The Crown--Canada or British Columbia as the case may be--must act honourably to consult and accommodate the interests of Indigenous people “when the Crown has knowledge, real or constructive, of the potential existence of the Aboriginal right or title and contemplates conduct that might adversely affect it” as then-Chief Justice of the Supreme Court of Canada said in the Haida case referenced below.
This Crown obligation relates to the principle of the honour of the Crown, which flows from section 35 of the Constitution Act 1982. Section 35 recognized and affirmed, but did not define, the then-existing aboriginal and treaty rights of the aboriginal people of Canada, who include the Indian, Inuit and Metis peoples of Canada. Canada and the provinces must act in an honourable way in all dealings with Indigenous peoples, including consultation.
The Supreme Court of Canada in 2004 applied the consultation obligation to Crown decisions which may adversely affect Indigenous interests, including asserted interests, in Haida Nation v. British Columbia (Minister of Forests). This decision halted a Minister of Forests decision to transfer a tree farm licence from one major forest licensee to another, due to British Columbia’s failure to consult with and accommodate the interests of the Haida Nation, which had a strong but unproved claim to aboriginal title over the area and to aboriginal rights to harvest cedar.
British Columbia Cattlemen’s Association was part of a resource sector group of intervenors in the appeal to the Supreme Court of Canada.
Some commentators may see any participation by non-Indigenous interests in a court action about the nature and extent of the rights of Indigenous peoples as being hostile to the interests of Indigenous peoples.
But here is what Thomas Isaac of Cassels Brock, who acted as counsel for British Columbia Cattlemen’s Association in Haida, and his co-author Arend. J.A. Hoekstra said in a 2017 case comment:
The development and evolution of the law affecting Aboriginal rights in Canada depends on clarity of thought and complete analysis. While courts must be diligent in following the law as it is currently stated, governments must also engage fully with the Courts, advancing all available arguments. This approach advances reconciliation because it is focused on a full complete and thoughtful analysis about where Canadian law and reconciliation are headed. Omitting or ignoring arguments for extinguishment or justifiable infringement unduly constrains government, puts fee simple [land] holders at risk, and is a disservice to justice and the broader goal of reconciliation generally.
Since Haida in 2004, there have been many lawsuits which explore the requirements for consultation including a number where consultation was held to be insufficient. Three recent decisions are of interest and are discussed below.
A number of Indigenous groups had started court proceedings to oppose the Trans Mountain pipeline twinning project. The issues were the inadequacy of the consultation process and measures to address environmental problems. The Federal Court of Appeal held that the approval decision was deficient in specific aspects as to both sets of concerns and referred the decision back to the National Energy Board.
Canada then undertook further consultation; the National Energy Board re-approved the project with additional conditions; and the federal Cabinet approved the NEB decision. Four groups of Indigenous peoples again challenged the approval on the basis of the failure of consultation and some perceived environmental problems.
The February 2, 2020 decision of the Federal Court of Appeal dismissed the objections by the Coldwater, Squamish, Tsleil-Waututh, and Ts’elxweyeqw to the Trans Mountain pipeline twinning project approvals issued by the National Energy Board and authorized by the federal Cabinet. The 95-page decision is a treatise on consultation principles and their application to government decision-making for the Trans Mountain project.
On July 2, 2020, the Supreme Court of Canada refused leave to appeal the Federal Court of Appeal decision. Had the Supreme Court felt that the decision was wrong, it would have given leave to appeal.
The Federal Court of Appeal decision applied 2019 Supreme Court of Canada decisions about how courts are to review decisions by regulators. The question was whether the court should simply assess the "reasonableness" of the regulator’s decision – that is, was there a reasonable factual and legal basis for it - or should a court go further and assess the "correctness" of the regulator’s decision - which could lead to the court substituting its own view for that of the regulator.
The Federal Court of Appeal confirmed that the court review of a regulator’s decision is limited to assessing its "reasonableness". This standard means that courts must give more deference to the regulator’s decision rather than second-guessing the regulator and substituting the Court’s own decision for that of the regulator. In this case, the Court said that the NEB and federal Cabinet decisions were reasonable.
The Court went on to discuss consultation requirements in detail. One aspect made clear by the decision is that the failure through the consultation process to achieve agreement or to accommodate the Indigenous interests in a specific way (in this case by abandoning the Trans Mountain project), does not mean that consultation has failed. What is required is an honourable process. "Put another way, reconciliation does not dictate any particular substantive outcome. Were it otherwise, Indigenous peoples would effectively have a veto over projects such as this one. The law is clear that no such veto exists…Where there is genuine disagreement about whether a project is in the public interest, the law does not require that the interests of Indigenous people prevail." (Coldwater v. Canada et al, Federal Court of Appeal decision, paragraph 53.)
Consultation has been described as a "conversation". It is not a one-way street, it is an exchange of information and views conducted in a mutually respectful way with the Crown trying at all times to accommodate the expressed Indigenous interests.
Reconciliation must nonetheless begin by looking back and developing a deep understanding of the centuries of neglect and disrespect towards Indigenous peoples, well-summarized in a number of reports and studies… Too often decisions affecting Indigenous peoples have been made without regard for their interests, dignity, membership and belonging in Canadian society, with terrible neglect and damage to their lives, communities, cultures and ways of life. Worse, almost always no effort was made to receive their views and try to accommodate them—quite the opposite. The duty to consult is aimed at helping to reverse that historical wrong.
This was a decision of the Prince Edward Island Court of Appeal from November 2019, for which the Supreme Court of Canada denied leave to appeal on April 23 2020.
The issue was that the Mi’kmaq, who assert aboriginal title to the whole of PEI, said that the Crown had not satisfied its duty to consult on its decision to sell the Mill River golf course.
The PEI Court of Appeal said that the potential infringement or adverse effect of the a government decision has to be material and that the Mi’kmaq did not demonstrate any non-speculative, real, and appreciable historic attachment or present-day interest or use of the Mill River property that might be destroyed or denied by the contemplated Crown action, i.e. the golf course sale.
The PEI Court of Appeal therefore decided that there was no duty to consult. There must be a material substantive adverse effect on the Indigenous challengers in order to trigger the Crown’s duty to consult.
This decision shows that not every government decision requires a consultation process and that the consultation requirement only arises when the Indigenous peoples involved can show a real link to the subject matter of the decision and real harm resulting to them from the implementation of the decision.
The Yukon Court of Appeal on April 30, 2020, dismissed an appeal by the Ross River Dena Council of a trial court decision which rejected their argument that a duty to consult and accommodate their interests existed when Yukon was deciding to issue hunting permits on lands over which Ross River Dena Council had asserted, but not proved, aboriginal title.
The first issue decided by the Yukon Court of Appeal was that without Ross River Dena Council actually establishing aboriginal title to the area, it did not have the right to control the use and occupation of the land, nor did it have a right to veto government action, in this case the issuance of hunting licences.
The Court also said that the Council did not show how the entry of licensed hunters onto the claimed lands would have an appreciable adverse effect on the Council’s ability to control the use and occupation of the land in future, or would otherwise adversely affect its rights or interests, other than the potential impacts to wildlife – an issue about which Yukon had consulted with the relevant Indigenous peoples.
Thomas Isaac and Arend J.A. Hoekstra in their case comment on this decision, on May 4, 2020, wrote:
Reconciliation requires a balancing of the broader interests of Canadian society with the rights-based concerns of Canada’s Indigenous peoples. This balancing is informed through consultation and, where appropriate, accommodation. But the consultation process itself should not become a burden or distraction to reconciliation. Consultation efforts of all parties should be focused on matters which pose an identifiable and appreciable risk to unproven Aboriginal rights. Straining capacity, resources, and timelines on immaterial matters distracts from reconciliation and is potentially a hinderance to reconciliation.
Likewise, until Aboriginal title is proven, the Crown must be able to manage its resources to the benefit of Canadians and in a manner that is sensitive to the rights-based concerns of potentially impacted Indigenous peoples. The level of Crown sensitivity required will fluctuate with the strength of the asserted claim; however, the core tenets of Aboriginal title (exclusive use and occupation) will only manifest once title is established through treaty or the courts.
So where claims are made for rights based on the exclusive use and occupancy that results from aboriginal title, that title must be proved before being recognized, although interests less than exclusive use and occupancy—in this case the effects of issuance of hunting licences on wildlife populations in the claimed territory—will be recognized with consultation and accommodation.
BCCA’s Indigenous Relations Ad Hoc Committee has, according to the Beef in BC Opinion piece, started an initiative to find ways to engage with Indigenous people and communities, as Canada moves, however slowly, towards reconciliation with its Indigenous peoples.
In my view this is a commendable objective accompanied by a significant and thought-provoking article by Mr. Merkel.
There were unfortunately some inaccuracies in the article which should be addressed so they do not distract from his overall message.
The British Columbia Cattlemen’s Association has intervened in only one court case about Indigenous rights, and that was on the appeal of the Haida decision to the Supreme Court of Canada in 2004.
The Association’s position on Indigenous rights has been consistent since the late 1980s or early 1990s. Very simply, it is:
These principles have informed the Association’s position on treaty settlements, that to the extent that treaty settlements displace BC’s ranchers, negotiations should focus on buying entire ranches from willing sellers to form part of treaty settlements if desired by the Indigenous communities in treaty.
Finally, a passing comment on Delgamuukw and cede, release, and surrender language. Delgamuukw was decided by the Supreme Court of Canada in 1997, 23 years ago. At that time, people in the resource sector hoped for finality in treaty settlements, and exchanging aboriginal rights and title for treaty rights with cede, release and surrender language was perceived to be one avenue to attain clarity and finality. It has become clear in the ensuing years that this objective is not attainable and it has formed no part of the Association’s perspective on aboriginal and treaty rights and reconciliation for many years.
The personal opinions of individual livestock producers on questions of aboriginal rights and title and reconciliation probably range through a complete spectrum. If so, they are no different from any other group of Canadians of any race, creed, or colour.
However the Association is not now and has never been opposed to reconciliation with Canada’s Indigenous peoples. The Association seeks merely to see its members treated fairly in the process of reconciliation. One gross injustice will not be solved by creating another.
Mary MacGregor Q.C. is a Kamloops lawyer. She is indebted to the authors listed below for the use of the following resources in preparing this article: