Renewal road-maps—and rhetoric? Top ten developments of 2016 in Canadian Aboriginal law

by Dentons


Opening against newly-elected Prime Minister Justin Trudeau’s pledge of a “renewed, nation-to-nation relationship with Aboriginal peoples,” 2016 was a year of great expectations for Canadian Aboriginal law.

A “renewed” mode was evident in federal plans, ranging from an environmental assessment review to a national inquiry into violence against Aboriginal women and girls. Also featured in 2016 was a number of highly-anticipated court hearings and decisions, especially a trio of Aboriginal consultation disputes heard by the Supreme Court of Canada in November and December. The week of those appeals, long-awaited federal decisions on three major pipeline projects generated an intense national debate—just as anti-pipeline protests at the Standing Rock reservation reached a fever pitch south of the border.

Below is Dentons’ roundup of the 10 key developments in Canadian Aboriginal law in 2016:

10. The national inquiry into missing and murdered indigenous women and girls: A path to answers?

In August, following a three-month engagement process, the federal government announced its appointments to the national inquiry into missing and murdered indigenous women and girls, together with the inquiry’s terms of reference.

Canadian Aboriginal women are nearly three times more likely than non-Aboriginal women to report being the victim of a violent crime. The CA$54-million Inquiry, set to report by the end of 2018, will examine the “patterns and underlying factors” behind the violence. It will be complemented by a separate Québec provincial inquiry into “all forms” of public-sector discrimination affecting its Aboriginal population, announced in December.

The need for the federal Inquiry was a point of departure between the Trudeau government and its Conservative predecessor, which pointed to numerous studies on the violence and argued for specific policy changes instead.

9. Courtoreille: Do the government’s consultation duties extend to legislation?

A December decision in Courtoreille v. Canada (2016 FCA 311) is the latest to consider the elephantine question of whether the legislative process itself—and not just government decision-making under law—is constrained by the Crown’s constitutional duty to consult Aboriginal groups. In its December 2016 decision, the Federal Court of Appeal answered with a resounding “no.”

Courtoreille saw the Mikisew Cree First Nation allege the duty’s breach in the process around 2012’s Bill C-38, which streamlined Canadian environmental regulation. Justices Montigny and Webb found that the Federal Courts Act did not permit House of Commons process challenges which would, in any event, offend the separation of powers and parliamentary privilege. In a separate opinion, Justice Pelletier found, more narrowly, that the duty to consult could not be triggered by legislation that applied generally, writing that “[t]he duty to consult cannot be conceived in such a way as to render effective government impossible.”

The Supreme Court of Canada refused to opine on Courtoreille’s issue in its 2010 decision in Carrier Sekani. With the federal and Alberta courts of appeal, lower courts and many scholars having weighed in, the matter may soon be ripe for the Supreme Court’s determination.

8. The Tla’min Treaty: 20 years in the making

On April 5, the fourth modern treaty in British Columbia, the Tla’min Final Agreement, came into effect after two decades of negotiations under the BC Treaty Commission process. To celebrate, members of the Tla’min Nation—a 1,100-member First Nation 130 kilometres northwest of Vancouver—burned copies of the Indian Act in a memorial fire pit.

The treaty grants the Tla’min Nation a capital transfer of CA$33.9 million, an economic development fund of CA$7.9 million and 8,323 hectares of treaty land. Of the nearly 200 First Nations in BC, the Tla’min joins only the Nisga’a, the Tsawwassen and the Maa-nulth as signatories to modern treaties.

7. The child welfare decision: Equal services for on-reserve children

In January, the Canadian Human Rights Tribunal issued a lengthy decision in First Nations Child and Family Caring Society of Canada et al. v. Attorney General of Canada (2016 CHRT 2), offering a stinging indictment of the federal First Nations Child and Family Services Program. The Tribunal found that the on-reserve Program failed to match provincial standards and discriminated against First Nations children, including by relying on an outdated formula that issued up to 38 percent less funds than off-reserve programs.

Indigenous Affairs Minister Carolyn Bennett agreed with the decision and committed to the Program’s redesign. Justice Canada had spent more than CA$5.3 million in legal fees defending the case, heard in 2013 and 2014. The decision also came in the wake of the Truth and Reconciliation Commission’s final report on Indian residential schools, significant parts of which explored the schools’ troubling legacy for child welfare.

6. Algonquin and Innu treaty negotiations: Progress in Québec, and a first for Ontario?

On October 18, the federal and Ontario governments signed an Agreement-in-Principle with the 10 Eastern Ontario communities making up the Algonquins of Ontario. This could result in Ontario’s first modern treaty. The Algonquins would receive 117,500 acres of Crown (but not private) land extending from Ottawa to North Bay, together with an estimated CA$300 million or more in government funds. The parties have been negotiating for 24 years. While the government acknowledges that a final agreement is still “many years” into the future, an estimated 7,000 to 8,000 Algonquins could stand to benefit.

During the year, progress was also achieved in negotiations stemming from a 2004 Agreement-in-Principle with Québec Innu communities. Negotiations with three such communities (Mashteuiatsh, Essipit and Nutashkuan) may lead to a final treaty in 2017 or 2018 over large parts of the province’s Saguenay-Lac-St-Jean and Côte-Nord regions.

5. Pro-oil First Nations: Shattering the stereotypes

While media attention in 2016 centred on Aboriginal opposition to Canadian resource projects, an October conference in Calgary, “Pipeline Gridlock: A Nation-to-Nation Gathering on Strategy and Solutions,” highlighted the perspectives of the many First Nations backers—and beneficiaries—of these projects. Earlier in September, a set of US and Canadian Aboriginal groups called the Treaty Alliance Against Tar Sands Expansion had committed to “ban” all major pipeline proposals in Canada.

On November 29, the Trudeau government denied the Enbridge Northern Gateway project (see below). It did so without pursuing the four months of further Aboriginal consultation that the Federal of Court of Appeal predicted sufficient to move the project forward in June’s decision in Gitxaala Nation v. Canada (2016 FCA 187).

In response, the 31 Aboriginal Equity Partners supporting the project (whose communities would have gained some CA$2 billion in benefits), called for equal consultation and for “governments to stop politicizing projects which take place on our lands—especially projects that are owned by Indigenous peoples.”

4. The pipeline decisions: Trudeau’s gambit

On November 29, Prime Minister Trudeau announced his cabinet’s decisions on three major oil pipeline projects: Kinder Morgan’s Trans Mountain Expansion (approved), Enbridge’s Northern Gateway (rejected), and Enbridge’s Line 3 Replacement (approved).

Both Northern Gateway and the Trans Mountain Expansion were strongly opposed by a coalition of coastal BC First Nations. Vancouver NDP MP Peter Julian called the two approvals a “betrayal” of promises on Aboriginal reconciliation, while several MPs from Trudeau’s own party expressed disapproval. In announcing the decisions, Trudeau cited the need to balance environmental goals and economic growth, adding that “there isn’t a country in the world that would find billions of barrels of oil and leave it in the ground while there is a market for it.”

As of December, several Aboriginal groups have filed challenges to the Trans Mountain and Line 3 cabinet decisions at the Federal Court of Appeal.

3. Daniels: Putting an end to the Métis and non-status Indian “jurisdictional wasteland”

In April, the Supreme Court of Canada issued its most significant Aboriginal law ruling of 2016: Daniels v. Canada (2016 SCC 12). Daniels raised the question of whether Métis and other “non-status” Indians were under the legislative authority of the federal government under section 91(24) of the Indian Act, which grants Parliament the power to legislate over “Indians, and Lands reserved for the Indians.”

In finding “Indians” to be inclusive of all Aboriginal peoples, Justice Abella described the Métis and non-status Indians as being caught in a “jurisdictional wasteland” between provincial and federal governments each denying their authority to legislate.

Scholars are debating the long-term significance of Daniels. As we described in our April bulletin, Daniels’  implications will likely be limited to the provision of social programs and services. Prior Supreme Court law had already established that non-status groups could pursue Aboriginal rights and demand consultation.

2. Chippewas and Clyde River: Do Resource Tribunals have a place in reconciliation?

On November 30, the Supreme Court of Canada heard a pair of Aboriginal consultation cases relating to the embattled process of the National Energy Board (NEB). In Chippewas of the Thames First Nation v. Enbridge Pipelines Inc. (on which Dentons acted), an Ontario First Nation under a historic treaty challenged an NEB pipeline reversal and capacity expansion project. In Hamlet of Clyde River v. TGS-NOPEC Geophysical Co, an Inuit hamlet under a modern treaty challenged the NEB’s authorization of offshore seismic testing in Baffin Bay.

In both cases, the Court will consider whether Aboriginal participation in the NEB’s expert regulatory process can serve to meet the requirements of the duty to consult without the involvement of higher-level Crown actors, such as ministers. Rulings in these cases may have major implications for reconciliation within processes that, in many cases, have lost their way at political—rather than regulatory—stages. Indeed, at the duty to consult’s genesis in the 2004 Haida decision, the Supreme Court recommended the use of “administrative regimes with impartial decision-makers” in complex cases.

On December 1, the Supreme Court heard a third consultation appeal, Ktunaxa Nation v. British Columbia (Minister of Forests). Ktunaxa raises the separate issue of whether Aboriginal groups can assert spiritual Aboriginal or Charter rights to bar development on lands they claim sacred.

1. The adoption of UNDRIP: Uncharted (international) waters

On May 10 in New York City, the Trudeau government announced the removal of its “objector” status to the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). Minister Bennett declared Canada “a full supporter of the declaration, without qualification.” The prior Conservative government had described UNDRIP as an “aspirational document” only.

However, in later July remarks, Justice Minister Jody Wilson-Raybould commented that adopting the United Nations declaration as being Canadian law would be “unworkable” and a “political distraction.”

It remains to be seen how, if at all, UNDRIP will be implemented into Canadian law. In particular, controversy has surrounded UNDRIP’s requirement that states consult “in order to obtain the free, prior and informed consent” of Indigenous peoples prior to “adopting and implementing legislative or administrative measures that may affect them.” In Haida, the Supreme Court of Canada rejected any Aboriginal “veto” on development before final proof of rights. While Minister Bennett has opined that UNDRIP confers no veto, its implementation will have major implications for investment in Canada and the future of Aboriginal communities across the country.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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