Treaty Rights and the Crown’s Duty to Consult Remain at Forefront of Legal Discourse

By Sarah Levine and JoAnn P. Jamieson

In 2017, several significant decisions were released that keep the treaty rights of Indigenous peoples and the Crown’s duty to consult at the forefront of legal discourse.  While the importance of treaty rights is now consistently espoused by all levels of courts in Canada, the scope of those rights, and exactly what it takes to fulfill the Crown’s duty in any given situation, continues to be a hotbed of litigation.  

Regulatory Tribunals Must Heed Crown Consultation Obligations

In June 2017, the Supreme Court of Canada delivered two rulings with respect to the scope of the duty to consult, Clyde River (Hamlet) v. Petroleum Geo-Services Inc. (“Clyde River”)¹  and Chippewas of the Thames First Nation v. Enbridge Pipelines Inc. (“Chippewas of the Thames”).²  These decisions clarify that the Crown’s duty must be fulfilled prior to a project’s final approval.  If the Crown’s duty remains unfulfilled, the decision maker must withhold the approval.

Both Clyde River and Chippewas of the Thames concerned appeals of project approvals by the National Energy Board (“NEB”) on the grounds of inadequate consultation.  In both instances, the appeals to Canada’s Federal Court of Appeal were dismissed.  Given the similar legal issues involved, the Supreme Court of Canada released its decisions on the two cases concurrently. 

The two cases differed on the facts.  In Clyde River, minimal effort was made to assess the potential impact of the proposed seismic project on the rights of the affected Inuit and the NEB did not hold a public hearing.  In Chippewas of the Thames, the First Nation participated fully in a public hearing held by the NEB, for which they applied for and received participant funding.  The Supreme Court allowed the Inuit’s appeal in Clyde River, finding that the consultation carried out by the NEB on the Crown’s behalf was inadequate due to the lack of opportunity to participate meaningfully in the environmental assessment and regulatory review processes.  In contrast, the appeal in Chippewas of the Thames was dismissed as the Court found that the First Nation’s full participation in the NEB public hearing process constituted effective consultation, which discharged the Crown’s duty to consult. 

The differing results in these two cases do not take away from the overarching message, namely that the Crown’s consultation obligation must be fulfilled prior to a final decision on a project. In Chippewas of the Thames, the First Nation’s receipt of participant funding and full participation in the NEB’s public hearing fulfilled this requirement, but in Clyde River, the lack of a meaningful consultation process on the potential environmental impacts as well as the absence of a public hearing process in which the Inuit could participate was found by the Supreme Court to be inadequate consultation.

In British Columbia, the Fort Nelson First Nation filed a judicial review of a decision by the British Columbia Oil and Gas Commission (“OGC”) to approve a 39 kilometre gas pipeline and storage facility located in an area of British Columbia known as the Fortune Core, traditional territory of the First Nation. In its judicial review, the First Nation cited an “inadequate, unlawful and wholly unacceptable approach to consultation” by the OGC.  The First Nation challenged the OGC’s consultation process on the basis that the OGC refused to seriously consider and address its concerns regarding the health and abundance of the Maxhamish caribou herd present in the area and the ongoing disturbance to its habitat.

On December 15, 2017, the British Columbia Supreme Court delivered an oral ruling,³  finding that the Fort Nelson First Nation was not properly consulted by the OGC, nor were their concerns about the environmental impacts of the project properly addressed.  The Court pointed to the fact that, at the outset of the OGC’s communications with the First Nation, the OGC improperly limited the scope of consultation by indicating they would not comment on the expert report on caribou population health and migration submitted to them by the First Nation.  By not being willing to engage the First Nation in a discussion of the potential cumulative impacts of the project on treaty rights or the specific impact that the project could have on the health of the caribou population or linear density, the Court found that the OGC acted unreasonably.  As a result, and following the Supreme Court of Canada’s guidance in Clyde River, the Court quashed the OGC’s approval of the pipeline. 

The OGC has responded with an information bulletin indicating that it will study the judicial review decision and is committed to making any necessary improvements to its consultation and decision-making processes.

Modern Treaties Are To Be Adhered To and Respected

In December 2017, the Supreme Court of Canada also reiterated the importance of modern treaties in, First Nation of Nacho Nyak Dun v. Yukon,⁴  making it clear that they are constitutional documents to be respected and adhered to.  This case centered around the Peel Watershed region in the Yukon, which is not only a pristine swath of sub-Artic wilderness, but it is also home to a biodiverse cross-section of fish, plants and wildlife, significant mineral wealth and is the traditional territory of the Tr'ondëk Hwëch'in, Na-Cho Nyäk Dün, and Vuntut Gwitchin First Nations.

The Peel Watershed is also the subject of a land-use plan with the Yukon government.  A land-use commission (“Commission”) was established by the Yukon government and the First Nations to govern the Peel Watershed, as required by the Umbrella Final Agreement between the Government of Canada, the Council for Yukon Indians, and the Government of the Yukon (“UFA” or “treaty”).  In 2011, after several years of consultation and work, the Commission settled on a Final Recommended Plan that would see 80% of the region protected from development (55% would be permanently protected and a further 25% would have interim protection).  Upon receipt of the Final Recommended Plan, the territorial government had the power to approve, modify, or reject the plan.  The dispute arose when the government proceeded to significantly modify the land-use plan by determining that 70% of the watershed would instead be open to development, effectively usurping the planning process and the role of the Commission.

At trial, the Yukon government conceded that it had failed to uphold its treaty obligations and attempted to overhaul the land-use planning process to achieve their desired result.  The lower court found that the Yukon government disrupted the planning process by disregarding the Commission's Final Recommended Plan in favour of its own and ordered the parties to return to the second round of consultation.

On appeal, the Yukon Court of Appeal found that Yukon had failed to properly exercise its rights to propose modifications to the Recommended Plan and directed the return of the parties to an earlier stage in the planning process than what was ordered at the trial level.  This direction to return to an earlier stage of planning is what the Supreme Court of Canada took issue with.

The Supreme Court of Canada unanimously overturned the Yukon Court of Appeal decision, holding that the appeal court “improperly inserted itself into the heart of the ongoing treaty relationship between Yukon and the First Nations”.  Instead, the Supreme Court upheld the trial judge’s ruling to quash the government's final land-use plan and ordered the planning process to resume from the consideration stage of the Final Recommended Plan.

The Supreme Court stated that the relevant portion of the UFA, dealing with the land-use planning process, was to be interpreted in light of modern treaty interpretation principles.  These espouse interpretations that are deferential to the treaty text. Section 11.6.3.2 of the UFA sets out Yukon’s right to modify a Final Recommended Plan and authorizes Yukon to make modifications that are based on those it proposed earlier in the process or respond to changing circumstances.  This is not a green light for Yukon to completely overhaul the Final Recommended Plan. Yukon’s power to modify in accordance with section 11.6.3.2 is also subject to “prior consultation”.

The Court went on to proclaim that the government’s unilateral overhauling of the Final Recommended Plan not only disrespected the land-use planning process, but it was conduct “not becoming of the honour of the Crown”.  These strong statements made by Canada’s highest court not only assert the authority of Yukon's land claim agreements, but serve as a reminder to provincial and territorial governments, as well as the federal Crown, of the government’s obligations under the treaties.

No Injunction for Cumulative Effects

While the Courts have recently handed down some strong commentary on the Crown’s duty to consult and the protections owed to the treaty rights of Indigenous peoples, the Courts are also demonstrating a willingness to uphold limits on the protection of treaty rights. 

In late 2017, the BCSC denied a second interim injunction application by the Blueberry River First Nations ("BRFN"), who sought an order against the Province prohibiting further industrial development on the BRFN’s traditional lands.⁵   The BRFN put forward evidence of the cumulative effects of industrial disturbance on their traditional territory and the corresponding impacts on the exercise of their treaty rights to hunt and trap.  The Province, in response, tendered evidence showing that granting the injunction would have a significant impact on government revenue and the regional economy in and around Fort St. John.

While the Court in Yahey v. British Columbia⁶ agreed that the BRFN was being irreparably harmed by the cumulative effects of industrial development on its treaty right to hunt, fish, and trap, the Court ultimately concluded that the balance of convenience did not favour the granting of an injunction. On the facts of this case, the Court found that, on balance, the irreparable harm  and cumulative effects of energy development on the ability to exercise treaty rights did not outweigh the economic harm an injunction would have on the Province and third party businesses. 

While an injunction was denied in this case, with the right facts, it is possible that the cumulative impact on the treaty right to hunt, fish, or trap may be found to tip the balance of convenience away from development and in the Indigenous community’s favour. 

Whether Duty to Consult Extends to Legislation

In thinking about what the future holds for the treaty rights of Indigenous peoples, an appeal currently before the Supreme Court of Canada is certainly one to watch.  Canada’s highest court began hearing an appeal by Alberta’s Mikisew Cree First Nation (“MCFN”) on January 15, 2018, that has the potential to make Canada’s lawmakers give Indigenous peoples a seat at the drafting table when it comes to legislation that affects their treaty rights.  The case Chief Steve Courtoreille on behalf of himself and the members of the Mikisew Cree First Nation v. Governor General in Council, et al. (“Courtoreille”) poses a fundamental question about the scope of the Crown duty to consult:  Does the duty to consult extend to consultation on proposed legislation?

Courtoreille challenges the government’s amendments (under the prior Conservative government) to  key pieces of federal environmental protection legislation that the MCFN argue were likely to affect their treaty rights.  The MCFN assert that the government had a duty to consult the MCFN on these changes.  This is a novel and interesting legal argument, as the Crown’s duty to consult is typically only considered and extended in situations where a specific decision potentially affecting treaty rights is being made by a government department or regulatory body.

In 2014, the Federal Court agreed with the MCFN and found that governments have a legally binding duty to consult First Nations when they are developing legislation that may impact their treaty rights. This finding was overturned by the Federal Court of Appeal in late 2016. The MCFN is now appealing this decision to the Supreme Court of Canada.

The MCFN’s position is that if First Nation voices can be heard and the protection of their rights incorporated at the drafting stage of legislation, rather than when they appear before regulatory boards who are applying legislation that is already the law, First Nations might be able to ensure that their treaty rights are truly and meaningfully considered.  However, the government’s stance is that forcing First Nations involvement upon them will fetter Parliament’s law-making process and will not necessarily lead to better legislation, but may impede or otherwise negatively affect their ability to govern.  Canada also argues that allowing the MCFN’s appeal would improperly send a message that there is a higher value on treaty rights than other constitutionally-protected rights, such as Charter rights.

This appeal has potentially serious and sweeping implications not only for the law-making process and the protection of treaty rights in Canada, but also for the future of reconciliation.  In the context of this appeal, the MCFN’s Chief Archie Waquan provided an emphatic caution against not considering consultation with First Nations at the drafting table, where they can have the power to ensure their treaty rights are protected as new laws are created:

Law making is the most important form of Crown decision making. It is corrosive to the process of Reconciliation for the government to say that it does not need to consult with First Nations on legislation that may adversely affect our Treaty Rights. It is our hope that the Supreme Court of Canada will confirm that the federal government and all other governments in Canada must consult with First Nations on legislation that may adversely affect our rights. Ultimately, this will benefit all Canadians.

There is no question that how the rights of Indigenous peoples are reconciled with the process of law-making will be a significant and historical finding for our Canadian democracy.  The direction we take is now in the hands of the Supreme Court of Canada.


¹2017 SCC 40.
²2017 SCC 41.
³The written decision has since been released:  The Fort Nelson First Nation v. BC Oil and Gas Commission, 2017 BCSC 2500.
⁴2017 SCC 58.
⁵Note that the application for an injunction was made in the context of their underlying lawsuit for the breach of treaty rights, which is scheduled to be heard in March 2018.
⁶2017 BCSC 899.