Introduction
“A key aspect of the reconciliation process is the accommodation of Aboriginal and treaty rights by the Crown in a way which reflects the diverse choices, values and visions of Indigenous peoples in Canada. However, the consultation and accommodation processes will ultimately lack authenticity and workability unless Aboriginal governance rights are also incorporated into these processes so that decisions affecting Aboriginal and treaty lands, resources and peoples do
not constitute a unilateral exercise of Crown authority. Rather, Crown decisions ought to be informed and shaped by the priorities and choices of the peoples whose Aboriginal and treaty rights are being impacted. Indeed … our case law supports such an approach.” (Source: Morellato, M. The Crown’s Constitutional Duty to Consult and Accommodate Aboriginal and Treaty Rights. National Centre for First Nations Governance, Feb 2008.)
Foundational Cases
R v Badger, [1996] 1 SCR 771
In summary, it is clear that a statute or regulation which constitutes a prima facie infringement of aboriginal rights must be justified. In my view, it is equally if not more important to justify prima facie infringements of treaty rights.
…For example, it is clear that the maintenance of as much of their hunting rights as possible was of paramount concern to the Indians who signed Treaty No. 8. This was, in effect, an aboriginal right recognized in a somewhat limited form by the treaty and later modified by the NRTA. To the Indians, it was an essential element of this solemn agreement.
Para. 82
The Badger case arose in Treaty 8 territory in Alberta, where three Indigenous men were charged for hunting in contravention of the Province’s Wildlife Act. The majority of the Supreme Court of Canada followed the Court’s 1990 decision in Horseman where it concluded that the Natural Resources Transfer Agreements of Alberta and Saskatchewan, which transferred control of resources from Canada to those provinces, affirmed the right to hunt to hunt for food, but extinguished the treaty right to hunt for commercial purposes. While the right to hunt for food could be exercised on unoccupied Crown lands, in Badger, the majority further clarified that the test for whether the right could be exercised on private land was that of “visible, incompatible land use” (para. 54).. When “lands are occupied, that is, put to visible use which is incompatible with hunting”, such as where there are buildings, fences and/or signs, hunting cannot take place (para. 66). Lastly, the majority found that the licencing scheme under Alberta’s Wildlife Act infringed on the Treaty 8 right to hunt for food (as modified by the Natural Resources Transfer Agreements).
As no Natural Resources Transfer Agreement exists between Canada and British Columbia, the treaty right to hunt for commercial purposes has not been extinguished and is still enjoyed by Treaty 8 First Nations within British Columbia.
Mikisew Cree First Nation v Canada (Minister of Canadian Heritage), 2005 SCC 69
Both the historical context and the inevitable tensions underlying implementation of Treaty 8 demand a process by which lands may be transferred from the one category (where the First Nations retain rights to hunt, fish and trap) to the other category (where they do not). The content of the process is dictated by the duty of the Crown to act honourably.
Para. 33
… Treaty 8 provides a framework within which to manage the continuing changes in land use already foreseen in 1899 and expected, even now, to continue well into the future. In that context, consultation is key to achievement of the overall objective of the modern law of treaty and aboriginal rights, namely reconciliation.
Para. 63
Treaty 8 provides that the Indigenous signatories have the right to continue hunting, trapping, and fishing, subject to regulations made by the government and “excepting such tracts as may be required or taken up from time to time for settlement, mining, lumbering, trading or other purposes.” In Mikisew, the Supreme Court of Canada considered the process required when the government takes up land under Treaty 8.
The Court confirmed that the making of Treaty 8 at Fort Chipewyan in 1899 was not the end of the treaty process. The Crown continues to be obligated to act honourably when implementing the Treaty. This means that the Crown has a duty to consult with First Nations, and potentially accommodate, when it takes up land under the Treaty. The nature of the consultation and whether accommodation is required will be determined on a case by case basis. In the context of a Treaty, the degree that the First Nation’s rights will be adversely impacted by the taking up of land (i.e. government approval for construction of a resource project) will largely determine how extensive the consultation process must be.
Read the case here: https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/2251/index.do
R v Sparrow [1990]
The appellant, charged with fishing with larger net than allowed under his Band’s Indian food fishing license, appealed on the basis that the restrictions of the license conflicted with his Aboriginal rights under the Constitution Act. (Source: Simon Fraser University: Supreme Court Cases Involving Indigenous Peoples)
R v Van der Peet [1996]
The appellant was charged and convicted of selling fish without a proper license. The issue facing the court was whether the British Columbia Fishery (General) Regulations, which prohibited the sale of these fish under the appellant’s existing Indian food fishing license, infringed upon her rights under section 35 of the Consitution Act. PART OF THE VAN DER PEET TRILOGY OF CASES. (Source: Simon Fraser University: Supreme Court Cases Involving Indigenous Peoples)
R v Gladstone [1996]
The appellants were charged with attempting to sell fish caught without the proper license. At issue was 1) whether their inquiry as to the buyer’s “interest” in their goods constituted intent to sell and 2) whether the fishing and subsequent sale were covered by existing aboriginal rights under section 35 of the Constitution Act. PART OF THE VAN DER PEET TRILOGY OF CASES. (Source: Simon Fraser University: Supreme Court Cases Involving Indigenous Peoples)
R v Marshall [1996]
A member of the Mi’kmaq community was charged with fishing out of season without a license, and selling his catch without a license. The case deals with the modern applicability or lack thereof of laws put in place by Canadian settlers to regulate trade. (Source: Simon Fraser University: Supreme Court Cases Involving Indigenous Peoples)
R v Adams [1996]
The appellant, a Mohawk, was charged with fishing without a license. There was no regular license available for the area, however, there may have been a special license available, for which the appellant did not apply. The question facing the supreme court was that of overturning his conviction under the land title sections of the Constitution Act — a question which led to consideration of whether aboriginal title only applies to land, or to a broader range of rights. (Source: Simon Fraser University: Supreme Court Cases Involving Indigenous Peoples)
Delgamuukw v British Columbia [1997]
Gitksan or Wet’suwet’en hereditary chiefs claimed, among them, that over 58,000 square kilometers of British Columbia land should be under their jurisdiction. The government counterclaimed that the land should not be ceded, and instead the appellants should be pursuing compensation from the federal government. (Source: Simon Fraser University: Supreme Court Cases Involving Indigenous Peoples)
Halfway River First Nation v British Columbia (Ministry of Forests) [1999]
The Ministry of Forests (“the Ministry”), its District Manager at Fort St. John, David Lawson, (“the District Manager”) and Canadian Forest Products Limited (“Canfor”) appeal the order of the Supreme Court of British Columbia pronounced 24 June, 1997, which quashed the decision of the District Manager on 13 September, 1996, approving Canfor’s application for Cutting Permit 212. Canfor holds the timber harvesting licence for the wilderness area in which C.P.212 would permit logging. It is Crown land, adjacent to the reserve land granted to the Halfway River First Nation. The Halfway Nation are descendants of the Beaver People who were signatories to Treaty 8 in 1900.
Haida Nation v British Columbia (Minister of Forests) [2004]
The Minister of Forests allowed the transfer of a “Tree Farm License” from one firm to another, prompting Haida to renew their objections to the license’s coverage of the lands of Haida Gwaii, which had not been titled to them in any treaty, but to which they had long laid claim. The case considers the moral, if not legal, obligation for consultation with First Nations groups in this type of situation. (Source: Simon Fraser University: Supreme Court Cases Involving Indigenous Peoples)
Taku River Tlingit First Nation v British Columbia (Project Assessment Director) [2004]
The Taku River Tlingit First Nation (“TRTFN”), which participated in the environmental assessment process engaged in by the Province under the Environmental Assessment Act in response to a mining company’s petition, objected to the company’s plan to build a road through a portion of the TRTFN’s traditional territory. The Province granted the company road building rights, but the TRTFN brought a petition to quash the decision on grounds based on administrative law and on its Aboriginal rights and title. (Source: Simon Fraser University: Supreme Court Cases Involving Indigenous Peoples)
Musqueam v Ministry of Sustainable Resource Management [2005]
The issue in this appeal is whether Her Majesty the Queen in right of British Columbia, represented here by the respondents other than the respondent, University of British Columbia, by agreeing to convey certain lands adjacent to but not within the City of Vancouver, known as the University Golf Course, to the University, has breached the duty to consult and accommodate the appellant, and, if so, what remedy should be given for that breach. (Source: Can Lll: Musqueam Indian Band v. Canada)
Hupacasath [2005]
Ever since the Supreme Court of Canada confirmed the Crown’s duty to consult with Aboriginal peoples in Haida Nation v British Columbia (Minister of Forests), [2004] 3 SCR 511, courts have been tasked with determining precisely when the duty is triggered, and against which government actors the duty applies. In Hupacasath First Nation v Canada (Ministry of Foreign Affairs) 2015 FCA 4 [Hupacasath], the Hupacasath First Nation (“HFN”) argued that the duty applied to the ratification of the Agreement between the Government of Canada and the Government of the People’s Republic of China for the Promotion and Reciprocal Protection of Investments (“CC-FIPA”), a bilateral investment treaty. (Source: The Court.ca: Foreign Affairs Prerogative and the Federal Court: Hupacasath First Nation v Canada)
While the Federal Court of Appeal (“FCA”) ultimately denied the HFN claim on its merits, it allowed the issue to be heard, rejecting arguments that it was both non-justiciable and outside the jurisdiction of the Federal Court. (Source: The Court.ca: Foreign Affairs Prerogative and the Federal Court: Hupacasath First Nation v Canada)
Platinex Inc. v Kitchenuhmaykoosib Inninuwug First Nation (K) [2007]
This case narrative examines a series of decisions (the “KI decisions”) arising from an action
between the Kitchenuhmaykoosib Inninuwug, a First Nation community located in northwest
Ontario, 580 km north of Thunder Bay, Ontario, Platinex Inc., a junior mining exploration
company, and the Ontario government, specifically the Ministry of Northern Development and
Mines. The decisions highlight the ongoing tension and complexity of First Nations – Crown
relations, particularly those involving the interests of private parties. (Source: University of British Columbia Faculty of Law: The Canadian Constitutional Duty to Consult Aboriginal Peoples: Platinex Inc. v. Kitchenuhmaykoosib Inninuwug First Nation)
R v Morris [2006]
Two members of the Tsartlip Nation shot a hunting decoy set up to catch illegal hunters. They were found to have been hunting at a prohibited time in a prohibited manner (at night, with illumination), but challenged this finding based on their rights under the North Saanich Treaty of 1852. (Source: Simon Fraser University: Supreme Court Cases Involving Indigenous Peoples)
Tsilhqot’in Nation v British Columbia [2014]
A semi-nomadic grouping of six bands objected to the granting by the B.C. government of a commercial logging license on land they consider part of their traditional territory. The case dealt in part with the issue of whether Aboriginal land title claims required regular occupation of the land in question. (Source: Simon Fraser University: Supreme Court Cases Involving Indigenous Peoples)
BC Treaty 8 Cases
1. Western Boundary Cases
West Moberly First Nations et al v British Columbia et al, 2017 BCSC 1700
…I declare that the western boundary of Treaty 8 is the height of land along the continental divide between the Arctic and Pacific watersheds (the Arctic-Pacific divide).
Para. 4
At issue in this case was the location of the western boundary of Treaty No. 8. The Treaty text describes the boundary as following “the central range of the Rocky Mountains, thence northwesterly along the said range to the point where it intersects the 60th parallel of north latitude”. Doig River First Nation, West Moberly First Nations, Halfway River First Nation, Saulteau First Nations and Prophet River First Nation (along with Canada and the McLeod Lake Indian Band) understood the boundary to follow the Arctic-Pacific divide. British Columbia and the Kaska Dena Council took the position that the boundary followed the Rocky Mountains, which lies to the east of the Arctic-Pacific divide north of 54⁰ 30’ N.
The trial judge examined thousands of pages of historical evidence, including maps and government documents, to assist in determining where the treaty signatories intended the western boundary to be located. The trial also included evidence of 11 expert witnesses and the oral testimony of representatives of each of the Plaintiff Treaty 8 First Nations. Members of some of the Indigenous groups who had intervened in the trial in support of British Columbia also testified.
The trial judge agreed with the Respondents and Canada regarding the interpretation of the Treaty’s boundary description that best reflects the common intention of the parties to Treaty No. 8. He exercised his discretion and declared the western boundary of Treaty No. 8 to be the height of land along the continental divide between the Arctic and Pacific watersheds (the Arctic-Pacific divide). In reaching this conclusion, the trial judge found that the Rocky Mountains had not acted as a boundary between the Beaver and Sekani; instead, the boundaries of their territories “were fluid, or flexible, with individuals and family groups travelling back and forth across the mountains at will, to hunt and trade” (para. 169).
Read the case here.
West Moberly First Nations et al v British Columbian et al, 2020 BCCA 138
British Columbia appealed the trial decision on the location of the Treaty boundary on the basis that the trial judge had erred in law by failing to apply the principles of treaty interpretation, including the honour of the Crown. Several Indigenous groups intervened on the appeal and argued that the honour of the Crown required the trial judge to consider the perspectives of non-signatory Indigenous groups with asserted rights within the disputed territory both as an interpretive principle applied to the Treaty text and with regard to the potential impact a declaration could have on their interests.
The majority of the Court of Appeal, in a decision written by Chief Justice Bauman, rejected British Columbia’s arguments, finding that it was evident from the trial decision that the trial judge had considered the principles of treaty interpretation and had made himself familiar with the Treaty as a whole when considering the boundary description as set out in the Treaty. The majority determined that the trial judge did not err when he considered the intention of the Treaty signatories and not the views of the non-signatory Indigenous groups in applying the principles of treaty interpretation. With respect to the honour of the Crown, the majority stated:
I cannot agree with my colleague that the interpretive principle of the honour of the Crown is “relevant” to finding the historical facts of what intention Canada had, and what steps the Treaty Commissioners took, in entering into treaty in 1899.
The honour of the Crown is not applied to rewrite history. It should not be used to retroactively alter the promises the Crown actually made to Indigenous peoples to make these promises more honourable. To apply the honour of the Crown to assume the Crown did not give certain assurances to Treaty 8 First Nations because said assurances could be detrimental to the intervenor First Nations would, indeed, be dishonourable; it would allow the Crown to shirk responsibilities it took on towards Treaty 8 nations, as well as the consequences of potentially breaching its duties to non-Treaty 8 nations. Significantly, such an application of this principle would ignore the historical reality that the Crown in fact has not always dealt honourably with Indigenous peoples.
Read the case here.
2. Duty to Consult
The Fort Nelson First Nation v BC Oil and Gas Commission, 2017 BCSC 2500
In my view the evidence establishes that it was the Commission who failed to meet its duty to consult by soliciting and listening carefully to the Fort Nelson First Nation’s concerns prior to issuing the permits.
Para. 72
The British Columbia Supreme Court invalidated decisions made by the Oil and Gas Commission to authorize a pipeline project in Fort Nelson First Nation’s traditional territory. The First Nation had been particularly concerned about the impact of the project on the Maxhamish caribou herd and on the treaty right to hunt caribou, especially given existing impacts in the area (para. 44). However, the Commission had unilaterally limited the scope of issues for consultation, refusing to discuss issues related to the caribou any further. The Court found that “the Commission was not prepared to discuss the Fort Nelson First Nation’s concerns regarding the cumulative impact on the Project on their treaty rights or the specific impact that the Project could have on the health of the caribou population or linear density” (para. 69) and decided that the Commission had failed to meaningfully consult with FNFN as had been required.
Read the case here.
West Moberly First Nations v British Columbia (Chief Inspector of Mines), 2011 BCCA 247
When [the Province] entered into the consultation process without a full and clear
understanding of what the Treaty meant, the process could not be either reasonable
or meaningful. A consultation that proceeds on a misunderstanding of the Treaty, or
a mischaracterization of the rights that the Treaty protects, is a consultation based
on an error of law, and cannot therefore be considered reasonable.
Para. 151
British Columbia appealed the decision of the British Columbia Supreme Court regarding the permitting of coal exploration in West Moberly First Nation’s (“WMFN”) traditional territory and the impacts of that exploration on the Burnt Pine caribou herd. The majority of the Court of Appeal upheld the decision. The majority agreed with the trial judge that it had been appropriate to consider the cumulative effects of development in the area over the years in order to understand the “existing state of affairs, and to address the consequences of what may result” if the mining exploration was approved (para. 119). It also had not been an error to take into account a particular species (caribou) and a particular location when considering the “nature and scope” of WMFN’s Treaty right run to hunt (para. 129) as Treaty No. 8 “guarantees a ‘continuity in traditional patterns of economic activity’ and respect for ‘traditional patterns of activity and occupation’” (para. 137).
The majority also found that British Columbia had failed to meaningfully consult WMFN, as it had not engaged with their concerns, provided its reasoning for rejecting the First Nation’s position, or properly understood the Treaty. However, the trial judge’s order that a caribou protection program be implemented was set aside and the majority decision directed the parties to resume consultation.
Read the case here.
Dene Tha’ First Nations v Canada (Minister of Environment), 2006 FC 1354, 2008 FCA 20
By depriving the Dene Tha’ of the opportunity to be a participant at the outset, concerns specific to the Dene Tha’ were not incorporated into the environmental and regulatory process.
Para. 114
The Mackenzie Gas Pipeline was a proposed industrial project which would have transported natural gas from the northern Northwest Territories south into Alberta. The route in Alberta was expected to run through the traditional territory of the Dene Tha’ First Nation, a Treaty No. 8 signatory. The Federal Court found that Canada had breached its duty to consult by failing to include the First Nation in the planning for the environmental and regulatory processes which would review the project.
This finding was later affirmed by the Federal Court of Appeal, which noted that “given the unique importance of the Mackenzie Gas Pipeline, and the particular environmental and regulatory process under which the application for approval of the Mackenzie Gas Pipeline would be considered by the Joint Review Panel and the National Energy Board, the process itself had a potential impact on the rights of the Dene Tha’” (para. 9).
The Court of Appeal found that the court below “was not required, as a matter of law, to conclude that no consultation obligation arose until the formal application for approval was filed” and that the “test framed by the Supreme Court of Canada…does not dictate such a rigid or inflexible approach” (para. 9).
Read the cases here.
West Moberly v. British Columbia
The British Columbia Court of Appeal took a step forward last week in recognizing the duty to consult and accommodate, by affirming a decision that B.C. failed to consult with the West Moberly First Nations about impacts to their treaty rights. (Source: Othuis, Kleer, Townshend – LLP)
3. Other Cases Relevant to DRFN
Doig River First Nation and Blueberry River First Nations v Her Majesty the Queen in Right of Canada
To recap the facts, in 1945 the FSJBB surrendered Indian Reserve No. 172 (Montney). Montney is near Fort St. John and is comprised primarily of agricultural land. As a condition of Montney’s surrender, Canada promised to purchase new reserves for the FSJBB from Montney’s proceeds of sale. In 1947, B.C. offered to sell the Replacement Reserves to Canada and Canada accepted the offer. Canada set the Replacement Reserves aside for the FSJBB on August 25, 1950. During the transaction, Canada mistakenly assumed it had purchased the subsurface rights. However, British Columbia had included Form 11 in its offer, and the effect of Form 11 was to reserve the subsurface rights to the Province. Form 11 gave the Province and its successors broad access to conduct oil and gas activity on the subsurface of the affected lands, as well as access to water and the use of other surface resources on the land in order to conduct mining. Canada learned in 1952 that British Columbia had retained the subsurface rights. Canada immediately acknowledged its error to the Province, but did not inform the FSJBB.
In 1977, the FSJBB divided into the Doig River First Nation and Blueberry River First Nations. Blueberry presently occupies IR 205 and the southern part of IR 204. Doig occupies IR 206 and the northern part of IR 204. Only in 1977 did the Claimants discover that the Replacement Reserves were without subsurface rights. (Source: Specific Claims Tribunal Canada)
Blueberry River Indian Band v Canada (Department of Indian Affairs and Northern Development [1995]
In this decision, Justice Whalen of the Specific Claims Tribunal (“Tribunal”) found that the Crown breached its legal obligations to the Doig and Blueberry River First Nations (formerly the Fort St. John Beaver Band) when it failed to obtain subsurface rights for the Replacement Reserves it acquired following the Band’s surrender of the Montney Reserve. In particular, the Tribunal found that the Crown failed to inform the Band about the nature and quality of the title to the Replacement Reserves it had obtained, failed to explain the practical consequences of not having obtained subsurface rights, and failed to consult with the Band regarding its wishes, given the circumstances. (Source: Mandell Pinter)
4. Recent Developments – Blueberry River First Nations’ Infringement Claim
Yahey v British Columbia, 2021 BCSC 1287
If the time comes that in the case of a particular Treaty 8 First Nation “no meaningful right to hunt” remains over its traditional territories, the significance of the oral promise that “the same means of earning a livelihood would continue after the treaty as existed before it” would clearly be in question, and a potential action for treaty infringement, including the demand for a Sparrow justification, would be a legitimate First Nation response.
Mikisew, para. 48
In this case, Blueberry River First Nations (“BRFN”) successfully litigated against British Columbia by asserting that the cumulative adverse impacts of industrial development within its traditional territory left the Nation without the ability to meaningfully exercise its treaty rights. In 2015, Mr. Justice Smith of the British Columbia Supreme Court highlighted that in Mikisew, the Supreme Court of Canada recognized that if the time came when a Treaty 8 First Nation could no longer meaningfully exercise its treaty rights due to the Crown taking up land, it would be appropriate for the First Nation to bring an action against the Crown for infringing its treaty rights (see: Yahey v British Columbia, 2015 BCSC 1302). This is the action that BRFN took.
The court interpreted Treaty No. 8 as conferring a limited power on the Province to take up lands under the Treaty. The Province cannot take up so much land such that Blueberry can no longer meaningfully exercise its rights to hunt, trap and fish in a manner consistent with its way of life. This balancing of interests reinvigorates the Treaty relationship as having an on-going basis. It’s not just something that happened in 1899. Treaty No. 8 established the beginning of an ongoing relationship between Indigenous parties and the Crown that continues today and into the future (Source).
This case puts the issue of cumulative effects squarely on the table. The court held that the Province’s discretionary decision-making processes do not adequately consider cumulative effects and the impact on Treaty rights. For too long, the law has addressed potential impacts and infringements on an incident by incident, project by project basis and not had regard for the totality of impacts over time on Indigenous rights. This case really opens the law to a more Indigenous perspective on how those impacts are experienced (Source).
Read Blueberry River First Nations’ Notice of Civil Claim here.
Read the reasons for judgement here.
Read more about the results and follow up from this case here.
Province will not appeal decision in Yahey V. British Columbia: Attorney General – read about it here.
