Date:
20121220
Docket:
T-139-08
Citation:
2012 FC 1474
Toronto, Ontario, December 20, 2012
PRESENT: The
Honourable Mr. Justice Hughes
BETWEEN:
|
LONG PLAIN FIRST NATION, PEGUIS
FIRST
NATION, ROSEAU RIVER ANISHINABE
FIRST NATION, SAGKEENG FIRST
NATION,
SANDY BAY OJIBWAY FIRST NATION,
SWAN LAKE FIRST NATION,
COLLECTIVELY BEING SIGNATORIES
OF
TREATY NO.1 AND KNOWN AS
"TREATY
ONE FIRST NATIONS"
|
|
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Applicants
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and
|
|
HER MAJESTY THE QUEEN,
REPRESENTED
BY THE ATTORNEY GENERAL OF
CANADA, THE HON. CHUCK STRAHL IN
HIS CAPACITY AS MINISTER OF
INDIAN
AFFAIRS AND NORTHERN
DEVELOPMENT,
THE HON. VIC TOEWS IN HIS
CAPACITY AS
PRESIDENT OF TREASURY BOARD,
THE
HON. PETER MACKAY IN HIS
CAPACITY
AS MINISTER OF NATIONAL
DEFENCE,
THE HON LAWRENCE CANNON IN HIS
CAPACITY AS MINISTER
RESPONSIBLE
FOR CANADA LANDS COMPANY
|
|
|
Respondents
|
|
|
|
AMENDED REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
application deals with real property located within the City of Winnipeg known as the Kapyong Barracks. This property lies within the territory dealt with
under a treaty known as Treaty No. 1, entered into in 1871 between Her Majesty
Queen Victoria and certain aboriginal bands located within that territory. Her
Majesty in Right of Canada is the successor to Queen Victoria and has used that
property for military purposes. The Applicants are a number of aboriginal bands
who, as successors to the Treaty signatories, have made various claims as to
their interest in this property. In November 2007, the Government of Canada
decided that it would sell this property to a non-agent Crown corporation for
the purpose of disposal by that corporation. The Applicants are seeking to set
aside that decision.
[2]
For
the reasons that follow, I find that the application made by some but not all
of the applicants is allowed, the decision to sell the property will be set
aside and any further decision to sell is enjoined until after Canada has
fulfilled its duty to consult in a meaningful way.
[3]
For
convenience, I am providing the following index to these Reasons:
INDEX
HISTORY OF
THIS LITIGATION
|
Paras 4 to 8
|
DETERMINATIONS
BY THE FEDERAL COURT OF APPEAL
|
Para 9
|
DETERMINATIONS
BY JUSTICE CAMPBELL
|
Paras 10 to 11
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THE PARTIES
|
Paras 12 to 17
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WHAT IS THE
PROPERTY AT ISSUE?
|
Paras 18 to 20
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BASIS FOR THE CLAIM
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Paras 21 to 27
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SAGKEENG AND SANDY BAY
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Paras 28 to 29
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LONG
PLAIN, SWAN LAKE, ROSEAU RIVER
|
Paras 30 to 35
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PEGUIS
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Paras 36 to 42
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WHAT DECISION WAS MADE BY CANADA IN RESPECT OF THE PROPERTY AT
ISSUE?
|
Para 43
to 44
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DOCUMENTS
AND ACTIONS RELATING TO THE DECISION
|
Paras 45 to 60
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RELIEF
REQUESTED
|
Para 61
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ISSUES
|
Para 62
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STANDARD
OF REVIEW
ISSUE #1: Whether
Canada had a duty to consult with some or all of the Applicants?
ISSUE #2: If there
was a duty to consult, what was the scope of that duty?
ISSUE #3: If
there was a duty, did Canada adequately fulfil that duty within the required
Scope?
|
Paras
63 to 80
Paras
66 to 67
Paras
68 to 74
Paras 75 to 80
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IN CONCLUSION
|
Paras 81 to 82
|
HISTORY
OF THIS LITIGATION
[4]
This
litigation has an unhappy history. The matter came before Justice Campbell of
this Court in 2009. In a Judgment dated September 30, 2009, he declared that:
Canada had a legal duty to consult on its decision
to dispose of surplus federal lands at Kapyong Barracks and Canada did not meet
that duty; and, in particular,
Canada acted contrary to law by failing to meet the
mandatory legal requirement of consultation with the Brokenhead and Peguis
First Nations before the making of the November 2007 decision to transfer the
surplus lands at Kapyong Barracks to the Canada Lands Company pursuant to the
Treasury Board Directive on the Sale or Transfer of Surplus Real Property; and,
as a result,
The November 2007 decision is invalid.
I award cost of the present Application to the
Applicant First Nations.
[5]
Justice
Campbell provided reasons cited as 2009 FC 982, [2009] FCJ No 1150.
[6]
The
Respondent, Canada, appealed from that decision and the matter was heard by the
Federal Court of Appeal; Nadon, Letourneau and Sexton JJA, in 2011. They
allowed the appeal with costs and sent the matter back to this Court, to a
Judge other than Campbell J, for redetermination in light of their Reasons
(cited as 2011 FCA 148, [2011] FCJ No 638), written by Nadon JA for the Court.
I repeat the conclusion of those Reasons at paragraphs 50 to 54:
50 I therefore conclude that the Judge's reasons
are inadequate. They do not grapple with and attempt to resolve the difficult
legal issues and the confusing evidentiary record that were before him. At
paragraph 55 of her Reasons in R.E.M., the Chief Justice sets forth what, in
her view, appellate courts should be looking for when attempting to determine
whether a judge's reasons are adequate:
[55] The appellate court, proceeding with deference,
must ask itself whether the reasons, considered with the evidentiary record,
the submissions of counsel and the live issues at the trial, reveals the basis
for the verdict reached. It must look at the reasons in their entire context.
It must ask itself whether, viewed thus, the trial judge appears to have seized
the substance of the critical issues on the trial. If the evidence is
contradictory or confusing, the appellate court should ask whether the trial
judge appears to have recognized and dealt with the contradictions. If there is
a difficult or novel question of law, it should ask itself if the trial judge
has recognized and dealt with that issue.
51 In my view, the Judge failed to seize the
substance of the critical issues before him. He also failed to deal adequately
with the evidence before him in that he did not address key aspects thereof and
did not, as a result, make any findings in regard thereto which would have
allowed this Court to conduct a meaningful appellate review.
52 The only alternative open to us, other than
returning the matter to the Federal Court, would be for this Court to transform
itself into a court of first instance and to make fresh findings of fact and
determinations of law based on those findings. That is not our role.
Consequently, I am satisfied that we are not in a position to conduct effective
appellate review in these circumstances.
53 I note in passing that following the Judge's
decision there have been jurisprudential changes in aboriginal law resulting
from the Supreme Court's decisions in Rio Tinto Alcan Inc. v. Carrier Skenai
Tribal Council, 2010 SCC 43, [2010] 2 S.C.R. 650, and Beckman v. Little
Salmon/Carmacks First Nation, 2010 SCC 53, [2011] 1 C.N.L.R. 12,
("Beckman"), where the Court discusses when the duty to consult is
triggered and how modern land claim agreements, such as those before us in the
present matter, shape that duty. In particular, the Judge who redetermines the
issues may wish to consider the Crown's argument about the effect of the
release provisions in the Crown's respective agreements with the respondents in
light of what the Supreme Court said in Beckman about the weight to be given to
provisions in properly negotiated, sophisticated land agreements.
54 For these reasons, I would therefore allow
the appeal with costs, I would set aside the Judge's decision and I would refer
the matter back to the Chief Justice of the Federal Court or to a judge, other
than Campbell J., designated by the Chief Justice for redetermination of the
issues in the light of these Reasons.
[7]
I
will proceed with the mandate of the Federal Court of Appeal having reheard
this matter in early December 2012. It must be noted that, by Order of
Prothonotary Lafrenière dated September 13, 2012, additional evidence was filed
that was not before the Court of Appeal or Justice Campbell. That evidence
included documents obtained by the Applicants from the Government of Canada
under the provisions of the Access to Information Act, RSC 1985, c.A-1.
[8]
At
paragraph 52 of its Reasons the Court of Appeal declined to make “fresh
findings of fact” preferring instead to send the matter back to this
Court. I will, therefore, determine this matter de novo. I will,
however, be guided by the determinations of the Court of Appeal and those
determinations of Justice Campbell accepted by the Court of Appeal.
DETERMINATIONS
BY THE FEDERAL COURT OF APPEAL
[9]
The
Federal Court of Appeal made a number of factual determinations based on the
record before them at the time. Those determinations are, in the most part, accepted
by the parties. It is to be remembered that there has been additional evidence
filed as a result of Prothonotary Lafrenière’s Order, supra. I repeat
the determinations as found at paragraphs 3 through 24 of the unanimous Reasons
of the Court of Appeal as written by Nadon JA:
3 In 1871, the aboriginal bands of Manitoba and Canada signed Treaty No. 1. Pursuant thereto, the aboriginal bands agreed to
give up their title to the land that now comprises the province of Manitoba in
exchange for Canada setting aside a certain amount of land for their exclusive
use: 160 acres per family of five. This provision has come to be known as the
"per capita provision". For reasons which are not relevant to the
determination of this appeal, Canada did not fulfill its end of the bargain.
4 The land claims of five of the respondents
were found to be valid by Canada. Hence, in the 1990s, Canada signed treaty
land entitlement ("TLE") agreements with these respondents to rectify
its failure to fulfill the per capita provision: in 1994 with the Long Plain
First Nation ("Long Plain"), in 1995 with the Swan Lake First Nation
("Swan Lake"), in 1996, with the Roseau River Anishinabe First Nation
("Roseau River") and in 1997, the Brokenhead Ojibway Nation
("Brokenhead") negotiated its claim through the Treaty Land
Entitlement Committee of Manitoba Inc. ("TLEC"). That year, TLEC
executed the Manitoba Treaty Land Entitlement Framework Agreement (the
"Framework Agreement") with Canada. Pursuant thereto, Brokenhead
signed its separate TLE Agreement in 1998. In 2008, Peguis First Nation
("Peguis") signed its Agreement with Canada.
5 Each of these agreements entitled the
aforementioned bands to acquire private land and to acquire provincial
"Crown land" - defined as land that is owned by or under the
administration and control of Manitoba and is situated within the Province of
Manitoba - on a priority basis to fulfill their treaty land entitlement. The
right to acquire land on a priority basis essentially amounts to a right of
first refusal with respect to the category of land to which the right relates.
The nature and extent of this priority is described in the respondents'
agreements with Canada. The priority does not, however, give any of the
respondents an entitlement to acquire the land because all of the agreements
specify that land will be transferred only on a willing buyer/willing seller
basis.
6 The type of arrangement made with each of the
respondents varies. With respect to the respondents Long Plain, Swan Lake and Roseau River, their agreements provide for a specific amount of funding from Canada so as to allow them to purchase land to meet their outstanding entitlements. These
agreements do not provide for the acquisition of surplus federal land and make
no mention, other than in the case of the Agreement with Roseau River, of land under the administration and control of Canada. As to Roseau River's Agreement, it provides at clause 4.12 that it may purchase land under the
administration and control of Canada at fair market value.
7 With respect to the respondents Brokenhead and
Peguis, their agreements allow them to select a specified amount of unoccupied
provincial Crown land and "other land", which includes surplus
federal land, and stipulate that Canada will provide an amount of funding for
their use in the purchasing of that land. The agreements with Brokenhead and
Peguis further provide that these respondents are entitled to notice from
Canada whenever the federal Crown intends to dispose of certain "surplus
federal land" - defined for Brokenhead in the Framework Agreement at
subclause 1.01(88), and for Peguis at subclause 1.01(82). Both provisions are
identical and read as follows:
"Surplus Federal Land" means any
"federal real property", as defined in the Federal Real Property Act,
excluding any "real property" as defined in the Federal Real Property
Act to which the title is vested in a "federal crown corporation" as
defined in section 83 of the Financial Administration Act, that is:
(a) within the Province of Manitoba;
(b) determined by a "minister", as defined
in the Federal Real Property Act, who has the "administration", as
defined in the Federal Real Property Act, of that "federal real
property", to no longer be required for the program purposes of that
"minister's" department;
(c) determined by that "minister" to be
available for sale; and
(d) made available by that "minister" to
any "other minister" of Canada for a transfer of administration in
accordance with any then existing policies or directives of the Treasury Board
of Canada;
8 Both of these agreements set out the process
for the respondents to acquire surplus federal land. However, to repeat, the
agreements do not provide the respondents with an entitlement to acquire the
land, but allow them to acquire such land on a willing buyer/willing seller
basis. As an example of this is clause 3.05(2) of the Framework Agreement which
provides that "Other Land", which includes surplus federal land, may
be purchased by a First Nation "on a 'willing buyer/willing seller'
basis".
9 There are no agreements with the last two
respondents. The claim of the respondent Sagkeeng First Nation
("Sagkeeng") remains outstanding, with Canada awaiting further
submissions and evidence in respect of the claim. As to the claim of the
respondent Sandy Bay Ojibway First Nation ("Sandy Bay"), Canada and the Indian Claims Commission have rejected it on the ground that Sandy Bay's treaty land entitlement has already been fulfilled.
The Barracks:
10 The Barracks
are comprised of two units. One unit covers 159.62 acres of land and includes
the operational section of an armed forces base centrally-located within the
city of Winnipeg. The other unit covers 61.78 acres of land and includes the
married quarters area of the base. Canada says that a decision has been made
only with respect to the operational section of the base.
11 On April 12, 2001, a news release from the
Department of National Defence ("DND") announced that the Barracks
were being closed. At some point following this announcement, the Department of
Indian and Northern Development ("DIAND") received notice from DND
that the Barracks would be declared surplus.
12 Shortly after the closure announcement,
Brokenhead and Long Plain expressed interest in the Barracks.
13 Effective July 1, 2001, Treasury Board
enacted the Policy which governs the disposal of surplus federal real property.
The Policy divided surplus property disposal into two categories: routine and
strategic. All property falls into the first category unless it has an
especially high market value or is "sensitive" - in which case it
becomes "strategic". The respondents did not seek judicial review of
the Policy.
14 In November 2001, Treasury Board decided that
the Barracks would be disposed of through the "strategic" process. As
a result of this designation and pursuant to the Policy, the Barracks were no
longer available to those of the respondents who were entitled to purchase that
land on a priority basis. The end result of the strategic disposal process is
that the property will be assessed and then transferred to CLC, a federal
non-agent Crown corporation which disposes of property for the federal
government. The respondents also did not challenge this decision.
15 In August 2002, Long Plain informed Canada that it remained interested in the Barracks. In September 2002, Canada informed Long Plain that disposal of the Barracks would take place pursuant to the strategic
disposal process.
16 On December 4, 2002, DIAND sent a letter to
each of the respondents notifying them that the Barracks would be dealt with as
a strategic disposal and that, as a result, their interest therein would not be
considered on a priority basis.
17 In response to DIAND's letter, Brokenhead and
Long Plain indicated to Canada that they remained interested in the Barracks.
18 In January 2003, Brokenhead initiated the
dispute resolution provisions of the Framework Agreement, arguing that the
Barracks should not have been removed from the scope of its Agreement with Canada.
19 In March 2003, DIAND asked Long Plain and
Brokenhead - the two respondents that had expressed interest in the Barracks -
for specific information with regard to the amount of land each was interested
in acquiring, the proposed purchase price for that land and the proposed use
for any land purchased.
20 Brokenhead and Long Plain subsequently
continued to express interest in the Barracks and held several meetings with
DIAND. After February 2004, Canada received no further communication from any
of the respondents with respect to the Barracks until September 2007.
21 On November 1, 2006, Treasury Board issued
the Directive amending the Policy, which provided that Canada should consider the possible effects of declaring a property to be strategic on any relevant
aboriginal rights or claims.
22 On September 5, 2007, the respondents wrote
to DIAND, advising that they were laying claim to the Barracks as part of their
unfulfilled treaty land entitlements. More particularly, the respondents' claim
was premised upon a claim of aboriginal title, not only to the Barracks, but to
the entire city of Winnipeg. However, by the time of the hearing before the
Judge, the respondents' claim was not as broad in that they asserted only a
right to be consulted by Canada in respect of reserve land promises made to
them pursuant to the per capita provision in Treaty No.1.
23 In November 2007, Treasury Board approved the
transfer of the Barracks to CLC for development and disposal outside of the
scope of the agreements.
24 On January 25, 2008 the respondents commenced
an application for judicial review of the November 2007 Treasury Board decision
to transfer the Barracks to CLC, seeking a declaration that Canada had a legal duty to consult and accommodate them before disposing of the Barracks.
DETERMINATIONS
BY JUSTICE CAMPBELL
[10]
The
Federal Court of Appeal, at paragraph 35, accepted as adequate paragraphs 1 to
16 of Justice Campbell’s Reasons. They wrote at paragraph 35:
35 The beginning of the Judge's Reasons is
adequate. He first describes the background context of the case: at paragraphs
1 to 6. He then establishes that correctness is the proper standard of review:
at paragraph 7. Next, he reviews some of the relevant jurisprudence pertaining
to the honour of the Crown, the principle of reconciliation, and the duty to
consult: at paragraphs 8 to 16. However, with respect, the remainder of the
Judge's Reasons is rife with uncertainty and contradiction. I see at least
eight problems, six of which bear on the adequacy of his reasons and two of
which reveals a different kind of error.
[11]
Therefore,
I repeat what Justice Campbell wrote at paragraphs 1 to 16 of his Reasons:
1 CAMPBELL J.:— The present Application is an
effort by the Applicant Manitoba First Nations to have the Government of Canada recognize, and act upon, its Treaty obligations to them with respect to land. In
order to achieve these objectives the First Nations must establish that: a Treaty
right to land currently exists; the right is currently in the process of being
implemented; and there are legal expectations upon Canada with respect to the
conduct of the implementation which have not been met. I find that the First
Nations are wholly successful in meeting these objectives. The following
paragraphs provide a brief summary of my reasons for arriving at this
conclusion.
2 In 1871 the Aboriginal People of Manitoba and the Government of Canada came to a land agreement: Treaty No. 1. Among other
features, the Aboriginal People were expected to give up title to land to make
way for immigration, and in return Canada promised to set aside a certain
amount of land for their exclusive use. This promise created a Treaty right to
land. The Aboriginal People kept their side of the bargain, but Canada did not. This fact is the single most important feature of the contemporary land
dispute which is at the centre of the present Application.
3 To properly fulfill the compensation-by-land
expectation placed on Canada by the Treaty, modern agreements have been
negotiated with certain Manitoba Treaty First Nations. The agreements provide
for a process whereby First Nations may select certain lands or purchase
certain lands with funds supplied by Canada. By agreement, lands so acquired
will, in turn, be made into reserves. These agreements are the fulfillment of
the Treaty right to land and are currently being implemented. The Supreme Court
of Canada has clearly stated the tone and terms that should govern the
implementation of this Treaty process. The present Application focuses on the
legal expectations placed upon Canada to consult with the Applicant First
Nations before any of its decision-making might or does have an adverse effect
on the Treaty right to land.
4 The expectation to consult concerns Canada's decision-making with respect to the disposition of a large and valuable tract of
"surplus" land it owns in the core of Winnipeg known as the Kapyong
Barracks. Canada has a particular obligation to consult with two of the
Applicant First Nations, Brokenhead and Peguis, because each has a right to
acquire Federal surplus land. For the reasons which follow, I find that, in its
decision-making, Canada has not met the legal expectations placed upon it to so
consult, and, as a result, I find that the decision-making with respect to
Kapyong Barracks is invalid.
I. The Treaty Right to Land
5 The following features of Treaty No. 1, signed
on August 3, 1871 by the Treaty Commissioners and the Aboriginal People
concerned, state the specific and solemn land promise that Canada is obligated
to fulfill:
[2nd paragraph] Whereas all the Indians inhabiting
the said country have pursuant to an appointment made by the said Commissioner,
been convened at a meeting at the Stone Fort, otherwise called the Lower Fort
Garry, to deliberate upon certain matters of interest to Her Most Gracious
Majesty, of the one part, and to the said Indians of the others, and whereas
the said Indians have been notified and informed by Her Majesty's said
Commissioner that it is the desire of her Majesty to open up to settlement and
immigration a tract of country bounded and described as hereinafter mentioned,
and to obtain the consent thereto of her Indian subjects inhabiting the said
tract, and to make a treaty and arrangements with them so that there may be
peace and good will between them and Her Majesty, and that they may know and be
assured of what allowance they are to count upon and receive year by year from
Her Majesty's bounty and benevolence.
[...]
[5th paragraph] The Chippewa and Swampy Cree Tribes
of Indians and all other the [sic] Indians inhabiting the district hereinafter
described and defined do hereby cede, release, surrender and yield up to her
Majesty the Queen and successors forever all the lands included within the
following limits, [...]
[6th paragraph] [...].To have and to hold the same
to Her said Majesty the Queen and Her successors for ever; and Her Majesty the
Queen hereby agrees and undertakes to lay aside and reserve for the sole and
exclusive use of the Indians the following tracts of land, that is to say: For
the use of the Indians belonging to the band of which Henry Prince, otherwise
called Mis-koo-ke-new is the Chief, so much of land on both sides of the Red
River, beginning at the south line of St. Peter's Parish, as will furnish one
hundred and sixty acres for each family of five, or in that proportion for
larger or smaller families; for the use of the Indians of whom
Na-sha-ke-penais, Na- na-we-nanaw, Ke-we-tayash and Wa-ko-wush are the Chiefs,
so much land on the Roseau River as will furnish one hundred and sixty acres
for each family of five, or in that proportion for larger and smaller families
beginning from the mouth of the river; and for the use of the Indians of which
Ka-ke-ka-penais is the Chief, so much land on the Winnipeg River above Fort
Alexander as will furnish one hundred and sixty acres for each family of five,
or in that proportion for larger and smaller families, beginning at a distance
of a mile or thereabout above the Fort; and for the use of the Indians of whom
Oo-za-we-kwun is the Chief, so much land on the south and east side of the
Assiniboine, about twenty miles above the Portage, as will furnish one hundred
and sixty acres for each family of five, or in that proportion for larger and
smaller families, reserving also a further tract enclosing said reserve to
comprise an equivalent to twenty-five square miles of equal breadth, to be laid
out round the reserve, it being understood, however, that if, at the date of
execution of this treaty, there are any settlers within the bounds of any lands
reserved by any band, her Majesty reserves the right to deal with such settlers
as She shall deem just, so as not to diminish the extent of land allotted to
the Indians.
[Emphasis added]
(Applicant's Record, Vol. 1, pp. 50 - 51)
Decades ago, Canada formally admitted that its land
promise in Treaty No. 1 was not kept. Specifically to rectify this breach, Manitoba First Nations entered into Land Entitlement Agreements with Canada and the Province of Manitoba. One method of rectifying the breach set in place by the
Agreements was the provision by Canada of some $109,000,000 to be used by First
Nations to purchase land to fulfill the requirements of the per capita land
promise in the Treaty. As will be fully described below, of interest to the
Applicant First Nations, and in particular to Brokenhead and Peguis, is the
purchase of surplus lands owned by Canada in Winnipeg, being the Kapyong Barracks.
6 The Applicant First Nations argue that Canada's outstanding obligation to fulfill its promise and the existence of the Land
Entitlement Agreements represent a current Treaty right to land:
The Applicant First Nations do not dispute that
aboriginal title was affected by Treaty 1. The First Nations agreed to share
their lands, to open them up for peaceful immigration and settlement. This
commitment has been honoured throughout the years since the treaty was made,
and has never been disputed. The Treaty relationship is a living one which
endures perpetually. It follows as a matter of course that the Crown's
outstanding Treaty Land obligations would require the Crown to consult with
them with respect to its disposal of lands which the Crown has declared surplus
and which become available as Crown lands to fulfill the Crown's outstanding
obligations.
(Reply of the Applicant First Nations to the written
submissions of the Respondents in respect of questions posed by Justice
Campbell, para. 23)
However, Canada argues as follows:
Treaty No.1 extinguished Aboriginal title to all the
lands to which it relates, including the Kapyong Barracks. The various
contemporary Treaty Land Entitlement Agreements fulfill the federal Crown's
obligations in respect of the historically unfulfilled per capita treaty land
provisions of Treaty No.1.
(Written Submissions of the Respondents in respect
of Questions posed by Justice Campbell, para.11)
7 It is agreed that the standard of review for
determining whether a Treaty right to land exists is correctness. There is no
dispute that the Treaty promised Aboriginal People that they would receive
land. I find that there is no question that this promise created a right which
endures to today. That is, while certain lands were ceded by the Treaty,
nevertheless, certain lands were promised to which the Aboriginal People had,
and still have, a right. I find that the Agreements are only a vehicle whereby
Canada's obligation to meet this outstanding right is to be fulfilled; the
obligation is not fulfilled until the per capita obligation is, in fact, met
and the right endures until that time. It is not disputed that the Agreements
have not yet resulted in the acquisition of land to meet Canada's per capita promise. As a result, I find that Treaty No. 1, including the Treaty right to
land which it creates, is still very much in the implementation stage.
II. The Legal Expectations of the Conduct of the
Treaty Agreement Process
8 There is a significant body of law which
provides guideposts for Canada to follow in its past and continuing
relationship with the Applicant First Nations with respect to their Treaty
right to land.
9 Chief Justice McLachlin in Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511, at paragraph 20, speaks to the
legal expectations of unresolved Treaty rights:
Where treaties remain to be concluded, the honour of
the Crown requires negotiations leading to a just settlement of Aboriginal
claims: R. v. Sparrow, [1990] 1 S.C.R. 1075, at pp. 1105-6. Treaties serve to
reconcile pre-existing Aboriginal sovereignty with assumed Crown sovereignty,
and to define Aboriginal rights guaranteed by s.
35 of the Constitution Act, 1982. Section 35
represents a promise of rights recognition, and "[it] is always assumed
that the Crown intends to fulfill its promises" (Badger, supra, at para.
41). This promise is realized and sovereignty claims reconciled through the
process of honourable negotiation. It is a corollary of s. 35 that the Crown
act honourably in defining the rights it guarantees and in reconciling them
with other rights and interests. This, in turn, implies a duty to consult and,
if appropriate, accommodate.
A. The Honour of the
Crown
10 In Mikisew Cree
First Nation v. Canada (Minister of Canadian Heritage), [2005] 3 S.C.R
388, the Supreme Court of Canada was asked to review
the Crown's duty to consult in the context of Treaty 8 and the transfer of
lands in Alberta. On this issue, at paragraph 51, Justice Binnie gave this
direction:
The duty to consult is grounded in the honour of the
Crown, and it is not necessary for present purposes to invoke fiduciary duties.
The honour of the Crown is itself a fundamental concept governing treaty
interpretation and application that was referred to by Gwynne J. of this Court
as a treaty obligation as far back as 1895, four years before Treaty 8 was
concluded: Province of Ontario v. Dominion of Canada (1895), 25 S.C.R. 434, at
pp. 511-12 per Gwynne J. (dissenting). While he was in the minority in his view
that the treaty obligation to pay Indian annuities imposed a trust on
provincial lands, nothing was said by the majority in that case to doubt that
the honour of the Crown was pledged to the fulfillment of its obligations to
the Indians. This had been the Crown's policy as far back as the Royal
Proclamation of 1763, and is manifest in the promises recorded in the report of
the Commissioners. The honour of the Crown exists as a source of obligation
independently of treaties as well, of course. In Sparrow, Delgamuukw v. British Columbia [1997] 3 S.C.R. 1010, Haida Nation and Taku River, the "honour of the
Crown" was invoked as a central principle in resolving aboriginal claims
to consultation despite the absence of any treaty.
[Emphasis added]
In addition, at paragraph 33, Justice Binnie
recognizes that Treaty implementation is a process within which the Crown is
obligated to act honourably:
Both the historical context and the inevitable
tensions underlying implementation of Treaty 8 demand a process by which lands
may be transferred from the one category (where the First Nations retain rights
to hunt, fish and trap) to the other category (where they do not). The content
of the process is dictated by the duty of the Crown to act honourably. Although
Haida Nation was not a treaty case, McLachlin C.J. pointed out, at para. 19:
The honour of the Crown also infuses the processes
of treaty making and treaty interpretation. In making and applying treaties,
the Crown must act with honour and integrity, avoiding even the appearance of
"sharp dealing" (Badger, at para. 41). Thus in Marshall, supra, at
para. 4, the majority of this Court supported its interpretation of a treaty by
stating that "nothing less would uphold the honour and integrity of the
Crown in its dealings with the Mi'kmaq people to secure their peace and
friendship."
[Emphasis added]
11 It is important to note that the Yukon Court
of Appeal in its decision on Little Salmon/Carmacks First Nation v. Yukon
(Minister of Energy, Mines and Resources), 2008 YKCA 13, at paragraph 67 relied
on Justice Binnie's reasons to conclude that "the honour of the Crown and
a duty to consult and accommodate applies in the interpretation of treaties and
exists independent of treaties."
B. Reconciliation
12 The Treaty Commissioner for Saskatchewan sees
Treaty implementation as part of a process of reconciliation. The
Commissioner's following comment, cited by the Applicant First Nations, is a
helpful observation in understanding the importance of a non-litigious
engagement between Aboriginal People and government when making decisions which
directly affect Aboriginal Treaty rights:
In law, as both the Haida and Mikisew cases
emphasize, reconciliation is a "process," and that process does not end
with the making of a treaty. The process carries on through the implementation
of that treaty and is guided by a duty of honourable dealing. The very nature
of the treaties is to establish mutual rights and obligations. Fulfilling
treaties is not a one-way street. Accordingly, the honour of Treaty First
Nations is also at stake in the treaty implementation process. As the Supreme
Court of Canada has stated, "At all stages, good faith on both sides is
required."
("Treaty Implementation: Fulfilling the Covenant",
Office of the
Treaty Commissioner, Saskatoon, 2007, pp. 127 - 128)
(Reply of the Applicant First Nations to the written
submissions of the Respondents in respect of questions posed by Justice
Campbell, para. 35)
13 It is fair to say that the negotiation of
Land Entitlement Agreements under Treaty No. 1 was a process of reconciliation
between the interests and ambitions of Aboriginal People and the Federal and
Manitoba Crown. The Applicant First Nations rely on Justice Binnie's direction,
at paragraph 1, in Mikisew Cree First Nation with respect to this intended
reconciliation in challenging Canada's conduct by the present Application:
The fundamental objective of the modern law of
aboriginal and treaty rights is the reconciliation of aboriginal peoples and
non-aboriginal peoples and their respective claims, interests and ambitions.
The management of these relationships takes place in the shadow of a long
history of grievances and misunderstanding. The multitude of smaller grievances
created by the indifference of some government officials to aboriginal people's
concerns, and the lack of respect inherent in that indifference has been as
destructive of the process of reconciliation as some of the larger and more
explosive controversies.
(Reply of the Applicant First Nations to the written
submissions of the Respondents in respect of questions posed by Justice
Campbell, para. 17)
C. Duty to Consult
14 Chief Justice McLachlin in Haida Nation at
paragraph 35 defines the test for when the duty to consult arises:
But, when precisely does a duty to consult arise?
The foundation of the duty in the Crown's honour and the goal of reconciliation
suggest that the duty arises when the Crown has knowledge, real or
constructive, of the potential existence of the Aboriginal right or title and
contemplates conduct that might adversely affect it.
[Emphasis added]
15 The Supreme Court of Canada first addressed
the scope and content of consultation in Delgamuukw v. British Columbia, [1997]
3 S.C.R. 1010 where at paragraph 168 it stated that "consultation must be
in good faith, and with the intention of substantially addressing the concerns
of aboriginal peoples whose lands are at issue." Subsequent jurisprudence
such as Haida Nation adds to this statement by finding that consultation might
range from, at the lower end of the spectrum, giving notice of a decision that
might affect a right, to meaningful consultation at the higher end, depending
on the infringement on the right in question.
16 In Haida Nation at paragraph 46, Chief
Justice McLachlin describes meaningful consultation:
Meaningful consultation may oblige the Crown to make
changes to its proposed action based on information obtained through
consultations. The New Zealand Ministry of Justice's Guide for Consultation
with Maori (1997) provides insight (at pp. 21 and 31):
Consultation is not just a process of exchanging
information. It also entails testing and being prepared to amend policy
proposals in the light of information received, and providing feedback.
Consultation therefore becomes a process which should ensure both parties are
better informed ... .
genuine consultation means a process that involves:
- gathering information to test policy proposals;
- putting forward proposals that are not yet
finalized;
- seeking Maori opinion on those proposals;
- informing Maori of all relevant information upon
which those proposals are based;
- not promoting but listening with an open mind to
what Maori have to say;
- being prepared to alter the original proposal;
- providing feedback both during the consultation
process and after the decision-process..
THE PARTIES
[12]
In
this application, as originally filed, there were seven Applicants:
a. Brokenhead
First Nation
b. Long
Plain First Nation
c. Peguis
First Nation
d. Roseau River
Anishinabe First Nation
e. Sagkeeng
First Nation
f. Sandy Bay
Ojibway First Nation
g. Swan Lake
First Nation
[13]
On
October 7, 2011 Brokenhead First Nation filed a Discontinuance. It is no longer
a party to this Application. By Order dated December 3, 2012, I removed their
name from the style of cause.
[14]
The
Applicants Peguis, Roseau River, and Sandy Bay filed a common memorandum. Long
Plain filed a separate memorandum incorporating by reference much of the
memorandum of the first three. Neither Sagkeeng nor Swan Lake filed any
memorandum.
[15]
At
the hearing one Counsel spoke on behalf of Long Plain and Sandy Bay; another
spoke on behalf of Roseau River; another spoke on behalf of Peguis; and,
another spoke on behalf of Swan Lake and Sagkeeng.
[16]
The
Respondents, although many, can simply be referred to as Canada. They are The Queen and various Ministers of the Federal Government responsible for certain
Ministries; namely, Indian Affairs and Northern Development, Treasury Board,
National Defence, and Canada Lands Company. They are commonly represented by
the Deputy Attorney General of Canada, who filed a single written memorandum on
behalf of all of them. Counsel appeared on behalf of all of them at the
hearing.
[17]
In
effect we have, at the end of the day, claims made and actively pursued by six
First Nations bands - Long Plain, Peguis, Sagkeen, Sandy Bay, Roseau River and Swan Lake - against various Ministries of the Government of Canada
collectively referred to as Canada.
WHAT IS THE
PROPERTY AT ISSUE?
[18]
The
property at issue is often referred to as the Kapyong Barracks. This property
is actually two pieces of real property, both located in the City of Winnipeg,
Manitoba. The larger piece comprises 159.62 acres of land and includes
operational premises previously used by the Canadian Armed Forces. The smaller
piece comprises 61.78 acres of land and includes married quarters previously
occupied by members of the Canadian Armed Forces and others. At the outset of
the hearing before me Counsel for the Respondents stipulated and the parties
agreed that only the larger of these pieces, the operational premises, is the
subject of the present judicial review. I will refer to this larger piece as
the Kapyong Operational Barracks. I am advised that the name Kapyong comes from
the location of a battle in the Korean conflict in the 1950’s where Canadian
troops distinguished themselves.
[19]
Counsel
for the Respondents stipulated at the hearing and the other parties accepted
that Kapyong Operational Barracks has at all material times been and is
currently owned by the Crown in Right of Canada. In about November 2007, Canada announced its intention to transfer this land to Canada Lands Company Limited (CLC),
a federal non-agent Crown corporation, for the purposes of disposal of that
land, presumably by sale to the public. Hence, the current dispute has arisen.
[20]
The
parties are also agreed that in respect of the first two questions the standard
of review is correctness. As to the third question, it involves both factual
and legal issues and with a caveat expressed by one of the Applicant’s Counsel
the parties are agreed that the standard of review is reasonableness. The
caveat expressed by counsel for Peguis is that, in his submission, there is so
little evidence as to the basis for the decision such that the standard is
correctness. I find that the standard is still reasonableness. If there is
little evidence as to the basis for the decision it would be more likely to be
unreasonable.
BASIS FOR THE
CLAIM
[21]
A
reasonable starting point is a treaty entered into by Her Majesty Queen
Victoria on the one hand, and certain aboriginal bands, on the other hand known
as Treaty No. 1. That Treaty provided for the peaceful settlement of
non-aboriginal persons, moving into parts of what we now know as Manitoba; and various aboriginal tribes who made claims respecting their occupation of
those lands. Portions of the text of this Treaty were set out in paragraph 5
of the Reasons of Justice Campbell, reproduced earlier in these Reasons. Each band
was to receive land, calculated at one hundred and sixty acres per family of
five, or proportionately greater or less for families of more or fewer than
five, in various places in Manitoba. This provision is referred to as the Per
Capita Provision.
[22]
It
is common ground between the parties that the land occupied by the Kapyong
Operational Barracks lies within the land that is covered by Treaty No. 1.
[23]
Treaty
No. 1 further provided for a perimeter of land surrounding the reserve lands.
The dimensions of this perimeter are disputed however this is not material as
the Kapyong Operational Barracks do not lie within this perimeter. The reason
the perimeter was raised is that the Treaty contemplates that some settlers may
already have established themselves within the perimeter and accommodation
would have to be made to take this into account.
[24]
It
is also common ground between the parties that Canada did not provide all this
land as stipulated by Treaty No. 1. As a result, further agreements were
negotiated and entered into as between Canada and some but not all of the
bands. These are called Treaty Land Entitlement agreements or, by their
acronym, TLEA.
[25]
A
committee representing a number of first nations located in Manitoba, together
with representatives of Canada and Manitoba, drafted what is known as a TLE
Framework Agreement, which was executed in 1997. Pursuant to this Agreement,
Brokenhead executed a Treaty Land Entitlement agreement in 1998.
[26]
Four
other first nations signed individual Treaty Land Entitlement Agreements. Three
were prior to the signing of the Framework Agreement:
Long Plain in
1994
Swan Lake in
1995
Roseau River in
1996
[27]
The
Peguis Treaty Land Entitlement agreement was executed by Peguis in September
2007, by Manitoba in October 2007; but Canada did not sign until April 2008. It
must be remembered that the decision made by Canada that is at issue here was
made in November 2007, which is after Peguis and Manitoba signed but before Canada signed.
SAGKEENG AND SANDY BAY
[28]
Neither
Sagkeeng nor Sandy Bay signed a Treaty Land Entitlement agreement. According to
the affidavit of Rasmussen, Senior Lands Advisor to the Lands Directorate of
the Department of Indian Affairs and Northern Development, Sagkeeng’s claim is
still being considered by Canada; Sandy Bay’s claim has been rejected by Canada. Despite submissions made by Counsel before me, I do not have anything in the record
before me that would contradict the evidence of Rasmussen as to Sagkeeng and Sandy Bay. An affidavit of Verne Laforte, a member of the Sagkeeng Nation is in the record
but it does not address the substance of any claim asserted by that Nation.
There simply is nothing in the record that would substantiate any basis for a
claim made by either Sagkeeng or Sandy Bay in this application. Sagkeeng did
not file a memorandum of argument; nor, until Counsel appeared before me, was
there any reason to suspect that this band would be taking an active role in
these proceedings.
[29]
Therefore,
I will dismiss this application as far as it relates to Sagkeeng and Sandy Bay.
LONG
PLAIN, SWAN LAKE, ROSEAU RIVER
[30]
Each
of these parties had signed a Treaty Land Entitlement agreement with Canada before November 2007. Each asserts a claim in respect of the Kapyong Operational
Barracks.
[31]
Their
claim rests first on Treaty No. 1. One basis is the acknowledged unfulfilled
“Per Capita” land agreement. Another claim is based on the agreement within the
Treaty to deal with settlers within the Treaty lands.
[32]
A
third claim made under the Treaty is an assertion that some of the lands given
to the bands are flooded or unsuitable for agriculture or other Treaty
purposes, and that the bands are entitled to replacement lands. I am not
satisfied, on the material before me, that this claim is well founded.
[33]
Turning
to the Treaty Land Entitlement agreement, these Applicants claim that these
agreements serve to implement not extinguish Treaty No. 1 land rights. In those
agreements, of which Article 4 of the Roseau River is a good example, Canada is to acquire a certain number of acres of land for the purposes of a reserve; in addition, Canada agrees to acquire other lands for the benefit of the band. In Article 7, the band
agreed to release, cede and surrender to Canada any claim and all claims
arising out of the Per Capita provision.
[34]
Counsel
argues that the release does not affect claims arising out of the “perimeter”
provisions of Treaty No. 1, or other claims such as the “replacement lands”
claim. Nor, Counsel argues, is the agreement by Canada to acquire reserve lands
and other lands, affected.
[35]
I
find that these three bands have an arguable, but by no means certain, claim to
the land occupied by the Kapyong Operational Barracks.
PEGUIS
[36]
Peguis
is in an unusual position. As of November 2007, the date of the decision at issue,
Canada had not signed the Peguis Treaty Land Entitlement agreement, although
Peguis and Manitoba had.
[37]
The
Peguis Treaty Land Entitlement agreement is elaborate. Depending who reads it
and how it is read, it appears to acknowledge and then disclaim rights and
provisions. It does, however, provide for a dispute resolution mechanism. I
asked Counsel for Peguis and Canada why neither of their clients had invoked
this provision, or whether it would be appropriate to do so now. Neither had a
good answer. Instead, each Counsel was anxious that I determine the matter
before me. Given that the agreement was not signed by Canada before the November 2007 decision was made, I determine that the Peguis agreement is
not relevant to my determination respecting the November 2007 decision. I will,
therefore, make that determination.
[38]
Peguis’
claim to the land occupied by the Kapyong Operational Barracks prior to
November 2007 rests on an interpretation of Treaty No. 1 similar to that
advanced by Long Plain, Swan Lake and Roseau River.
[39]
The
Peguis Treaty Land Entitlement agreement as signed by Canada in April 2008 contains in clause 23.01 a release similar to that in the other agreements
respecting the Per Capita provision.
[40]
Each
of Long Plain, Peguis, Roseau River and Swan Lake point to provisions in their
agreements; an example of which is section 5.2 of the Roseau River agreement,
which affords to the band the benefit of provisions not in their agreement, but
which are afforded to other bands. In argument, this has been referred to as
the “me too” provision.
[41]
There
is much in the Peguis agreement that seemingly contradicts other terms of the
agreement. It is not necessary that a finely detailed study of that agreement
needs to be made here. It is sufficient to determine that Peguis has an
arguable claim, but by no means a certain claim respecting lands occupied by
the Kapyong Operational Barracks.
[42]
In
summary, I find that each of Long Plain, Swan Lake, Roseau River and Peguis
have an arguable, but not certain, claim to the lands occupied by the Kapyong
Operational Barracks. Sagkeeng and Sandy Bay have not established a claim on
the record before me.
WHAT DECISION WAS MADE BY CANADA IN RESPECT OF THE PROPERTY AT ISSUE?
[43]
The
Respondents concede that in November 2007 a decision was taken by the
government of Canada, in Cabinet, to transfer the land occupied by the Kapyong
Operational Barracks to Canada Lands Company Limited (CLC) a non-agent Crown
corporation for the purpose of disposal by that corporation. It is common ground
that this corporation is not bound, as the Crown would be, by certain
obligations to aboriginal peoples such as the honour of the Crown.
[44]
There
is no document in the record before me that reflects this decision. Nor do I
have many of the documents or information that one expects would have been
before the Ministers when they made their decision. The Applicants sought
disclosure of these documents under the Access to Information Act but
privilege was claimed for much of them. The further evidence before me includes
the few documents that the Applicants were able to secure.
DOCUMENTS AND
ACTIONS RELATING TO THE DECISION
[45]
The
Court has been left in a position where it must guess what materials were
before the decision makers in November 2007. Counsel for the Applicants have
placed before me some documents that it would be reasonable to assume must have
been before or at least contemplated by the decision makers.
[46]
In
April 2001, the Minister of Defence announced that the military personnel
located at Kapyong Operational Barracks would be relocated to another base at
Shilo. Exhibit C to the Locke affidavit is a copy of the announcement.
[47]
A
policy paper released by the Treaty Board in July 2001 entitled “Treasury Board
Policy on the Disposal of Surplus Real Property”. At section 7.5, it provides
for two methods of disposition; one described as “Routine process”; the other
as “Strategic process”. The Routine process makes provision, subparagraph (c),
for interests expressed by the Department of Indian and Northern Affairs. The
Strategic process makes no such provision, other than to provide for input by
“government agencies”.
[48]
Almost
immediately, in April 2001, Long Plains wrote to a number of Canadian
government Ministers expressing an interest in acquiring the Kapyong
Operational Barracks under the Treaty Land Entitlement agreement. They received
no response. Their solicitors sent follow-up letters in 2002 and 2003.
[49]
There
has been provided as evidence subsequent to the Court of Appeal decision,
documents released under the Access to Information Act. These documents
show that as early as September 2001, the Department of Indian and Northern
Affairs was communicating with the Department of Defence, at the Assistant
Deputy Minister level, to indicate there may be an interest expressed under the
Treaty Land Entitlement agreements. Those communications continued through
2004. It is clear that each of these departments was aware of possible claims
by certain aboriginal bands and of a need to make a decision as to what position
to take in respect thereof.
[50]
As
far as the aboriginal bands are concerned, the first communication they
received from the government was a letter dated December 4, 2002 addressed to a
number of Chiefs and Council of a number of bands, including the Applicants;
stating, among other things, that if the band had an interest in the Kapyong
property, they should contact a certain person at the Department of National
Defence.
[51]
A
chronology of events from Canada’s point of view was provided pursuant to the Access
to Information Act request. It shows, among other things, that as of 9 Sept
03 an appraisal of the property was submitted to the Department of National
Defence. In January and February 2004, representatives of Long Plain and
Brokenhead were given a tour of the Kapyong facility. Nothing in the record
shows that a copy of the appraisal was given to any band. A document released
under the Access to Information Act entitled “Implementation
Mandate-Annex A’ indicates that when a subsequent transfer to CLC was
to be made a price of $8.6M had been established together with certain
conditions such as environmental remediation and preservation of a historic
building. This was not disclosed until after the Court of Appeal had heard the
matter.
[52]
In
June 2004, the Department of Indian and Northern Affairs advised the Department
of Defence that they had no interest in the Kapyong property, but that Long
Plain and Brokenhead had expressed an interest.
[53]
On
July 10, 2004, the Winnipeg Free Press carried an article entitled “First
Nation abandons bid to buy military site”. The article indicated that Long
Plain, but not Brokenhead, was abandoning its claim to the Kapyong property.
The newspaper clipping obtained from the Canadian government files bears the
handwritten note “Peter – Well done – Fraser”.
[54]
At
that point in 2004, everything seems to have become quiet. No band took a step until late 2006. Neither did Canada.
[55]
Effective
November 1, 2006, the Treasury Board issued a “Directive on the Sale or Transfer of Surplus Real Property”. It apparently replaced the 2001 policy. Again,
this directive states that disposal of property shall be categorized as
“routine” or “strategic”. In this case, as provided for in section 6.8, the
disposal of strategic property will require an “assessment of federal and other
stakeholder interests”.
[56]
On
that same day, November 1, 2006, solicitors for a number of aboriginal bands
affected by the Treaty Land Entitlement agreements wrote to the Treasury Board
asking for assurances that their rights be respected and requested a meeting
with the proper departmental officials.
[57]
Treasury
Board responded by a letter dated January 25, 2007 stating that there was “no
change to the approach through which priority interests have an opportunity to
express an interest in surplus lands”.
[58]
On
August 17, 2007 (not 2008, as written); again on September 29, 2007, and again
on November 4, 2007 letters were sent by a group of aboriginal bands, including
the Applicants, collectively calling themselves Treaty One First Nations. The
letter went to the Minister of Indian Affairs, Attorney General of Canada and Treasury Board. These letters sought assurances that their rights would be
respected and requested a meeting with “proper government officials” to discuss
the matter and implementation of the directive. These letters went unanswered.
[59]
In
November 2007, Canada announced its intention to transfer the property to
Canada Lands Company Limited. There was no meeting with representatives of the
bands or any other communication with them before the decision was taken.
Instead, on December 3, 2007, the Minister of Indian Affairs and Northern
Development wrote to the Treaty One Chiefs stating that once the land had been
sold to Canada Lands Company, they should take the matter up with that Company.
As previously stated, it is common ground that Canada Lands Company would not
be bound by the same restrictions as the Crown.
[60]
In
January 2008 this application for judicial review was filed.
RELIEF
REQUESTED
[61]
The
Applicants have requested the following relief in their Notice of Application:
1.
A
declaration that Her Majesty the Queen in Right of Canada has a legal duty to
consult in good faith with the Applicant Treaty One First Nations concerning
any disposition of the Property, prior to any disposition of the Property, and
to seek workable accommodation of the aboriginal and treaty interests of the
Applicant Treaty One First Nations in the Property;
2.
A
declaration that the Government of Canada has not fulfilled the legal duty to
Her Majesty the Queen to consult with the Applicant Treaty One First Nations
concerning the disposition of the Property nor has made workable accommodation
of the Applicant’s aboriginal and treaty interests in the Property prior to any
disposition of the Property, including its transfer to the Canada Lands
Company;
3.
An
order restraining the transfer of the Property to Canada Lands Company or other
disposition of the Property. Alternately, if the Property has already been
transferred, an order that the effect of any transfer of the Property to Canada
Lands Company be stayed until final disposition of this matter;
4.
An
order that the Applicant Treaty One First Nations is not required to undertake
to abide by any order concerning damages caused by the granting or extension of
the order restraining or staying the transfer;
5.
Relief
from any requirement for an undertaking in damage in favour of the Respondents;
6.
An
order that the Applicant (sic) and the Respondents shall be at liberty
to apply to This Honourable Court for any further directions or relief, or to
address any issue in respect of these proceedings as either party shall deem
necessary;
7.
Such
other and further relief as This Honourable Court deems just; and
8.
Costs
of these proceedings.
ISSUES
[62]
Bearing
in mind the mandate of the Court of Appeal, I consider that I am required to
determine the following issues:
1.
Whether
Canada had a duty to consult with some or all of the Applicants?
2.
If
there was a duty to consult, what is the scope of that duty?
3.
If
there was a duty, did Canada adequately fulfil that duty within the required
scope?
STANDARD OF
REVIEW
[63]
The
parties are agreed that there are three fundamental questions before the Court;
the first is whether Canada had a duty to consult with some or all of the Applicants.
The second is: What was the scope of that duty? The third is: If there was
such a duty, did Canada adequately fulfil that duty within the required scope?
[64]
The
parties are all agreed that the first two questions should be answered on the
standard of correctness. I agree as well.
[65]
The
third question is one of mixed fact and law. All but the Counsel for Peguis
agree that the standard of review is reasonableness. Peguis argues that, since
there is so little in the record to indicate the basis for making the decision,
that the standard should be correctness. I disagree, if the record is scant so
be it. The appropriate standard is reasonableness.
ISSUE #1: Whether
Canada had a duty to consult with some or all of the Applicants?
[66]
Counsel
for the Respondents in addressing the Court at the hearing made a significant
concession. It was conceded that Canada did have a duty to consult with the
Applicants. This concession did not extend to Sagkeeng or Sandy Bay; however, this is irrelevant, as I have found that there is insufficient evidence before me
to support the claims of either of those Applicants in this judicial review.
ISSUE #2: If
there was a duty to consult, what was the scope of that duty?
[67]
As
was conceded by the Respondents, there was a duty to consult with all
Applicants except Sagkeeng and Sandy Bay. The second issue is, therefore, the
scope of that duty.
[68]
The
Supreme Court of Canada, in Haida Nation v British Columbia (Minister of
Forests), [2004] 3 S.C.R. 511, 2004 SCC 73 has provided significant guidance
as to the scope of the duty to consult. In brief, the scope must be assessed on
a case-by-case basis. The more serious the claim by an aboriginal nation, the
greater is the duty to consult. I repeat what the Chief Justice, for the Court,
wrote at paragraphs 24, 27 and 43 to 48:
24 The Court's seminal decision in Delgamuukw,
supra, at para. 168, in the context of a claim for title to land and resources,
confirmed and expanded on the duty to consult, suggesting the content of the
duty varied with the circumstances: from a minimum "duty to discuss
important decisions" where the "breach is less serious or relatively
minor"; through the "significantly deeper than mere
consultation" that is required in "most cases"; to "full
consent of [the] aboriginal nation" on very serious issues. These words
apply as much to unresolved claims as to intrusions on settled claims.
. . .
27 The answer, once again, lies in the honour of
the Crown. The Crown, acting honourably, cannot cavalierly run roughshod over
Aboriginal interests where claims affecting these interests are being seriously
pursued in the process of treaty negotiation and proof. It must respect these
potential, but yet unproven, interests. The Crown is not rendered impotent. It
may continue to manage the resource in question pending claims resolution. But,
depending on the circumstances, discussed more fully below, the honour of the
Crown may require it to consult with and reasonably accommodate Aboriginal
interests pending resolution of the claim. To unilaterally exploit a claimed
resource during the process of proving and resolving the Aboriginal claim to
that resource, may be to deprive the Aboriginal claimants of some or all of the
benefit of the resource. That is not honourable.
. . .
43 Against this background, I turn to the kind
of duties that may arise in different situations. In this respect, the concept
of a spectrum may be helpful, not to suggest watertight legal compartments but
rather to indicate what the honour of the Crown may require in particular
circumstances. At one end of the spectrum lie cases where the claim to title is
weak, the Aboriginal right limited, or the potential for infringement minor. In
such cases, the only duty [page533] on the Crown may be to give notice, disclose
information, and discuss any issues raised in response to the notice.
"'[C]onsultation' in its least technical definition is talking together
for mutual understanding": T. Isaac and A. Knox, "The Crown's Duty to
Consult Aboriginal People" (2003), 41 Alta. L. Rev. 49, at p. 61.
44 At the other end of the spectrum lie cases
where a strong prima facie case for the claim is established, the right and
potential infringement is of high significance to the Aboriginal peoples, and
the risk of non-compensable damage is high. In such cases deep consultation,
aimed at finding a satisfactory interim solution, may be required. While
precise requirements will vary with the circumstances, the consultation
required at this stage may entail the opportunity to make submissions for
consideration, formal participation in the decision-making process, and
provision of written reasons to show that Aboriginal concerns were considered
and to reveal the impact they had on the decision. This list is neither
exhaustive, nor mandatory for every case. The government may wish to adopt
dispute resolution procedures like mediation or administrative regimes with
impartial decision-makers in complex or difficult cases.
45 Between these two extremes of the spectrum
just described, will lie other situations. Every case must be approached
individually. Each must also be approached flexibly, since the level of
consultation required may change as the process goes on and new information
comes to light. The 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.
Pending settlement, the Crown is bound by its honour to balance societal and Aboriginal
interests in making decisions that may affect Aboriginal claims. The Crown
[page534] may be required to make decisions in the face of disagreement as to
the adequacy of its response to Aboriginal concerns. Balance and compromise
will then be necessary.
46 Meaningful consultation may oblige the Crown
to make changes to its proposed action based on information obtained through
consultations. The New Zealand Ministry of Justice's Guide for Consultation
with Maori (1997) provides insight (at pp. 21 and 31):
Consultation is not just a process of exchanging
information. It also entails testing and being prepared to amend policy
proposals in the light of information received, and providing feedback.
Consultation therefore becomes a process which should ensure both parties are
better informed ... .
...
... genuine consultation means a process that
involves ...:
- gathering information to test policy proposals
- putting forward proposals that are not yet
finalised
- seeking Maori opinion on those proposals
- informing Maori of all relevant information upon
which those proposals are based
- not promoting but listening with an open mind to
what Maori have to say
- being prepared to alter the original proposal
- providing feedback both during the consultation
process and after the decision-process.
47 When the consultation process suggests
amendment of Crown policy, we arrive at the stage of accommodation. Thus the
effect of good faith consultation may be to reveal a duty to accommodate. Where
a strong prima facie case exists for the claim, [page535] and the consequences
of the government's proposed decision may adversely affect it in a significant
way, addressing the Aboriginal concerns may require taking steps to avoid
irreparable harm or to minimize the effects of infringement, pending final
resolution of the underlying claim. Accommodation is achieved through
consultation, as this Court recognized in R. v. Marshall, [1999] 3 S.C.R. 533,
at para. 22: "... the process of accommodation of the treaty right may
best be resolved by consultation and negotiation".
48 This process does not give Aboriginal groups
a veto over what can be done with land pending final proof of the claim. The
Aboriginal "consent" spoken of in Delgamuukw is appropriate only in
cases of established rights, and then by no means in every case. Rather, what
is required is a process of balancing interests, of give and take.
[69]
The
Supreme Court in Rio Tinto Alcan Inc v Carrier Sekani Tribal Council,
[2010] 2 S.C.R. 650, 2010 SCC 43 referred to post-Haida Nations case law at
paragraph 38, where the Chief Justice, again writing for the Court, wrote:
38 The duty to consult embodies what Brian
Slattery has described as a "generative" constitutional order which
sees "section 35 as serving a dynamic and not simply static function"
("Aboriginal Rights and the Honour of the Crown" (2005), 29 S.C.L.R.
(2d) 433, at p. 440). This dynamicism was articulated in Haida Nation as
follows, at para. 32:
... the duty to consult and accommodate is part of a
process of fair dealing and reconciliation that begins with the assertion of
sovereignty and continues beyond formal claims resolution. Reconciliation is
not a final legal remedy in the usual sense. Rather, it is a process flowing
from rights guaranteed by s. 35(1) of the Constitution Act, 1982.
As the post-Haida Nation case law confirms,
consultation is "[c]oncerned with an ethic of ongoing relationships"
and seeks to further an ongoing process of reconciliation by articulating a
preference for remedies "that promote ongoing negotiations": D. G.
Newman, The Duty to Consult: New Relationships with Aboriginal Peoples (2009),
at p. 21.
[70]
In
Beckman v Little Salmon/Carmacks First Nation, [2010] 3 S.C.R. 103, 2010
SCC 53, Binnie J for the majority discussed the duty to consult at paragraphs
55 and 61 as follows:
55 However, the territorial government presses
this position too far when it asserts that unless consultation is specifically
required by the Treaty it is excluded by negative inference. Consultation in
some meaningful form is the necessary foundation of a successful relationship
with Aboriginal people. As the trial judge observed, consultation works
"to avoid the indifference and lack of respect that can be destructive of
the process of reconciliation that the Final Agreement is meant to
address" (para. 82).
. . .
61 I think this argument is unpersuasive. The
duty to consult is treated in the jurisprudence as a means (in appropriate
circumstances) of upholding the honour of the Crown. Consultation can be shaped
by agreement of the parties, but the Crown cannot contract out of its duty of
honourable dealing with Aboriginal people. As held in Haida Nation and affirmed
in Mikisew Cree, it is a doctrine that applies independently of the expressed
or implied intention of the parties.
[71]
Justice
Mactavish of this Court in Sambaa K’e Dene Band v Duncan, 2012 FC 204,
has provided an excellent summary of the law respecting the duty to consult and
the scope of that duty. I repeat what she wrote at paragraphs 113 to 119 and
165:
113 The Supreme Court held in Haida Nation,
above at para. 39, that the scope of the duty to consult is proportionate to a
preliminary assessment of the strength of the case supporting the existence of
the right or title, and to the seriousness of the potentially adverse effect
upon the right or title claimed.
114 That is, the degree of impact on the rights
asserted will dictate the degree of consultation that is required in a specific
case: Mikisew, above at paras. 34, 55 and 62-3. The more serious the potential
impact on asserted Aboriginal or Treaty rights, the deeper the level of
consultation that will be required.
115 The level of consultation required will vary
from case to case, depending upon what is required by the honour of the Crown
in a given set of circumstances: Haida Nation, above at para. 43. See also Rio Tinto, above at para. 36; Taku River, above at para. 32; Tsuu T'ina Nation v. Alberta (Minister of Environment), [2010] 2 C.N.L.R. 316, [2010] A.J. No. 479 (Q.L.) (Alta.
C.A.) at para. 71, and Ahousaht, above at para. 39.
116 Where, for example, the claims are weak, the
Aboriginal right is limited, or the potential for infringement is minor, the
only duty on the Crown may be to give notice, to disclose information, and to
discuss any issues raised in response to the notice: Haida Nation, above at
para. 43.
117 In contrast, where a strong prima facie case
for the claim has been established, the right and potential infringement is of
high significance to the Aboriginal peoples, and the risk of non-compensable
damage is high, "deep consultation" aimed at finding a satisfactory
interim solution, may be required: Haida Nation, above at para. 44.
118 While the precise requirements of the consultative
process will vary with the circumstances, the consultation required in relation
to claims lying at the stronger end of the spectrum may demand the opportunity
for the claimants to make submissions, to participate in the decision-making
process, and to receive written reasons which demonstrate that their concerns
were considered and which reveal the impact those concerns had on the decision:
Haida Nation, above at para. 44.
119 Other cases may fall between these two ends
of the spectrum. Each case has to be examined individually in order to
ascertain the content of the duty to consult in a particular set of
circumstances. Moreover, the situation may have to be re-evaluated from time to
time, as the level of consultation required may change as the process goes on
and new information comes to light: Haida Nation, above at para. 45.
. . .
165 If it is to be meaningful, consultation
cannot be postponed until the last and final point in a series of decisions.
Once important preliminary decisions have been made there may well be "a
clear momentum" to move forward with a particular course of action: see
Squamish Indian Band v. British Columbia (Minister of Sustainable Resource
Management), 2004 BCSC 1320, 34 B.C.L.R. (4th) 280 at para. 75. Such a momentum
may develop even if the preliminary decisions are not legally binding on the
parties.
[72]
In
the present case, I have found that the Applicants Long Plain, Peguis, Roseau River and Swan Lake have an arguable, but not proven claim in respect of the land occupied
by the Kapyong Operational Barracks. I put the scope of the duty to consult at
the middle of the range established by the Supreme Court in Haida Nation.
At the low end of the spectrum, where a claim is weak, that Court in Haida
Nation, at paragraph 43 wrote that the scope of the duty:
“…may be to give notice, disclose information, and
discuss any issues raised in response to the notice…”
[73]
At
the other end of the spectrum, where a strong prima facie case for the claim is
established, that Court wrote at paragraph 44 of Haida Nation:
“…the consultation at this stage may entail the
opportunity to make submissions for consideration, formal participation in the
decision-making process, and provision of written reasons to show that the
Aboriginal concerns were considered and to reveal the impact they had on the
decision.”
[74]
In
the present case, in putting the duty somewhere in the middle of these two
criteria, I find that the scope of Canada’s duty lay beyond the minimum of
giving notice, disclosure of information and responding to concerns raised, so
as to include at least some of the higher duties including a duty to meet with
the Applicants, to hear and discuss their concerns, to take those concerns into
meaningful consideration and to advise as to the course of action taken and
why. I emphasize taking the concerns into meaningful consideration and repeat
what the Supreme Court wrote at paragraph 46 of Haida Nation
“Meaningful consultation may oblige the Crown to
make changes to its proposed action based on information obtained through
consultations.”
ISSUE
#3: If
there was a duty, did Canada adequately fulfil that duty within the required
scope?
[75]
As
previously stated, Canada conceded that there was a duty to consult. I have
held that the scope of that duty included the giving of notice, disclosure of
information, responding to concerns raised, meeting and discussing with the
Applicants those concerns, taking the concerns into meaningful consideration,
and advising as to the course of action taken and why.
[76]
In
considering whether Canada fulfilled the scope of its admitted duty to consult,
I will break the events into two time periods. The first is the period from
2001 to 2004; the second is late 2006 to November 2007.
[77]
In
the 2001 to 2004 period, I find that Canada did give notice to the Applicants
and other aboriginal bands a year or so after the bands expressed an interest
in the Kapyong property. Very little information was provided even though,
apparently by the end of 2003, Canada had in its possession an appraisal of the
property. A tour of the property was conducted in early 2004.
[78]
Even
at the minimum level of duty to consult, Canada did not fulfil its obligations.
It did not disclose relevant information that it had. It did not respond in a
meaningful way to concerns raised by the Applicants and other bands.
[79]
The
matter is more egregious in the 2006 to 2007 period. Canada simply ignored
correspondence written by and on behalf of the Applicants. It ignored a request
for a meeting. It did not provide any information such as the appraisal or
basis of the selling arrangements negotiated with Canada Land Company. The
Applicants were simply ignored. After the fact, the Applicants were told to
take their concerns to Canada Land Company. I find the treatment of the
concerns raised by the Applicants and other aboriginal bands to be far short of
the scope of even the minimum duty to consult.
[80]
I
find that Canada has failed to fulfil the scope of its duty to consult with the
Applicants.
IN CONCLUSION
[81]
Having
found, as Canada conceded, that there was a duty to consult with the Applicants
Long Plain, Peguis, Roseau River and Swan Lake, and that Canada failed to consult meaningfully within the scope of that duty, I will allow this
application as requested by those Applicants. I will set aside the November
2007 decision to sell the Kapyong Operational Barracks to Canada land Company and will enjoin that sale until Canada can demonstrate to the Court that it has
fulfilled its duty in a meaningful way.
[82]
These
amended Reasons and Judgment have been provided since Counsel for the
Applicants have drawn to my attention that, in the Reasons and Judgment issued
in December 13, 2012, I had inadvertently interchanged Sandy Bay and Swan Lake in certain places. Those errors have been corrected here.
[83]
The
parties may make submissions as to costs in writing (five pages or less) by
January 15, 2013.
JUDGMENT
FOR
THE REASONS PROVIDED:
THIS
COURT’S JUDGMENT is that:
1.
The
application as made by the Applicants Long Plain, Peguis, Roseau River and Swan Lake is allowed;
2.
The
application as made by the Applicants Sagkeeng and Sandy Bay is dismissed;
3.
The
Respondents’ decision of November 2007 to sell the Kapyong Operational Barracks
to Canada Lands Company is set aside;
4.
The
Respondents are enjoined from selling the Kapyong Operational Barracks to
Canada Lands Company, or anyone else, until they can demonstrate to the Court
that they have fulfilled in a meaningful way their duty to consult with the
Applicants; and
5.
The
parties may make submissions as to costs, not to exceed five pages, by January
15, 2013.
"Roger T.
Hughes"