The Supreme Court of Canada dismissed a leave application filed by the Halalt First Nation in regards to the November 22, 2012 order of the British Columbia Court of Appeal (2012 BCCA 472).

In July 2011, the B.C. Supreme Court made an order declaring that British Columbia failed to adequately consult the Halalt First Nation in regards to the environmental assess process surrounding a groundwater project near Chemainus, and failed to reasonably accommodate the potential infringements posed by the project to the Halalt’s asserted aboriginal rights and title: 2011 BCSC 945.  The Court ordered that any actions or decisions pursuant to the certificate issued by the EAO be stayed pending adequate consultation.  No order as to any specific form of accommodation was made.

The B.C. Court of Appeal allowed an appeal from the chambers judge’s order in November 2012. Chiasson J.A. questioned the findings of the chambers judge that a strength of claim assessment must always be made at the beginning of the consultation process. It is clearly desirable, and sometimes necessary, for a strength of claim assessment to be made, but it is the quality of the consultation that must prevail. The Crown conceded that deep consultation was required in this case, and the lack of a formal strength of claim assessment did not undermine the consultation. The Court also doubted the comments of the chambers judge that as a “matter of law” the First Nation was entitled to a timely and transparent assessment of the strength of claim. Chiasson J.A. also questioned the necessity for a lengthy analysis of the petitioner’s strength of claim in a judicial review proceeding, since that may adversely affect negotiations. Ultimately, the Court of Appeal concluded that the chambers judge erred in finding that Crown failed to meet its duty to consult. The effect of the chambers judge’s decision was to impose a requirement to consult on an application that was not before the Crown. The concerns of the petitioner were taken seriously, and the process was reasonable. The scaling back of the project demonstrated that accommodation had been made.

A summary of the case found on the SCC’s website was as follows:

Crown — Honour of Crown — Duty to consult and accommodate Aboriginal peoples — Whether it is a legal certainty that the Province has exclusive ownership of and jurisdiction regarding all the groundwater beneath an Indian Reserve or Aboriginal title lands — Whether the scope of the Crown’s consultation must reflect the strength of both Aboriginal rights and the Aboriginal title where a First Nation asserts that both Aboriginal rights and Aboriginal title may be affected by contemplated Crown conduct.

In 2001, the District of North Cowichan proposed to install three pumps to pump ground water from the Chemainus Aquifer to avoid problems with the local surface water. The pumps would be on fee-simple land on the banks on the Chemainus River. The river runs through the reserve of the Halalt First Nation, and a substantial part of the Aquifer runs under the Halalt Indian Reserve. The Halalt were engaged in treaty negotiations with Canada and British Columbia under the British Columbia Treaty Process. Their claims included freshwater resources, including groundwater. Funding for the Project was subject to approval under provincial and federal environmental assessment review processes. The Project took three forms over the course of the environmental assessment. The Halalt had no input in defining the Project, and they had strong objections to it. The Project was amended twice. The final, approved, version only involved one well operating during the winter months. Despite this, the District continued to describe the Project as including pumping for emergency and testing purposes.

The Working Group for the Project, to which the Halalt belonged, had no procedural framework, no clear mandate, no statutory authority, and was not asked for input concerning the proposals to modify the Project or narrowing the environmental assessment. It did not appear that there was an assessment of the strength of their claims. Throughout the environmental assessment process, the Halalt were not provided with information provided to other interested parties that would have informed their participation in the process. Inter alia, they were not informed of the final form of the Project before it was certified. They repeatedly indicated that they did not feel that the consultation was commensurate with the strength of their claims.

Many of the Halalt’s concerns remained outstanding when the Environmental Assessment Report was submitted, when provincial Ministers issued a Certificate for the Project, and when the federal Minister of Environment approved the Project. Construction began shortly thereafter and was completed by the spring of 2010. The Halalt filed the petition giving rise to these proceedings in early September 2009. In February and March 2010, the Halalt conducted a peaceful protest, partly in response to the District’s decision to proceed with the Project

The Supreme Court of Canada dismissed the leave application with costs.

Decisions available here.

Sga’nisim Sim’augit (Chief Mountain) v. Canada (Attorney General), 2013 BCCA 301, British Columbia Court of Appeal (Chiasson, D. Smith and Harris JJ.A.) 27 June 2013

The B.C. Court of Appeal dismissed an appeal by the plaintiffs in the Chief Mountain case requiring them to pay 2/3 of the tariff costs of the defendant Nisga’a Nation. The Court of Appeal also ordered that the plaintiffs to pay 1/2 of the taxable costs of the Nisga’a Nation for the appeal.

The plaintiffs brought an unsuccessful constitutional challenge to the Nisga’s Final Agreement. The decision of the trial judge (2011 BCSC 1394) was summarized in our e-Newsletter of 6 March 2012. In August 2012, the trial judge made an order that the plaintiffs pay costs to the defendant Nisga’a Nation: 2012 BCSC 1152. Madam Justice Lynn Smith held that the plaintiffs did not fit within the exceptions to the usual rule that a successful party is entitled to its costs. This decision was summarized in our e-Newsletter of 6 September 2012.

The Court of Appeal rejected the application of the plaintiffs to adduce “fresh evidence” about funding received from the Nisga’a Nation from Canada. Even if the trial judge had been aware of this fact, it would not have affected the analysis. Further, the evidence falls far short of demonstrating that the funding covered all of the costs of the Nisga’a Nation. The plaintiffs’ submission was also fundamentally flawed, since it was premised on the outdated notion that the only purpose of a costs award is to provide indemnity to a litigant.

The trial judge did not err in her analysis of public interest costs. The Court of Appeal also awarded costs to the Nisga’a Nation for the appeal, based on 50% of its taxable costs, to reflect the public importance of the issues raised, but also to reflect that many arguments advanced by the appellants rested on a mischaracterization of the effect of the Nisga’a Final Agreement.

The order was stayed pending the final disposition of the proceeding. (The plaintiffs have sought leave to the Supreme Court of Canada, and the application was submitted to a panel on June 24).

Decisions available here.

Ross River Dena Council v. Government of Yukon, 2013 YKCA 7, Yukon Court of Appeal (Tysoe, Groberman and Hinkson JJ.A.) 28 May 2013

The Yukon Court of Appeal provided supplemental reasons on the issue of costs for this matter. The appellant Ross River Dena Council was awarded costs on scale 1 for the appeal, and Scale B for the trial proceeding. The Court of Appeal held that the appellant had been substantially successful at the appeal in relation to the question of whether the Crown could satisfy its duty to consult by simply notifying the appellants after mining claims were recorded. (The December 2012 decision was summarized in our e-Newsletter of 18 January 2013).

The Court of Appeal dismissed the argument of Ross River that it should be entitled to costs at the highest scale. The Court was not persuaded that the case was “particularly complex” or (despite the reaction of some legal commentators) that “it breaks substantial new legal ground”. Costs at the ordinary scale were appropriate for both levels of the proceeding.

Decisions available here.

Cases Briefly Noted

R. v. Hirsekorn, 2013 ABCA 242, Alberta Court of Appeal (Paperny, McDonald and Macleod JJ.A.) 4 July 2013

The Alberta Court of Appeal dismissed an appeal from a Métis hunter arising from his conviction for hunting without a permit. The panel stated that this appeal raises various issues regarding the application of the Powley test to the Métis community of southern Alberta including:

the proper characterization of the hunting right claimed by the appellant, the definition of the historical Métis community in Alberta, the relevant time frame for the establishment of effective European control in the area, and the appropriate analysis to assess whether the right asserted here was integral to the distinctive culture of the Métis people prior to European control.

A major issue was how the Powley test applies to a largely nomadic people. The Court summarized its decision:

… the right asserted was properly characterized as being the right to hunt for food in the Cypress Hills and environs. The evidence supports the conclusion that no Métis community, however defined, had sufficient presence in that area leading up to the time of effective control. Thus the question as to how to define the "historic community", or which of several regional Métis communities had those rights, cannot logically be answered. The evidence also supports the conclusion that effective control for the purpose of the Powley test occurred in 1874. A purposive approach to deciding whether a practice is integral to a distinctive culture poses the question: did the historic Métis community include the particular area within its ancestral lands or traditional hunting territory? In this case, the answer is no.

Decisions available here and here.

Ahousaht Indian Band and Nation v. Canada (Attorney General), 2013 BCCA 300, British Columbia Court of Appeal (Hall, Chiasson and Neilson JJ.A.) 2 July 2013

The B.C. Court of Appeal dismissed the appeal brought by Canada from the order of Madam Justice Garson made in November 2009 following a lengthy trial. The trial judge made an order declaring that the harvest and trade in fish was integral to the pre-Contact culture of the Nuu-chah-nulth, and that these ancestral practices translated into “the right to fish and to sell fish”: 2009 BCSC 1494. In May 2011, the Court of Appeal allowed Canada’s appeal in part, so as to exclude the right to harvest and sell geoduck clams, but otherwise affirmed the findings of the trial judge: 2011 BCCA 237. In March 2012, the Supreme Court of Canada made an order pursuant to s. 43(1.1) of the Supreme Court Act remanding the matter back to the Court of Appeal to be reconsidered in accordance with Lax Kw’alaams Indian Band v. Canada (Attorney General), [2011] 3 S.C.R. 535.

In this remand hearing, heard by the same panel of the Court, the majority again found no basis for disturbing the findings of fact made by the trial judge. The majority also dismissed the argument that the trial judge had misapplied the Van der Peet test by failing to characterize, at the outset of the analysis, the rights being claimed by the plaintiffs.

Decisions available here.

Sechelt Indian Band v. British Columbia (Manufactured Home Park Tenancy Act, Dispute Resolution Office), 2013 BCCA 262, British Columbia Court of Appeal (Finch C.J.B.C, Hall and Bennett JJ.A.) 5 June 2013

The B.C. Court of Appeal allowed an appeal brought by the Sechelt Indian Band relating to whether provincial legislation was applicable to a dispute over a rent increase for lessees of a manufactured home park on Sechelt land. In June 2012, Mr. Justice Silverman rejected the arguments of the Sechelt that the provincial Manufactured Home Park Tenancy Act did not apply to Sechelt lands due to the doctrine of interjurisdictional immunity, or that the Act was inoperative due to the doctrine of paramountcy. He held that the dispute was about “money”, not “lands”, and therefore within provincial jurisdiction. The unreported decision of Silverman J. was summarized in our e-Newsletter of 12 April 2013.

The B.C. Court of Appeal held that the essence of the underlying dispute concerns the management and possession of Sechelt lands, which remain “Lands reserved for the Indians” within the meaning of s. 91(24) of the Constitution Act. This is a core element of federal jurisdiction under s. 91(24) of the Constitution Act, 1867, and is a matter that lies at the core of Indianness. In consequence, it is impermissible for provincial legislation to interfere with this matter.

Decisions available here.