Tag Archives: aboriginal

Yukon Court of Appeal Decide on #ProtectPeel Watershed Land Use Plan

The Yukon Court of Appeal (the “Court”) has found that the Yukon Government (“Yukon”) failed to honour the letter and spirit of its treaty obligations with respect to the Land Use Planning Process for the Peel Watershed. The Court also found that Yukon failed to reveal its extensive plan modifications, and failed to provide the requisite details or reasons in support of its general comments on the plan which, ultimately, left Commission ill equipped to advance the Land Use Planning Process.

However, the Court did allow Yukon’s appeal, in part.

First, a quick recap

As I wrote on here in February, 2014, on December 2, 2009 a Recommended Peel Watershed Regional Use Plan (the “Plan”) was submitted to Yukon by the Peel Watershed Regional Planning Commission (the “Commission”). In the Plan, the Commission recommended that 80.6% of the Peel Watershed be given a high degree of protection as designated Special Management Areas. Those areas included heritage management, fish and wildlife management, watershed management and general environmental protection.

Following a series of consultations, and following some proposed modifications by Yukon, a Final Recommended Plan was released by the Commission on July 22, 2011, which designated approximately 80% of the Peel Watershed as “Conservation Area”. Approximately two-thirds of the Conservation Area were designated Special Management Areas, and the remaining portions were designated Wilderness Areas.

Following the Commission’s Final Recommended Plan, Yukon commenced a consultation process that lasted into February, 2013.

Ultimately, on January 20, 2014, Yukon announced its approval of a regional land use plan (the “Land Use Plan”). It was vastly different to the Final Recommended Plan. Instead of protecting close to 80% of the Peel Watershed, the Land Use Plan, in fact, leaves about 71% of the Peel Watershed unprotected.

Legislative Background

The Land Use Plan was being created as part of a consultation framework, which included the following provisions:

“11.6.2 Government, after Consultation with any affected Yukon First Nation and any affected Yukon community, shall approve, reject or propose modifications to that part of the recommended regional land use plan applying on Non-Settlement Land.

11.6.3 If Government rejects or proposes modifications to the recommended plan, it shall forward either the proposed modifications with written reasons, or written reasons for rejecting the recommended plan to the Regional Land Use Planning Commission, and thereupon:

11.6.3.1 the Regional Land Use Planning Commission shall reconsider the plan and make a final recommendation for a regional land use plan to Government, with written reasons; and

11.6.3.2 Government shall then approve, reject or modify that part of the plan recommended under 11.6.3.1 applying on Non-Settlement Land, after Consultation with any affected Yukon First Nation and any affected Yukon community.”

These sections have proved to be the main issues in this litigation.

Remedy Sought, Trial Decision

Because of the alleged breaches by Yukon, the Plaintiffs had asked for a declaration that the (unmodified) Final Recommended Plan was the final, binding land use plan for the Peel Watershed. However, at trial, the plaintiffs scaled back their request and sought an order quashing Yukon’s Final Plan and remitting the process to s.11.6.3.2 for Yukon to make its final modifications.

The Plaintiffs were successful at trial and obtained the scaled back remedy that they had sought.

Appeal

Yukon appealed on two main grounds: first that it had not breached Yukon First Nation Final Agreements (“Final Agreements”); and second, if it had breached the Final Agreements, the land use planning process should have been returned to the 11.6.2 stage, and not the 11.6.3.2 stage.

Yukon succeeded on its latter argument. It argued that it is an established principle that a breaching party should be put in the position it occupied prior to its breach, so it can “perform constitutionally what the court deemed to be unconstitutional”. In other words, if the Development and Access Modifications (proposed by Yukon under s. 11.6.2) were invalid, Yukon should be returned to s. 11.6.2 so it can articulate its priorities in a valid manner.

The Plaintiffs argued, in response, that the process should be remitted to the point of Yukon’s breach, which was not s. 11.6.2 but s. 11.6.3.2. To that end, the Plaintiffs argued that three of Yukon’s Modifications under s. 11.6.2 were valid. Although the Development and Access Modifications were invalid, that does not mean they breached the treaty; it means only that they had no effect, and in particular that they could not later be imposed over the objections of the First Nations under s. 11.6.3.2. Accordingly, the Plaintiffs argued, Yukon’s breach occurred at s. 11.6.3.2 (when Yukon imposed an entirely new plan) rather than at s. 11.6.2. Remitting the process to s. 11.6.2 would repeat stages of the process that had been lawfully conducted. The plaintiffs submitted that it was inconsistent with the honour of the Crown for Yukon to argue that it should be permitted to reconsider the proposals it made years ago in December 2009.

Despite the Plaintiffs arguments, the Court found that the appropriate remedy for Yukon’s failure to honour the process was to return the parties to the point at which the failure began. The Court found that it was Yukon’s failure to properly exercise its right to provide modifications that derailed the dialogue essential to reconciliation as envisioned in the Final Agreements. This derailment of the dialogue was where Yukon’s failure began, and marks the point to which the process has now been returned. That point is s. 11.6.2.

So, what does this mean?

The trial judge had remitted the process to the stage of s. 11.6.3.2 for Yukon to consult and then make its final modifications to the Final Recommended Plan. The trial judge had ordered that Yukon’s final modifications had to be based upon the original response that Yukon had made pursuant to s. 11.6.2. The trial judge reasoned that remitting the process to the stage of s. 11.6.2 would take the Commission “back to the drawing board” and permit Yukon “to benefit from its flawed process”. It would amount to an endorsement of Yukon’s treaty breaching conduct.

The Court of Appeal, however, disagreed with these sentiments. First, the Court found, remitting the matter to the s. 11.6.2 stage would not permit Yukon “to benefit from its flawed process”; it would allow the process to unfold as it was meant to.

Second, the Court restated that the matter should be returned to the point of the breach. The trial judge found the breach to be at the stage of s. 11.6.3.2 when Yukon proposed a wholly new plan not based upon modifications it proposed at the stage of s. 11.6.2. However, the Court disagreed. It found that this was “a selective view of matters”. A more compelling argument, it found, could be made in support of the submission that the “breach” began when Yukon did not properly set out its detailed modifications at the stage of s. 11.6.2. That, the Court found, was the the status quo ante, or state that existed before the breach, to which the “breaching” party should be returned to allow it to perform its duties appropriately.

The Court added that it is a status quo ante which best serves the goals of achieving reconciliation as the remedy crafted by the trial judge would put in place a plan that emerged from a flawed process, which does not serve reconciliation.

In practical terms, therefore, rather than the Yukon being simply able to approve, modify or reject that part of the Land Use Plan that was recommended pursuant to 11.6.3.1, it can instead return to 11.6.2 to undertake more consultation with Yukon First Nations and approve, reject or propose modifications to the land use plan as a whole.

Essentially, the Court has rewound the clock six years and given Yukon another chance to attempt to significantly water down the protections that the Peel Watershed would have benefited from under the Final Recommended Plan.

It remains to be seen whether any further appeals (to the Supreme Court of Canada) will be filed, or whether all parties will return to December 2, 2009 and re-do the last several years of consultations and modifications.

One thing remains clear, however, the Court reaffirmed that Yukon failed to honour the letter and spirit of its treaty obligations with its First Nations people with respect to the Land Use Planning Process for the Peel Watershed. Further, Yukon’s own plan, which would have protected less than 30% of the Peel Watershed from development, remains quashed.

James Early

Site C Dam Faces Alberta Opposition

Two Alberta First Nations have filed legal proceedings in Federal Court seeking a judicial review of the approval of the Site C dam project by the British Columbia government earlier this fall.

The Mikisew Cree and Athabasca Chipewyan allege that they were not consulted by government, and that the decision to approve the Site C dam was made without considering the downstream effects of the dam on the Peace-Athabasca Delta, a UNESCO World Heritage Site and one of the largest freshwater deltas in the world.

This judicial review application follows of the heels of an earlier application by several Treaty 8 First Nations in B.C. In that application, the B.C. First Nations allege that the Ministry of Environment failed to fully consider the effects that the dam will have on First Nations’ treaty rights. The Peace Valley Landowners Association is also part of a judicial review application in relation to Site C.

The approval of the Site C dam came despite a Federal-provincial Joint Review Panel report which found that the dam would produce impacts on First Nation treaty rights that could not be mitigated. That same Panel found that Site C “would not have any measurable effect on the Peace-Athabasca Delta,” and that there are not any direct links between the Site C project and effects on the Delta.

James Early

Northern Gateway Dealt Another Setback

In a unanimous decision, the Supreme Court of Canada has expanded land-title rights for aboriginal communities. Indirectly, it has created yet another significant hurdle for Enbridge’s Northern Gateway pipeline, and other similar projects.

Speaking for the Court, Chief Justice Beverley McLachlin wrote that “the right to control the land conferred by Aboriginal title means that governments and others seeking to use the land must obtain the consent of the Aboriginal title holders…”.

Further, “if the Aboriginal group does not consent to the use, the government’s only recourse is to establish that the proposed incursion on the land is justified” under the Constitution.

In concluding, the Court found that the appeal of the Tsilhqot’in would be allowed and declared “that British Columbia breached its duty to consult owed to the Tsilhqot’in through its land use planning and forestry authorizations”.

For the full text of the decision, simply click here.

By James Early

Consultation and Accommodation Deemed Adequate in Latest BC Mine Decision

In the Fort St. John area of British Columbia, Canadian Kailuan Dehua Mines Co. Ltd. (“CKDM”), a Chinese company, is planning to execute the Gething Bulk Sample Project (the “Project”). The Project:

“involves the excavation of two underground declines (ramps) of approximate length 337m and 360m to access the target coal seam, and the extraction of a 100,000 tonne coal bulk sample…”

The Project is also situated within the Treaty 8 reserve lands of the West Moberly First Nations (“WMFN”). Once again, a B.C. court has been asked to determine whether there was adequate consultation and accommodation before the decisions were made to allow the Project to proceed.

Treaty 8 promises WMFN the right to pursue their usual vocations of hunting, trapping and fishing, but that right is “subject to such regulations as may from time to time be made by the Government … and saving and excepting such tracts as may be required or taken up … for mining…”

One issue that the B.C. Supreme Court had to address was an earlier decision (West Moberly No. 1 (2011)) in which a similar coal development program was put on hold after the B.C. Court of Appeal held that there had been inadequate consultation. Would West Moberly No. 1 be applied or distinguished in this case?

While both matters concerned small herds of caribou that are at risk of extirpation, the project under consideration in West Moberly No. 1 was found to be located in an area integral to the life of the caribou. In distinguishing West Moberly No. 1, the B.C. Supreme Court held, in this case, that the Project was at a lower elevation and further north and that, unlike in West Moberly No. 1, no government expert had expressed any concerns about the welfare of the caribou.

Justice MacIntosh ultimately found that consultation and accommodation had been adequate in this case. Once again, there was evidence that a First Nation had been “reluctant or simply slow in bringing their information to the table” and the court again identified the principle that “[c]onsultation is a two-way exercise”. For more on that, see my earlier post: here.

In his concluding remarks, Justice MacIntosh summarized some principles of the duty to consult, as follows:

[146] Consultation and accommodation are called for to ensure that the Crown honours its treaty and other obligations with First Nations, instead of merely paying lip service to First Nation rights. Honourable consultation and accommodation are the protectors against the Crown barging ahead as if treaty rights were only cosmetic.

[147] In addressing allegations that the Crown has breached its duties, a court must look beyond only the allegations, and see what the facts demonstrate as to inadequate or dishonourable Crown participation. Of course, that exercise, in essence, is the task of a court in almost every case coming before it, i.e., to look beyond mere allegations. I raise the point in the context of consultation-accommodation cases because these cases raise a particular difficulty in relation to judicial review. The fact that more study, more consultation and more accommodation would nearly always be possible raises the risk of inadequate consultation being found simply from the fact that the further consultation could have been carried out when it was not. The analysis has to refine itself, to asking whether some relevant block of data was omitted, or some particular, reasonable, First Nations’ request was ignored, as two examples.

[148] From my assessment of the evidence, placed in its context by the parties’ submissions, I was unable to see a material deficiency in the consultation or the accommodation. Nor did the evidence show anything in the nature of dishonourable Crown conduct. Consultation is a two-way exercise. From time to time in the consultation exercise here, the West Moberly were reluctant or simply slow in bringing their information to the table. The Crown cannot be faulted for that, provided the Crown carried on, and assured itself that it had obtained the information it required in order to know the circumstances and consult adequately.

I suspect that, should the Project reveal a viable mining opportunity for CKDM, we should not be surprised to see these parties before the courts again.

By James Early

Kinder Morgan: Who Participates?

While thousands of interested parties participated in the Northern Gateway hearings, the same cannot be said of the Kinder Morgan National Energy Board (“NEB”) pipeline review.

More than 2,100 people applied to participate in the Kinder Morgan hearings, though as few as 400 will be permitted to appear as intervenors at the hearing. New rules enacted by the federal government now limit participation to only those who are directly affected by the project.

In order to participate, the NEB must be satisfied that an applicant:

-is directly affected by the granting or refusing of a project application

-has relevant information or expertise for the NEB to consider; or

-both.

As part of the new rules, the NEB is to determine who is directly affected by considering the following two factors:

1. The nature of the person’s interest.

2. Whether the granting or refusing of a project application causes a direct effect on the person’s interest.

The first enquiry addresses whether a person has a specific and detailed interest, rather than a general public interest. Examples of interests that could support participation are: commercial, property or other financial interest (including employment); personal use and occupancy of land and resources; or use of land and resources for traditional Aboriginal purposes.

In relation to this second stage, the NEB will consider the degree of connection between the project and the interest, the likelihood and severity of harm a person is exposed to, and the frequency and duration of a person’s use of the area near the project.

The interpretation of these rules, however, is proving contentious.

In challenging the rules on participation, this week Forest Ethics Advocacy, amongst others, filed an application with the NEB alleging:

“…[the restriction on participation] is a draconian, undemocratic limitation of their constitutionally guaranteed freedom of expression…”

The applicants also allege that the NEB used a very narrow definition of the phrase “directly affected”, and that the NEB refuses to hear submissions on climate change or fossil fuels:

“This board cannot determine whether the proposed pipeline is in the public interest without a full consideration of the environmental effects… …[th]e project is being proposed in order to increase pipeline capacity in support of growing oil production. Without acknowledging that increased production of oil sands is having a devastating effect on the environment, and resulting in climate change, this board cannot even begin to address the issues which it has deemed relevant

The NEB application follows on the heels of a Tsleil-Waututh application, filed just a few days earlier in the Federal Court of Appeal. In this case, the First Nation claims that the NEB review process is unilateral and one-sided.

The First Nation has stated:

“…serious legal errors made by the federal Crown and NEB have led to a flawed and unlawful review process that puts Burrard Inlet and all peoples who live here at risk.

“The Crown and NEB are running roughshod over our Aboriginal Title and Rights. The process to review Kinder Morgan’s proposed pipeline expansion and tanker project was designed without First Nations consultation or public participation. The timelines appear to have been designed to rush through approvals,” says Chief Maureen Thomas, Tsleil-Waututh Nation.

“Legal materials to be filed in the Federal Court of Appeal will demonstrate that, among other things, the NEB lacked legal authority to start its review process because of the federal government’s failure to first consult Tsleil-Waututh on key decisions about the environmental assessment and regulatory review of the project.”

Regardless of the disposition of the NEB and Federal Court applications, what appears to be certain is that litigation in relation to the Kinder Morgan project is not likely to stop. Currently the Northern Gateway project is facing litigation on at least 10 fronts from a range of parties including First Nations and environmental groups.

By James Early

Ski-Resort to Proceed, Despite Challenge

On March 20, 2012, a Master Development Agreement (“MDA”) was signed by Glacier Resorts Ltd. (“Glacier”) and the Minister of Forests, Lands and Natural Resource Operations for British Columbia (“Minister”) which permits Glacier to develop a year-round ski resort on Crown land near Invermere, B.C.

The Ktunaxa Nation are an Aboriginal people who have inhabited the Columbia and Kootenay River valleys since before contact with Europeans. The proposed ski resort is located on Ktunaxa Nation traditional territory.

In this judicial review application, the Ktunaxa Nation asked the Supreme Court of British Columbia (the “Court”) to find that the MDA violates two of their constitutionally protected rights:

(i) the duty to consult; and

(ii) their right to freedom of religion.

Specifically, it was argued that “the Minister failed to fulfill the duty to consult in respect of the Ktunaxa’s aboriginal right to exercise a spiritual practice which by its nature requires the protection of a sacred site”.

The Court undertook a lengthy discussion of the history of the proposed ski resort development from its origins (a March 1991 initial proposal) to the MDA of March 20, 2012. The Court also noted the Ktunaxa Nation’s lack of involvement and delay in relation to the consultation process.

The first hurdle for the Ktunaxa Nation was an evidentiary one. It sought to introduce expert evidence as part of the judicial review application. These five reports were not before the Minister when the MDA was approved and, as a general rule, the scope of admissible evidence in a judicial review proceeding is limited to the record that was before the decision-maker whose decision is under review.

The Ktunaxa Nation argued exceptions to this general rule. For example, extrinsic evidence may be admitted where relevant to an allegation concerning a defect in procedural fairness or jurisdictional error. Despite this, the Court found that the expert opinions fell outside of the exceptions to the general rule against the admissibility of extrinsic evidence on judicial review.

In reviewing the case law on point, the Court concluded that, to the extent that the expert reports were tendered to illustrate the nature of the consultation that occurred, the reports could be admitted. An analysis of whether the duty to consult has been fulfilled is, in part, one of procedural fairness. However, in the Court’s opinion, none of the reports spoke to this issue.

Duty To Consult 

A duty to consult arises 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. Three basic factors determine whether the duty to consult is triggered in any given situation:

(i) the Crown’s knowledge, actual or constructive, of a potential Aboriginal claim or right;

(ii) contemplated Crown conduct; and

(iii) the potential that the contemplated conduct may adversely affect an Aboriginal claim or right.

While the scope of the duty to consult varies with the circumstances and exists along a spectrum, generally it depends on (a) a preliminary assessment of the strength of the Aboriginal rights asserted and (b) the seriousness and likelihood of the potential adverse effect of the contemplated Crown conduct on those asserted rights.

Good faith consultation may reveal a duty to accommodate to minimize impacts, but the duty to accommodate does not give Aboriginal groups a veto over all activities pending final proof of the Aboriginal claim.

The ultimate question in each case is whether the consultation was sufficient. The duty to consult is focused on process not outcome.

Analysis

In this case, the Court found that deep consultation was undertaken by the Minister. Following the consultation a significant accommodation was offered to Ktunaxa Nation, though Ktunaxa Nation argued that only cessation of the development would fulfill this duty. The Court considered the accommodations to be within a “range of reasonable responses which upholds the Crown’s honour and satisfied the Crown’s duty to consult and accommodate”.

Freedom of Religion

Section 2(a) of the Canadian Charter of Rights and Freedoms provides for every persons’ right to the freedom of conscience and religion.

The Ktunaxa Nation argued that, during the consultation process, it raised this Charter issue several times. Despite this, the Ktunaxa Nation argued, the Minister “never even put his mind to the Charter right at issue”. In the opinion of the Court, however:

 “…it does not matter whether the Minster’s Rationale contains the specific language of the Charter. What matters is that the Minister’s actions and the accommodations offered address the substance of the asserted Charter right where necessary.” [Emphasis in original]

In the Court’s view, the Minster’s Rationale and the preceding consultation process addressed the substance of the Ktunaxa Nation’s asserted Charter right.

Infringement of a Right

The Ktunaxa Nation did not argue that the development would interfere with the conduct of their ceremonial dances, or prevent them embarking on vision quests, or engaging in prayer or worship. The argument was premised on the asserted “loss of meaning” to actions that are otherwise unconstrained.

In addressing this argument, the Court found that freedom of religion does not extend to prevent otherwise lawful land use that might deprive a particular religious belief or subjective fulfillment. Certainly, interference cannot exceed the threshold of being beyond “trivial or insubstantial”, but the infringement must be based on facts that can be established and determined objectively. A subjective loss of meaning does not meet that threshold.

Regardless of this finding, the Court also determined that the MDA reflected a reasonable balance of this Charter right and that the development does not interfere with the Ktunaxa Nation’s freedom of religion in a way that is unreasonable or disproportionate.

In Summary

The Court dismissed Ktunaxa Nation’s judicial review application. Development of the proposed ski resort will proceed.

For more, or to review the full decision, see Ktunaxa Nation v British Columbia 2014 BCSC 568 (CanLII).

By James Early

Bill 18 – 2014: Water Sustainability Act (British Columbia)

On Tuesday, March 11, 2014 the B.C. Government introduced its new Water Sustainability Act (the “Act”). In planning the overhaul of the 105-year-old Water Act, the B.C. Government recognized that:

“Water is our most important natural resource:  without it, there would be no life on Earth. We all need it – for drinking, washing, cooking, growing food, and supporting every aspect of a healthy environment, a growing economy and our prosperous communities.

 

British Columbia has more than 290 watersheds, including fish-bearing rivers and streams, lakes and wetlands and the Government recognized that with the a growing population, a changing climate and expanding development, the pressures on those waters were growing and steps needed to be taken to ensure that water was able to meet today’s needs, and the needs of generations to come.

The Act will repeal most of the Water Act by modernizing its language and will do the following:

– re-enact the regulatory scheme for the diversion and use of stream water and apply that scheme to both stream water and groundwater;

– authorize the establishment of water objectives and requirements that water objectives be considered in decision making under the Act;

– mandate the consideration of the environmental flow needs of a stream in licensing decisions;

– move various provisions from the Fish Protection Act respecting sensitive streams, bank-to-bank dams and fish population protection orders to the Act as well as provisions respecting the protection of streams;

– provide new powers to be applied when streams are at risk of falling or have fallen below their critical environmental flow thresholds to modify the existing precedence of water use for the purpose of protecting the aquatic ecosystem of streams and aquifers and essential domestic uses;

– rename water management plans as water sustainability plans and provide new regulatory powers that can be exercised on the recommendation of a water sustainability plan, including regulations restricting the authority of approving officers, restricting the use of land or resources, reducing water rights, imposing requirements in respect of works and providing for dedicated agricultural water that can only be used for prescribed land and purposes;

– authorize an administrative monetary penalty scheme;

– authorize regulations providing powers and duties of officials under the Act to officials under other enactments;

– repeal most of the Water Act, leaving only provisions related to water users’ communities, and renames the Water Act as the Water Users’ Communities Act;

– make consequential amendments to other Acts.

The Act is certainly a positive step from the archaic Water Act, though there are already suggestions that the Act is vague, watered-down and leaves too much of the decision making to the discretion of regulators. Staffing levels are also being cited as a cause for concern, with a particular fear that low staffing levels will result in lower monitoring standards and enforcement.

Other criticisms of the Act include the fact that it is merely a “framework” which leaves much of the details to future regulations and that it fails to recognize water as a human right or public trust.

The B.C. Government maintains, however, that the Act makes B.C. an environmental stewardship leader. Time will tell.

Over the next thirty days, the B.C. public will be consulted on the issue of fees for major industrial water users before Minister Polak makes a recommendation to the Treasury Board on that issue. The Act is expected to be in force in Spring, 2015.

By James Early.