The majority of the court held that while it is good policy for the government to consult indigenous peoples before enacting legislation affecting their rights, the duty is not triggered at the stage of legislation development. The court overturned approval of the project, in part because it found the federal government had failed to meet its duty to consult. The proposed legislation conflicts with the Court of Appeal's decision and the indigenous peoples' understanding of the treaty agreement.
The Court held that the principle of the honor of the Crown and the doctrine of fiduciary duty impose an obligation on the Crown to diligently carry out treaty promises. DeSautel, 2018 B.C. 131 (canlii), the BC Court of Appeal granted the Province of British Columbia leave to appeal the decision of the BC Supreme Court that Rick DeSautel,.
Consent is Not a Four-Letter Word: What Next for the
Trans Mountain Pipeline?
During the early years of European encounter with the indigenous peoples of North America, the French prided themselves on their relatively positive relations with the indigenous peoples, many of whom became their allies against the British. The United Nations Declaration on the Rights of Indigenous Peoples has included consent as an international standard. The federal government has endorsed consensus-based processes in its 10 Principles Respecting the Relationship with Indigenous Peoples (see Principle 6).
Unfortunately, consent has been confused with 'veto', the favorite word of all those who seek to marginalize and undermine indigenous peoples. Anyone proposing to enter or do anything with indigenous peoples' lands and waters should approach them with an open heart and an open mind and seek their permission.
Le consente-
Le Consentement n’est pas Un Juron: Qu’adviendra-t-il du
Au cours des premières années de la rencontre des Européens avec les peuples autochtones d'Amérique du Nord, les Français se vantaient de leurs relations relativement positives avec les peuples autochtones, dont beaucoup devinrent leurs alliés contre les Britanniques. Après le premier voyage de Champlain, les relations avec les peuples autochtones basées sur la reconnaissance, le respect et le consensus se sont répétées à mesure que les Européens traversaient le continent d'est en ouest et du nord au sud. La Déclaration des Nations Unies sur les droits des peuples autochtones a inclus le consentement comme norme internationale.
Le gouvernement fédéral, dans ses 10 principes concernant ses relations avec les peuples autochtones, a adopté des processus fondés sur le consentement (voir principe #6). Malheureusement, le consentement a été confondu avec le « veto », le mot favori de tous ceux qui cherchent à marginaliser et à diminuer les peuples autochtones.
Change of Direction Required
Case Comment on Mikisew Cree First Nation v. Canada
The Federal Court agreed with Mikisew and issued a declaration that the duty to consult was triggered in respect of the omnibus bill. On appeal, the Federal Court of Appeal found that the lower court erred in exercising judicial review of the legislative act because, in developing policy, ministers act in a legislative capacity and are therefore immune from judicial review. On the larger question of the application of the duty to consult, the majority of the Court found that the duty is not triggered by the development of legislation, even where it has the potential to affect the aboriginal and treaty rights of indigenous peoples.
Two members of the Court found that the Crown's duty extends to all government decisions, including the development of law. The majority held that the duty to consult is not triggered by the development of legislation, including because recognizing a duty to consult in the lawmaking process would require courts to unduly infringe on the legislative arm of government and lead to inappropriate judicial encroachment on the operation of the legislature. Justices Abella and Martin dissented on the issue of whether the duty to consult was triggered in the context of the legislative process.
They held that the honor of the Crown gives rise to a duty to consult, which applies to all anticipated government conduct with the potential to affect Aboriginal rights and treaty rights, including legislative action. To hold otherwise would create a loophole in the honor of the Crown and leave Indigenous peoples vulnerable to the Government conducting processes that could affect their section 35 rights through legislative rather than executive action. They noted that in many cases, a declaration in the context of the legislative process would be an appropriate solution and that recognition of a constitutional obligation to consult would allow the court to shape the legal framework while respecting the constitutional role of the legislative branch of government. .
Rather than creating disruption and chaos, a decision that the duty to consult applies to legislative development could have formed the basis for respectful engagement with Indigenous peoples on the development of legislation and in turn avoided a host of potential legal challenges to legislation , which affects legislation. Aboriginal rights and treaty rights. While the full court in Mikisew identified various avenues for Indigenous peoples to challenge federal and provincial legislation affecting their constitutional rights, the decision ultimately underscores the need for a new way forward. Indigenous peoples should not be forced to fight for a seat at the table in the development of the colonizers' laws.
Saving the Specific Claims Tribunal: Case Comment
While there is no appeal against Tribunal decisions, the legislation allows for judicial reviews by the Federal Court of Appeal. The federal government took the case to the Federal Court of Appeal, which overturned the Tribunal's decision and dismissed the First Nation's claim. On the first issue, the Court held that the Tribunal is owed a high degree of deference.
Accordingly, a reviewing court must give the Tribunal considerable deference when reviewing any of its decisions. The majority of judges (5) concluded that Canada was liable in this case and although the Tribunal could have given better reasons, its decision had to be reversed. For various reasons, two of the justices largely agreed with the majority, but they would have sent the case back to the Tribunal to provide a more detailed explanation of how the federal government was liable for the colony's injustices.
The court will now proceed with the second phase of the hearing, which will decide how much compensation is owed to WLIB for the loss of the village site and how the compensation should be split between the federal and provincial governments. Importantly, WLIB may not be able to recover money owed to the province because a judgment by the Court is not binding against the province. By not only disagreeing with the Tribunal, but giving it too little attention to decide the case itself, the Federal Court of Appeal undermined the Tribunal's authority, processes and integrity.
If the Supreme Court had upheld the Federal Court of Appeal's decision, First Nations would have left the Tribunal en masse. The Court's support for the Tribunal's important work and its conclusion that the Tribunal's decisions are due a high degree of respect have breathed new life into the Tribunal. It has restored First Nations confidence in the Tribunal's processes and fueled hope that the Tribunal will bring justice to hundreds of First Nations across the country.
Trespassing on Treaty Rights
Saskatchewan’s Proposed Restrictions on Access
These factual findings remained unchallenged in the subsequent decisions of the Ontario Court of Appeal and the Supreme Court in that case. The BC Supreme Court ruled that the federal government had failed to justify infringements of the plaintiff's Aboriginal right to commercial fishing. In denying the order, the Court held that an overly broad interpretation of the project definition under CEAA 2012 would cause a federal statute to be problematic.
The court found that the determination of the natives' rights in the area cannot practically be derived from an evaluation of the alleged kindling. The Court emphasized that because Aboriginal rights and treaty rights are collective, in the context of a civil claim it is essential that the applicant has the support of the larger rights holder group. The Court concluded that the Crown's duty to consult was not triggered in respect of the other decision under review because it would be inconsistent with its treaty obligations to require the Crown to consult the Gitanyow .
The BC Supreme Court rejected an application by plaintiff Kwikwetlem First Nation to strike out parts of the Crown's response to its aboriginal title claim. 2018 scc 40 Duty to Consult, Honor of the Crown The Supreme Court held that the Crown's duty to consult Indigenous peoples prior to decisions that may affect their Aboriginal and treaty rights does not extend to the development of legislation. Fiduciary duty, honor to the Crown, treaties Ontario Superior Court of Justice found that the Crown.
The Court found, on the basis of the Crown's honour, that there was a duty to advise in relation to enforcement, which existed independently of the policy of the Department of Fisheries and Ocean. The Squamish Nation has filed an application for judicial review against the province's issuance of the EAC without fulfilling its duty to consult. The Court found that the Province's options regarding the issuance of the EAC were limited by the constitutional division of powers and the federal-provincial equivalence agreement for project assessment, and that the Province could only consult within its constitutional limits.
Injunctions, Process, Contracts The BC Supreme Court granted preliminary applications filed by the defendants, the Province of British Columbia and BC Hydro, yesterday. British Columbia 2018 bcsc 1835 Injunctions, Treaties The BC Supreme Court has denied an application by the West Moberly First Nations for a temporary injunction regarding the construction of the Site C hydroelectric project.
First Peoples Law
Kate Gunn
He is also an adjunct professor at the University of British Columbia's Allard School of Law, where he teaches the constitutional law of aboriginal rights and treaty rights. Follow Bruce on Twitter @BruceMcIvor, visit our website to subscribe to his blog, including the weekly Aboriginal Law Report, and contact him at [email protected].
Bruce McIvor