Duty to Consult: Haida Nation and Mikisew Cree First Nation (a case study)

A brief excerpt from the post is below. For full details, please scroll down.  

The difference between the two cases is that the Haida case dealt with unproven claims; meanwhile, the Mikisew case dealt with treaty rights. While the two are different, the concept of the spectrum with respect to the duty to consult remains the same: the scope and the content of the duty must be measured against the adverse effects of the proposed Crown’s actions. This duty to consult is triggered when the Crown has real or constructive knowledge of the potential existence of Aboriginal right or title and contemplates conduct that might adversely affect it. Thus, the Crown has a legal responsibility, a demonstration of care and consideration with respect to their actions and the outcome of their actions.

What is notable about these cases is that each had a prima facie case. In other words, each case had all evidence required to bring forth a legal case and the evidence supported each case undeniably. Yet, the government and other parties continued to ignore or dismiss the parties’ perspectives even before claims were filed in courts. For instance, as mentioned earlier, the Haida Nation, prior to the arrival of settlers, had harvested the lands in question and was actively seeking to prove title to the land at the time. There was also a potential existence of both Aboriginal right AND title as supported by their strong prima facie case. Chief Justice also stated that “where a strong prima facie case for the claim is established, the right, and potential infringement is of high significance to the Aboriginal peoples, and the risk of non-compensable damage is high” (para. 44). With the Haida case, there was no argument as to whether Aboriginal title and rights could be ignored by the Crown.

With the Mikisew case, the government approved the winter road (which would have been built on traditional grounds and would have strongly infringed on their right to hunt) and they further felt that they did not have a duty to consult with the Mikisew Cree First Nation. The Crown also did not consult, even as the threshold to trigger the duty to consult was a low one. The Crown’s action were, as described by Justice Binnie, unilateral because the Crown, “not only ignores the mutual promises of the treaty both written and oral, but also [their actions] is the antithesis of reconciliation and mutual respect” (para. 49). In both cases, the Crown had real and constructive knowledge of the potential existence of Aboriginal right or title and acted in a way that adversely affected Aboriginal right or title. Last but not least, Justice Binnie states in his case that the evidence present should have prompted a draft environmental assessment due to the seriousness of the impact on the Mikisew. The Crown did not even consider the draft environment assessment process.

Additionally, the federal court at the trial division level issued an interlocutory injunction. But, in the Haida case, Chief Justice outlines why an interlocutory injunction is an insufficient legal remedy. As outlined above, the reasons for why an interlocutory injunction is an insufficient legal remedy:

  • They may not capture the full obligation on the government;
  • They typically represent an all-or-nothing solution (either the project goes ahead or it halts);
  • While the duty includes balancing of Aboriginal interests with other interests, the balance of convenience test tips the scales in favour of protecting jobs and government revenues, with the result that Aboriginal interests tend to “lose” outright pending a final determination of the issue, instead of being balanced appropriately against conflicting concerns;
  • They are designed as a stop-gap remedy pending litigation of the underlying issue

Surprisingly, injunctions are being issued to this day in Aboriginal rights or title claims, and often in support of development—in opposition to the decision of these two cases. [details of the case below]


CASE STUDY: HAIDA NATION AND MIKISEW CREE FIRST NATION

            For purposes of this case study, I will first discuss Haida Nation v. British Columbia (Minister of Forests) (hereinafter referred to as Haida Nation). Following this discussion, I will then review Mikisew Cree First Nation v. Canada (hereinafter referred to as Mikisew). Within each of these discussions, I will cover the background and history of the cases, interveners, key facts, precedent cited, arguments, decisions, and their respective relevancy/importance.

Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511, 2004 SCC 73

This case is on appeal at the Supreme Court Level from the Court of Appeal for British Columbia. There are two appeals being heard simultaneously. The appellants in the first appeal are Minister of Forests and Attorney General of British Columbia on behalf of Her Majesty The Queen in Right of the Province of British Columbia (hereinafter referred to as AG et al.), and the appellant in the second appeal is the Weyerhaeuser Company Limited (hereinafter referred to as WCL). The respondents for both appeals are the Council of the Haida Nation and Guujaaw (the chief of Haida Nation at the time the case was heard).  The interveners for the case include twenty different parties with invested interests relating to business, various industries (including mining, timber, logging, or forestry) and several First Nations that are directly affected by these industries. Chief Justice McLachlin wrote the unanimous decision. Thus, Chief Justice McLachlin wrote the decision with no concurring or dissenting opinions.

Context/Background

At the center of the case includes the issues of Tree Farm Licences (TFL) and the fact that prior to the case, Haida Nation had been actively trying to prove title to the land since at the time of the case, title to the land belonged to the government (para. 6). The TFLs continued to be administered by the government to forestry companies, similar to WCL. Before this appeal, however, another large forestry firm acquired the TFLs in 1961 and they were allowed to harvest trees in an area designated as Block 6 (para. 4). Following this, the Minister replaced the TFLs in 1981, 1995, and 2000 and then approved a transfer of the TFL to WCL (para. 4). The Haida Nation prior to the arrival of settlers had harvested the land in question, and as mentioned earlier, they were actively seeking to prove title to the land (para. 2).

History of the Case

The previous decisions included the Justice Halfyard of the British Columbia Supreme Court to dismiss Haida’s petition. His reason for deciding was that the parties had a moral duty not a legal duty (para. 9). Thus, they did not have a legal liability to consult Haid Nation. The respondents to Haida Nation filed an appeal in the British Columbia Court of Appeal and the Court of Appeal reversed both decisions saying that both have a legal duty (para. 9). Following this decision, AG et al. and WCL appealed this decision to the Supreme Court of Canada (SCC).

Questions before the Court

  • What duty does the government owe?
  • Is the government required to consult and to accommodate their concerns (before proven title to the land)?
  • Do third parties have a duty to consult?

Decision

Appeal dismissed for AG et al. but allowed the second appeal from WCL.

Precedents Cited (Relevant to the Class)

There were more than twenty cases cited as precedent. As such, only those cases that have been previously discussed in class will be listed here. The cases that have been previously discussed in class include the following: Delgamuukw v. British Columbia, [1998] 3 S. C.R. 1010 which was the only case cited as applied and the cases that were referred to include R. v. Marshall, [1999] 3 S.C.R. 456; R v. Marshall [1999] 3 S.C.R. 553; R. v. Sparrow, [1990] 1 S.C.R. 1075; R. v. Sioui [1990] 1. S.C.R. 1025; R. v. Guerin [1984] 2 S.C.R. 335; St. Catherines Milling and Lumber Co. v. R., 13 S.C.R. 577; R. v. Van Der Peet, [1996] 2 S.C.R. 507.

Arguments

AG et al. argues that they have a “right and responsibility to manage the resource (forest) for the good of all British Columbians” (para. 8) and that the Haida have no legal right to be consulted or have their interests accommodated until they prove their claim (title to the land). Interestingly, this suggests that AG et al. argued that they prioritized all British Columbians’ interests over the interests of Haida Nation leaving Haida Nation at a serious disadvantage when it comes to asserting Aboriginal rights and/or title

Further, Chief Justice McLachlin states in her decision, pertaining to the consultation question, that it must be meaningful. She also highlights that good faith consultation can result in obligation to accommodate but Chief Justice also writes, “although what accommodation if any may be required cannot at this time be ascertained” (para. 10). Hence, this case does not determine steps for accommodation for the Haida people. Rather it provides a general framework for the duty to consult and accommodation before Aboriginal title or rights claims have been decided.

Originally the analysis of the duty to consult was focused on the Crown’s justification to infringe on existing Aboriginal or treaty rights. The significance of this case introduces the analysis of the duty to consult which included asserted but unproven Aboriginal rights.

Test Arising From the Case (relevancy/importance): Duty to Consult

The duty to consult, as outlined in the case, is grounded in the principle of the honour of the Crown (para. 16). This is a process of fair dealing and reconciliation that begins with the assertion of sovereignty and continues beyond formal claims resolution (para. 32). The foundation of the duty (both honour of the Crown and reconciliation) suggest the duty arises when the Crown has real or constructive knowledge of the potential existence of Aboriginal right or title and contemplates conduct that might adversely affect it (para. 35). In other words, the Crown cannot play ignorant to potential existence of Aboriginal right or title. In the case of Haida Nation, this potential existence of both Aboriginal right AND title was supported by a strong prima facie case. Chief Justice further provides a model for explaining the flexibility and generous application of the duty to consult in relation to a prima facie case, similar to Haida Nation. She provides a spectrum at paragraph 43 where at one end exists a weak claim for Aboriginal title, the Aboriginal right is limited, or the potential infringement minor. On the other end of the spectrum exists a claim “where a strong prima facie case for the claim is established, the right, and potential infringement is of high significance to the Aboriginal peoples, and the risk of non-compensable damage is high” (para. 44). The former requires a notice and a discussion surrounding the issues raised in the notice (para. 43). The latter requires meaningful consultation which may lead to accommodation (para. 46-47). While both cases are instances of consultation, the latter indicates a more seriousness in violation of Section 35 if the consultation is not fulfilled. Chief Justice explains further that in the middle of the spectrum will exist various instances that require different or flexible forms of consultation that are dependent on each case’s needs (para. 45). Thus, this spectrum addresses the scope of the duty proportionate to the strength of the case supporting existing right or title and seriousness of the potentially adverse effects upon rights or title claimed.

In the case of the Haida Nation, their case fulfilled all three factors of a strong claim for Aboriginal right AND title, and following, an infringement on these rights AND title would risk non-compensable damage. Referring to the spectrum, the case of the Haida Nation exists on the spectrum that was discussed to be most extreme: “where a strong prima facie case for the claim is established, the right, and potential infringement is of high significance to the Aboriginal peoples, and the risk of non-compensable damage is high” (para. 44). In her decision, Chief Justice writes, “there was a prima facie case in support of Aboriginal title, and a strong prima facie case for the Aboriginal right to harvest red cedar” (para. 71). Thus, Haida Nation satisfied the duty to consult prima facie, and there was no argument as to whether Aboriginal title and rights could be ignored by the Crown.

To answer the question, whether third parties have a duty to consult, Chief Justice found that there is no duty owed to third parties. As mentioned earlier, the foundation of the duty rests on both honour of the Crown and reconciliation. In her decision, Chief Justice highlights that this honour cannot be delegated to third parties as the legal duty to consult rests on the Crown (para. 53). She emphasizes that this does not mean that third parties are never liable (para. 56).

In addition to the above, Chief Justice also states that there is no duty to real agreement; rather, it is a commitment to a meaningful process of consultation in good faith (para. 42). Thus, the content of the duty varies (individually and flexibly).

Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), [2005] 3 SCR 388

This leads us to the second case, Mikisew Cree First Nation v. Canada. The appellant is Mikisew Cree First Nation, and the respondents are Sheila Copps, Minister of Canada Heritage, and Thebacha Road Society. The interveners are Attorney General of Saskatchewan and Attorney General of Alberta, Big Island Cree Nation, Lesser Slave Lake Nation Regional Council, Treaty 8 First Nations of Alberta, Treaty 8 Tribal Association, Blueberry River First Nations, and Assembly of First Nations. The issue relating to the interveners will be discussed later. This is on appeal from the federal court of appeal but still addressing the Crown’s duty to consult. Justice Binnie wrote the decision with no dissenting or concurring decisions. Thus, like Haida Nation, this is a unanimous decision.

Context/background

The history of the Mikisew Cree First Nation in relation to the Treaty 8 terroritory is the fact that the land that was set aside was not considered sufficient, until after a Treaty Land Entitlement in 1986 (para. 3). Following this, the federal government approved a winter road to run through Mikisew First Nation Reserve (para. 3). Before the government approved this winter road, they felt they did not have a duty to consult with the Mikisew Cree First Nation. The proposed road alignment would have been built on traditional grounds and would have severely infringed on their right to hunt (para. 3).

In addition to this, the court highlighted the fact that Mikisew Cree First Nation existed in a remote northern part of Alberta within Treaty 8 territory (para. 3). The decision also highlighted that basis of the Treaty 8 negotiation was for the “assurance in the continuity of traditional patterns of economic activity” (para. 47).

History of the case

On August 27, 2001, the federal court in the trial division issued an interlocutory injunction against construction of the winter road (para. 17 in Mikisew). However, in Haida Nation, Chief Justice outlines why an interlocutory injunction is an insufficient legal remedy. She outlines four reasons why in the Haida Nation decision and they are as follows: They may not capture the full obligation on the government; they typically represent an all-or-nothing solution (either the project goes ahead or it halts); while the duty includes balancing of Aboriginal interests with other interests, the balance of convenience test tips the scales in favour of protecting jobs and government revenues, with the result that Aboriginal interests tend to “lose” outright pending a final determination of the issue, instead of being balanced appropriately against conflicting concerns; they are designed as a stop-gap remedy pending litigation of the underlying issue (para. 14 in Haida Nation). In Haida Nation, Chief Justice further writes:

That Aboriginal claims litigation can be very complex and require years and even decades to resolve in the courts. An interlocutory injunction over such a long period of time might work unnecessary prejudice and may diminish incentives on the part of the successful party to compromise. While Aboriginal claims can be and are pursued through litigation, negotiation is a preferable way of reconciling state and Aboriginal interests.  For all these reasons, interlocutory injunctions may fail to adequately take account of Aboriginal interests prior to their final determination (Haida Nation, para 14).

However, this decision involving the injunction was appealed to the Federal court of appeal and they found that there was no infringement and restored the minister’s approval of the winter road in surrendered land. The argument for the assenting decision was that “the winter road was more properly seen as a ‘taking up’ pursuant to treaty rather than an infringement of it” (para. 22). But this decision included a dissenting opinion in favour of Mikisew. The reasons for deciding in the dissenting decision in the Federal Court of Appeal were followed, and Justice Binnie writes in agreement with Sharlow J. A., “that the winter road was itself a prima facie infringement of the treaty 8 rights and that the infringement had not been justified under the Sparrow test” (para. 23). If the dissenting opinion in the Federal Court of Appeal would have been followed, the appeal would have been dismissed.

Questions before the court

  • Whether Crown had duty to consult Mikisew
  • If so, whether Crown discharged its duty

 Decision

Appeal with costs is sought, and Justice Binnie allows the appeal, setting aside the decision of the Court of Appeal, and all costs against the respondent in the Supreme Court, and in the Federal Court of Appeal, costs are allowed “on a party and party basis” (para. 70). Further, Justice Binnie sets the costs as decided by the trial judge in the Trial Division to remain (para. 70).

Precedents cited (relevant to the class)

Again, there were more than twenty cases cited as precedent. As such, only those cases that have been previously discussed in class will be listed here. The cases that have been previously discussed in class include the following: R. v. Badger, [1996] 1 S.C.R. 771; Haida Nation v. British Columbia (Minister of Forests); R. v. Sparrow, [1990] 1 S.C.R. 1075; R. v. Sioui, [1990] 1 S.C.R. 1025; R. v. Marshall, [1999] 3 S.C.R. 456; R. v. Marshall, [2005] 2. S.C.R. 220, 2005 SCC 43; Delgamuukw v. British Columbia, [1997] 3  S.C.R. 1010.

Arguments

The case further established the framework for the duty to consult. At the time of the decision, the Haida Nation decision was just recently released before it. At the time of injunction was in place, the Haida Nation decision was being decided. Thus, the trial judge did not have the framework available to him. The Historical context was considered and as mentioned earlier, the content of this process is dictated by the duty of the Crown to act honourably. Each case is flexible but the flexibility is not in the conduct contemplated by the Crown; rather, it is in the variable content of the duty once triggered. For Mikisew, the threshold to trigger the duty to consult was a low one. Only a noticed had to be given with information disclosed. However, the Crown did not meet this low threshold. Thus, a prima facie case in violation of the duty to consult existed for Mikisew.

In the facts it was noted that the respondent did put out a notice for town-house type events and delegated the duty to the Minister through Parks Canada which the respondent attempted to argue was sufficient. The respondent argued “while [Mikisew hunters and trappers] own hunting territory would now be compromised, they are entitled to invade the traditional territories of other First Nations from their distant home turf” (para. 47). Thus, Justice Binnie, argues that the Crown’s action is unilateral because it “not only ignores the mutual promises of the treaty both written and oral, but also its antithesis of reconciliation and mutual respect” (para. 49). The foundation of the duty to consult, as stated in Haida and earlier, is based on honour and reconciliation and suggest duty arises when Crown has a real or constructive knowledge of the potential existence of Aboriginal right or title and contemplates conduct that might adversely affect it. The courts considered whether the process by which the “taking up” is planned to go ahead and whether this was compatible with “honour of the Crown.” Justice Binnie cites Delgamuuk and Haida Nation cases in his reasons for deciding, and this includes the following:

  • “Delgamuukw states that the minimum acceptable standard is consultation and that the consultation must be in good faith and with the intention of addressing the concerns of Aboriginal peoples whose lands are at issue” (cited in para. 61).

AND

  • “Haida Nation provides the determination of the content of the duty to consult and provides that this will be governed by context where context involves…specificity of the promises made…seriousness of the impact on the Aboriginal people of the Crown’s proposed course of action [with] the more serious the impact the more important the role for consultation will be…” (para. 63).

Justice Binnie highlights that seriousness of the impact also includes the loss of tradition, culture, economic as a result of loss of wildlife that was stated, would be an effect in the Draft Environmental Assessment (para. 44). Further to this, Justice Binnie decides that the duty lies at the lower end of the spectrum wherein a notice was required and to engage directly with them and not after the fact (para. 64). The engagement should have included, Justice Binnie writes, “the provision of information about the project addressing what the Crown knew to be Mikisew interests and what the Crown anticipated might be the potential adverse impact on those interests” (para. 64). Simply stated, the Crown had real and constructive knowledge of the interests at stake, but choose to be ignorant of the interests. Justice Binnie also emphasizes that the process is a reciprocal one and there is an onus on Mikisew to carry their end of the consultation process “to make their concerns known, to respond to the government’s attempt to meet their concerns and suggestions, and to try to reach some mutually satisfactory solution” (para. 65). However, the Crown failed to meet to this low standard. Justice Binnie writes, “that consultation never reached that stage. It never got off the ground” (para. 65). If these consultations had occurred, Justice Binnie highlights that the process may have allowed for a road alignment or construction that would have also satisfied Mikisew’s objections. If the road had been built in spite of these objections, Justice Binnie also emphasizes that the Crown would have “been in violation of its procedural obligations” (para. 57). Again, the Crown would have blatantly chosen to be ignorant of the issues.

Relevancy/importance: Duty to consult

This case provides the framework for the duty to consult when there is a low threshold and also for when there is an existing treaty.

Issue Pertaining to the Interveners

The AG of Alberta, as interveners, framed their argument differently at the time of trial than what was expected (para. 41). Mikisew argued that they were prejudiced at trial because of argument was framed differently than how it was framed at trial. However, Justice Binner, in relation to the interveners, decided that the Mikisew did not identify any prejudice for the new information and it should “not have taken Mikisew by surprise” because the issue for the AG is still the treaty infringement (para. 41). In other words, the interveners’ argument was still centered on the treaty infringement and Mikisew could have reasonably anticipated the AG argument.

Additional Discussion

The difference between the two cases is that the Haida case dealt with unproven claims; meanwhile, the Mikisew case dealt with treaty rights. While the two are different, the concept of the spectrum with respect to the duty to consult remains the same: the scope and the content of the duty must be measured against the adverse effects of the proposed Crown’s actions. This duty to consult is triggered when the Crown has real or constructive knowledge of the potential existence of Aboriginal right or title and contemplates conduct that might adversely affect it. Thus, the Crown has a legal responsibility, a demonstration of care and consideration with respect to their actions and the outcome of their actions.

What is notable about these cases is that each had a prima facie case. In other words, each case had all evidence required to bring forth a legal case and the evidence supported each case undeniably. Yet, the government and other parties continued to ignore or dismiss the parties’ perspectives even before claims were filed in courts. For instance, as mentioned earlier, the Haida Nation, prior to the arrival of settlers, had harvested the lands in question and was actively seeking to prove title to the land at the time. There was also a potential existence of both Aboriginal right AND title as supported by their strong prima facie case. Chief Justice also stated that “where a strong prima facie case for the claim is established, the right, and potential infringement is of high significance to the Aboriginal peoples, and the risk of non-compensable damage is high” (para. 44). With the Haida case, there was no argument as to whether Aboriginal title and rights could be ignored by the Crown.

With the Mikisew case, the government approved the winter road (which would have been built on traditional grounds and would have strongly infringed on their right to hunt) and they further felt that they did not have a duty to consult with the Mikisew Cree First Nation. The Crown also did not consult, even as the threshold to trigger the duty to consult was a low one. The Crown’s action were, as described by Justice Binnie, unilateral because the Crown, “not only ignores the mutual promises of the treaty both written and oral, but also [their actions] is the antithesis of reconciliation and mutual respect” (para. 49). In both cases, the Crown had real and constructive knowledge of the potential existence of Aboriginal right or title and acted in a way that adversely affected Aboriginal right or title. Last but not least, Justice Binnie states in his case that the evidence present should have prompted a draft environmental assessment due to the seriousness of the impact on the Mikisew. The Crown did not even consider the draft environment assessment process.

Additionally, the federal court at the trial division level issued an interlocutory injunction. But, in the Haida case, Chief Justice outlines why an interlocutory injunction is an insufficient legal remedy. As outlined above, the reasons for why an interlocutory injunction is an insufficient legal remedy:

  • They may not capture the full obligation on the government;
  • They typically represent an all-or-nothing solution (either the project goes ahead or it halts);
  • While the duty includes balancing of Aboriginal interests with other interests, the balance of convenience test tips the scales in favour of protecting jobs and government revenues, with the result that Aboriginal interests tend to “lose” outright pending a final determination of the issue, instead of being balanced appropriately against conflicting concerns;
  • They are designed as a stop-gap remedy pending litigation of the underlying issue

Surprisingly, injunctions are being issued to this day in Aboriginal rights or title claims, and often in support of development—counter to the decision of these two cases.

Links to each full decision:

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