Canadian Power – Key Developments in 2019, Trends to Watch for in 2020: Aboriginal Law

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The following is a chapter from our Power Group's fifth annual Canadian power industry retrospective Canadian Power - Key Developments in 2019, Trends to Watch for in 2020. A form to request a PDF copy of the publication is available at the end of the article. 

Aboriginal law is a continually evolving area in the context of Canadian energy and resource development. This trend continued in 2019, with numerous notable decisions from lower and appeal courts concerning the Crown’s duty to consult. There were also significant steps taken by the federal and B.C. governments to increase Indigenous participation in environmental assessment and regulatory regimes and enhance the consideration of Aboriginal rights and interests in these processes. This trend is expected to continue in 2020, as several significant cases on a range of Aboriginal law issues are currently proceeding through the courts.

Developments In The Duty To Consult

No change to consultation obligations in the context of asserted Aboriginal title claims

In 2019, two notable cases addressed the required scope and standard of consultation in the context of asserted but unproven Aboriginal title claims. In May, the Supreme Court of Yukon considered the distinction in consultation obligations between asserted title versus established title in Ross River Dena Council v. Yukon[1]. This case arose from Yukon’s issuance of hunting licenses and seals and the Court considered whether Ross River Dena Council (“RRDC”), by virtue of its asserted claim for Aboriginal title, was entitled to consultation that addressed the suite of ownership rights of established Aboriginal title as set out by the Supreme Court of Canada (“SCC”) in Tsilhqot’in Nation. This suite of ownership rights includes the right to use, possess, and manage the land, the right to the economic benefits of the land, and the right to decide how the land will be used.

The Court found that the ownership rights only apply to established Aboriginal title and that RRDC was at the claim stage of asserting Aboriginal title, not at the final resolution or shortly before a finding of Aboriginal title. The Court concluded that deep consultation (and accommodation) was owed and had occurred and there was no requirement for the Yukon to literally apply and assess the Tsilhqot’in Nation incidents of established Aboriginal title in its deep consultation with RRDC on wildlife matters. This case is important in clarifying the scope of consultation for asserted Aboriginal title claims and how this differs from established Aboriginal title. The Court also notably reiterated that the duty to consult does not grant the RRDC a veto over any development nor was there an obligation to obtain the RRDC’s consent for any developments in this area due to their asserted Aboriginal title claim.

In November 2019, the Prince Edward Island Court of Appeal issued its first judicial review decision concerning the duty to consult in Mi’kmaq of P.E.I. v. Province of P.E.I. et al.[2] This case confirms that mere assertions of Aboriginal rights, including title, are insufficient to trigger a duty to consult if there is no evidence that the Crown decision will have an adverse impact on the asserted rights. The decision also demonstrates the need for Indigenous groups to provide information to support their assertions of Aboriginal title when contested, to show how the Crown decision will adversely affect their rights, and the risks of not doing so.

In this case, the Province of P.E.I. intended to sell a Crown owned golf course and resort to a private party. Prior to completing the sale, the Province consulted with the P.E.I. Mi’kmaq, who claim Aboriginal title to all of P.E.I. The Mi’kmaq sought judicial review on the basis that the Province did not satisfy its duty to consult. Despite the fact that Aboriginal title is the strongest form of Aboriginal right, the Court held that the duty to consult was not triggered as there was no evidence of a causal connection between the transfer of ownership of the property from the Crown to the private sector and a potential adverse impact on the Mi’kmaq’s claim for Aboriginal title. The land at issue had been used as a golf course since 1983, and the purchaser intended to continue to use the property in the same way. While the conveyance could result in a change in use in the future, the Court found that this was a speculative concern. The Court also found that the claim to Aboriginal title was weak as there was no evidence beyond assertions to establish sufficiency of occupation at the time of the Crown sovereignty and no use of the property, either historic or present day, to be protected pending proof of the Mi’kmaq claim. The land was not shown to be unique and there was no historic association, structures or sites or present use that needed to be protected. There was also no evidence of a shortage of Crown land that could be used in the event of a future settlement of the claim and it was concluded that this would result in a de minimus reduction in provincial Crown land. The Court concluded that even if the duty to consult had been triggered, it would have been at the low end of the spectrum and had been satisfied.

This decision also underscores the reciprocal obligations of Indigenous groups in consultation and the potential consequences when they are not fulfilled. The P.E.I. CA noted several instances where the P.E.I. Mi’kmaq did not meet their reciprocal obligations which likely impacted the outcome in this case:

[1] 2019 YKSC 26

[2] 2019 PECA 26

" Various positions taken by the P.E.I. Mi'kmaq had the effect of limiting consultation. They stated their claims in very general terms that left ambiguity as to the precise rights claimed. They declined to participate in accordance with the protocols established by the Supreme Court of Canada. They provided little information about any historic connection with the property, and did not respond substantively to requests as to how the conveyance would affect the rights and interests they claimed. "

Taking Up of Land in a Treaty Area Doesn’t Automatically Trigger the Duty to Consult

In October 2019, the Alberta Court of Appeal dismissed an appeal in which the Athabasca Chipewyan First Nation (“ACFN”) asserted that there was a duty to consult all Treaty 8 First Nations any time land is taken up for a project in the Treaty 8 area. In Athabasca Chipewyan First Nation v. Alberta, the Court of Appeal held that it cannot be presumed that a First Nation suffers an adverse effect by the taking up of any land in a treaty territory[1]. A contextual analysis must be undertaken to determine if there is the potential for an adverse impact on Aboriginal or treaty

rights from the Crown decision at issue. The duty to consult is only engaged if this ques­tion is answered in the affirmative and it is limited to the specific groups whose rights may be adversely affected.

The case related to a proposed pipeline project and the determination by the Alberta Aboriginal Consultation Office (“ACO”) that the ACFN was not one of the Indigenous groups that needed to be consulted. The proponent still consulted the ACFN and they had an opportunity to make submissions to the Alberta Energy Regulator. While the ACFN did not challenge the Alberta Energy Regulator’s approval, they instead sought judicial review of the ACO’s determination about who needed to be consulted. They argued the ACO lacked the authority to make this decision and that they needed to be consulted whenever there is a project anywhere in the 840,000 square km area encompassed by Treaty 8. Both the Court of Queen’s Bench and the Alberta Court of Appeal rejected these arguments. The Court of Appeal held that the ACO had the jurisdiction to determine who needs to be consulted for a particular project and that there was no at-large duty to consult for developments within the Treaty 8 area. While this arose in the context of Treaty 8, this case is relevant for consultation in other historic treaty areas across the country particularly the Numbered Treaties. It underscores that consultation is not determined on a treaty-wide basis in historic treaty areas. It is focused on the Indigenous groups who are exercising Aboriginal and treaty rights in the vicinity of the project and engaged only if these rights may be adversely affected by the Crown approval at issue.

Crown Funding Decisions May Trigger the Duty to Consult

The Nova Scotia Court of Appeal released an important duty to consult decision in September 2019, for proponents that are seeking government funding to develop their projects. In Nova Scotia (Aboriginal Affairs) v. Pictou Landing First Nation, the Nova Scotia Court of Appeal held that the Province of Nova Scotia needed to consult the Pictou Landing First Nation (“PLFN”) before making a decision to provide funding to a new effluent treatment facility[2]. The effluent treatment facility would extend the life of a pulp mill that the PLFN had longstanding concerns about.

The Province was already consulting the PLFN on the environmental approvals for the effluent treatment facility, but refused the PLFN’s request to consult them before providing any funding to the project. The Nova Scotia Supreme Court and Court of Appeal rejected the Province’s position that there was no duty to consult because any funding decision would not itself have an adverse impact on Aboriginal or treaty rights. The Court of Appeal found that there was a potential adverse impact and thus the duty to consult was triggered for two reasons. First, a decision to provide partial funding would reduce the likelihood of the pulp mill closing and there was no evidence that the effluent facility would be built without the provincial funding. Second, the Court found that a decision to provide funding would increase the likelihood of ministerial approvals for the pulp mill’s continued operation. The Court concluded, among other things, that the provision of funding could influence the Minister’s exercise of discretion given that some provincial funds had already been paid with more to come and these funds would be wasted without the ministerial approvals.

While the Court engages in speculative reasoning to arrive at its conclusion, this decision highlights the risk that funding decisions for projects that have the potential to adversely impact asserted or established Aboriginal or treaty rights could be found to engage the duty to consult. This will be most important where a funding decision is the only Crown decision relating to the project for a particular government. There are some jurisdictions (such as the federal government) that are already consulting on government funding decisions where the project at issue would not proceed but for the funding. It is likely that consultation by governments in this area will increase and we anticipate further disputes and court decisions on this topic.

Cases To Watch

In addition to the Federal Court of Appeal’s anticipated decision in 2020 concerning the Trans Mountain pipeline and the adequacy of further consultation carried out by the federal government with certain Indigenous groups, there are several upcoming Aboriginal law cases to watch for in 2020 (and beyond).

Saik’uz and Stellat’en First Nations’ water rights nuisance claim – In this proceeding, Saik’uz and Stellat’en First Nations allege that Rio Tinto Alcan’s operation of the Kenney Dam since 1952 has diverted and altered the water flowing to the Nechako River, resulting in significant adverse impacts to the Nechako’s waters, and their fisheries resources. In 2015, the B.C. Court of Appeal allowed the First Nations to proceed with a tort claim in private and public nuisance and for breach of riparian rights against Rio Tinto Alcan, on the basis of asserted but unproven rights and title. In 2016, the B.C. Supreme Court granted Rio Tinto Alcan’s application to add the federal and provincial governments as defendants, finding that it is a “major and complex case” in which the intersection between Aboriginal rights and common law tort stand to be defined, and that the Crown parties are necessary parties to the determination of issues respecting Aboriginal title. The case will address whether there are valid causes of action in property law against proponents based on adverse impacts to asserted Aboriginal rights and title and specifically, where the activities at issue are undertaken pursuant to valid government approvals. The 200-day trial commenced in October 2019.

Treaty Rights Infringement Claims – Several Indigenous groups have commenced treaty rights infringement claims against governments on the basis of cumulative impacts.

These include actions by Blueberry River First Nation in B.C., Beaver Lake Cree First Nation in Alberta, and Carry the Kettle First Nation in Saskatchewan. These ongoing infringement cases are based on the premise that the cumulative impacts of projects and industrial development in the Indigenous groups’ traditional territories, have deprived them of their ability to meaningfully exercise their treaty rights, to the point of infringement. These cases differ from duty to consult claims, in which inadequate consultation and accommodation for impacts to rights are the focus. Whereas it is legally permissible for the Crown to make decisions that impact or limit Aboriginal and treaty rights (subject to the constitutional principles of reasonable consultation and accommodation), in contrast, a potential action for infringement will arise where the impacts on rights by the ‘taking up’ of lands leaves the Aboriginal group without the ability to meaningfully exercise a right. The SCC has held that this type of treaty infringement claim is viable and could succeed if an Indigenous group is left without the ability to meaningfully exercise its treaty rights and such infringement cannot be justified by the Crown. Regardless of outcome, these cases indicate a trend of increasing focus on cumulative impacts resulting from project development and will contribute substantially to the law of treaty rights infringement.

The Blueberry River First Nation’s claim in B.C. is the most advanced of the three proceedings. The 120-day trial began in May 2019, after negotiations between the First Nation and the Province broke down (although the government reportedly still hopes to reach a settlement). New details were presented at trial that approximately 91% of Blueberry River’s Treaty 8 traditional territory, located in the Peace Region of northeastern B.C., is within 500 metres of an industrial disturbance (including hydroelectric dams, oil and gas wells and pipelines, roadways, transmission lines and forestry activities).

Saugeen Ojibway Nation’s Water Title Claim (Water title) – A trial is currently underway, in which two Ontario First Nations are seeking a declaration of Aboriginal title to a large portion of the lakebed of Lake Huron and Georgian Bay. This is a novel claim that will require the Court to determine whether title can be established to a lake or river bed and, if so, what rights does this afford and how are those rights reconciled with existing third-party interests. It is an interesting case to watch that could impact future consultation on projects depending on the outcome. There are numerous Indigenous groups with water title claims in Canada, such as the Haida Nation, the Mississaugas of the New Credit, the Chippewas of the Thames, and the Mohawks of Awkwasane.

First Nations move forward with challenge to Site C – In August 2019, West Moberly First Nation and Prophet River First Nations decided to move forward with their legal challenge to the Site C hydroelectric project in B.C. following unsuccessful negotiations with the province. A 120-day trial is scheduled for March 2022. The First Nations claim that the project unjustifiably infringes their Treaty 8 rights. Construction of the Site C project continues, following unsuccessful applications by the First Nations for injunctive relief in 2018. However, the case will be heard before the scheduled filling of the reservoir in 2023, and the outcome of that decision (and related appeals) could have significant bearing on the final outcome of the project.

SCC to hear appeal of R. v. Desautel concerning transboundary hunting rights[3] – In 2020, the SCC will hear an appeal of a B.C. hunting rights case which will consider whether s. 35 Aboriginal rights can extend to Indigenous groups that do not reside in Canada but, whose traditional territories include parts of present day Canada. The defendant is a member of the Lakes Tribe in Washington State whose northern part of their traditional territory includes part of southern B.C. The B.C. Provincial Court found that the Lakes Tribe was capable of holding Aboriginal rights in Canada and the B.C. Supreme Court and B.C. Court of Appeal dismissed the appeals. This case will impact project consultation in areas near the Canada-US border if the SCC dismisses the appeal and could clarify other important issues relating to Aboriginal rights.

SCC to decide jurisdictional case in Newfoundland and Labrador v. Uashaunnuat et al.[4] – In 2020, the SCC will issue a decision in a jurisdictional challenge relating to a transboundary claim by two Quebec Innu First Nations. The First Nations are seeking $900M in damages and injunctive relief against two corporations and declarations of Aboriginal rights and title in Quebec and Newfoundland.

The SCC will decide Newfoundland and Labrador’s appeal of its unsuccessful motions to strike portions of the claim relating to lands and resources in Newfoundland. Newfoundland and Labrador argued that the Quebec court did not have jurisdiction to grant relief regarding real property in Newfoundland and against the Newfoundland Crown. Both the Quebec Superior Court and Court of Appeal dismissed this motion and the SCC’s decision will have implications for other transboundary claims.

Developments In Federal Legislation And Policy

New federal environmental legislation enhances Indigenous participation and decision-making opportunities

On August 28, 2019, Canada’s new federal environ-mental legislation under Bill C-69 (including the Impact Assessment Act (“IAA”), Canadian Energy Regulator Act (“CERA”), and Canadian Navigable Waters Act (“CNWA”)) and Bill C-68 (amendments to the Fisheries Act and other Acts in consequence) came into force. These new statutes and legislative amendments introduce enhanced Indigenous consultation requirements for projects that require federal impact assessments and certain federal regulatory approvals and permits. In broad strokes, the new Indigenous-related aspects of the IAA and other Acts generally focus on new measures designed to: (a) increase opportunities for Indigenous participation, cooperation and partnership with government in impact assessment processes and decision-making; (b) enhance recognition and consideration of Indigenous rights and interests; and (c) enhance consultation and engagement opportunities for Indigenous groups.

In respect of impacts to Aboriginal rights and interests, the IAA and CERA expand the scope of what must be considered vis-à-vis Indigenous interests in decisions or recommendations under these statutes. The decision-maker will be required to consider any impacts on Indigenous peoples and their asserted and established Aboriginal or treaty rights. This goes beyond the common law requirements of the duty to consult, which is limited to the consideration of impacts on s. 35 rights and does not consider impacts on Indigenous peoples more generally.

The new Acts seem to reflect the federal government’s intentions for how to implement the principles of the United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”) and specifically the concept of free, prior and informed consent (“FPIC”) of Indigenous groups in decision-making. The federal government is doing so by increasing opportunities for Indigenous participation in decision-making (“aiming to secure consent”) rather than by implementing a stricter standard of consent in respect of all decisions affecting Indigenous peoples or rights. The federal government’s approach aims to strike a balance between competing interests, including where certain affected Indigenous groups support a project and others oppose it. However, there continues to be heightened expectations of consent and confusion in this area. This is due in part to earlier statements by the federal government about its “unqualified support” for UNDRIP, which it has in fact qualified through further statements and actions.

The various agreement, arrangement, substitution and delegation approaches set out in the IAA do, however, give rise to the potential for Indigenous groups to negotiate consent principles into decision-making processes. These types of agreements and arrangements are discretionary on the part of either the Minister or the Impact Assessment Agency. If exercised, they give rise to potential opportunities that would significantly shift assessment and decision-making authority from government to Indigenous groups whose rights may be affected by a project. In our view, the true extent to which such measures will have any meaningful impact on the impact assessment regime will largely depend on the government’s willingness to implement them in practice, and particularly the degree to which they are willing to enter into such agreements with Indigenous groups that are not parties to modern treaties, and whether government will offer up authority beyond projects on modern treaty or reserve lands.

Federal government commits to table new UNDRIP implementation legislation in 2020

In June 2019, federal Bill C-262, An Act to ensure that the laws of Canada are in harmony with UNDRIP, failed to pass the final stage of the legislative process in the Senate and died on the order paper. Under Bill C-262, UNDRIP would have been affirmed as a “universal international human rights instrument with application in Canadian law.”

The federal government would have been required to “take all measures necessary to ensure that the laws of Canada are consistent with” UNDRIP, to implement a national action to achieve the objectives of UNDRIP, and to provide an annual report to Parliament until 2030. The Bill failed to pass the Senate largely due to concerns with respect to the lack of clarity surrounding interpretation of the Bill (including how FPIC would be interpreted and applied) and potential unintended consequences if passed, rather than due to a lack of support for the aspirations of UNDRIP.

However, the federal government has committed to reintroduce and pass similar legislation by the end of 2020 to implement UNDRIP, as set forth in the Liberals’ fall election platform and Speech from the Throne. The Prime Minister’s December 13, 2019, Mandate Letter to the Minister of Crown-Indigenous Relations, the Honourable Carolyn Bennett, directs the Minister to “[s] upport the Minister of Justice and Attorney General of Canada in work to introduce co-developed legislation to implement the United Nations Declaration on the Rights of Indigenous Peoples by the end of 2020.” It will be interesting to see how the new legislation will differ from Bill C-262, and whether the federal government will follow B.C.’s lead with the successful passing of its new UNDRIP legislation, as discussed in the British Columbia regional section of our Canadian Power - Key Developments in 2019, Trends to Watch for in 2020 publication. Notably, some of the language in B.C.’s new Act was borrowed directly from Bill C-262, with B.C.’s Act passing unanimously in the legislature in just over the span of one month.

[1] 2019 ABCA 401

[2] 2019 NSCA 75

[3] 2019 BCCA 151

[4] 2017 QCCA 1791

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