Norton Rose Fulbright: Indigenous Law Update: Review Of Recent Cases

Press Release

Over the course of 2019 and first half of 2020, there have been a number of significant developments in Canadian law relating to Indigenous people and their rights and interests in lands.

This publication summarizes a number of key decisions dealing with:

  • the evolving case law on the duty to consult on projects and decision-making;
  • granting or dismissing injunctions in the context of project development and blockades;
  • procedural issues affecting ongoing litigation in this area; and
  • section 35 rights treaty and Aboriginal rights.

Indigenous law is a broad and complex area, and we note that this publication is not a comprehensive list of every important case. Significant matters continue to be considered and decided by the courts, including the approval of the Trans Mountain Pipeline expansion project and the federal government’s late-stage consultation process, both of which were affirmed by the Federal Court of Appeal.

Two other trials that are underway before the Supreme Court of B.C. are expected to have significant implications on Aboriginal law in Canada once they are decided1. In Saik’uz First Nation and Stellat’en First Nation v. Rio Tinto Alcan Inc et al, the plaintiff First Nations advance a claim for Aboriginal rights and title, and also seek relief against a private corporation based on common law tort claims predicated on those asserted rights in connection with a dam constructed in 1952. In Yahey v. British Columbia, the Blueberry River First Nation is suing the province of B.C., alleging that it has breached its treaty obligations and fiduciary duties as a result of the “cumulative effects” of industrial development in the nation’s traditional territory.

While courts have reaffirmed that Indigenous groups do not have a veto over project development as part of the duty to consult and accommodate, governments continue to grapple with the concept of “Free, Prior and Informed Consent (FPIC),” and whether it ought to be a requirement for project development, federal Bill C-262, which would have affirmed the United Nations Declaration on the Rights of Indigenous Peoples (including the concept of FPIC) as a universal international human rights instrument with application in Canadian law, died on the Senate floor in June 2019. British Columbia’s Bill 41, the Declaration on the Rights of Indigenous Peoples Act, came into force in November 2019.

As demonstrated by the protests over the Coastal GasLink pipeline project as well as decisions from Canadian courts, the concept of consent remains elusive when there is disagreement among, and even within, First Nations regarding support for a project. Competing and potentially irreconcilable claims for authority over First Nations lands, both between and within First Nations, continue to create uncertainty for project proponents.

For more information on any of these cases or other Indigenous law issues, please contact any member of Norton Rose Fulbright Canada LLP’s Indigenous law team.

  1. Consultation, projects and decision making

Coldwater First Nation v. Canada (Attorney General), 2020 FCA 34

Judicial review application of Trans Mountain Expansion Project dismissed

Six of 12 applicants were granted leave to judicially review the June 18, 2019, Order-in-Council approving the Trans Mountain Pipeline expansion project pursuant to section 55 of the National Energy Board Act on the narrow issue of whether the Crown adequately consulted Indigenous peoples between quashing the first Order-in-Council approving the project and its subsequent re-approval (2019 FCA 224).

The court held that the question before it was narrow: whether, based on the reinitiated consultation, Canada’s approval decision was defensible. In effect, the court was not to determine whether Canada could have come to a different conclusion that the court preferred or whether consultation could have been longer or better. Instead, Canada (or the relevant decision maker) is to judge the adequacy of consultation, while the court considers whether that determination is reasonable. While the same standard was applied in previous related Federal Court of Appeal decisions, this decision emphasized that a reviewing court’s role is not to act as an “academy of science” in relation to the potential environmental impacts of a project.

The court ultimately found Canada’s approval decision was reasonable and “anything but a rubber-stamping exercise.” In so doing, the court noted Canada’s Consultation and Accommodation Report demonstrated Canada understood its duty to consult, took its duty seriously, and took steps to remedy the court’s prior concerns regarding the consultation process. Reasonable consultation only requires Canada to “show that it has considered and addressed the rights claimed by Indigenous peoples in a meaningful way”; it does not require agreement.

The court also confirmed the overarching principles of the duty to consult:

  • Consultation and reconciliation do not dictate any particular outcome, and while the goal may be to reach an overall agreement, reconciliation can be advanced whether or not that is obtained so long as consultation is based on a relationship of mutual respect.
  • Indigenous groups do not have the right to veto projects based on asserted rights.
  • Reconciliation requires both the Crown and Indigenous groups to “commit to the process, avoid counterproductive tactics, get to the substance of the issues of concern, and exercise good faith.” Perfection in the consultation process is not required by law.
  • Where there is continued opposition to a project after adequate consultation has taken place, Indigenous concerns must be balanced against competing societal interests, through accommodation. This balancing exercise can be delegated to administrative agencies.

Three of the six applicants who were granted leave to judicially review the Order-in-Council have sought leave to appeal the FCA’s decision to the Supreme Court of Canada. Of the six applicants who were not given standing before the FCA, three sought leave to appeal to the Supreme Court of Canada, but all three applications were dismissed.

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