April 2018 Māori Law Review

Canada – rights of indigenous peoples – the year in review – 2017

Kevin Hille reviews developments affecting the rights of indigenous peoples in Canada in 2017.

Introduction

The Crown’s relationship with indigenous peoples was top of mind in Canada throughout 2017.  Thirteen years after the release of its seminal decision on the duty to consult in Haida, the Supreme Court of Canada released four decisions this past year, which engaged with, elaborated on, and applied the doctrine in a variety of contexts.  Meanwhile, the Government of Canada has been conducting a wide-ranging legislative review on the implementation of the United Nations Declaration on the Rights of Indigenous Peoples, and there are bills currently before the House of Commons that set out to do just that.  This article offers an overview of the common law duty to consult in light of this year’s Supreme Court decisions and how the implementation of the Declaration – with its requirement for free, prior and informed consent – is unfolding in Canada.

Discussion

United Nations Declaration on the Rights of Indigenous Peoples

This publication has previously covered Canada’s journey towards endorsing the United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”).[1]  After initially opposing its adoption by the General Assembly in 2007,[2] Canada endorsed the declaration in 2010 as an “aspirational document” but made no promises to implement it.  In 2016 the current Government announced that Canada was “a full supporter of the declaration, without qualification.”[3]  The Minister of Indigenous and Northern Affairs stated to the Permanent Forum on Indigenous Issues that Canada planned to “adopt and implement the declaration in accordance with the Canadian Constitution.”[4]

Since then Canada has been conducting a legislative review with a view to implementing UNDRIP.  This past year the Department of Justice released a document titled “Principles respecting the Government of Canada’s relationship with Indigenous peoples” which embodies key provisions from UNDRIP, including self-determination and the requirement of free, prior and informed consent.[5]  The Government has also supported private member’s Bill C-262 from an opposition party, which seeks to establish a framework for domestic implementation.  In February 2018, while this article was being prepared, the Government introduced Bill C-69 to reform federal environmental laws, and Bill C-68 to amend the framework for federal fisheries regulation.  Both Bills were announced as implementing the requirements of UNDRIP in those specific regulatory contexts.  Neither, however, makes explicit use of the requirement for “free, prior and informed consent”.[6]

Canada’s original objection to UNDRIP raised the prospect that its requirement for free, prior and informed consent would grant a veto power to indigenous peoples over resource development.  This, Canada claimed, was incompatible with the country’s constitutional arrangements and the project of reconciliation. [7]  Since removing its objector status and endorsing UNDRIP, concern about potential veto power still characterize the debate around its implementation.  For instance, during the debate in the House of Commons over Bill C-262, an opposition member asked the following:

…there is also the issue of free, prior, and informed consent as it relates to the development of the natural resources. The minister has suggested it was not a veto and the position was supported by National Chief Bellegarde. However, he noted on three occasions that free, prior, and informed consent means the right to say yes and the right to say no. A number of lawyers have said the whole discussion is really a bit of semantics and whether it is veto or consent it has the same effect. Again, it leads to a question in law. What is the difference between ‘free, prior, and informed consent’ and ‘consult and accommodate’, which is what we have in law right now?[8]

As the member’s question suggests, it is still uncertain exactly how UNDRIP’s provisions will be implemented in Canada.  In particular, it is unclear whether and how the requirement for free, prior and informed consent will be integrated into regulatory schemes, and what precise standard will be adopted.  Moreover, in a confederation like Canada, implementation at the federal level does not directly translate into provincial law.  The provinces, who have jurisdiction over the majority of lands and natural resources, would also need to reform their statute books.  It is also unclear whether and how UNDRIP – and the attempts to implement it statutorily – will influence the common law duty to consult.[9]

The duty to consult

In its 2004 decision in Haida Nation v British Columbia, the Supreme Court held that the Crown had a duty to consult indigenous peoples when it contemplated actions that could adversely affect unproven rights, pending resolution of the claims.[10]  This extended earlier jurisprudence that required the Crown to consult on infringements of proven rights[11] and requiring consent for infringements of aboriginal title.[12]  The Court explained that content  of  the  duty  to  consult  and  accommodate  varies  with  the strength  of  the  claim  and  the  significance  of  the  potential  adverse effect.[13]  Weak claims,  limited  rights,  or  minor  intrusions  may  require only  notice,  information,  and  response  to  queries.  At  the  other  end  of the  spectrum,  a  strong  prima facie  case  with  significant  intrusion  on an  important  right  may  require  the  Crown  to  engage  in  “deep consultation” and accommodate  the  interest  by  altering  its  plans.[14]  The Court more recently re-articulated the role of the duty to consult in cases of both proven and unproven claims in its 2014 decision in Tsilhqotin Nation v British Columbia.[15]

This past year the Supreme Court issued four decisions interpreting and applying the duty to consult in a wide range of contexts.  They offer a glimpse of the diversity of legal relationships between the Crown and indigenous peoples throughout Canada.  Two cases come from the Arctic region, within the context of comprehensive modern treaties (Nacho Nyak Dun and Clyde River).  One comes from Central Canada in the dual context of a historical treaty and current rights and title claims (Chippewas of Thames) and another from British Columbia (Ktunaxa), involving a group without a historic or modern treaty, in the context of unproven claims to aboriginal title.

The cases also show a concern about the role of consultation in the project of reconciliation, including a concern about veto powers over development.  The Court was willing to invalidate Crown action where it fell below the procedural requirements of a modern treaty (Nacho Nyak Dun) or of the duty to consult at common law (Clyde River).  However, the Court made it clear that in the Crown’s substantive decision making, the interests of indigenous peoples were to be balanced within the broader public interest (Chippewas of Thames), and that the right to consultation and accommodation did not amount to a veto power (Ktunaxa).

This is not new.  Indeed, when the Court first articulated the doctrine in Haida, it stated that:

This process does not give Aboriginal groups a veto over what can be done with land pending final proof of the claim.  The Aboriginal “consent” spoken of in Delgamuukw is appropriate only in cases of established rights, and then by no means in every case.  Rather, what is required is a process of balancing interests, of give and take.[16]

Beyond that the cases offer examples of processes along the spectrum in Haida, and how the Court assessed their adequacy.  Through them, the Court has engaged with the practical content of the Crown’s duty to consult: what it involves in different contexts, how it can be discharged, and some concrete examples of inadequate and adequate processes.

Nacho Nyak Dun – consultation and co-governance in regional land use planning – modern treaty – Yukon

Modern treaties are an important part of the legal landscape in Canada, as they generally include frameworks for self-determination and co-governance over planning and resources.  The Yukon Territory is in the far northwest of Canada’s Arctic, bordering Alaska.[17]  It has few historic treaties with indigenous peoples, and has been the subject of multiple modern land claims.  In an attempt to resolve these land claims, the Yukon is covered by a political agreement which sets the framework for land claims settlements and binding final agreements between the Yukon Government, the Government of Canada, and each of the Yukon’s First Nations.  This is called the “Umbrella Final Agreement” (“UFA”).  The UFA itself does not create or confer any legal rights,[18] but once a final agreement is reached with a First Nation, it becomes a modern treaty protected under s 35 of the Canadian Constitution Act.[19]  This means that Crown actions which are inconsistent with the terms of a final agreement can be declared invalid by the courts.

The Supreme Court has described the UFA as a model of reconciliation, as it “establishes institutions  for  self-government  and  the  management  of  lands  and  resources” and is “intended  to  foster  a  positive  and mutually  respectful  long-term  relationship  between  the  signatories.”[20]  One cornerstone of the UFA is a collaborative regional land use planning process, which “ensures  the  meaningful  participation  of  First  Nations  in  the management  of  public  resources  in  settlement  and  non-settlement  lands”.[21]

In negotiating the UFA and their individual settlements, Yukon First Nations were willing to forgo greater financial compensation and land allocation in order to secure a prominent place within the planning process:

In exchange for comparatively smaller settlement areas, the First Nations acquired important rights in both  settlement and non-settlement lands, particularly in their traditional  territories... Barry Stuart, the Chief Land  Claims Negotiator for the Yukon Territorial Government, explains that it was more important to First Nations  that they be able to meaningfully participate in land use management in all of their traditional territory than to  acquire vast tracts of their traditional territory as settlement lands.[22]

The Nacho Nyak Dun litigation arose from the second such collaborative planning process, over the Peel River Watershed – a tract of unspoiled wilderness roughly half the size of New Zealand’s South Island.  The process began in 2004 when Yukon and affected First Nations agreed to establish an independent commission to develop a regional land use plan.  Members of the commission were nominated by Yukon, First Nations, and jointly.[23]

In 2009 the commission submitted its recommended plan.[24]  At this point Yukon had the ability to, after consultation, approve, reject or propose modifications.[25]  However, instead of proceeding unilaterally, Yukon and the First Nations agreed to coordinate their response and to collaborate on further consultation, with a view to achieving consensus.  In 2010 they signed a Letter of Understanding to that effect.[26]

Unfortunately this collaborative approach broke down.  In early 2011 Yukon and affected First Nations released separate responses to the recommended plan.[27]  Yukon expressed its preference for more access and development options in the plan, proposing the re-examination of the balance of conservation values with non-consumptive uses and resource development.[28]  However, the commission did not consider the general expressions of preference by Yukon sufficiently specific to be proposed modifications.  It reconsidered the plan in light of the responses, and the specific modification proposals, and released a final recommended plan later that year.[29]

Yukon was not satisfied with the result.  It released its own statement of values on which it proposed to modify the final recommended plan.  Again, the eight values placed a heavy emphasis on increased resource development.  The First Nations objected that any modifications needed to be in line with the earlier proposed modifications to the initial recommendation.  Essentially, the parties disagreed over the scope of Yukon’s authority to reject or propose modifications at this point in the process.

Yukon proceeded to conduct consultation unilaterally, and in 2014 approved its own land use plan over the lands under its authority.[30] Yukon’s plan dramatically increased the proportion of lands available for development: “Under the Government approved plan, 71% of the Peel Watershed is open for mineral exploration with 29% protected, compared to 80%  protected and 20% open for mineral exploration under the Final Recommended Plan.”[31]

In the litigation that ensued, all parties agreed that Yukon had breached the planning process.  The real issue over which the parties and the courts below divided was when that breach first occurred and what the remedy should be.  Yukon wanted the process to be returned to the point when the initial recommended plan was submitted by the commission, at which point Yukon could reject, accept or propose modifications to it.  The affected First Nations wanted Yukon’s decision to approve its own plan to be declared invalid, and for restrictions to be placed on its ability to reject or propose modifications on the commission’s final recommended plan.[32]  They characterized Yukon’s position as wanting a “redo” and seeking to benefit from its own breach.  Allowing such a return to an earlier stage would, they argued, undermine the iterative, progressive nature of the collaborative process and undermine the agreements.[33]

Overall, the Supreme Court agreed with the First Nations.  The Court’s first concern was with the appropriate role of the courts in policing the terms of modern treaties.  Modern treaties are treated differently than historic treaties.  This is in part because they are the result of extensive and careful negotiation by well resourced parties.  Courts must pay close attention to their terms, and give due deference to their actual text.[34]  Beyond interpretation, modern treaties are also treated differently because they represent a commitment to co-governance and reconciliation.  Courts should therefore be reluctant to supervise or intervene as the parties navigate the renewed relationship.  The Supreme Court describes this as “judicial forbearance” necessary for reconciliation: “courts should generally leave space for the parties to govern together and work out their differences.”[35]  That said, modern treaties are also constitutionally protected agreements, and in certain cases judicial intervention may be required to ensure constitutional compliance and that the honour of the Crown is upheld.[36]

The second issue was the scope of the authority of the Yukon to approve its own modified plan.  The Court unanimously held that “Yukon’s approval of the plan was not valid as Yukon’s changes to this plan were not authorized.”[37]  The scheme of the planning process was such that each step in the process built on previous decisions.[38]  An unconstrained ability to rewrite the plan at the end of this process would render it meaningless.[39]

The overall scheme in the settlements was to ensure that affected First Nations could “meaningfully participate in land use planning”.[40]  Hence the central role of a politically neutral expert commission:

[E]nsuring adequate opportunity for public participation, minimizing actual or potential land use conflicts, utilizing the knowledge and traditional experiences of Yukon Indian People and the knowledge of other residents in the region, promoting the well-being of Yukon residents, and promoting sustainable development.[41]

In light of all of this, the Court concluded that Yukon could not unilaterally approve a plan “untethered” from the one put forward by the commission, and consulted on with affected First Nations and the public.[42]  In acting as it had, Yukon “usurped the planning process and the role of the Commission.”[43]

The third issue for the Court was how to craft an appropriate remedy, in light of the need for judicial restraint in policing the modern treaty relationship.[44]  The Court chose to quash Yukon’s decision to approve its own plan, and return the parties to the point immediately prior.  The Court thought it was premature, however, to determine the scope of Yukon’s authority to reject the commission’s final recommended plan until a decision was made.[45]

The result going forward is that Yukon has some scope to propose modifications to the final recommended plan, responding to changing circumstances and the results of consultation, but its modifications must not be so fundamental that they amount to a rejection.[46]  A new Government has confirmed that it will accept the commission’s final recommended plan, and is in the midst of consultation on it.[47]

Clyde River – consultation as part of regulatory approvals – modern treaty – Nunavut

Two cases in 2017 involved decisions by the National Energy Board (“NEB”), Canada’s final regulatory decision-maker on oil and gas exploration and drilling.[48] The first case originated in Nunavut, Canada’s self-governing Inuit territory in the sprawling Arctic archipelago.  Nunavut was established as part of a modern treaty, under which Inuit ceded their aboriginal title and rights to hunt and fish in the territory, in exchange for defined treaty rights, including the right to harvest marine mammals.[49]  The NEB had approved offshore seismic testing in Nunavut waters by a company exploring for oil and gas.  The testing involved towing airguns behind ships, which produce underwater sound waves.[50]  Inuit from the Hamlet of Clyde River near to the testing sites objected, claiming that the testing could adversely effect their treaty rights.  In particular, the residents were concerned that the testing would interfere with the migration and mating patterns of marine mammals, upon which Inuit rely “for food and for their economic, cultural, and spiritual well-being.”[51] Impacts on harvesting of bowhead whale, narwhal, ringed, bearded, and harp seals, and polar bear were of chief concern.

It was undisputed that the testing could negatively affect these rights.[52]  The primary issue was whether Inuit had been adequately consulted on the testing and its potentially adverse effects.  The Court concluded that they had not been.[53]

The NEB conducted an environmental assessment process, which included public meetings with Inuit communities.  At these meetings, community members asked questions about the effects of seismic testing on marine mammals.  Representatives of the company were not able to answer many of them.  They referred to documents and reports submitted to the NEB, but could not provide substantive answers at the meetings.[54]  Instead, several months later the company prepared a 3,926 page document which purported to address the impacts of testing on marine mammals. This report was delivered to the Clyde offices, and posted it on the NEB website.  However, internet access in Canada’s Arctic is patchy and expensive, and, the majority of the report was not translated into Inuktitut.[55]

The community and other Inuit organizations complained about the consultation to the NEB and to the Minister of Aboriginal Affairs and Northern Development.  They demanded that seismic testing be postponed and suggested a further strategic environmental assessment process to fully engage with and address the issues raised.[56]  The Minister disagreed, and an NEB approval to conduct the testing was issued.[57]  The NEB concluded that consultation had been sufficient, and that although the testing could change migration routes, this was likely mitigated by the measures proposed by the company.[58]

The Supreme Court disagreed.

When regulatory agencies or private proponents are conducting consultation, the Crown always holds the ultimate responsibility for ensuring that it has been adequate.[59]  If the process is inadequate, the Crown must take further steps.  This could mean filling gaps on a “case-by-case” basis, which might involve “making submissions  to  the  regulatory  body,  requesting  reconsideration  of  a  decision,  or seeking a postponement in order  to carry  out  further consultation in  a  separate process.”[60]  And if the Crown is relying on the consultation process of the regulatory agency, it should make that clear to affected indigenous peoples.[61]  Beyond this, certain cases may require a more systemic response from the Crown, through legislative or regulatory amendments.[62]

How exactly the NEB fits into the Crown’s duty to consult was a tricky issue.  It stands in the shoes of the Crown in conducting consultation in certain circumstances, but also determines the adequacy of the Crown’s consultation in its final decision-making on approvals.  The Court concluded that the  NEB had the procedural powers necessary to conduct consultation, and the remedial powers to, where necessary,  accommodate affected rights.[63]  It also has the capacity to determine whether the duty to consult has been discharged in particular cases before it.[64]  So the Crown can rely on the NEB to discharge the duty to consult, but ultimately bears the responsibility of ensuring its sufficiency.[65]  At the same time, the NEB must review the adequacy of any consultation by it or the Crown, and provide reasons on that adequacy, before issuing any approval.[66]

As discussed above, the level of consultation required lies on a spectrum.  In this case, there was no question that  consultation was required.  The testing could adversely effect established treaty rights of integral importance to Inuit:

The Inuit right which is of concern in this matter is the right to harvest marine mammals.  Many Inuit in Nunavut rely on country food for the majority of their diet. Food costs are very high and many would be unable to purchase food to replace country food if country food were unavailable. Country food is recognized as being of higher nutritional value than purchased food. But the inability to harvest marine mammals would impact more than…just the diet of Inuit.  The cultural tradition of sharing country food with others in the community would be lost. The opportunity to make traditional clothing would be impacted. The opportunity to participate in the hunt, an activity which is fundamental to being Inuk, would be lost. The Inuit right which is at stake is of high significance. This suggests a significant level of consultation and accommodation is required.[67]

The risks were also high.  Testing could cause mortality, hearing loss, and a changing in migration routes in marine mammals.[68]  This could fundamentally impact Inuit exercise of their traditional harvesting rights, and placed the consultation required at the highest – or “deepest” – end of the spectrum.

In light of all this, the Court found that the consultation in this case fell short.  It focused on the environmental risks themselves, rather than the potential impacts of testing on Inuit harvesting rights.  The NEB should have considered the source of the rights – the modern treaty – and the potential impact of the testing on those rights, rather than the general environmental effects of testing.[69]

The Crown did not inform Inuit that it would be relying on the NEB’s consultation,[70] and the NEB’s process was itself inadequate.[71]  There were no oral hearings, communities were not given funding to participate or to prepare their own scientific reports, and representatives were unable to answer crucial questions at public meetings.[72]  When the company did respond to the questions, it was in a large English-language document posted online:

Internet speed is slow in Nunavut, however, and bandwidth is expensive. The former mayor of Clyde River deposed that he was unable to download this document because  it  was  too  large.  Furthermore, only a fraction of this enormous document was translated into Inuktitut.  To put it mildly, furnishing answers to questions that went to the heart of the treaty rights at stake in the form of a practically inaccessible document dump months after the questions were initially asked in person is not true consultation.[73]

As such, there was no meaningful dialogue or mutual understanding about the proposed testing and its risks.  The mitigation measures and concessions proposed were “meaningless” in light of the potential effects on Inuit treaty rights: “None  of  these  putative  concessions,  nor  the  NEB’s  reasons themselves,  gave  the  Inuit  any  reasonable  assurance  that  their  constitutionally protected  treaty  rights  were  considered  as  rights,  rather  than  as  an  afterthought  to  the assessment of  environmental concerns.”[74]  The Court therefore quashed the NEB’s approval for the testing.

Chippewas of the Thames First Nation – consultation in regulatory approvals – historic treaty – Ontario

The other companion case involving the NEB explored many of the same issues as Clyde River, but arose in the very different context of southern Ontario – a place covered by historic treaties dating back to the 18th and 19th century.  The Court also reached a different result in this case, finding that the NEB’s consultation was adequate.  Indeed, at many points the Court compared and contrasted the conduct in Clyde River to show the adequacy of the process.  In so doing, it explored what meaningful consultation looks like, and  explained that the duty to consult was not about resolving historical grievances.

The case involved a modification to an existing oil pipeline to transport heavy crude, which would increase throughput and the chance of spill and contamination.[75]  The original pipeline was built in the 1970s across the traditional territory of the Chippewas of the Thames First Nation without any consultation.[76]

The Chippewas of the Thames are an Anishinaabe people who assert treaty, aboriginal and title rights throughout the traditional territory, including title to the bed of the Thames River, its airspace and other lands.[77]  Given the increased risks to their asserted rights from spills, and in light of historic contamination in the area, the Chippewas of the Thames sought consultation from the Canadian Government on the proposal.  Canada declined.  Instead, it indicated it would rely on the NEB’s public hearing process to discharge its consultation obligations.[78]  (However, this was after the public hearing process, described below, was complete.)[79]

Several months before its public hearings, the NEB issued notice of the application to the Chippewas of the Thames and 18 other potentially affected indigenous groups.  It also held three meetings in communities upon request.[80]  The Chippewas of the Thames participated in the public hearings, gave evidence and submissions.

The NEB approved the proposal, subject to certain conditions, finding that it was in the public interest.  In deciding  whether  a  project  is  in  the public  interest,  the  NEB  “considers  all  of  the  benefits  and  burdens  associated  with  the project,  balancing  the  interests  and  concerns  of  Aboriginal  groups  with  other  interests and  factors.”[81]  The NEB determined that the nature of the proposal was limited, given that most of it involved existing facilities located on the pipeline owner’s existing land and right of way.[82]  It concluded that under the circumstances, the duty to consult had been discharged, since potentially affected indigenous peoples had been given notice, consulted with in their communities, and participated in the public hearing process.[83]

The Chippewas of Thames claimed on appeal that “[t]he potential adverse impacts to [the asserted] Aboriginal rights and title resulting from approval of Enbridge’s application for modifications to Line 9 are cumulative and serious and could even be catastrophic in the event of a pipeline spill.”[84]

The Court did not accept this.  It clarified that the  duty  to  consult  is  not  the  vehicle  to  address  historical  grievances.  The subject  of  the  consultation  is  the  impact of a current decision on the claimed rights.[85]  The Court did, however, add a caveat:

…it may be impossible to understand the seriousness of the impact of a project on s. 35 rights without considering the larger context…Cumulative effects of an ongoing project, and historical context, may therefore inform the scope of the duty to consult…[86]

Nevertheless, the Court held that the duty to consult had been satisfied in the circumstances of the case.  The Chippewas of the Thames had received adequate notice and had participated fully in the public hearing process.  Indeed, the NEB funded their participation in the hearing, which allowed them to prepare and tender evidence, including a traditional land use study.  As an intervener, they could pose formal information requests to the proponent, and receive written answers.  They also delivered oral closing submissions.[87]  Notice from the Crown that it would not be consulting separately came late, but the Court found that the Chippewas of the Thames understood that participation in the NEB’s process would the primary vehicle.[88]

Overall, the Court found the process met the standards for deep consultation set out in Haida, in which there is  “the  opportunity  to  make  submissions  for  consideration,  formal participation  in  the  decision-making  process,  and  provision  of  written  reasons  to  show that  Aboriginal  concerns  were  considered  and  to  reveal  the  impact  they  had  on  the decision.”[89]  The NEB had assessed the risk to the rights alleged, found that it was limited, and imposed appropriate conditions.[90]

In response to the Chippewas of the Thames’s argument that the risks to their rights were improperly balanced with other economic and social factors, the Court said the following:

A decision to authorize a project cannot be in the public interest if the Crown’s duty to consult has not been met…Nevertheless, this does not mean that the interests of Indigenous groups cannot be balanced with other interests at the accommodation stage.  Indeed, it is for this reason that the duty to consult does not provide Indigenous groups with a  veto over final Crown decisions... Rather, proper accommodation “stress[es] the need to balance competing societal interests with Aboriginal and treaty  rights”…The Chippewas of the  Thames are not entitled to a one-sided process, but  rather, a cooperative one with a view towards reconciliation. Balance and compromise are inherent in that process...[91]

Ktunaxa – consultation in development approvals – British Columbia

Our final Supreme Court case arises from British Columbia, where the majority of the province’s land is subject to as yet unproven claims to Aboriginal title, and where  few groups have treaties with the Crown.  The duty to consult doctrine arose in British Columbia precisely because there were few treaties and rights and title remained largely unproven.  As the Court in Haida stated: "the Crown cannot cavalierly run roughshod over Aboriginal interests where claims affecting these interests are being seriously pursued in the process of treaty negotiation."[92]

This case involved a consultation process over the development of a ski resort in the traditional territory of the claimants, the Ktunaxa.  Similar to many duty to consult cases, the Ktunaxa were seeking judicial review of the Government’s decision to approve development on the basis that it had failed to adequately consult them.  What makes the case extraordinary, however, is that the Ktunaxa also claimed that approval of the resort would also violate their freedom of religion, and therefore was in breach of the Canadian Charter of Rights and Freedoms.  In doing so, the case draws together two very different strands of constitutional law – Charter rights and Aboriginal rights.

In the end, the Supreme Court rejected both claims, and allowed the approval to stand.

The Court noted early in its decision the length of the consultation process leading to approval.  The proponent had been negotiating with the British Columbia Government and local indigenous peoples, including the Ktunaxa, for over two decades.[93]  The Ktunaxa had participated in every stage of the approvals process,[94] including multiple rounds of public hearings,[95] an environmental assessment (for which it received participant funding),[96] and a technical review committee.[97]  When environmental assessment certificate approval was granted, the Government required that the proponent negotiate with Ktunaxa to attempt to conclude an Impact Management and Benefits Agreement.[98]

Until 2005 the Ktunaxa participated jointly with another First Nation, which currently supports the project and believes it will be good for their community.[99]  After the split, the Government agreed to separate consultations with the Ktunaxa.  A consultant retained by  the  Ktunaxa  and  funded by the Government  prepared a “Gap  Analysis” to identify the outstanding issues for discussion.[100] The Ktunaxa met with the responsible minister and agreed to further consultation to around the issues raised in the Gap Analysis.[101]  There were a series of workshops about grizzly bear, wildlife and other residual issues.[102]

The Ktunaxa rejected two accommodation offers, including one involving revenue sharing.[103]  The Government continued to negotiate various outstanding issues identified by the Ktunaxa (which, importantly for the Court, did not include issues around the sacredness of the place).[104]  Various accommodation measures were proposed, which would change the scope of the development and add protections to Ktunaxa interests.[105]

Early in the process, the Ktunaxa had indicated that the place was of spiritual significance to them, as the home of many grizzly bears and of Grizzly Bear Spirit – “a principal spirit within Ktunaxa religious beliefs  and cosmology”.[cvi]  According to the Court, it appeared throughout the process that this was capable of being accommodated through modifications to the resort.  Near the end of the process, however, this changed.  The Court describes how the Ktunaxa took a “very different and uncompromising position regarding the spiritual value of Qat’muk”.[107]  Given the spiritual importance of the site, the Ktunaxa finally took the position no accommodation was possible and negotiations were at an end.[108]  They issued the “Qat’muk Declaration” in 2010 – based on “pre-existing sovereignty” – stating that no development, disturbance or alteration of the ground could take place in the area of the proposed resort.[109]

The Minister in turn concluded that negotiations were at an end, that deep consultation had taken place, and approved the resort development:[110]

The extensive accommodation measures relating to the continued ability of the Ktunaxa to continue to exercise their Aboriginal rights, balanced against the societal benefits of  the project ($900 million in capital investment and 750 to 800 permanent, direct jobs), were reasonable.[111]

The Ktunaxa sought judicial review of the decision, claiming that the project would violate their right to freedom of religion, protected under s 2(a) of the Canadian Charter of Rights and Freedoms:

The Ktunaxa assert that the project, and in particular permanent overnight accommodation, will drive Grizzly Bear Spirit from Qat’muk.  As Grizzly Bear Spirit is central to Ktunaxa religious beliefs and practices, its departure, they say, would remove the basis of their beliefs and render their practices futile.[112]

In argument before the Supreme Court, the Ktunaxa also relied on Articles 12 and 25 of UNDRIP as informing the unique nature of indigenous spiritual beliefs and practice, and their connection with the land.[113]

The majority dismissed the claim.  Relying on its previous decisions on the freedom of religion generally, it held that the protection in the Charter was intended to protect the rights of individuals and groups to hold and manifest their beliefs.[114]  There was no question over whether the Ktunaxa sincerely believed in Grizzly Bear Spirit, or the sincerity of their belief that the development would drive the Spirit away.[115]  What they failed to show, however, was that the approval of the project would interfere with their freedom to believe in Grizzly Bear Spirit or their ability to manifest that belief.[116]

The majority was unwilling to expand the law to protect Grizzly Bear Spirit itself:[117] “the  Charter  protects  the  freedom to  worship,  but  does  not  protect  the  spiritual  focal  point  of  worship.”[118]  Even though the communal aspect of their belief might be disrupted or even destroyed by the displacement of the Spirit, that communal aspect was still confined to the right to hold and manifest certain beliefs.  It could not be extended to protect the object of those beliefs.[119]

The majority canvassed multiple international human rights instruments in support of this interpretation.[120]  It did not, however, address the Ktunaxa’s argument that Articles 12 and 25 of UNDRIP were relevant to how these rights should be interpreted for indigenous peoples.   In particular, it did not  not address the Ktunaxa’s argument that Article 25 specifically recognized that indigenous spirituality was uniquely associated with the land. Indeed, neither the majority nor minority referred to UNDRIP at all.

The minority disagreed on the scope of religious freedom protections, and held that the Ktunaxa’s rights had been infringed:

The Ktunaxa believe that a very important spirit in their religious tradition, Grizzly Bear Spirit, inhabits Qat’muk, a body of sacred land that lies at the heart of the proposed ski resort. The development of the ski resort would desecrate Qat’muk and cause Grizzly Bear Spirit to leave, thus severing the Ktunaxa’s connection to the land. As a result, the Ktunaxa would no longer receive spiritual guidance and assistance from Grizzly Bear Spirit. All songs, rituals, and ceremonies associated with Grizzly Bear Spirit would become meaningless.

In my respectful view, where state conduct renders a person’s sincerely held religious beliefs devoid of all religious significance, this infringes a person’s right to religious freedom.  Religious beliefs have spiritual significance for the believer.  When this significance is taken away by state action, the person can no longer act in accordance with his or her religious beliefs, constituting an infringement of s.2(a).  That is exactly what happened in this case.[121]

In its analysis, the minority explicitly dealt with the nature of indigenous spirituality and the integral importance of connection with the land:

The connection to the physical world, specifically to land, is a central feature of Indigenous religions... In many Indigenous religions, land is not only the site of spiritual practices in the sense that a church, mosque or holy site might be; land may itself be sacred, in the sense that it is where the divine manifests itself.  Unlike in Judeo-Christian faiths for example, where the divine is considered to be supernatural, the spiritual realm in the Indigenous context is inextricably linked to the physical world.  For Indigenous religions, state action that impacts land can therefore sever the connection to the divine, rendering beliefs and practices devoid of their spiritual significance. Where state action has this effect on an Indigenous religion, it interferes with a believer’s ability to act in accordance with his or her religious beliefs and practices.

Taking this feature of Indigenous religions into account is therefore critical in assessing whether there has been a  s. 2(a) infringement.  The principle of state neutrality requires that the state not favour or hinder one religion over the other…  To ensure that all religions are afforded the same level of protection under s. 2(a), courts must be alive to the unique characteristics of each religion, and the distinct ways in which state action may interfere with that religion’s beliefs or practices.[122]

The minority reached this conclusion, however, without engaging with the Ktunaxa’s arguments about the relevance of Article 25.  In the end, despite finding an infringement of religious freedom, the minority concluded that the infringement was justified in the circumstances.  Otherwise the Ktunaxa would effectively have a veto over the development.[123]

On the issue of consultation, the Court was unanimous in upholding the decision of the Minister,[124] pointing to the lengthy and intense involvement of the Ktunaxa at all stages of the approvals process.  The Court seemed troubled by the “uncompromising” and “absolute” position taken by the Ktunaxa in the late stages of the process, and the unwillingness to continue negotiating towards accommodation.  Consultation was “a two-way street” requiring indigenous peoples to not frustrate good faith efforts by the Crown to negotiate and to not take unreasonable positions when agreement cannot be reached.[126]  The Court reiterated that consultation:

does not give Aboriginal groups a veto over developments pending proof of their claims.  Consent is required only for proven claims, and even then only in certain cases.  What is required is a balancing of interests, a process of give and take…[127]

While the hope is always that s. 35 consultation will lead to agreement and reconciliation of Aboriginal and non-Aboriginal interests, Haida Nation makes clear that in some situations this may not occur, and that s. 35 does not give unsatisfied claimants a veto over development.  Where adequate consultation has occurred, a development may proceed without the consent of an Indigenous group.[128]

The Court also that judicial review proceedings were not the appropriate venue for determining the validity and content of Aboriginal rights claims.  A full trial record based on tested evidence was required.[129]

The Court summed up the dilemma presented by the case:

The Ktunaxa reply that they must have relief now, for if development proceeds Grizzly Bear Spirit will flee Qat’muk long before they are able to prove their claim or establish it under the B.C. treaty process. We are not insensible to this point. But the solution is not for courts to make far-reaching constitutional declarations in the course of judicial review proceedings incidental to, and ill equipped to determine, Aboriginal rights and title claims.  Injunctive relief to delay the project may be available. Otherwise, the best that can be achieved in the uncertain interim while claims are resolved is to follow a fair and respectful process and work in good faith toward reconciliation…For the Ktunaxa, this may seem unsatisfactory, indeed tragic.  But in the difficult period between claim assertion and claim resolution, consultation and accommodation, imperfect as they may be, are the best available legal tools in the reconciliation basket.[130]

Observations

By all appearances, the Supreme Court intends to continue to apply and develop the duty to consult on its own terms, and without reference to UNDRIP.  In all four cases, provisions from UNDRIP were raised before the Court – by the appellant in Ktunaxa, and by indigenous intervener groups in Nacho Nyak Dun (Gwich’in Tribal Council), Clyde River (Inuvialuit Regional Council) and Chippewas of Thames (Mohawk Council of Kahnawake).  Yet UNDRIP is not referenced in the Court’s reasons for any of the four decisions.

This is particularly striking in the Ktunaxa case, where the majority canvassed a range of international human rights instruments in its analysis of the scope of the right to freedom of religion, and yet made no mention of Ktunaxa’s submissions, which had squarely raised UNDRIP’s Articles 12 and 25 as being relevant to the interpretation of religious rights for indigenous peoples.  Indeed, even the minority, which dissented on the scope of the right in order to afford equal treatment to indigenous spiritual traditions, makes no mention of UNDRIP.

Moreover, in both Chippewas of the Thames and Ktunaxa, the concern that consultation rights might amount to a veto power is raised repeatedly by the Court.  In Ktunaxa, it is raised by both the majority and minority.  This echoes the concerns about UNDRIP originally raised by Canada about veto rights being incompatible with Canadian constitutional arrangements and the project of reconciliation.  Clearly, the Supreme Court has similar concerns about the prospect of veto rights.  To date, however, it has yet to engage with UNDRIP and assess whether, in law, the free, prior and informed consent rights amount to a veto, and whether there is truly any incompatibility with the Canadian constitution.

It remains to be seen whether and how the common law may change in light of proposed legislation with the stated purpose of implementing UNDRIP.  We may only know once the legislative reforms have taken their final shape, and once the regulatory processes they structure have been tested in the courts.

Notes

[1] Emerald UnRuh, “Canada – fully endorses United Nations Declaration on the Rights of Indigenous Peoples” (2016) June Māori LR.

[2] Along with New Zealand, Australia and the United States.

[3] United Nations ‘Continuing Sessions, Speakers Permanent Forum Call upon Governments to Repeal Oppressive Laws, Practices that Encroach on Rights of Indigenous Peoples’ Permanent Forum on Indigenous Issues, Fifteenth Session, 3rd and 4th Meetings (10 May 2016) https://www.un.org/press/en/2016/hr5299.doc.htm.

[4] Canadian Broadcasting Corporation, “Canada officially adopts UN declaration on rights of Indigenous Peoples” (10 May 2016) http://www.cbc.ca/news/indigenous/canada-adopting-implementing-un-rights-declaration-1.3575272

[5] http://www.justice.gc.ca/eng/csj-sjc/principles-principes.html.  John Borrows, a consultant editor to this publication, describes the Principles as follows:  “The Department of Justice’s ‘Principles respecting’ document sets out some key commitments to create a brighter future. Commitments include affirming the inherent nature of Indigenous rights consistent with the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). They highlight the necessary role of Indigenous governments in advancing our mutual interests. The document commits the government to principles of good faith, honour, recognition and reconciliation. It stresses the importance of treaties, agreements, consultation, cooperation, and consent. It accepts the necessity of fiscal sustainability and the need to treat these issues as an ongoing part of our governance processes across this land.”  See John Borrows, “Opinion: Canada faces a moment of truth—and a new document from Canada’s Department of Justice can help show a way forward” in Macleans Magazine, 2 August 2017.  Available online at http://www.macleans.ca/opinion/why-canadas-indigenous-principles-document-matters/.

[6] Whether and how they do implement UNDRIP is beyond the scope of the present article and the legislative process is in its early stages.  At publication, C-69 had progressed through its second reading and been referred to Committee while C-68 was at its second reading.

[7] “Provisions in the Declaration said that States could not act on any legislative or administrative matter that might affect indigenous peoples without obtaining their consent…the establishment of complete veto power over legislative action for a particular group would be fundamentally incompatible with Canada’s parliamentary system.”  See United Nations Press Release “General Assembly adopts Declaration on Rights of Indigenous Peoples; ‘Major step forward’ towards human rights for all, says President” General Assembly, Plenary Session, GA/10612 (13 September 2007).

[8] Hon. Member Cathy McLeod (Conservative Party of Canada), Bill C-262, Second Reading, Hansard of House of Commons Debates, December 5, 2017.

[9] For a discussion of how Canada’s common law of the Crown’s duty to consult compares against the requirements of UNDRIP and other international instruments, see Shin Imai, “Consult, Consent, and Veto: International Norms and Canadian Treaties” in The Right Relationship: Reimagining the Implementation of Historical Treaties, eds John Borrows and Michael Coyle (UofT Press: Toronto, 2017).

[10] Haida Nation v British Columbia (Minister of Forests), [2004] 3 SCR 511 (“Haida”).

[11] R v Sparrow, [1990] 1 SCR 1075.

[12] Delgamuukw v R, [1997] 3 SCR 1010.

[13] Haida at [39].

[14] At [43]-[45].

[15] See John Borrows, “Aboriginal Title in Tsilhqot’in” (2014) August Māori LR.

[16] Haida at [48].

[17] First Nation of Nacho Nyak Dun v. Yukon, 2017 SCC 58 [Nacho Nyak Dun].

[18] Nacho Nyak Dun at [9].

[19] At [8].

[20] At [10].  The planning process is set out in Chapter 11 of the UFA, which is in turn incorporated fully into each final agreement.

[21] At [14].

[22] At [46].

[23] At [15]. The process for joint nominations is set out in Chapter 11 of the UFA.

[24] At [17].

[25] There is a distinction here between the rights of Yukon and the First Nations as they apply to non-settlement and settlement lands, discussion of which is omitted here.  For more on this issue see Nacho Nyak Dun at [18].

[26] At [19].

[27] At [20].  There was also a joint response with specific recommendations, which were taken into account by the commission.

[28] At [21].

[29] At [22].

[30] At [23]-[25].

[31] At [53].

[32] At [30].

[33] Oral submissions of counsel for the Appellant, Hearing of the Appeal (22 March 2017)

[34] At [36].

[35] At [33.]

[36] At [34] and [37].

[37] At [35].

[38] At [43].

[39] At [48].

[40l] At [46].

[41] Chapter 11, ss. 11.1.0 and 11.4.5; Nacho Nyak Dun cited  at [44].

[42] At [48].

[43] At [57].

[44] At [60].

[45] At [63].

[46] At [48]-[53].

[47] Ashley Joannou. ‘Yukon government preps for round of consultations on Peel watershed’ (31 January 2018) Yukon News https://www.yukon-news.com/news/yukon-government-preps-for-round-of-consultations-on-peel-watershed/.

[48] Notably, the federal government’s recent Bill C-69, discussed above, proposes to overhaul the approvals system and replace the NEB.

[49] Under  the  Nunavut  Land  Claims  Agreement  1993  the  Inuit  of  Clyde  River ceded  all  Aboriginal  claims,  rights,  title,  and  interests  in  the  Nunavut  Settlement Area,  including  Clyde  River,  in  exchange  for  defined  treaty  rights,  including  the  right to harvest marine  mammals.

[50] Clyde River (Hamlet) v. Petroleum GeoServices Inc., [2017] 1 SCR 1069 at [7] [Clyde River]

[51] Clyde River at [2].

[52] At [3].

[53] At [4].

[54] At [10]-[11],

[55] At [11].

[56] At [12].

[57] At [14].

[58] At [15].

[59] The Court considers at length whether as a regulatory agency and quasi-judicial decision maker, the NEB can be considered to owe a duty to consult, whether it stands in the shoes of the Crown, whether its process itself triggers the duty to consult, and whether it must also determine whether the duty has been met.  I do not propose to discuss these, the Court having answered each in the affirmative.  See [25]-29] and [35]-[42].  See also Chippewas at [34].

[60] At [22].

[61] At [23].

[62] At [22]          .

[63] At [34],

[64] At [42].

[65] At [34].

[66] At [42].

[67] At [43], quoting from the Nunavut Court of Justice in Qikiqtani  in Inuit  Assn.  v.  Canada  (Minister  of  Natural  Resources),  2010 NUCJ  12, 54 C.E.L.R. (3d)  263, at [25].

[68] Clyde River at [44].

[69] At [45].

[70] At [46].

[71] At [47].

[72] At [48]-[49]

[73] At [49].

[74] At [50]-[51].

[75] Chippewas of the Thames First Nation v. Enbridge Pipelines Inc., [2017] 1 SCR 1099 at [4] [Chippewas of the Thames]

[76] Chippewas of the Thames at [11].

[77] At [6]-[7].

[78] At [4].

[79] At [18] and [19].

[80] At[ 16].

[81] At [21].

[82] At [22].

[83] At [22].

[84] Appeal Factum at [57]; Chippewas of Thames cited at [40].

[85] Chippewas of Thames at [41].

[86] At [42]

[87] At [52].

[88] At [46].

[89] At [47]

[90] At [51]-[57].

[91] At [59].

[92] Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54 at [80] [Ktunaxa]

[93] Ktunaxa at [4].

[94] At [13].

[95] At [16]-[17].

[96] At [19].

[97] At [19].

[98] At [21]-[22].

[99] At [14].

[100] At [25].

[101] At [26].

[102] At [26].

[103] At [29].

[104] At [30]-[34].

[105] At [32]-[33].

[106] At [5].

[107] At [35].

[108] At [35]-[39].

[109] At [38].

[110] At [40].

[111] At [48].

[112] At [59].

[113] Appellant’s Factum at [141]: “Canada  endorsed the  United Nations  Declaration  on the  Rights  of  Indigenous  Peoples  in December  2010,  and  has  confirmed  its  intention  to  implement it.  Article  12  protects  the  rights  of Indigenous  peoples  ‘to  manifest,  practice,  and  teach  their  spiritual and  religious  traditions, customs  and  ceremonies’. Article  25  recognizes  indigenous  peoples’  ‘distinctive  spiritual relationship’  with  land  and their  right  to  ‘uphold  their  responsibilities  to future  generations  in this  regard'”. The full text of Article 25 reads: "Indigenous peoples have the right to maintain and strengthen their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands, territories, waters and coastal seas and other resources and to uphold their responsibilities to future generations in this regard."

[114] Ktunaxa at [63].

[115] Ktunaxa at [69].

[116] At [70].

[117] At [71].

[118] At [71].

[119] At [73]-[75].

[120] At [63]-[66].  The majority canvassed the protections in the following instruments: the American Convention on  Human Rights, 1144 U.N.T.S.  123,  art.  12(1), (3); the Convention  for  the  Protection  of  Human  Rights  and  Fundamental  Freedoms,  213 U.N.T.S.  221 [European Convention on Human Rights],  art.  9(1); the International  Covenant  on  Civil  and  Political  Rights,  Can.  T.S.  1976  No.  47, art.  18(1); and the Universal  Declaration  of  Human  Rights,  G.A.  Res.  217  A  (III),  U.N.  Doc.  A/810,  at 71  (1948),  art.  18.

[121] At [117]-[118] per Moldaver and Cote JJ.

[122] At [127]-[128].

[123] Again the prospect of a veto over development was raised, here by the minority.  See [119] and [120]: “I  am  of  the  view  that  the  Minister  proportionately balanced  the  Ktunaxa’s  s.  2(a)  right  with  the  relevant  statutory  objectives:  to administer  Crown  land  and  dispose  of  it  in  the  public  interest.  The  Minister  was  faced with  two  options:  approve  the  development  of  the  ski  resort  or  grant  the  Ktunaxa  a right  to  exclude  others  from  constructing  permanent  structures  on  over  fifty  square kilometres  of  Crown  land.  This  placed  the  Minister  in  a  difficult,  if  not  impossible, position.  If  he  granted  this  right  of  exclusion  to  the  Ktunaxa,  this  would  significantly hamper,  if  not  prevent  him,  from  fulfilling  his  statutory  objectives.  In  the  end,  it  is apparent  that  he  determined  that  the  fulfillment  of  his  statutory  mandate  prevented him  from giving  the Ktunaxa  the veto right that they  were  seeking.”

[124] The specific issue was whether the Minister’s conclusion that the duty to consult had been discharged was reasonable.  This decision was accorded deference by the Court.  The Court rejected the Ktunaxa’s arguments that the Minister mischaracterized their asserted rights, failed to understand the role of knowledge keepers, incorrectly weighed the strength of their rights claims, did not appreciate the adverse impacts on those claims, and failed to adequately consult and accommodate.  The Court held that  “Minister’s conclusion  that  consultation  sufficient  to  satisfy  s.  35  of  the  Constitution  Act,  1982 had  occurred  has  not  been  shown  to  be  unreasonable.”  See [112], and  [117] per Moldaver and Cote JJ.

[125] At [89].

[126] At [80].

[127] At [80].

[128] At [83].

[129] At [84].

[130] At [86].