Indigenous Law

The year 2018 was of some significance for both Aboriginal law and policy. Two decisions of the Supreme Court of Canada, Williams Lake and Mikisew Cree, stand out, but it was the Federal Court of Appeal judgment in the Transmountain Pipeline case that gathered the most media and political attention. I shall conclude an analysis of these three decisions with some observations about continuing issues that will become of even greater significance in the years ahead.

The Williams Lake decision (Williams Lake Band First Nation v. Canada SCC 2018 4) is of considerable interest—it has implications for ongoing debates about the appropriate standard for judicial review and the way in which the courts will deal with claims of an historic nature. It was not a unanimous decision. Five judges, led by now Chief Justice Wagner, constituted a majority, but two judges, Rowe and Côté JJ, dissented in part, and two others, Brown and McLachlin JJ wrote a vigorous dissent. Many major decisions of the Court since the patriation of the Constitution have been unanimous, but as time goes on we are seeing a wider diversity of opinion. Canadians have prided themselves on not having a partisan court, but we can begin to see some fraying at the edges, and ideological lines being drawn.

The case arose by way of appeal from a decision of a Specific Claims Tribunal. The issue in question arose from events in British Columbia that preceded the entry of that province into the federation. There was a shared agreement among the judges as to the basic facts of the case: the Williams Lake Band had occupied lands on the southern shores of Williams Lake that became known as the Village Lands. These lands were never declared a reserve under the colonial legal structure of the time, and eventually the pressures from a growing settler population forced the Williams Lake Band members to move away, to lands on the eastern part of the lake, where they were eventually granted reserve status in 1881.

Both the majority and dissenting judges agreed that the band should have been granted reserve status by the Imperial Crown, and that there was a clear failure on the part of the Crown in British Columbia to exercise their responsibilities in favour of the Williams Lake members. The Tribunal went on to make a further finding that under the terms of the Act of Union, the liability for this failure to make this decision passed on to the Government of Canada. The Tribunal divided its decision making process into two parts: first, to assess whether there was the legitimate basis for a claim against Canada, and second, to determine what compensation would be paid as a result of the failure to act.

The Government of Canada appealed the Tribunal’s finding that the band had a legitimate specific claim for losses arising from the Imperial Crown’s acts and omissions in relation to the Village Lands, and that the Government of Canada, by virtue of the Act of Union, was liable for this pre-Confederation claim. The Federal Court of Appeal allowed the appeal.

The majority decision reaffirmed the approach it had taken in the Dunsmuir case on insisting that the Court should apply one standard, and one standard alone, that of reasonableness, in determining whether the decision of the Tribunal should be allowed to stand. The Tribunal’s finding that the evidence established that there was a legitimate Aboriginal claim to the lands in question was “reasonable.” So was the finding that the Imperial Crown failure to grant reserve status amounted to a breach of its fiduciary duty. Canada’s role as “successor Crown” was clear, and the majority went on to say that the Tribunal’s definition of the Crown as a single, continuous, indivisible entity to validate the band’s claim against Canada for pre-Confederation breaches, under s 14(2) of the Act, was reasonable. At para 107, Wagner J puts it this way: “Though sparse on the issue of s. 14(2), the reasons taken as whole provide a reviewing court with an adequate account of why that decision was made that serves the purpose of showing whether the result falls within a range of possible outcomes.”

In addition, the majority also quoted extensively from the words of Chief Justice Dickson in the Mitchell case, where he noted the importance of understanding the definition of “Crown” from an Aboriginal perspective, “the Indians’ relationship with the Crown or sovereign has never depended on the particular representatives of the Crown involved” (quoted at paragraph 130), and concluded that “[i]n the face of a statutory definition of ‘Crown’ developed in collaboration with First Nations, it was reasonable for the Tribunal to adopt a view of the circumstances in which a fiduciary obligation may be said to have ‘become’ Canada’s responsibility for the purposes of s. 14 (2) that reflected the continuity of the fiduciary relationship between Indigenous peoples and the ‘Crown’ described by Dickson CJ in Mitchell.”

Rowe J, in an opinion concurred in by Côté J, agreed with the majority that the finding of the Tribunal on the question of the failure of the Imperial Crown to exercise its fiduciary responsibilities, and on the reasonableness of their conclusion that Canada, as the successor Crown, could not use the fact that it found an alternative to the Village Lands in allotting a separate reserve in 1881. However, the two judges took exception to the majority’s decision that it could “supplement” the reasoning of the Tribunal on the issue of precisely how the Federal Crown assumed full responsibility for the failures of the Imperial Crown. Here the standard of review is not, they argued, “reasonableness”, but rather “correctness.” And because the Tribunal was not clear on its precise finding on the “pivotal question”, the case should be returned to the Tribunal for a clear ruling on that point.

Judges Brown and McLachlin were even more emphatic in their dissent. While they agreed that the Tribunal’s decision is reviewable for reasonableness, that standard emphatically does not apply to the interpretation of the British Columbia Terms of Union, which, they argue, is part of the Constitution of Canada, and so has to be reviewed by the Supreme Court for “correctness” because of the unique rule of s. 96 courts as interpreters of the Constitution.

Justices Brown and McLachlin found that the Tribunal’s determination that the federal Crown owed a specific fiduciary duty to the Williams Lake members was unreasonable, and in fact incorrect. The Government of Canada’s duty was not only to the members of the First Nation—it was to settlers and private landowners as well. “The Tribunal’s finding that an ad hoc fiduciary duty of utmost loyalty was owed to the band by operation of Article 13 is therefore contrary to binging authority, and is, as such, unsustainable: Dunsmuir, at para 47” (para 164).

Brown’s withering dissent is worth quoting further, because it speaks to the extent to which the Supreme Court is divided on some critical issues around the reconciliation project itself: at paragraphs 207 and 208 he states, “Judicial review is not artificial resuscitation. As slow as reviewing courts ought to be to reach such a conclusion, sometimes a statutory delegate’s reasons for decision are truly indefensible by any standard. This is one of those times...The specific claims process is the product of substantial and complex consultation and carefully crafted legislation. For that reason alone, this Court should not indulge the Tribunal’s distortion of the ground rules of this important project. To be sure, the Tribunal’s reasons are entitled to ‘respectful attention.’ But so is Parliament’s expressed direction.”

The Williams Lake Band was, therefore, successful in its argument, but not without a significant difference between the majority and the minority.

The sense that a more spirited debate within the Court is emerging was confirmed in another case involving the Mikisew Cree First Nation, which was issued by the Supreme Court of Canada in October 2018 (Mikisew Cree First Nation v. Canada SCC 2018). This case, which was argued before the Court in January 2018, turned on two pieces of omnibus legislation that were introduced into Parliament in April 2012 and adopted by Parliament later that year. The Mikisew Cree First Nation was not consulted on either of these omnibus bills, and brought application for judicial review in Federal Court for a failure by the Federal Crown to exercise its responsibilities to consult and accommodate First Nations whose Treaty rights to hunt and trap would be affected by passage of the legislation.

The reviewing judge granted a declaration and found a basis for judicial review based on the historic rights of the Mikisew Cree (and by extension, other First Nations across the country). This was reversed on appeal by the Federal Court of Appeal.

It must be noted at the outset that the decision of the Court came some six and a half years after the legislation, passed under the Harper government, was presented to Parliament. Since that time, much of the omnibus legislation has been amended by the successor Trudeau government. But the issue raised by the Mikisew decision is an important one, and has been the subject of considerable discussion and debate.

It is worth recalling that what is arguably the most significant decision of the Supreme Court on indigenous rights, Calder, was far from unanimous. Much ink has been spilled in determining exactly what was, and was not, decided in that historic judgment. The same has to be said of the decision of the Court in Mikisew 2018. All nine judges appeared to agree that, in this particular instance, the Federal Court did not have jurisdiction under the Federal Courts Act to judicially review the legislation that was before Parliament in the spring of 2012, because the presentation of legislation was not, in and of itself, a reviewable decision under s.18 of the legislation.

However, that would appear to be where the consensus disappears. There are, in effect, four different opinions, with different points of view and differing reasons. They are described as “concurrent” because each says “no review possible in this case.” But beyond that, the debate remains unresolved.

At heart the question At heart the question is: does the honour of the Crown, and the responsibilities that flow from it, apply to Parliament while a bill is being debated or simply to the executive (i.e., the “government”) once legislation has been passed? Karkatsanis J, writing for Wagner CJ and Gascon J, found that there was no jurisdiction to review legislation that had been presented but not approved by Parliament, either under s. 18, or s. 17 of the Federal Court Act, which provides that the “Federal Court has concurrent jurisdiction in all cases in which relief is claimed against the Crown” because the phrase “Her Majesty in right of Canada” does not extend to executive actors when they are exercising ‘legislative power’” (para 16). She goes on to say “the law-making process—that is, the development, passage and enactment of legislation—does not trigger the duty to consult. The separation of powers and parliamentary sovereignty dictate that courts should forebear from intervening in the law-making process. Therefore, the duty to consult doctrine is ill-suited for legislative action”.

However, Karakatsanis J insists that the honour of the Crown is a constitutional principle that applies to all legislation and all conduct of the executive. She quotes the words of Dickson CJ in the Williams case that “the relationship of Aboriginal peoples with the Crown or sovereign has never depended on the particular representatives of the Crown involved,” and that while the particular case before it did not trigger the duty to consult, and that “we have not received sufficient submissions on how to ensure that the honour of the Crown is upheld other than through the specific mechanism of the duty to consult. A different context attracts different considerations” (para 49).

It was precisely this slight opening of the door at the end of her judgment that prompted such a vigorous response from four judges, Brown J, writing alone, and Rowe J, writing for himself with Moldaver and Côté JJ concurring. Brown criticizes Karakatsanis J for trying to find some middle ground and states at para 103 that “whether a court may impose a duty to consult upon the process by which legislative power is exercised is not a question of mere ‘restraint,’ ‘forbearance,’ ‘reluctance,’ or of deciding whether imposing a duty to consult would be an ‘ill suited’ or ‘inappropriate’ constraint upon that exercise of power. Rather is a question of constitutionality going to the limits of judicial power, which should receive from a majority of this Court a clear and constitutionally correct answer.”

Even more emphatically, Brown J makes it clear that “by raising the possibility (without, I note, having been asked to do so by any party to the appeal) that a validly enacted and constitutionally compliant legislation which has not or could not be the subject of a successful s. 35 infringement claim can nonetheless be declared by a court to be ‘not consistent with the honour of the Crown,’ my colleague would throw this area of the law into significant uncertainty. Such uncertainty would have deleterious effects on Indigenous peoples, and indeed on all who really upon the efficacy of validly enacted and constitutionally compliant laws. I therefore cannot endorse Karkatsanis J’s reasons.”

Brown J’s reasoning is that because of the hard and fast distinction between executive and legislative functions, "[t]he development, introduction, consideration and enactment of bills is not Crown conduct that would trigger the duty to consult” and that to permit otherwise, or even to open the door to judicial review a tiny crack, would amount to an infringement of parliamentary sovereignty.

In concurring with Brown J, Rowe J, joined by Moldaver and Côté JJ, adds additional arguments—notably that recognizing a constitutionally mandated duty to consult with indigenous peoples during the legislative process “would be highly disruptive to the carrying out of that work” and would put the courts in the role of continually supervising the daily responsibilities of parliaments and legislatures. “It is not warranted to extend the law in this way. Section 35 rights are not absolute...That would be a profound change in our system of government...the imposition of such a duty would be contrary to the distinction between the Crown and the legislature. It would offend the separation of powers. It would encroach on parliamentary privilege. It would involve the courts in supervising matters that they have always held back from doing. In short, imposing such a duty would not provide needed protection for s. 35 rights. Rather, it would offend foundational constitutional principles and create rather than resolve problems” (paras 153, 171).

To these blunt “concurring” judgments must be added a completely different perspective, also concurring in the result, from Abella and Martin JJ. They agree that the appeal should be dismissed because judicial review is not available under s 2(2), 18 and 18.1 of the Federal Courts Act. However, the judges offer no assessment of the availability or otherwise of s. 17, which is strange because it was referred to in the concurring reasons of Pelletier J in the Federal Court of Appeal upholding the appeal of the original reviewing Judge’s decision. It is even more strange because the entire thrust of the Abella and Martin reasoning is that there is no hard and fast between the legislative and executive functions of the Crown, and the honour of the Crown involves Parliament just as much as it does the Government.

“This obligation of honour give rise to a duty to consult and accommodate that applies to all contemplated government conduct with the potential to adversely impact asserted or established Aboriginal treaty rights, including, in my view, legislative action...as a constitutional imperative, the honour of the Crown cannot be undermined, let alone extinguished, by the legislature’s assertion of parliamentary sovereignty...the position that the honour of the Crown does not bind Parliament strikes me as untenable in light of this Court’s Aboriginal law jurisprudence.”

Arguing that the whole thrust of this jurisprudence is that parliamentary sovereignty itself is limited by the honour of the Crown (para 70), “the duty to consult doctrine infuses the field of governmental action, requiring consultation wherever the potential for adverse effects on claimed or established s. 35 rights arises.” The legislative sphere is not excluded from the honour of the Crown, and the principles of justification set out in Sparrow must apply to legislation as much as to executive decision making—“the jurisprudence make clear that the right of Aboriginal groups to be consulted on decisions that may adversely affect their interest is not merely political, but a legal right with constitutional force” (para 84).

In a fine turn of phrase, Abella J accuses her colleagues of reactivating “the happily silenced spirit” of St Catherine’s Milling Co v The Queen (1888) 14 App. Cas. 46 (P.C.) where Aboriginal rights were ‘dependent upon the good will of the Sovereign.’” What is required is to find ways to reconcile the principles of parliamentary sovereignty with the Aboriginal rights set out in s. 35 of the Constitution and further elaborated by the Court in a series of decisions since the patriation of the Constitution. As a matter of practice, the review by the Court could take the form of “declaratory relief” in order to clarify the rights and obligations of all parties. But, to be clear, the reasoning of Abella and Martin JJ does not lead them to do so in this instance. To this writer this still seems odd, since it would appear on its face that s. 17 of the Federal Court Act would have permitted such an outcome, and the reasons given clearly distinguish their conclusions from those of their colleagues and Pelletier JA at the Federal Court of Appeal that the hard and fast distinction between executive and legislative functions would preclude such a determination in this case.

The “parading of the horrors” from four of the judges in this case clearly points to some significant divisions on the Court, despite the apparent unanimity in dismissing the appeal of the Mikisew Cree leadership from the decision of the Federal Court of Appeal. It is clear that given the continuing controversy on issues around pipelines, resource development, treaty interpretation and divisions between hereditary and elected indigenous organizations, the difficulty of the Supreme Court to find consensus around the practical implications of foundational principles like the honour of the Crown will make for some difficult challenges ahead. The conclusion of this case would seem to be that while there is no legal, enforceable duty to consult and accommodate while legislation is being discussed, the honour of the Crown must remain untarnished. Statutory review of decisions that flow from legislation will have to take into account the full record of consultation, including what happened in Parliament. But to say that the law is now clear as crystal would be an exaggeration. Too many judicial cooks make for more interesting law review articles, but not necessarily a better meal.

The decision of the Federal Court of Appeal on the TransMountain Pipeline (Tsleil-Waututh Nation et al v. AG of Canada, NEB and TransMountain Pipeline ULC, 2018 FCA 153) was not appealed by either the applicants or the respondents, and so remains the latest judicial review of the pipeline issues that have been such a critical issue for First Nations, governments, and industry in Canada for so many years.

The unanimous decision by the three judges of the Federal Court of Appeal has been described by some as further proof of the “legal chaos” surrounding issues of resource development, pipelines, and Aboriginal rights. Nothing could be further from the truth. In a carefully worded decision, Dawson JA makes it clear that pipelines can, indeed, be built, but the proponents have to do a much better job of considering both the environmental and indigenous rights’ implications of what they are intending to do.

The TransMountain proposal involves the “twinning” of an existing oil pipeline from Edmonton to Vancouver. Arguments were heard in Vancouver in October 2017 and judgment was delivered in August 2018. In a detailed and thorough judgment, the judges reached some clear conclusions. The standard of review to be applied to the decision of the Governor in Council to accept the approval process of the National Energy Board is the principle of reasonableness. The Court made a point, on several issues raised by First Nations, NGO’s, and municipal governments, as well as the government of British Columbia, that the expertise of the NEB was to be respected, and that as long as the judgments it made were done pursuant to a credible process, they would not be second-guessed by the Court.

This meant, for example, that arguments that all evidence had to be subject to oral cross-examination, or that proponents had an obligation to provide a completely exhaustive determination of any and all alternative routes, were dismissed. The Court made it clear that a judicial review is not an appeal, and that the Court would not accept the argument that the entire process had to be started again.

However, the Court made it clear that there were two fundamental flaws in the processes engaged in by the Government of Canada and the National Energy Board. The first was environmental, the second was with respect to the duty to consult and accommodate. On the environmental front, the Court made it clear that any pipeline proposal that involved activity on the coast would have to include a maritime and marine component, and that this had not been done. The internal administrative reviews carried out by government were insufficient.

As Dawson JA put it at para 449 of her decision, “I have found that the Board unjustifiably excluded Project-related marine shipping from the Project’s description. It follows that the failure to apply section 79 of the Species at Risk Act to its consideration of the effects of Project-related marine shipping on the Southern resident killer whale was also unjustified.”

It is clear that the Court’s critique on the marine environmental issue is directed squarely at the federal Crown. The Governor in Council erred by relying upon the Board’s report when it had an obligation on its own, as a decision maker, to ensure that all environmental issues, including marine and maritime issues, were effectively reviewed. This it failed to do.

The second failure was that the Governor in Council failed to consult First Nations in a sufficiently meaningful way. As Dawson JA put it “Canada was required to do more than receive and understand the concerns of the Indigenous applicants. Canada was required to engage in a considered, meaningful two-way dialogue...on the whole, the record does not disclose responsive, considered and meaningful dialogue coming back from Canada in response to the concerns expressed by the Indigenous applicants” (para 558). The failure to engage and respond meant that there was no real accommodation of indigenous concerns.

On the issue of considering alternative routes, for example, the Court found that the Governor in Council simply concluded that the proponent and the NEB itself should not be pushed too hard, which meant that, in effect, the Crown was telling First Nations they could listen to their concerns but couldn’t do anything about them.

In its decision, the Court was quite specific in distinguishing between objections it would allow and those it would not: it quashed the Order in Council, but remitted the matter back to the Governor in Council “for prompt redetermination,” based on the two major flaws in its decision making process. The federal government did not appeal the decision, bought the pipeline, and have undertaken to fix both the environmental and honour of the Crown obligations. Former Supreme Court judge Frank Iacobucci has been retained by the federal government to help guide the process.

There is therefore good news and bad news in the Federal Court of Appeal’s judgment for proponents, regulators, governments, First Nations, and environmentalists. Root and branch arguments against the pipeline were not accepted. Nor was their any mention of the United Nations Declaration on the Rights of Indigenous People, or acceptance of an indigenous veto on a pipeline or a proposed route. But there was insistence on a real process of give and take on indigenous concerns, and a further insistence that the full impact of a pipeline had to include issues like shipping safety, spills, and impact on both the natural environment and marine species. The “inchoate” responses of the federal government to these issues would not suffice.

Mr. Justice Holmes’ observation that the common law “made itself pure” through the trial and error of judicial decision making seems to apply imperfectly to the world of Aboriginal and indigenous law. Policy is slow to follow decisions—it is taking too long for governments to actually implement what the courts say it must do. This is proving frustrating as the wheels of justice require not only judicial decision making but administrative response and political will.

In the real world of policy, the construction of pipelines is still the subject of considerable controversy. A natural gas pipeline in northern British Columbia is being blocked by a protest led by hereditary chiefs of the W’etsoweten First Nation. An injunction to limit the extent of the protest was applied for by the government of British Columbia and was granted. There have now been arrests by the RCMP. No doubt these issues will themselves become the subject of further appeals. Some major unresolved questions—about free, prior and informed consent, differences of opinion between hereditary chiefs and elected band councils—still need to be answered. One can expect these issues to be in the courts in 2019 and beyond.

There is an intense debate too around the painfully slow process of implementing the decision of the Canadian Human Rights Tribunal in the Caring Society cases. This case will clearly have considerable precedential effect, in that it has rejected consistently the Crown’s arguments that its implementation of the requirement of equal funding cannot be subject to detailed judicial review. But there is still much arguing going on in front of the Tribunal, and we have yet to see a clear government strategy on the implications of “equal funding” beyond child welfare into other domains. The Tribunal’s insistence that this means an ability to assess funding to achieve conditions of substantial equality of treatment will have major impacts on potential litigation, policy and fiscal issues.

Two-thousand-and-nineteen will no doubt be an interesting and important year as more issues come before the Courts.