Where a Crown obligation is grounded in the honour of the Crown, it may not be necessary to invoke fiduciary duties; the Crown is still obliged to comply with its constitutional obligations in a manner consistent with the honour of the Crown. Although not required, the Court of Appeal concluded that Ontario was not immune from claims for breach of fiduciary duty in this case. The Court of Appeal concluded that it would be wrong to apply regressive procedural bars to Aboriginal claims for breach of fiduciary duty.
Finally, considering SON’s claim against three municipalities, the Court of Appeal held it would not be appropriate to grant SON a constructive trust over all municipal roads and unopened road allowances on the lands that were surrendered to the Crown through treaty. Equitable compensation from the Crown would be an appropriate remedy for the failure to diligently perform the treaty promise.
Both parties have sought leave to appeal to the SCC.
R v White and Montour, 2023 QCCS 4154
Quebec court suggests a new formulation for the test for an Aboriginal right that is compliant with UNDRIP
Hunter Montour and Derek White, members of the Mohawks of Kahnawà:ke, were accused of various offences connected to importing substantial quantities of tobacco into Canada from the United States while not paying taxes under the Excise Act.
This decision answers a Notice of Constitutional Questions brought prior to a jury trial that alleged 10 treaties negotiated between 1664 and 1760, as well as an overarching oral treaty (the Covenant Chain) which provided the defendants with the right to trade tobacco. The defendants also argued an Aboriginal right to freely pursue economic development, including to trade in tobacco, under s. 35(1) of the Constitution Act, 1982. As such, they argued that the Excise Act infringed their s. 35(1) right.
The Quebec Superior Court held that s. 42(1) of the Excise Act unjustifiably infringed the defendants’ Aboriginal right guaranteed under s. 35(1). Therefore the provision is of no force and effect and the criminal charges were permanently stayed.
Notably, in its decision the court found that UNDRIP should be given the same weight as a binding international instrument when interpreting s. 35(1). Thus, the presumption of conformity dictates that protection under the Charter should be at least as great as afforded by similar provisions within UNDRIP. The court predicts that, after Canada’s adoption of UNDRIP in 2021 under the UNDRIP Act, s. 35 jurisprudence will introduce new legal issues not addressed by the Supreme Court in R. v Van der Peet, [1996] SCR 507.
As a result, the court determined that the s. 35 test applied in Van der Peet does not meet the standards required by UNDRIP and suggested a new test for Aboriginal rights under s. 35 that is rooted in Indigenous law. This new test consists of three components:
Further, the court rejected the direction in Van der Peet to use the moment of European contact in determining the existence of an Aboriginal right. Rather, the court found that examining whether the alleged right is part of the traditional legal system is sufficient.
In applying this test, the court found that the Mohawks of Kahnawà:ke have a right to freely pursue economic development and there is evidence that such a right was protected under Haudenosaunee law. Further, the court conferred a new “generic right” to freely pursue economic development. Where traditionally under Van der Peet s. 35 protected only practice and customs specific to a particular Indigenous group, this approach extends to all Indigenous Nations and is intimately tied to their survival and the dignity of their nation. Thus, a generic right should create a “strong presumption” that the right is protected by the traditional legal system in question.
Lastly, the court determined that an overarching oral treaty, the Covenant Chain, is binding and the Crown breached the treaty when it failed to bring tobacco regulation to council sessions mandated by the Covenant Chain. This is significant because there was no discussion of the tobacco trade within the treaty itself. Rather, the court found that the Covenant Chain was intended to create a “lasting relationship of friendship and peace, which would flourish through the development of trade, and not just the fur trade”. The court concluded that it would run contrary to this intention to limit discussion to products exchanged during the 17th and 18th centuries.
Quebec has served notice that it will be appealing the decision.
Mikisew Cree First Nation v Canadian Environmental Assessment Agency, 2023 FCA 191
No duty to consult on federal Crown when potential impact on Aboriginal or treaty rights flows from provincial Crown decision
This decision clarifies the second and third elements of the test for the duty to consult and reaffirms that executive decision-makers are not constrained by the findings of other government agencies on which they may rely in arriving at their decisions.
In 2019, the then Minister of Environment and Climate Change declined to designate an extension of a mine in the traditional territory of the Mikisew Cree Nation as a reviewable project under the now-repealed Canadian Environmental Assessment Act (CEAA). The Mikisew applied for judicial review of the decision on the grounds that the minister breached the duty to consult in reaching her decision and the decision was unreasonable.
The Federal Court dismissed the application for judicial review on the basis that the third element of the test for the existence of a duty to consult, as set out in Rio Tinto Alcan Inc v Carrier Sekani Tribal Council, 2010 SCC 43, was not met. The Federal Court also found the minister’s decision to be reasonable.
On appeal, the Federal Court of Appeal sided with the respondent minister. It found that both the second and third elements of the test from Rio Tinto were not met. The federal minister’s decision not to designate the project under the CEAA did not have any potential impact on the Mikisew’s Aboriginal or treaty rights or claims because any impact on such rights or claims would flow from an approval of the mine extension, a decision that lies with the Alberta Energy Regulator, not the federal minister under the CEAA. In these circumstances, there is no contemplated conduct or decision of the federal Crown capable of affecting the Mikisew’s claimed treaty or Aboriginal rights.
The Mikisew also argued on appeal that the minister’s decision was unreasonable, premised on the analysis report prepared by the Environmental Assessment Agency for the minister. They submitted that the Agency’s analysis misapprehended the local ecosystems and ignored the mine extension’s impacts on these ecosystems, and that the Agency unreasonably considered whether the extension was likely to cause environmental effects by considering the “likelihood” as opposed to the “possibility of” adverse environmental effects.
The Federal Court of Appeal did not accept these arguments. It found that the CEAA afforded the minister broad discretion to arrive at the decision and did not prescribe parameters for the advice the Agency was required to give the minister. Citing ample precedent, the court held that executive decisions are unconstrained and the minister was not required to accept the Agency’s views or those of any other party. As such, the Agency’s misuse of the word “likelihood” and any other errors in its analysis do not amount to a material deficiency that would justify invalidating the minister’s decision not to designate the project.
Reference re Impact Assessment Act, 2023 SCC 23
The “designated projects” scheme of the Impact Assessment Act is ultra vires, as its pith and substance exceeds the bounds of federal jurisdiction, including the federal power over “Indians and lands reserved for Indians.”
In this decision, the Supreme Court of Canada considered whether the Impact Assessment Act (IAA, or the Act) and accompanying Physical Activities Regulations intruded upon areas of exclusive provincial jurisdiction and were therefore unconstitutional.
Sections 81-91 of the IAA governed the federal assessment of projects carried out or financed by federal authorities on federal lands. The remainder of the scheme enabled the Environment Minister to classify certain projects as “designated projects,” having regard to factors listed in the Act, including any adverse impacts the project may have on the rights of Indigenous peoples of Canada (see subsections 9(2), 16(2)(c)).
Once “designated,” a project would be subject to a three-phase impact assessment process. In an assessment, federal authorities were to consult various stakeholders, including any Indigenous groups possibly affected by a project (ss 12, 14). Federal authorities were also obligated to take into account Indigenous knowledge of a project (subsection 22(1)(g)). Further, the Act created a strict liability offence where a project had an “effect” on Indigenous peoples, including effects on their heritage, on their traditional use of lands and resources, or on their health, social, or economic conditions (s 7(1)(c) and (d)).
Canada relied on four heads of federal power to support the designated projects scheme, including its power for “Indians, and Lands reserved for the Indians” under subsection 91(24) of the Constitution Act, 1867.
After the Alberta Court of Appeal found the Act was a “breathtaking pre-emption of provincial legislative authority” over the development of natural resources and local works, Canada’s appeal to the SCC was allowed, but only in part. Sections 81-91, concerning projects carried out or financed by federal authorities, were intra vires. However, the SCC upheld the Court of Appeal’s decision that the remainder of the Act was ultra vires.
While Canada submitted that assessments were confined to the “federal effects” of a project, including potential effects on Indigenous peoples, the court held that in practice, these effects did not drive the Act’s decision-making functions. Instead, the list of mandatory considerations under s 16(2) included factors that were distinct from “federal effects.” No primacy was given to the possibility of “federal effects” relative to other mandatory considerations, which included public comment, comments from other jurisdictions, or studies prepared in relation to a project.
Further, the court held that the Act’s definition of “effects within federal jurisdiction,” one of the mandatory considerations under subsection 16(2), did not properly align with federal heads of power. For example, the definition included a “change to the environment” which, in light of the Act’s broad definition of “environment,” the court described as “astonishing in its breadth”. The overly broad definition could render proponents liable under section 7 for acts that caused even trivial or non-adverse impacts on Indigenous peoples. This was deemed inconsistent with subsection 91(24)’s focus on the protection of and concern for the welfare of Indigenous peoples.
Notably, the court did not go as far as to say that Parliament lacked any power to enact impact assessment legislation. Provided that the dominant characteristic of the legislation is regulating federal aspects of a project’s effects, the legislation would be intra vires.
The federal government has provided interim guidance in response to this decision. It will review all projects currently under assessment and provide an opinion on whether they impact areas of federal jurisdiction. Consultation with Indigenous peoples will continue, as it relates to a clearly defined federal head of power. However, the Environment Minister’s discretionary authorities to designate projects will be paused, resuming only once amended legislation is in force.
Roseau River First Nation v Canada (Attorney General), 2023 FCA 163
The Crown may rely on steps undertaken by a regulatory agency to fulfil its duty to consult and, if necessary, accommodate
This case concerns the construction of an international transmission line (the project) that crosses Treaty 1 territory. The appellants Roseau River and Long Plain First Nations are signatories to Treaty 1. The appellant, Chief Jim Major on his own behalf and on behalf of Animakee Wa Zhing (hereafter Animakee Wa Zhing), is also affected by the project. The appellants appealed judgments from the Federal Court and asked to quash an Order-in-Council issued by the National Energy Board to release a Certificate of Public Necessity and Convenience for the project. The appellants challenged the adequacy of Canada’s consultation and the reasonableness of the Governor-in-Council’s decision to make the Order-in-Council.
The Federal Court of Appeal dismissed the appeal. The court held that the duty to consult owed by the government was fulfilled in reliance on consultation by the National Energy Board (predecessor to the Canada Energy Regulator).
The court examined the extent of consultation that took place before the Order-in-Council was issued. The court held that, when assessing the acceptability of the Order-in-Council, a court must be satisfied that the Governor-in-Council properly considered the Indigenous interests and the adequacy of the consultation and accommodation up to the date of the order. In this case, the court found that the Order-in-Council displays that Indigenous interests and the level of adequacy of the consultation and accommodation were “front and centre” in the Governor-in-Council’s assessment.
The Federal Court of Appeal determined that the duty to consult was satisfied. The court highlighted that the appellants were engaged in a consultation process with Manitoba Hydro concerning the project. The appellants were invited to the National Energy Board’s process through a letter that included project summaries, discussed possible impacts on Aboriginal interest, proposed mitigation measures, and offered participant funding. Manitoba Hydro attempted to address concerns through further clarifications and initiated a supplemental consultation process and subsequent meetings.
Additional factors the court considered included the fact that Canada attempted to address any adverse impacts on the treaty entitlement issue. The Crown noted that Manitoba Hydro's First Nations and Métis Engagement Program process considered general routing preferences from Indigenous communities to avoid Crown land in order to protect treaty land entitlement opportunities, and the routing for the project was selected because "no part of the Final Preferred Route crosses reserve lands or any [treaty land entitlement] selections". Further, there was an appointment of a Crown negotiator during the supplemental consultation process.
While the Federal Court of Appeal concluded that the appellants remained dissatisfied after this process, the appellants’ concerns and interests were taken on board, genuinely considered through a two-way dialogue, and some accommodation was made. The jurisprudence does not give the appellants’ a right to a perfect outcome or a right to veto the project. Thus, the duty to consult was fulfilled.
Manitoba Métis Federation Inc v Canada (Energy Regulator), 2023 FCA 24
Agreement is required for a commitment to be legally binding
The appellant, the Manitoba Métis Federation, sought to overturn a Canada Energy Regulator (CER) commission decision around the compliance of Manitoba Hydro in regard to certain authorizing conditions of a completed power line project. The project went through the heart of the Métis community’s territory where they hunted, trapped, fished, and gathered food. The conditions in question were 3 and 15, which included the amended phrases “commitments made to Indigenous communities”. Condition 3 was about implementing commitments and condition 15 was about tracking these commitments through a table. The appellants argued that the major agreed-upon points (MAP), made informally between Manitoba Hydro and the appellants, were commitments as described in conditions 3 and 15, and thus by failing to insert them into the tracking table required in condition 5, Manitoba Hydro was non-compliant.
The court disputed the appellant’s definition of “commitments” in the conditions. The court stated, “A commitment is not necessarily a contract. It is a binding promise that can be made unilaterally or by agreement.” The MAP was never entered into between Manitoba Hydro and the appellant. The court upheld the commission’s finding that the MAP was not a commitment as described in the conditions and need not be included in the table required by condition 15.
The appellant asserted that the honour of the Crown was not properly applied. It argued the CER did not recognize that the honour of the Crown is applied to downstream bodies, such as regulatory bodies. The court agreed with the application of the honor of the Crown to downstream bodies, but found it was properly applied. The court described this downstream duty as on-going as well:
“I would observe nonetheless that the governments’ duty to consult and to accommodate Indigenous groups is a continuing obligation because the honour of the Crown is always at play. Post-approval consultations are relevant and important to determining whether this duty has been met (Coldwater at para. 60). In other words, as the MMF argues, regulatory bodies, such as the CER, acting as the Crown “downstream,” continue to owe a duty to Indigenous groups affected by the Project throughout its lifecycle. The MMF is entitled to raise with the Commission concerns about Manitoba Hydro’s implementation of commitments throughout the life of the Project.”
Greengen Holdings Ltd. v British Columbia (Ministry of Forests, Lands and Natural Resource Operations), 2023 BCSC 1758
Claim for misfeasance in public office may arise where permitting decision is not made by designated decision-maker following consultation with First Nation
Greengen Holdings Inc. sought to develop a hydroelectric project (the project) near Squamish, BC. In 2005, Greengen applied to the British Columbia government for tenure over Crown land and for a water licence (collectively, the permits). The applicable legislation designated certain decision-makers with authority to issue the permits.
In 2009, the designated decision-makers advised Greengen that its permit applications were denied, primarily because the project was inconsistent with the province’s Land Use Agreement (LUA) with the Squamish First Nation. The decision-makers cited the project’s negative spiritual and cultural implications on certain protected cultural sites established under the LUA. In 2007, the Squamish Nation had previously raised concerns with the province that the project would impact spiritual bathing sites, although no details were provided when provincial officials requested further information.
Greengen brought an action against the province under the tort of misfeasance in public office on three grounds. It alleged the decision to deny the permits was not made by the designated decision-makers, but other senior government officials. It claimed the decision was made for a “collateral political purpose” (to avoid a legal conflict with the Squamish Nation), and that the decision was unlawful because officials had not received details on the Squamish Nation’s bathing practices and the project’s impact on those practices.
The court found in favour of Greengen on the first ground. The court relied on emails from August 2008 indicating that the designated decision-makers were in fact prepared to issue the permits. Subsequent correspondence revealed the decision had then “gone up” the bureaucratic chain, leading to a November 2008 phone call from senior officials of the province (who were not the designated decision-makers), where Greengen was advised that its permits would be denied. Emails leading up to the November 2008 phone call indicated that the decision had been made at that time.
The court concluded the call from senior officials to Greengen to be “the most troubling aspect” of the province’s conduct. It found the decision to the deny the permits was unlawful because the designated decision-makers had not made the decision or, alternatively, because the communication by the senior officials fettered the authority of the designated decision-makers.
The court awarded Greengen $10.125 million for the lost opportunity to develop the project. The amount was approximately 15 - 20% of what Greengen sought from the province for its lost profit. The court concluded a smaller amount was appropriate, owing to a variety of “contingency risks” that could have reduced Greengen’s profit. The province has appealed the decision.
Whiteduck v Ontario, 2023 ONCA 543
First Nations whose section 35 rights may be impacted by the recognition of Métis rights can seek declarations contesting the recognition those rights
In Whiteduck, the Algonquins brought an action against the Métis Nation of Ontario (MNO) and the Government of Ontario, alleging Ontario erred in recognizing the harvesting rights of two Métis communities represented by the MNO. The Algonquins further claimed that Ontario breached its duty to consult the Algonquins when recognizing these rights. The rights in question extended over a large area that overlapped with the territory where the Algonquins were to enjoy harvesting rights under a modern-day treaty currently under negotiation with Ontario and Canada.
In this decision, the Ontario Court of Appeal considered an appeal by the Algonquins from a lower court decision that struck all of the Algonquins’ claim except the portion relating to the breach of the duty to consult. The lower court concluded the Algonquins had no standing to challenge Ontario’s recognition of the communities’ Métis rights. According to the motions judge, only a Métis group could contest the rights recognized by Ontario.
The Ontario Court of Appeal allowed the Algonquins' appeal. The court concluded the Algonquins’ right to advance a breach of the duty to consult gave them the necessary standing to advance a declaration that Ontario had incorrectly recognized Métis rights. The heart of the Algonquins’ claim was that had Ontario properly consulted them, the province would not have recognized the communities’ Métis harvesting rights. Therefore, a declaration that such rights were incorrectly recognized was appropriately advanced as part of the Algonquins’ claim on the duty to consult.
Notably, the court remarked that the Algonquins’ claim could impact the newly recognized rights of the two communities. The court, however, found this was a potential implication of the SCC’s decision in R v Powley, 2003 SCC 43, which sets out the test for the recognition of Métis rights. The court noted the decision left an “open question” as to how Métis rights were to be reconciled with other Aboriginal rights. The court referred to this problem as the “[t]he open water…which Powley has left in its wake, and which must be faced squarely.” The court concluded that a trial or, “more hopefully,” settlement negotiations, were the appropriate forum to assess the extent of consultation owed to the Algonquins in the circumstances and the appropriateness of the remedy sought, rather than a pleadings motion.
Ontario has sought leave to appeal to the SCC.
First Nation of Na-Cho Nyak Dun v Yukon (Government of), 2023 YKSC 5
Where a treaty provides a framework for future land use planning, Crown owes higher-end consultation, and must consider effects of project approval on ongoing planning process
The applicant First Nation of Na-Cho Nyäk Dun (FNNND) applied to set aside the Yukon government’s approval of a proposed mining exploration project located in the Tsé Tagé watershed area of FNNND’s traditional territory.
FNNND and Yukon were parties to a 1993 treaty, which was to address the parties’ management of land in FNNND’s traditional territory. This treaty merely set objectives for an impending land use planning process, which had yet to manifest into a concrete plan. In the interim, use of the watershed had been governed by an ancillary agreement between FNNND and Yukon (the Intergovernmental Agreement). The Intergovernmental Agreement arose from Yukon’s approval of a prior project in the watershed.
FNNND claimed that by approving this mining project, Yukon breached several duties stemming from the honour of the Crown, including its duty to consult and accommodate FNNND, its duty to diligently implement treaty promises, and its duty to accomplish the treaty’s intended purpose. The “essence of the dispute” was whether Yukon could approve a project in the watershed while a land use planning process was underway.
Throughout Yukon’s assessment of the project under the Yukon Environmental and Socio-Economic Assessment Act (YESEAA), FNNND had consistently voiced its opposition, characterizing any approval as an undermining of treaty obligations. Yukon wrote to FNNND stating that, “The practice of land use planning does not preclude responsible resource management,” and the approval process set out in the YESEAA was applicable in the interim.
The court found that by approving the project, Yukon breached several obligations owed to FNNND. It held that the treaty provided FNNND with a “right to participate in the management of public resources”, and therefore could not be “dismissed or ignored” in the application. The court imposed a duty to consult on the higher end of the Haida spectrum, and took particular issue with Yukon’s decision to limit its consultation with FNNND to discussion of the specific project. Instead, the court explained, Yukon was obligated to address FNNND’s concerns about the impact of an approval on Yukon’s obligation to engage in land use planning under both the treaty and Intergovernmental Agreement.
While Yukon had not breached the treaty per se, it had “breached its duty to act in a way that accomplishes the intended purpose of the Treaty”. Further, Yukon had “breached its duty of good faith in the performance of the Intergovernmental Agreement, by failing to consider the effect of the decision on the ongoing land use planning process…”. These findings, among others, rendered the project approval unreasonable. Yukon’s decision was quashed and set aside.
An appeal was heard November 22, 2023, and as of writing, a decision on the appeal is outstanding.
Moonias v Ministry of Northern Development, 2023 ONSC 5942
Factual foundation required for declaratory relief
The Marten Falls First Nation (MFFN), is a First Nation within the Ring of Fire area and has an ongoing agreement/negotiation around an access road to the Marten Falls Community (the access road).
Chief Wayne Moonias, the applicant, former Chief of Neskantaga, and the Neskantaga First Nation (together the applicants) brought application seeking declaratory relief in the form of judicial interpretations and guidance on the Environmental Assessment Act (EAA) and regulations governing consultations with First Nations on environmental assessments pursuant to Rule 14.05(3)(d) and (h) of the Ontario Rules of Civil Procedure. In particular, the applicants argue the EAA uses outdated language, was developed prior to the Truth and Reconciliation Commission Report in 2015, has “not kept up with the Honour of the Crown” and needs to incorporate and appreciate Indigenous concepts.
The applicants sought a general direction on the duty to consult and accommodate as it relates to the drafting of terms of reference for an environmental assessment related to the access road. The applicants argue that they seek clarity on the extent to which the Crown may delegate aspects, ensuring that no substantive element of the duty to consult and accommodate is “offloaded” on to third parties. The applicants submit they are not challenging delegation to MFFN and Ontario’s past conduct. The applicants are concerned about pitting one First Nation against another First Nation.
In answering this, the court stated,
“The Crown did not relieve itself of its responsibility, its Honour of the Crown, and its duty. There is significant evidence that the Crown remained responsible for the consultation and that Marten Falls First Nation provided apt assistance. The evidence indicates that the Crown maintained oversight and intervened when issues arose. Ontario submitted evidence demonstrating the detailed consultation process that it had undertaken. Marten Falls First Nation also submitted that 22 First Nations including the Applicant Neskantaga First Nation and Indigenous representatives were provided with extensive notice, opportunities for dialogue and input, support for participation, and options for accommodation. One First Nation was not pitted against other First Nations but rather they worked collaboratively and co-operated. As the Respondent Marten Falls First Nation notes, the consultation that Marten Falls First Nation undertook is unchallenged.”
The court dismissed the application because it was not properly brought under Rule 14.05(3)(d) and (h) and the court has no jurisdiction to rewrite the EAA or provide a declaration on the extent of the duty to consult and accommodate as it relates to drafting terms of reference for an environmental assessment. The court found the application was neither an application for judicial review nor a constitutional challenge to the legislation and there was no live issue for judicial interpretation and guidance pursuant to the Rules of Civil Procedure. The court agreed with the respondent Ontario that the “Application is a de facto reference that seeks the court’s guidance on how Ontario should discharge the duty in the future, in the absence of a factual foundation,” noting that a “reference is not within the jurisdiction of this court and there must be a factual foundation for the drafting of a Terms of Reference for an environmental assessment.”
Reece v Canada (Attorney General), 2023 BCCA 257
Public interest in seeing the consultation process proceed is an overriding consideration in an injunction analysis and as a result, injunctions while consultation is ongoing should be rare or exceptional
In 2015, the Nisga’a Nation approached British Columbia and Canada with a proposal to purchase provincial Crown lands and add those lands to the Nisga’a lands pursuant to the Nisga’a Final Agreement, a land claims agreement. British Columbia and Canada recognized that this proposal engaged the interests of the Lax Kw’alaams and Metlakatla Nations (the Allied Tribes), who also had claims to the lands, and initiated a consultation process. Before the consultation process was complete, the Allied Tribes commenced an action for Aboriginal title and sought an injunction to prevent British Columbia and Canada from selling the Crown lands at issue to the Nisga’a.
The British Columbia Supreme Court found that the Allied Tribes were not precluded from advancing their application for an injunction prior to establishing their Aboriginal title. Furthermore, they were entitled to an injunction according to the well-established three-part test for interlocutory injunctions from RJR-Macdonald Inc. v. Canada (Attorney General), [1994] 1 SCR 311.
The court ordered that, for 18 months, British Columbia and Canada shall not proceed with the sale of the Crown lands to the Nisga’a lands. The court further required the parties to engage in good faith negotiations on the subject of the consultation process and permitted the Allied Tribes to apply for an extension of the injunction if negotiations had not completed within this 18-month period.
On appeal, a majority of the British Columbia Court of Appeal reversed the lower court’s decision to grant the injunction. The majority agreed courts could issue injunctions to protect asserted Aboriginal rights while consultation was ongoing. Nevertheless, the existence of a consultation process was a “significant and substantial factor in weighing the public interest” under the balance of convenience branch of the RJR-Macdonald test, as an injunction would interfere with the consultation process.[1] The general public interest in completing consultation must be factored into the balance of convenience analysis and the adequacy of the ongoing consultation should be assumed (absent a full record and a direct challenge to the consultation process). It will only be in “unusual or exceptional circumstances” that an injunction will issue before consultation is complete, such as where public interest itself mandates the injunction.
In the majority’s view, the lower court erred in failing to afford appropriate weight to the public interest in seeing through consultation. As the Allied Tribes did not directly challenge the consultation, the lower court failed to assume the adequacy of the consultation process and instead scrutinized deficiencies in the process, despite an incomplete record. The lower court overlooked the interests of other stakeholders, including the Nisga’a and other First Nations who were also being consulted.
Reece et all have sought leave to appeal to the SCC.
Baffinland Iron Mines Corporation v Naqitarvik, 2023 NUCA 10
Injunctions are readily granted against protesters resorting to unlawful “self-help remedies”
Since 2015, Baffinland Iron Mines Corp. has operated an iron ore mine on Baffin Island. In February 2021, residents from local communities set up camps on the runway that services the mine and a road used to bring the mine’s ore to port. The encampments halted the mine’s operations and prevented 700 employees at the site from leaving. A lower court granted an interlocutory injunction barring protesters from interfering with the site, which several protestors appealed (appellants).
The appellants raised several procedural grounds against the injunction, including the lack of adequate notice, the lack of opportunity to instruct counsel, and failing to permit cross-examination before rendering a decision. The Nunavut Court of Appeal dismissed all of these procedural arguments.
Before addressing these arguments, however, the Court of Appeal emphasized the illegality of the blockade and the well-established judicial intolerance for “self-help remedies”, citing a lengthy list of authorities on this point. The court noted the mine had regulatory approval and the blockade was a “collateral attack” on these authorizations. The appropriate avenue for the protestors was to petition the regulator to withdraw the mine’s permits or, alternatively, launch a judicial review of the process underway to permit the mine’s expansion. The court remarked that:
Even if the appellants could establish that the operation of the respondent’s mine was in some respect unlawful or contrary to the public interest, or even if they could demonstrate that the respondent was in breach of its permits, were they entitled to the unilateral self-help interim remedy of blocking access to the mine? The law does not recognize this type of self-help remedy, which is inconsistent with the rule of law and fundamental democratic principles.
The Court of Appeal dismissed the appeal.
Waterhen Lake First Nation v Saskatchewan (Parks, Culture and Sport), 2023 SKKB 230
Administrative common law right to notice under the duty of procedural fairness is not available if duty to consult is not triggered
Waterhen Lake First Nation applied to quash an Aquatic Habitat Protection Permit (aquatic permit) and a Work Authorization Permit (work permit) for the construction of a marina on Waterhen Lake. Waterhen asserted that the two decision-makers—the Water Security Agency (Agency) and the Minister of Parks, Culture and Sport (Minister)—failed to honour their duty to consult and administrative law duties before issuing the permits. The Court of King’s Bench for Saskatchewan dismissed Waterhen’s judicial review application on the grounds that administrative common law principles did not apply to the decisions made by this Minister and this Agency. As for its duty to consult argument, the court concluded Waterhen did not establish that the construction of the marina may adversely impact its Treaty 6 rights.
While the Minister breached the common law duty of procedural fairness by failing to give Waterhen notice that it was considering the aquatic permit application, the court held the “proper and constitutionally endorsed right to notice and participation is through the duty to consult process”. Recognizing a separate and distinct right to notice on administrative law principles, considering the Minister’s decision that no duty to consult was triggered, would have given Waterhen a procedural right that does not exist under the Rio Tinto constitutional analysis. Similarly, the court found that on the evidence, neither the Agency’s issuance of the aquatic permit nor the Minister’s issuance of the work permit was unreasonable.
Turning to the Minister’s determination that building the marina would not trigger a duty to consult, the court considered the evidence relating to the marina’s possible impact on a range of Aboriginal rights, and found that the Minister correctly determined that no duty to consult had been triggered, since the marina’s impact on the treaty rights was insignificant and negligible.
Finally, the court determined that the Crown’s failure to follow its own guidelines, for determining whether a project is a “development” under the Environmental Assessment Act and whether a duty to consult has been triggered, was not contrary to the honour of the Crown.
Grand Manan Fishermens Association, Inc. v Canada (Attorney General), 2023 FC 1418
A non-Aboriginal party does not have standing to raise the issue of consultation without the authorization of an Aboriginal group
In 2022, the Minister of Fisheries and Oceans changed access by commercial lobster fishing licence holders to Lobster Fishing Area (LFA) 37 in the Bay of Fundy on an interim basis for the 2022-2023 fishing season. No changes were made to the Indigenous communal commercial licences for LFA 37 for that season.
Members of two fishermen’s associations, the Grand Manan Fishermen’s Association, Inc. (GMFA) and the Fundy North Fishermen’s Association Inc., were affected by the minister’s decision. Two First Nations are also recognized as either having access to the lobster resource in LFA 37 – and have been issued communal commercial licences and food, social and ceremonial licences by the Department of Oceans and Fisheries – or are contemplated as potentially having such access in the future. One of the First Nations, the Tobique (Neqotkuk) First Nation, is a member of the GMFA.
The GMFA argued the minister failed to discharge her duty to consult Indigenous interests during the decision-making process. The GMFA also challenged the procedural fairness and the reasonableness of the minister’s decision to change commercial lobster fishing access to LFA 37. No First Nation was party to the proceedings.
The Federal Court ruled that the GMFA did not have standing to raise the question of Aboriginal rights. Since the duty to consult exists to protect the collective rights of Aboriginal peoples, it is owed to the Aboriginal group that holds the section 35 rights, which are collective. Although an Aboriginal group can authorize an individual or an organization to represent it to assert its section 35 rights, that was not the case here. It cannot be said that the GMFA’s role includes a mandate to speak for First Nations’ interests in a section 35 sense absent an authorization to that effect.
The Federal Court also rejected GMFA’s claims that the minister’s decision was procedurally unfair and unreasonable.
Special thanks to Miranda Sharpe, Ian Wylie, Conor Lillis-White, Bronwyn Evans, Chris Dick, Eric Davies, Emma March and Miteau Butskhrikidze for their assistance in the preparation of these materials.
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