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Native Law (2)

. Witchekan Lake First Nation v. Canada

In Witchekan Lake First Nation v. Canada (Fed CA, 2022) the Federal Court of Appeal heard a judicial review application of a decision of the Specific Claims Tribunal.

. Anderson v. Alberta

In Anderson v. Alberta (SCC, 2022) the Supreme Court of Canada considered rules around costs-funding by government parties of public interest litigation in the event of 'impecuniosity' of a party. Here, the funding applicant was a native band but the principles may be adaptable to public interest litigation generally [paras 16-52].

. Attawapiskat First Nation v. Ontario

In Attawapiskat First Nation v. Ontario (Div Ct, 2022) the Divisional Court considers the Crown's duty to consult (and accomodate) with First Nations:
[4] The duty to consult is an incident of the Honour of the Crown, which is engaged in any dealing between the Crown and First Nations. The duty is constitutional in nature, and springs from the ongoing process of reconciliation, a process which is a moral, political and legal obligation of the Crown.


[9] We also note that the process of reconciliation is ongoing in any context involving both the Crown and First Nations, including litigation. The Crown needs to be sensitive to its duty as it formulates and implements its litigation strategy, so that conflict resolution – whether before the courts or elsewhere – while still a manifestation of permissible “hard bargaining”, is not corrosive of the goal of reconciliation. In this case the respondents took a position they were entitled to take – that the applicant did not take steps reasonably open to it to provide relevant information to the Crown – but tinctured their arguments with allegations of lack of diligence and even lack of candour. This colour did not add force to the respondents’ arguments. The respondents are not dealing with a private party to which baser qualities ought to be imputed without very good reason. By way of analogy, this court would not impute such motives to a Minister of the Crown without strong evidence and a jurisprudential need to make the finding: such is the inherent deference paid by one branch of government to another. While the analogy is not exact, similar principles ought to be borne in mind in characterizing the conduct of First Nations in duty to consult cases.


The Duty to Consult – The Applicable Principles

[66] The government’s duty to consult with Indigenous peoples is grounded in the principle of the honour of the Crown. In Haida Nation, at para. 17, the Supreme Court of Canada held that “[i]n all its dealings with Aboriginal peoples, from the assertion of sovereignty to the resolution of claims and the implementation of treaties, the Crown must act honourably. Nothing less is required if we are to achieve ‘the reconciliation of the pre-existence of aboriginal societies with the sovereignty of the Crown.”

[67] The honour of the Crown is engaged by s. 35 (1) of the Constitution Act, 1982. Because of its connection to s. 35, the honour of the Crown has been called a “constitutional principle.” Manitoba Métis Federation Inc. v. Canada (Attorney General), [2013] 1 S.C.R. 623, 2013 SCC 14, at para. 69.

[68] The honour of the Crown is an obligation at the highest level; it requires that servants of the Crown conduct themselves with honour when acting on behalf of the sovereign: Manitoba Métis, at para. 65.

[69] In Manitoba Métis, at para. 75, the Supreme Court found that:
when the issue is the implementation of a constitutional obligation to an Aboriginal people, the honour of the Crown requires that the Crown: (1) takes a broad purposive approach to the interpretation of the promise; and (2) acts diligently to fulfill it.
[70] The Court went on to state that in determining what duties are imposed by the honour of the Crown, “[t]he question is simply this: Viewing the Crown’s conduct as a whole in the context of the case, did the Crown act with diligence to pursue the fulfillment of the purposes of this obligation?” Manitoba Métis, at para. 83.

[71] The honour of the Crown infuses treaty interpretation and implementation. The Crown “must act with honour and integrity, avoiding even the appearance of ‘sharp dealing[.]’” Haida Nation, at para. 19.

[72] The duty to consult is a “valuable adjunct to the honour of the Crown, but it plays a supporting role, and should not be viewed independently from its purpose.” Beckman v. Little Salmon/Carmacks First Nation, at para. 44.

[73] There are three aspects to the duty to consult: has the duty been triggered; what was the scope of the duty; and was the duty fulfilled?

[74] The duty to consult is triggered when the Crown has real or constructive knowledge of asserted or known Aboriginal or treaty rights and contemplates conduct that might adversely affect such rights: Haida Nation, at para. 35. In this case, the parties agree that the duty was triggered.

[75] The degree of consultation required falls on a spectrum and is proportionate to a preliminary assessment of the asserted or established right, and the seriousness of the potentially adverse effect upon the right claimed: Haida Nation, at paras. 35, 39, 43 [check].

[76] As a result, the Supreme Court of Canada has held that “[t]he controlling question in all situations is what is required to maintain the honour of the Crown and to effect reconciliation between the Crown and the Aboriginal peoples with respect to the interests at stake…” Haida Nation, at para. 45.

[77] The Crown must engage in consultation with the goal of “substantially addressing” the community’s concerns: Haida Nation, at para. 42; Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), [2005] 3 S.C.R. 388, 2005 SCC 69, para. 67. At the same time, the right to consultation is a right to a process, and not a particular outcome: Haida Nation, at para. 39.

[78] The result of good faith consultation may be a duty to accommodate, requiring that the Crown address a community’s concerns by taking steps to avoid harm or to minimize the effects of infringement, in a manner that is consistent with the honour of the Crown: Haida Nation, at paras. 47-50.


[109] In some respects, the Crown took steps toward fulfilling its duty to consult and accommodate. It recognized a positive obligation to inform itself. For example, it anticipated that caribou migration, hunting and fishing might be issues even though it had no site-specific information about such matters. The Ministry asked Attawapiskat what it knew and got no information back. It was still asking for site specific information right up to a week before the permits were granted. Not only did the Ministry actively solicit concerns the applicant might have, it extended the time for voicing those concerns several times. In its letter of September 3, the Ministry reiterated its willingness to consider additional terms and conditions to attach to a permit.

[110] However, asking the right questions, and being prepared to consider the answers, is only part of the consultation process. The process that Ontario had an obligation to foster was the kind of “meaningful consultation” or “talking together for mutual understanding” (Haida Nation, at para. 43) that the duty to consult and accommodate envisages and requires. In this case, Ontario did not foster such a process appropriately. When the overall dealings among the parties is examined, the overall impression, from Attawapiskat’s reasonable perspective, is that pro forma letters were sent by Ontario and Juno, in January and February 2020, but no other effective communication took place until August 2020, by which time the Ministry imposed tight time constraints. If just a little more care and sensitivity had been taken, things could well have been different. But in the result, the consultation process that was followed here was corrosive of reconciliation rather than advancing it.


[123] The correspondence between Ontario and Attawapiskat between February 11, 2020, when the Ministry forwarded the permit applications to Attawapiskat, and September 3, 2020 does not reflect the “intention of substantially addressing” Attawapiskat’s concerns: Haida Nation, at para. 42. We agree with Vella J.’s comment in Ginoogaming First Nation v. Ontario, 2021 ONSC 5866, at paras. 91-92, that letter writing was “an ineffective form of communication” because it did not adequately take into consideration the Indigenous cultural context. As a result, the letters sent by Ontario were not sufficient to constitute meaningful consultation.
. Attawapiskat First Nation v. Ontario

In Attawapiskat First Nation v. Ontario (Div Ct, 2022) the Divisional Court considered standards of review as applicable to native judicial reviews (correctness for law):
[43] This court has jurisdiction over this application for judicial review by virtue of ss. 2(1) and 6(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1.

[44] On judicial review, questions of law are reviewable on a standard of correctness. Questions of fact are reviewable on a standard of reasonableness. Questions of mixed fact and law will generally involve some deference towards the decision-maker, based on the extent to which the issue is one of fact or one of law: Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511, 2004 SCC 73, paras. 60-63; Beckman v. Little Salmon/Carmacks First Nation, [2010] 3 S.C.R. 103, 2010 SCC 53, para. 48; Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9.

[45] Crown decisions as to whether there are duties to consult or accommodate are reviewable on a standard of correctness. The Crown’s assessments of the extent of these duties are generally questions of law, reviewable on a standard of correctness, because they define legal duties: Haida Nation, para. 63; Ka’A’Gee Tu First Nation v. Canada (A.G.), 2012 FC 297, para. 89; Nunatsiavut v. Canada (A.G.), 2015 FC 492. Thus, if the Crown misconceives the seriousness of a claim or the impact of infringement, this will be reviewable on a standard of correctness: Haida Nation, para. 63; Enge (North Slave Métis Alliance) v. Mandeville, 2013 NWTSC 33, para. 26. That said, “scoping” the duty to consult can involve questions of fact, and where it does, the Crown’s factual findings are to be reviewed on a standard of reasonableness: Haida Nation, para. 61.

[46] The “effect of good faith consultation may be to reveal a duty to accommodate” (Haida Nation, para. 47; R. v. Sioui, 1990 CanLII 103 (SCC), [1990] 1 S.C.R. 1025; R. v. Adams, 1996 CanLII 169 (SCC), [1996] 3 S.C.R. 101, para. 54). The determination of the process to be followed for consultation and, if necessary, accommodation, are reviewable on a standard of reasonableness: Haida Nation, para. 61-62; Enge v. Mandeville, para. 27.

[47] Process decisions of the Crown may be revisited in light of new information or circumstances. The standard of reasonableness will generally require the Crown to keep the First Nation advised of process changes and reasons for process changes so that the process is coherent and systematic and is seen to be fair and not arbitrary: Saugeen Ojibway Nation v. Ontario, 2017 ONSC 3456, para. 136 (Div. Ct.).
. Attawapiskat First Nation v. Ontario

In Attawapiskat First Nation v. Ontario (Div Ct, 2022) the Divisional Court set out the fresh evidence rule as applicable to native judicial reviews:
[53] On an application for judicial review, the record is generally restricted to what was before the decision-maker at the time the decision was made. A judicial review is not a de novo hearing. Nonetheless, fresh evidence may be admitted in certain circumstances, including where it is relevant to the scope and content of the duty to consult and accommodate and whether the duty was fulfilled: Liidlii Kue First Nation v. Canada (Attorney General), 2000 CanLII 15881 (FC), [2000] 4 C.N.L.R. 123 (F.C.), at paras. 31-32; Sipekne’katik v. Nova Scotia (Environment), 2016 NSSC 260; Chartrand v. The District Manager, 2013 BCSC 1068, at paras. 112-117, varied on other grounds, 2015 BCCA 345.
. Attawapiskat First Nation v. Ontario

In Attawapiskat First Nation v. Ontario (Div Ct, 2022) the Divisional Court considered the relatively novel issue of the extent to which the duty to consult requires respondents to fund native's participation [generally see paras 95-108]:
[98] Ontario highlights that no case has yet recognized a general right to consultation funding. Ontario acknowledges that where a community cannot meaningfully engage in consultation due to resource constraints, the Crown must do what it can to facilitate meaningful dialogue. This might include funding to facilitate consultation, where the ability of the Indigenous community to participate in consultation is jeopardized without financial assistance: Platinex Inc. v. Kitchenumaykoosib Inninuwug First Nation 2007 CanLII 20790 (ON SC), [2007] 3 C.N.L.R. 221 (ONSC), at paras. 18, 22-27, Saugeen, at para. 27.


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