Tsilhqot’in & Consultation

VancouverOctober 29, 2015

Overview

• Tsilhqot’in and Consultation• Triggering Consultation• Treaties—Duty to Consult or Infringement• Processes for Consultation• Delegation of Consultation

Tsilhqot’in & Consultation• Importance of territorial claims for Aboriginal

title

• Possibility of cancelled authorizations & damages

• Consent based consultation

Triggering the duty to consult

The issues based on Rio Tinto include:

• Are new physical impacts required to trigger the duty?

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

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

Buffalo River Dene Nation, SKCA

• JR of exploration dispositions for subsurface oil sands and minerals

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

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

Ballantyne v Canada, SKQB

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

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

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

Huron-Wendat Nation, FC

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

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

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

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

Da’naxda’xw/Awaetlala, BCSC

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

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

Taku River, BCSC

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

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

• A no decision would mean there would be no development

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

Courtoreille, FC

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

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

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

Courtoreille continued

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

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

Hupacasath. FCA

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

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

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

Fort Nelson First Nation, BCSC

• Triggering of environmental assessment for fracking gravel pit

• Court also rejected argument that duty not triggered b/c effects speculative & it was not a high level strategic decision

• rejected a narrow view that ignored that fact 5 more pits were planned

Chartrand, BCCA• removal of private land from TFL and renewal of

forestry plan

• rejected narrow view of impacts

• impact on ability to participate in decision-making sufficient to trigger duty

• high-level effects can be enough to trigger requirement for deep-consultation

Treaties

• To what degree must government decision-making respect the processes laid down in modern treaties?

• Duty to consult and so-called ‘historic’ treaties

• Duty to consult or justifying infringement?

Corporation Makivik c. Québec , QCCA

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

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

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

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

Nacho Nyak Dun v. Yukon, YKSC• Relied on Beckman for the treaty interpretation principle of

'equality between the parties' (149)

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

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

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

Treaties and Decision-Making

• Participation in decision making/exercising jurisdiction

• Chartrand -- sufficient to trigger duty to consult

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

Treaties & Land Interests

• Buffalo River interest in the land was not at issue

• In Wabauskang Court rejected the argument out of hand

• In Chartrand court said interest based on asserted Aboriginal title did trigger duty

Yahey, BCSC• Infringement/Consultation

• Blueberry River, Treaty 8• Infringement of treaty rights• Injunctive relief• Court—not a ‘tipping point’• Concerned about ‘piece-meal’ injunctions

Prophet River, BCSC & FC• Challenge to Site C Dam EAC and CEAA 2012 approval.

• Issue of whether required Sparrow/Badger infringement analysis or Mikisew duty to consult

• JR’s unsuitable for infringement—requires a trial

• In contrast to Makivik at Quebec Court of Appeal

Inadequate Consultation Processes

• When is consultation insufficient?

• Limits of environmental assessment processes

Yellowknives, FCA• JR re land use planning and cumulative effects

• Piece-meal infringement of Aboriginal rights & treaty rights

• Difficulty for FN to get effective remedies on JRs

Fort Nelson First Nation, BCSC

• Fracking gravel pit judicial review

• Whether ‘production capacity’ triggered an EA

• Province accepted ‘proponent driven’ process

• Court: province must be held to higher standard b/c constitutional rights involved

Chartrand, BCCA

• Court held that BCSC had taken narrow/technical approach to assessing consultation

• Duty to consult cases are not a run-of-the-mill JR

• Assessment of duy must be informed by honour of the Crown and fulfillment of constitutional obligations

• First Nation can’t be faulted for refusing to participate in inadequate process

Long Plain, FCA• Emphasized concepts of “honour, reconciliation, and

fair dealing”

• Canada had taken an overly narrow/technical view of its obligations

• Court emphasized the constitutional import of the process

Nacho Nyak Dun v. Yukon, YKSC

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

• It was obliged to interpret its constitutional obligations "broadly and purposively rather than narrowly”

Delegation of Duty to Consult

• Wabauskang, ONSC

• Fort McKay, ABQ

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

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

Where to Next?

• Hopefully triggering arguments are settled

• Governments held to higher standards of consultation

• More consultation on jurisdiction/decision-making & land interests

• More focus on treaty rights

• Consent based consultation

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Thank you

List of Cases• Adam v. Canada, 2014 FC 1185• Buffalo River Dene Nation v. Saskatchewan, 2015 SKCA 31• Canada v. Long Plain First Nation, 2015 FCA 177• Chartrand v. British Columbia, 2015 BCCA 345• Corporation Makivik c. Québec (Procureure générale), 2014 QCCA 1455• Courtoreille v. Canada (Aboriginal Affairs and Northern Development),

2014 FC 1244• Da’naxda’xw/Awaetlala First Nation v. British Columbia Hydro and Power

Authority, 2015 BCSC 16• Fort McKay First Nation v. Alberta (Minister of Environment and

Sustainable Resource Development), 2014 ABQB 393

List of Cases

• Fort Nelson First Nation v. British Columbia, 2015 BCSC 1180• Haida Nation v. DFO, 2015 FC 290• Hupacasath v. Canada, 2015 FCA 4• Huron-Wendat Nation of Wendake v. Canada, 2014 FC 1154• NunatuKavut Community Council Inc. v. Nalcor Energy, 2014 NLCA 46• Peter Ballantyne Cree Nation v. Canada (Attorney General), 2014 SKQB 327• Pimicikamak v. Manitoba, 2014 MBQB 143• Prophet River First Nation v. British Columbia, 2015 BCSC 1682• Prophet River v. Canada, 2015 FC 1030• Tlicho Government v. Canada, 2015 NWTSC 9

List of Cases• Sam v. British Columbia, 2014 BCSC 1783• Saik’uz First Nation and Stellat’en First Nation v. Rio Tinto, 2015 BCCA 154• Sapotaweyak Cree Nation v. Manitoba, 2015 MBQB 35• The First Nation of Nacho Nyak Dun v. Yukon, 2014 YKSC 69• Taku River Tlingit First Nation v. British Columbia (Minister of Environment),

2014 BCSC 1278• Wabauskang First Nation v. Minister of Northern Development and Mines,

2014 ONSC 4424• Yahey v. British Columbia, 2015 BCSC 1302