On July 21, 2014, the new Liquefied Natural Gas Facility Regulation, BC Reg 146/2014, was enacted by the BC Oil and Gas Commission (“OGC”). As the name suggests, the regulation is intended to address regulation of LNG facilities, and also updates LNG-related provisions previously in the Pipeline and Liquefied Natural Gas Facility Regulation, BC Reg 281/2010, which has been renamed the Pipeline Regulation. The OGC has also issued version 1.0 of its Liquefied Natural Gas Facility Permit Application and Operations Manual, which provides guidance for applicants wishing to construct an LNG facility in accordance with the new regulation.
On July 18, 2014 the Province of British Columbia released the long-awaited Kitimat Airshed Study (though completed on April 25, 2014, the study was not previously released pending review).
The study is an independent assessment intended to assist the Province’s regulatory decision-making process by providing information that will be used to ultimately determine how many industrial facilities can be added to the Kitimat airshed without causing unacceptable impacts to human health and the environment. The study area spans the length of the Douglas Channel from its entrance near Hartley Bay, includes Kitimat, and continues up the Kitimat River towards Terrace. This area, covering some 6,772 km2, is of great importance to a number of projects due to its attractive location for industries seeking a marine terminal along BC’s Pacific Coast in order to access foreign markets.
The study provides an assessment under various scenarios of the likely effects on human health and the environment of SO2 and NO2 emissions from existing and proposed facilities in the area, namely the existing Rio-Tinto Alcan aluminum smelter, projected emissions from four proposed LNG terminals (Kitimat LNG, Douglas Channel LNG, Triton LNG, and LNG Canada), a proposed oil refinery, and gas turbine powered electrical generation facilities, as well as related marine transportation sources.
While the study does identify potential risks to human health (especially in relation to SO2 emissions in proximity to industrial areas) and environmental impacts (particularly impacts to soil and lakes), BC’s Environment Minister, Mary Polak, says:
“This study tells us that with proper management there is significant capacity in the Kitimat airshed to safely accommodate industrial growth, while still protecting human health and the environment.”
Notably, the study does not propose absolute limits on the amount of emissions that would be acceptable in the Kitimat airshed.
This study will likely provide guidance for project proponents with respect to the Province’s approach to regulation of air emissions not only in the Kitimat area, but also in nearby Prince Rupert and Grassy Point, where results from this study are also intended to help inform regulatory decision making.
Today, the Supreme Court of Canada released another important Aboriginal law decision, Keewatin v. Ontario (Natural Resources), 2014 SCC 48. The decision confirms the power of Ontario, along with other provincial governments, to manage natural resources over lands subject to numbered treaties. Treaty 3 is one of the historical, numbered treaties entered into between Canada and First Nations in the late 1800s and early 1900s whereby signatory First Nations surrendered their Aboriginal rights and title to lands they traditionally used in return for treaty rights, including the right to hunt and fish.
Treaty 3 sets out the Grassy Narrows First Nation’s right “to pursue their avocations of hunting and fishing throughout the tract surrendered” except on tracts “required or taken up for settlement, mining, lumbering or other purposes by [the] Government of the Dominion of Canada” (the “taking up” clause).
The central issue in the case was whether the reference to the “Dominion of Canada” in the taking up clause meant that Ontario did not have the power to take up lands to issue forestry licences over treaty lands. The Grassy Narrows First Nation argued that the reference to the Dominion of Canada in the taking up clause meant that only the federal government could exercise that power. Today’s decision clearly confirms Ontario’s power to take up lands under Treaty 3. The decision also reiterates that taking up of lands by Ontario and other provinces remains subject to the duty to consult and accommodate First Nations.
The decision provides welcome confirmation of provincial powers to manage their natural resources, and confirmation that the federal government has no supervisory role in that process.
As summarized in a previous post, the Ontario Superior Court of Justice held that, based on a literal reading of the taking up clause, only the federal government had the power to authorize activities which significantly interfere with Treaty 3 harvesting rights. The trial judge found that Treaty 3 required a two-step process whereby the Province of Ontario was required to seek approval from the federal government before taking up land.
The Ontario Court of Appeal disagreed and reversed the trial decision. The unanimous court emphasized that the treaty partner is the Crown, and not any particular level of government. Crown responsibility devolved to Ontario when the ceded Treaty 3 lands were transferred to the Province, and Ontario had the right to manage and regulate activities on harvesting lands. For a summary of the Ontario Court of Appeal decision, please see our previous post.
Supreme Court of Canada Decision
Canada or Ontario?
Today’s decision provides a clear and firm answer to the question of whether the taking up clause allows Ontario to take up lands under Treaty 3. The Supreme Court stated clearly and unequivocally that “Ontario and only Ontario” has the power to take up lands under Treaty 3.
While Treaty 3 was negotiated by the federal government, the treaty was between the First Nations and “the Crown”. The implementation of the Crown’s rights and duties under the treaty is to be carried out in accordance with the division of powers between federal and provincial governments under the Constitution. As Ontario has exclusive authority under the Constitution Act, 1867 to take up provincial lands for forestry, mining, settlement and other provincial matters, only Ontario has the right to take up lands under Treaty 3.
The decision also put to rest the argument that Canada has a supervisory role in taking up of lands by provincial governments. The Supreme Court firmly rejected that argument, holding that if the drafters of the treaty wanted Canada to have a continuing supervisory role in taking up lands under the treaty, the treaty would have said this.
Duty to Consult
The decision confirms that the Crown’s right to take up lands under numbered treaties is subject to the duty to consult and accommodate as set out in Mikisew. In summary, the Crown must inform itself of the impact its action will have on the First Nation’s exercise of rights under the treaty and communicate with the First Nation. The Crown must deal with the First Nation in good faith and with the intention of substantially addressing their concerns.
Not every taking up of lands will constitute an infringement of a First Nation’s treaty rights. It is only where a First Nation is left with no meaningful right to harvest in territories over which they traditionally harvested that a potential action for treaty infringement will arise. This confirms the law as previously set out by the Supreme Court in Mikisew Cree First Nation v. Canada, 2005 SCC 69.
Implications of Keewatin
As shown in the map below, the language of the taking up clause under Treaty 3 is replicated in or similar to several of the other numbered treaties in Manitoba (Treaty 5), Saskatchewan (Treaty 6), and Alberta (Treaty 6 and 7). Treaty 3 is circled in blue, and numbered treaties with similar “taking up” clauses are circled in red:
In other numbered treaties, the taking up clause is not limited to “the Dominion of Canada”, but rather refers to “the government of the country”. Given the different wording in the taking up clauses, the trial decision raised the prospect of very different processes for taking up of lands for natural resource development within the same province. The Supreme Court’s clear statement that it is the provincial government, and only the provincial government, that has the power to take up provincial lands under numbered treaties ensures that this outcome will be avoided. The decision provides welcome confirmation of the competence of provincial governments to issue tenures and approvals for development of provincial natural resources for logging, mining, oil and gas, and other similar matters.
The decision also firmly rejects any notion of a federal supervisory role over the exercise of provincial powers under the numbered treaties. Grassy Narrows affirms that it is the level of government with the power to regulate that must consult and accommodate, and that the involvement of both levels of government is not required if the matter is purely within one level of government’s jurisdiction.
The decision reminds provincial governments that their power to take up lands under numbered treaties is subject to obligations rooted in the honour of the Crown. Where treaty rights may be affected by provincial decisions to take up land, the Provinces will have to ensure that the Crown’s duty to consult and accommodate has been discharged.
The Grassy Narrows decision follows shortly after the Supreme Court’s decision in the Tsilhqot’in Aboriginal title case. While the two cases deal with separate and distinct issues — provincial powers to take up lands under treaties (Grassy Narrows), vs. Aboriginal title in areas where no treaties have been signed (Tsilhqot’in) — in both cases the Supreme Court has confirmed the power of provincial governments to enact legislation within their constitutional sphere of natural resource management, subject to their constitutional duties to First Nations. Therefore, while the two cases arose in very different contexts, both cases confirm ongoing provincial powers over lands even where subject to Aboriginal claims and interests.
On June 26, 2014, the Supreme Court of Canada (“SCC”) released its much anticipated decision on Aboriginal title in the Tsilhqot’in case and surprised many by granting the Tsilhqot’in Nation a declaration of Aboriginal title to approximately 200,000 hectares (2,000 km2) of land.
The Tsilhqot’in case is the first case decided by the SCC granting Aboriginal title to an Aboriginal group. The case is of particular importance to resource-rich British Columbia where much of the provincially-owned land is subject to asserted, and often competing, claims to Aboriginal title and where many First Nations have not entered into treaties resolving their land claims with Canada.
This post will summarize the SCC’s ruling regarding the test for Aboriginal title, the nature of Aboriginal title, and the power of government to justifiably infringe on established Aboriginal title. Future posts will address the applicability of provincial and federal laws to lands held under Aboriginal title.
For an overview of the decisions of lower courts, please see our previous Project Law Blog posts regarding the British Columbia Supreme Court decision and the British Columbia Court of Appeal decision.
Supreme Court of Canada Decision
The Test for Aboriginal Title
In Delgamuukw, the SCC stated that the test for Aboriginal title requires exclusive occupation and control of the land. In Tsilhqot’in the significant debate was whether semi-nomadic Aboriginal groups could satisfy this test in claims over broad territories, or if exclusive occupation was limited to definite tracts of land or settlement sites occupied by Aboriginal groups at the time of Crown sovereignty.
The Court affirmed Delgamuukw, but provided clarification on how the test applies to semi-nomadic indigenous groups.
In short, “occupation” of the land must be “sufficient, continuous (where present occupation is relied on) and exclusive.” Courts should compare Aboriginal culture and practices in a culturally sensitive way to the common law requirements necessary to establish possession over land.
When considering the Aboriginal group’s ability to satisfy the sufficient occupation standard, the Aboriginal group’s size, manner of life, material resources, technological abilities, and the character of the lands claimed must be considered. Though the exercise is context-specific with respect to the manner of life of the people and the nature of the land, the Aboriginal group must ultimately show that they have historically acted in a way that would communicate to third parties that they held the land for their own purposes.
While the Court of Appeal required “intensive” use of the land to meet the sufficiency threshold, the Supreme Court of Canada ruled that a culturally sensitive approach found on the facts of the Tsilhqot’in case that the regular use of territories by semi-nomadic indigenous groups for hunting, fishing, trapping and foraging was sufficient to ground Aboriginal title.
What Does Aboriginal Title Mean?
In Delgamuukw, the SCC held that Aboriginal title “encompasses the right to exclusive use and occupation of the land held pursuant to that title for a variety of purposes.” Aboriginal title is not limited to traditional uses of the land; however the use and occupation of the land must be reconciled with the collective nature of the group’s interest in the land.
In Tsilhqot’in, the Court confirmed that Aboriginal title is a unique and beneficial interest in the land that cannot be equated to other forms of property ownership. Aboriginal title confers ownership rights similar to fee simple, including the right of enjoyment and occupancy of the land and the right to:
- decide how the land will be used;
- possess the land;
- reap the economic benefits of the land; and
- pro-actively use and manage the land.
However, Aboriginal title is not absolute and must be held collectively for the present and future generations. It cannot be alienated except to the Crown, nor encumbered in a way that would prevent future generations of the group from using and enjoying it.
Tsilhqot’in stipulates that governments and others seeking to use the land must obtain the consent of the Aboriginal title holders. If consent cannot be obtained, then the government can still “justify” an incursion onto the land under section 35 of the Constitution Act, 1982 if the test for justification can be met.
The Test for Justification of Infringement
Tsilhqot’in has not changed the law with respect to consultation and accommodation for asserted claims to Aboriginal title as established in previous cases such as Haida, but has articulated a test for determining when government can take action on lands over which Aboriginal title has been proven.
Where Aboriginal title is established rather than merely asserted, governments and others seeking to use the land must obtain the consent of the Aboriginal title holders. Absent consent from the Aboriginal title holders, a government that wishes to take action on Aboriginal title lands must show that:
- it discharged its procedural duty to consult and accommodate as articulated in Haida;
- its actions were in pursuit of a compelling and substantial objective; and
- the action is consistent with the Crown’s fiduciary obligation to the Aboriginal group.
The compelling and substantial objective is to be considered from both the Aboriginal perspective and the perspective of the broader public and must further the goal of reconciliation of Aboriginal interests with those of the broader interests of society. The development of agriculture, forestry, mining, and hydroelectric power, as well as the economic development of the province, can be consistent with the goal of reconciliation and can, in principle, be “compelling and substantial objectives” capable of justifying an infringement of Aboriginal title.
If there is a compelling and substantial objective, then the government must also establish under section 35 that its actions are consistent with its fiduciary duty towards Aboriginal peoples. To be consistent, the government must not act in a way that would substantially deprive future generations of the benefit of the land. Further, in order to justify the infringement, the Court has created a proportionality test that requires the consideration of the following:
- whether the incursion is necessary to achieve the government’s goal (rational connection);
- that the government is not going further than necessary to achieve its goal (minimal impairment); and
- that the benefits that may be expected to flow from that goal are not outweighed by adverse effects on the Aboriginal interests (proportionality of impact).
While this section 35 test has its roots in established Canadian constitutional jurisprudence, the test has the potential to be difficult to apply.
While providing greater clarity in some cases, there are a number of remaining questions that the SCC’s decision did not address. Some of the real practical concerns for government and industry going forward are:
- Whether consent has been obtained from the right person or group. Government and industry will have to be sensitive and alive to traditional political structures and legal systems when seeking authorizations from Aboriginal groups.
- The significance of overlapping and competing claims to Aboriginal title over the same territory.
- The significance of internal disputes within Aboriginal groups with respect to land use planning and development, recognizing that Aboriginal title is held collectively for the benefit of present and future generations.
What Happens Now?
In most of British Columbia, claims for Aboriginal rights and title are still unresolved either through court declarations or under treaties. In those areas of British Columbia, the consultation requirements under the Haida case remain applicable. The depth of consultation required is dependent on: (1) the strength of the claim, and (2) the potential impact of proposed land use or project proposals. The immediate effect of the Tsilhqot’in decision is that the strength of claims in many cases will likely increase, thereby increasing the depth of consultation required. This will affect the consultation obligations of government, as well as the consultation efforts of project proponents.
As a result of the Tsilhqot’in decision, we may see many more First Nations bringing forward their court claims for declaration of Aboriginal title. The case will also affect the positions of both First Nations and government at the treaty negotiation tables.
The Court has stated that once Aboriginal title is granted, development cannot proceed on that land absent consent or before establishing a justified intrusion under the Constitution Act, 1982. Further, the Court has stated that it may be necessary for the Crown to reassess prior conduct in light of declaration of Aboriginal title and halt projects and suspend the applicability of legislation if consent was not first obtained from the Aboriginal title holder. For proponents looking to develop resource projects in British Columbia, this decision means there are compelling reasons to continue the now well established practice of early engagement with Aboriginal groups and the negotiation of impact benefit agreements.
In a later bulletin we will address the findings of the Court that provincial laws of general application (forestry laws, environmental laws) will continue to apply to Aboriginal title lands, with certain limitations.
After 115 years under the old regime, the new Water Sustainability Act received Royal Assent on Friday May 20, 2014: an historic occasion to celebrate?
Not quite yet, perhaps. The fact is the vast majority of the new statute will not have the force of law until authorized by the Lieutenant Governor in Council at an unspecified future date (section 219). With new water regulations not expected until the spring of 2015, it seems that the new Act will not be binding until that time. The only substantive provisions of the new Act that are already in force (i) amend the Clean Energy Act by making house-keeping changes to the funding eligibility of power projects pursuant to the First Nations Clean Energy Business Fund (section 145); and (ii) expand municipal expropriation powers by amending the Local Government Act (section 176).
Meanwhile, the new statute is garnering some early praise for its default “no-compensation” principle for changes to water use rights under long term licenses.
As previously reported, the new statute will repeal and re-enact core elements of the historic Water Act; extends the water use regime to groundwater; provides for a more comprehensive consideration of environmental issues relating to water use; and allows for the prioritization of certain water uses for environmental, domestic and animal purposes.
The Province’s discussion paper Pricing B.C.’s Water has garnered a wide range of opinions since being released in March. As part of the public consultation effort regarding the new Water Sustainability Act (now at 2nd reading in the legislature), the public was given until April 8 to provide its views on water pricing and the Province’s water pricing principles.
Although broad in scope, the water-pricing consultation excluded fees and rentals for hydroelectric purposes, by far the biggest source of water fees and rentals for the Province (although as part of its 10-Year Rate Plan for BC Hydro the Province has said it will eliminate the highest level of water rentals in 2019 in regard to annual energy output in excess of 3000 GWh). Also excluded, by implication, are water utility rates under the Water Utility Act.
The pricing principles in the Province’s discussion paper are:
2. fairness and equity
3. implications for water users – costs distributed in a reasonable manner
4. impact on water resources – e.g. consumptive uses to be assessed higher than non-consumptive uses
5. cost recovery, where cost refers to the Province’s cost of regulating water resources, including “a fair return to the Crown”
7. food security and public health
Like the better-known utility rate design principles of James Bonbright, some of the Province’s water pricing principles are in tension with each other (efficiency vs. implications for water users, for example), and internally (fairness in this context meaning non-discriminatory, and equity referring to the value of the particular water use). These and other issues were picked up on by various commentators on the discussion paper. Here are some quotes selected to reflect the wide range of views expressed:
“As an economist, I suggest that the BC government auction water extraction permits every year to agricultural, industrial and municipal (utility) users. Every one of these users will have a reason why they should not pay. That’s not relevant, given their desire for the same resources.” And from the same commentator: “Businesses ALL need to pay the same price [for water extraction]. Some businesses will NOT be competitive at these prices. The solution is NOT to sell them water more cheaply.”
From Mister and Missus home owner: “A fair return to the crown: Mister and Missus home owner should not be burdened by a further tax increase which may happen with this proposal…. Will this bill see the individuals paying more than their fair share while the business sector laughs all the way to the bank?”
One commentator provided a detailed proposal for an independent agency to monitor water and groundwater use, and make the associated data available to the public: not a bad idea in principle thinks this blogger but why a new government agency would be required to perform this function given the existence of existing agencies whose mandate could be expanded is unclear (e.g. Water Comptroller, BC Utilities Commission, Environmental Assessment Office).
The substantive and process challenges for the Province in its development of a new water pricing regime will be daunting. The consultation principles and stakeholder feedback are all very high-level, yet will need to meaningfully reflected in a new schedule of fees and rentals under the Water Sustainability Act that will be as detailed and complex as the current scheme set out in Schedule A to the Water Regulation. It seems quite likely that some time will pass before we will see new enactments regarding water pricing in BC.
The Province’s water pricing principles and stakeholder commentary can be found at: http://engage.gov.bc.ca/watersustainabilityact/2014/03/14/blog-post-10-pricing-bcs-water-what-do-you-think/
On March 11, 2014 the BC government introduced a first reading of the Water Sustainability Act, Bill 18, the culmination of a 4-year initiative to modernize the 100-year old Water Act. Followers of this blog or BC water issues will know that the government released a comprehensive “proposal” regarding the new statute in the fall of 2013 (see our previous blog post here). The Water Sustainability Act is no less comprehensive – more than 150 pages long, with 15 pages of definitions alone. Given its knee-buckling scope, this blog focusses on the new statute in comparison to the fall 2013 legislative proposal, with a more fulsome comparison to the current Water Act to follow when the Water Sustainability Act becomes law.
In general, the Water Sustainability Act repeals most of the 1909 Water Act; re-enacts the Water Act’s regulatory scheme for the diversion and use of stream water; extends that regulatory scheme to groundwater; authorizes the establishment of “water objectives” and their consideration in water-use decision-making; requires the consideration of “environmental flow needs” of streams in issuing licenses; moves certain Fish Protection Act provisions to the new statute; establishes new powers to modify existing precedence of water use to protect streams, aquifers and essential domestic uses of water; and establishes an administrative penalty scheme.
As indicated in the 2013 legislative proposal, the new statute fully addresses the enormous gap in the existing regulatory regime by extending most of the current surface water provisions to groundwater. For example, groundwater uses will be generally prioritized on the “first in time, first in right” (FITFIR) basis, consistent with surface water use prioritization, subject to certain exceptions including a super-priority for “essential household uses” that is also applicable to surface water use. “Essential household use” refers to the use of up to 250 litres per day by the occupants of a single private dwelling for human drinking water, food preparation, and sanitation purposes, as well as for animal and pet purposes.
Protection of Water Resources
Consistent with the 2013 proposal, a significant component of the new regime is the protection of water resources. Water objectives may be set by regulation in regard to watersheds, streams, or aquifers for the purposes of sustaining water quantity, quality and aquatic ecosystems – and can be required to be taken into account by decision makers as well as being the basis of terms and conditions in licenses and other approvals. Certain rivers in the Province are exempted from the possibility of being dammed, including the Fraser, Adams, Taku and Tatshenshini Rivers. A division of the new statute deals solely with the regulation of “wells”, which are broadly defined, but exclude wells to which the Geothermal Resources Act and the Oil and Gas Activities Act apply. Importantly, in deciding applications in relation to streams and hydraulically-connected aquifers, decision makers must consider the “environmental flow needs” of the stream, being the “volume and timing of water flow required for the proper functioning of the aquatic ecosystem of the stream”. Division 4 of the new statute provides for the establishment of “water sustainability plans”, which would seem to enshrine in law the basic principles of the Province’s 1998 Water Use Plan Guidelines.
30-Year Review of License Terms
As anticipated, the new regime mandates a default review of water licenses at least every 30 years, with three discrete exceptions. The exceptions are licenses issued for power and power storage purposes; licenses issued under the Industrial Development Act (regarding the establishment or expansion of the aluminum industry in BC); and licenses issued or confirmed in consequence of a review under the 1998 Water Use Plan Guidelines. Licenses for power and power storage purposes may be issued for up to 10 years during project development and for as long as 40 years from the commencement of operations.
The new statute provides for administrative penalties to be imposed by the Comptroller of Water Rights on persons who have contravened the new statute; failed to comply with an order issued under it; or failed to comply with a license or other authorization. Administrative penalties are fines that are meant to be civil rather than criminal in nature, although the distinction might well be lost on those subject to significant penalties under the new regime. Maximum penalty amounts are yet to be prescribed by regulation, but can be as high as $1,000,000 per day under the Utilities Commission Act. Parties potentially subject to administrative penalties under the new statute may take some comfort from the fact that they will be entitled to a hearing.
Under the Water Sustainability Act, non-domestic users of groundwater would be required to pay an application fee and an annual rental, in the same way that surface water users do today. In other words, the new statute would impose the same pricing structure and rates on groundwater as are currently imposed on surface water.
In a further initiative, the Province is also considering changes to the current rate structure, set out in the Water Regulation. Today fees and rental rates depend on the purpose of the water use and the amount of water used. Changes to the rate structure might serve to advance specific objectives including total cost recovery, allocation of costs on a cost-causation basis, and administrative simplicity. Regardless of rate structure objectives, the Province has already indicated that costs for surface and groundwater users will be increasing in a discussion paper. Comments on water pricing and rate structures can be made here until April 8, 2014.
On January 24, 2014, the Supreme Court of Canada dismissed a leave to appeal application in a Métis rights case from Alberta. As a result, the Alberta Court of Appeal’s decision, which upheld a finding that the existence of a rights-bearing Métis community in southern Alberta had not been established on the facts, remains the binding authority in Alberta.
The case arose out of efforts by the Métis Nation of Alberta to seek recognition of the existence of Métis communities in Alberta with constitutionally protected Aboriginal rights. When efforts to reach a negotiated agreement with the Government of Alberta failed, the Métis Nation of Alberta decided to mount a test case to have those rights recognized by the courts. Garry Hirsekorn, an Alberta Métis, shot a mule deer on the western edge of the Cypress Hills, in southeastern Alberta, in the fall of 2007. Mr Hirsekorn was duly charged with hunting deer outside of open season without a permit, in violation of the Alberta Wildlife Act. As a defence to the charge, he asserted that his Métis ancestry gave him the constitutional right to hunt for food across the plains of southern and central Alberta, and that the Wildlife Act unjustifiably infringed that right. In order to establish that right, he had to demonstrate that a Métis community existed in southern Alberta and that he was part of that Métis community. Mr. Hirsekorn was unsuccessful at trial, on appeal to the Alberta Court of Queen’s Bench and on further appeal to the Alberta Court of Appeal. With the Supreme Court refusing to hear the appeal, the Court of Appeal’s decision remains the current state of the law on Métis communities and rights in Alberta.
Court of Appeal Judgment
The Court of Appeal judgment focused on four elements of the test articulated in the Supreme Court of Canada’s landmark decision R v Powley. Powley laid out a set of criteria to not only define what constitutes a Métis right under section 35(2) of the Constitution Act, 1982, but also who is entitled to those rights. The Powley elements discussed in the Court of Appeal judgment included:
a) the proper characterization of the hunting right claimed by the appellant;
b) the definition of the historical Métis community in Alberta;
c) the relevant time frame for the establishment of effective European control in the area; and
d) the appropriate analysis to assess whether the right asserted here was integral to the distinctive culture of the Métis people prior to European control.
The Court of Appeal’s decision turned on the last element. On this point, the Court found that there was no real Métis presence in the Cypress Hills area prior to the establishment of effective European control in 1870, and that southern Alberta was not, at the time, part of the traditional territory of the Métis. However, the Court took a slightly different approach to the Powley analysis in coming to this conclusion. The Court looked at whether the historic Métis community included the disputed area within its ancestral lands or traditional hunting territory, noting that this threshold better captured the territorial nature of the practices and traditions of a nomadic people than the concept of a “consistent and frequent pattern of usage” on a specific piece of land. Despite using this more progressive approach to the Powley analysis, the Court found that the evidence fell short of establishing the existence of a Métis community, and by extension a Métis aboriginal right to hunt, in the Cypress Hills area.
The Court of Appeal decision and the Supreme Court’s dismissal of the leave application are important in at least two senses. First, the situation remains that no Métis communities have been legally recognized in Alberta to date, and as a result no constitutionally protected Métis Aboriginal rights have been legally recognized. However, it should be noted that the case focussed on Métis in southern Alberta, and its conclusions may not be applicable in northern parts of the Province where Métis communities have been established for longer periods. Second, the decision has not clarified whether a Crown duty to consult Métis exists in Alberta. While constitutionally protected Métis rights have not to date been recognized by the courts or by government in Alberta, the duty to consult can be triggered by assertions of rights even if not legally recognized. Métis groups, particularly in northern Alberta, continue to assert that they have constitutionally protected rights and therefore must be consulted by government about decisions affecting their rights. The Hirsekorn case does not, unfortunately, provide guidance on this point.
On December 20, 2013, the Court of Appeal of Alberta released its decision in Cold Lake First Nations v. Alberta (Tourism, Parks and Recreation),  ABCA 443, determining that the Alberta government had met its duty to consult the Cold Lake First Nations in the context of upgrading and expanding a provincial recreation area. CLFN filed an application for leave to appeal this decision to the Supreme Court of Canada. Should the Court grant leave to appeal, we will follow with interest the future ruling in this case.
The English Bay Provincial Recreation Area is located on the western shore of Cold Lake, Alberta. Although the recreation area is not on Cold Lake First Nation (“CLFN”) reserve land, it is very close and contains an area known as Blueberry Point, which CLFN historically and currently uses for fishing, trapping, smoking and eating fish, picking berries and medical plants, and harvesting birch bark.
In March 2006, the Government of Alberta (Ministry of Tourism, Parks and Recreation) (“Parks”) closed the recreation area for an upgrading and expansion project (the “Expansion Project”). In June 2006, Parks began clearing the land. In July 2006, Parks learned that the Expansion Project would affect CLFN archeological sites and ceased construction. While CLFN was not initially notified or consulted with respect to the Expansion Project, Parks and CLFN subsequently began consultation.
From September 2006 to December 2009, Parks and CLFN met eight times. In December 2009, Parks received clearance under the Historical Resources Act to proceed with the Expansion Project. In February 2010, a 60-day comment period commenced and Parks encouraged CLFN to provide input on the project during this period. On March 11, 2010 Parks held an open house and invited CLFN members to attend. A number of CLFN members attended and objected to the Expansion Project. Correspondence was exchanged and the parties agreed to schedule an open house specifically for CLFN members but the open house did not occur.
On June 28, 2010, CLFN wrote Parks contending that the consultation process had been inadequate and that Parks failed to provide an open house for the CLFN members. On the same date, Parks wrote CLFN indicating that they could submit written comments on the Expansion Project until June 30, 2010. This deadline was subsequently extended to July 11, 2010. However, CLFN did not provide any other further written comments.
On July 21, 2010, Parks informed CLFN that the consultation on the Expansion Project was complete. On November 8, 2010, Parks advised CLFN that construction would commence.
Issue on Appeal
CLFN sought judicial review of Parks’ decision to end consultation and the decision to commence construction. The issue on appeal was whether Parks fulfilled its duty to consult CLFN.
The Crown’s Duty to Consult
The Court of Appeal articulated the legal framework applicable to the Crown’s duty to consult First Nations. When determining whether the Crown discharged its duty to consult First Nations, the Court is required to address and answer three questions:
- Is a duty to consult triggered?
- If a duty is triggered, what is the scope and content of the duty?
- Did the consultation process followed by the Crown adequately discharge the duty?
Did the Crown Discharge its Duty in the Circumstances?
On the first question, Parks conceded that the circumstances triggered the duty to consult. For the issue on appeal was whether Parks fulfilled its duty to consult CLFN.
Turning to the scope of the duty to consult, Parks argued that the duty fell at the lower end of the spectrum while CLFN argued that the duty to consult was at the higher end of the spectrum. The Court opined that the scope of the duty to consult was further up the spectrum than the scope found in Mikisew Cree First Nation v. Canada (“Mikisew Cree”), where the scope of duty was at the lower end. The Court reached this conclusion because the expansion would cause varied impacts on both the treaty and traditional rights asserted by CLFN, which required some mitigation of the adverse effects.
In determining the scope, the Court noted that while CLFN’s rights were strongly asserted and although the campground Expansion Project would have an adverse effect on both the right to fish and other traditional uses, the campground had been in the recreational area for over 50 years, the expansion would effect a small area and the CLFN has 50,000 acres of reserve land in the area. Parks was therefore required to give notice, provide information, meet with CLFN members, and to adjust its plans to mitigate and address some of CLFN’s concerns.
Turning to the third and final consideration, the Court ruled that the consultation process followed by Parks adequately discharged the duty to consult for the following reasons:
- the consultation period had been a long one (approximately 4 years);
- there was numerous correspondence between the parties;
- there were multiple impact reports; open houses were conducted;
- CLFN actively engaged in the process throughout the consultation period and Parks had responded to numerous concerns raised by CLFN.
In the end, the Court upheld Parks’ decisions that consultation was complete and that construction would proceed.
As one of the first duty to consult cases in Alberta since Mikisew Cree, this decision is helpful because it clearly articulates the legal framework the Court will apply in considering whether the Crown has discharged its duty to consult First Nations.
Authorizations issued by Fisheries and Oceans Canada (DFO) prior to November 25, 2013 continue to be valid, but holders can apply for a review of their authorization to confirm whether it could be amended or cancelled given the amendments to the Act. If certain terms or conditions of the authorization are no longer required because the project will not cause “serious harm” to fish, then the authorization could be cancelled or amended. The deadline for requesting a review is February 24, 2014. There will be no extensions available.
Holders of an authorization should be aware that seeking amendments or changes to their authorization could trigger a duty to consult with potentially affected Aboriginal groups. In addition, if the terms and conditions of an authorization are linked to an environmental assessment certificate, then DFO may be precluded from amending or cancelling the authorization.