Docket: T-1427-15
Citation:
2017 FC 932
Ottawa, Ontario, October 19, 2017
PRESENT: The
Honourable Madam Justice Mactavish
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REPRESENTATIVE
PROCEEDING
BETWEEN:
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WILLIAM ENGE,
ON HIS OWN BEHALF AND ON BEHALF OF THE MEMBERS OF THE NORTH SLAVE MÉTIS
ALLIANCE
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Applicant
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and
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THE MINISTER OF
INDIAN AFFAIRS AND NORTHERN DEVELOPMENT, GOVERNMENT OF THE NORTHWEST
TERRITORIES, FORT SMITH MÉTIS COUNCIL, HAY RIVER MÉTIS GOVERNMENT COUNCIL, FORT
RESOLUTION MÉTIS COUNCIL AND NORTHWEST TERRITORY MÉTIS NATION
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Respondents
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JUDGMENT AND REASONS
TABLE OF CONTENTS
I.
Introduction
[1]
William Enge is a Métis person and a member of
the Métis community of the Great Slave Lake area in the Northwest Territories.
He is also the President of the North Slave Métis Alliance (NSMA).
[2]
Mr. Enge brings this application for judicial
review on his own behalf and as the representative of the members of the NSMA.
Mr. Enge says that he and the members of the NSMA have Aboriginal harvesting
rights that have been judicially recognized and affirmed under subsection 35(1)
of the Constitution Act, 1982, being Schedule B to the Canada
Act 1982 (U.K.), 1982, c.11.
[3]
By this application, Mr. Enge challenges the
adequacy of the consultation by the Minister of Indian Affairs and Northern
Development with the members of the NSMA with respect to the “Northwest Territory Métis Nation Land and Resources
Agreement-in-Principle” (NWTMN AiP) that was approved on July 31, 2015.
[4]
Mr. Enge asserts that the members of the NSMA
are a Métis people whose Aboriginal harvesting rights in the area north of
Great Slave Lake in the Northwest Territories will be adversely affected by a Final
Agreement negotiated pursuant to the NWTMN AiP. He further asserts that Canada
intends to extinguish the Aboriginal rights held by NSMA members to harvest in
the area north of Great Slave Lake, notwithstanding the fact that the NSMA and
its members have been largely excluded from the negotiations leading up to the
conclusion of the NWTMN AiP.
[5]
According to Mr. Enge, Canada’s decision to
exclude the NSMA from consultations was based on several errors of law and was,
moreover, unreasonable. The result of these errors is that the parties were
unable to have meaningful and fair discussions about how Canada should
accommodate the Aboriginal rights held by NSMA members prior to it signing the
NWTMN AiP.
[6]
As a consequence, Mr. Enge asserts that
negotiations towards a final Northwest Territory Métis Nation land and
resources agreement (Final Agreement) should be stayed until such time as
meaningful consultation with the NSMA can occur. This consultation should
consider accommodation measures to address the NSMA’s concerns with respect to
the extinguishment of their Aboriginal harvesting rights as Métis north of
Great Slave Lake.
[7]
The respondent Minister of Indian Affairs and
Northern Development (Canada) submits that this case is not fundamentally about
the adequacy of Crown consultation, but is rather a challenge to the authority
of the Northwest Territory Métis Nation (NWTMN) as the proper representative of
the Métis people whose Aboriginal ancestors were indigenous to the south Slave
region of the Northwest Territories. Canada further submits that the duty to
consult does not arise in this case, as the members of the NSMA are part of the
group with whom Canada has been negotiating. In the alternative, Canada submits
that if the Crown’s duty to consult does arise here, the duty has been
adequately discharged.
[8]
Canada further disputes Mr. Enge’s standing to
bring this application as a representative of the NSMA. According to Canada,
Mr. Enge did not obtain the authority of the members of the NSMA to bring this
application, nor did he take effective steps to determine the prevailing views
of the membership in relation to the NWTMN AiP. Consequently, Canada submits
that Mr. Enge has not satisfied the requirements of Rule 114 (the provision of
the Federal Courts Rules governing representative actions).
[9]
The Government of the Northwest Territories
(GNWT), the Fort Smith Métis Council, the Hay River Métis Government Council,
the Fort Resolution Métis Council and the NWTMN have also been named as
respondents to this application.
[10]
The GNWT accepts that the NSMA was entitled to
be consulted with respect to the NWTMN AiP. It submits, however, that, in
coordination with Canada, it consulted with the NSMA regarding the potential
adverse impact of the NWTMN AiP on the Aboriginal rights that are allegedly
held by the members of the NSMA. The GNWT also states that deeper consultation
and, if appropriate, accommodation will take place as the parties move closer
to a final agreement. Given that consultation with the NSMA with respect to the
final agreement is ongoing, the GNWT submits that this application is
premature.
[11]
The NWTMN is a registered society under the Societies
Act, R.S.N.W.T. 1988, c. S-11 of the Northwest Territories. It is a
representative body whose mandate is to serve and protect the interests of the
Indigenous Métis of the south Slave region who are members of the three
respondent councils: the Fort Smith Métis Council, the Hay River Métis
Government Council, and the Fort Resolution Métis Council. The NWTMN and the
three respondent councils will be referred to collectively in these reasons as
the NWTMN.
[12]
The NWTMN notes that it is not a party to the
consultations between Canada, the GNWT and the NSMA, and that it does not owe a
duty of consultation to the NSMA. The NWTMN further contends that it has no
control over how Canada or the GNWT approached the consultation process with
the NSMA.
[13]
The NWTMN submits, however, that while Mr.
Enge’s application for judicial review is framed in terms of the adequacy of
consultation, it is, in reality, a challenge to the legal basis or authority of
the NWTMN to enter into the Agreement in Principle on behalf of the Métis of
the Northwest Territories. The NWTMN also denies that Mr. Enge has the
requisite standing to bring this application as a representative proceeding
because they say that he has failed to satisfy the requirements of Rule 114 of
the Federal Courts Rules, SOR/98-106. Consequently, the NWTMN submits
that this application should be dismissed on this basis alone.
[14]
For the reasons that follow, I have concluded
that Mr. Enge has the necessary standing to bring this application on behalf of
the members of the NSMA, and that his application for judicial review is not
premature. I have further concluded that the NSMA was entitled to be consulted
with respect to the potential adverse impact of the NWTMN AiP on the Aboriginal
rights held by its members. I am also satisfied that Canada erred by failing to
share its preliminary assessment of the strength of the NSMA members’ claim
with the NSMA.
[15]
Canada also misapprehended the severity of the
potential impact that a final land and resources agreement negotiated in
accordance with the terms of the NWTMN AiP would have on the Aboriginal rights
of the NSMA’s members. Having misunderstood the extent of the potential impact
that such an agreement would have on the Aboriginal harvesting rights of the
members of the NSMA, Canada entered into its consultation with the NSMA based
on a fundamental misconception of the nature and scope of its duty to consult.
Moreover, without fully understanding the seriousness of the potential impact
that a land and resources agreement would have on the section 35 rights of the
members of the NSMA, Canada could not properly assess what, if any,
accommodation measures would be appropriate.
[16]
Consequently, Mr. Enge’s application for
judicial review will be granted.
II.
The Métis Parties
[17]
Mr. Enge has been the President of NSMA since
2004. The NSMA is a registered society under the provisions of the Societies
Act. It represents those members of the contemporary ethnic Métis community
of the Northwest Territories who assert their Aboriginal rights as Métis north
of Great Slave Lake. The over-arching objective of the NSMA is to protect the
Aboriginal rights of its members in the area north of Great Slave Lake.
[18]
The NSMA claims to have 283 members out of a
community of approximately 500 people. I understand the parties to agree that
many of these individuals have ancestral ties to the area south of Great Slave
Lake. Membership in the NSMA is limited to “Indigenous
Métis”. Since 2011, individuals registered as “Indians”
under the provisions of the Indian Act, R.S.C. 1985, c. I-5 have been
expressly prohibited from membership in the NSMA by the organization’s By-laws.
[19]
The NSMA’s Bylaws define an “Indigenous Métis” as being “a
person who is descendant of the Métis People of the Northwest Territories
including the North Slave area and is recognized by the Community of Indigenous
Métis of the North Slave area as a descendant of the Métis People who resided
in, or used and occupied the Northwest Territories including the North Slave
area prior to the federal Crown taking effective control of their traditional
lands including the North Slave area”.
[20]
The parties agree that there is only one Métis
community in the Northwest Territories whose traditional territory encompassed
the entirety of the Northwest Territories and the northern portion of the
provinces that abut the Northwest Territories. However, as was noted earlier,
the NSMA is not the only organization purporting to represent the interests of
the Métis community. The NWTMN also claims to have a similar purpose, although
its focus is predominantly on the area south of Great Slave Lake, whereas the
members of the NSMA claim to have Aboriginal rights in the area north of Great
Slave Lake.
[21]
According to its Constitution, the objectives of
the NWTMN include promoting the unity of Métis in the south Slave region of the
NWT, as well as developing and implementing Métis land claims, the inherent
right of self-government and constitutional development. The mandate of the
NWTMN is also to serve and protect the interests of Indigenous Métis who are
members of the Fort Smith Métis Council, the Hay River Métis Government Council
and the Fort Resolution Métis Council. This mandate includes the affirmation,
protection and recognition of Métis aboriginal rights throughout the
traditional territory of the NWTMN.
[22]
The NWTMN maintains that it represents the
interests of all Indigenous Métis of the Northwest Territories regardless of
their current residence. The By-laws of the NWTMN define an “Indigenous Métis” as being a person who has:
a) resided
in a designated community [i.e. Fort Smith, Fort Resolution, Hay River]; and
b) used
or occupied the South Slave on or before December 31, 1921; or
c) is
a descendant of a person described in (a) and (b);
d) is
a descendant of a person registered as an Indian under the Indian Act
who:
(i) resided
in a designated community; and
(ii) used
and occupied the South Slave on or before December 31, 1921.
e) is not registered as an Indian
under the Indian Act, and
f) is
not enrolled as a beneficiary in another land claim agreement in Canada.
[23]
While the NWTMN claims that 2,169 Indigenous
Métis people across Canada are eligible for membership in the organization, it
has refused to provide any actual membership numbers. The NWTMN says that it is
currently undertaking a questionnaire process to identify additional Indigenous
Métis who are eligible for membership in one of its three member Councils. The
NWTMN is verifying the information provided by applicants, including
information regarding their genealogy, such as birth certificates, death
certificates, baptismal certificates and historic records.
III.
The History of the Negotiations Leading Up to
the NWTMN AiP
[24]
In 1978, Canada accepted land claim submissions
from the Indian Brotherhood of the Northwest Territories and the Métis
Association of the Northwest Territories and agreed to undertake the
negotiation of a single land claim with both groups with respect to an area
covering the entire Mackenzie Valley. This became known as the “Dene/Métis Land and Resource Negotiation”.
[25]
Because of the many familial and community
connections between the Dene and the Métis of the Northwest Territories, Canada
decided that the best approach was to negotiate a single land claim for all of
the Aboriginal people indigenous to the Northwest Territories rather than to
pursue a divisive approach, trying to distinguish between the Dene and the
Métis for the purpose of the negotiations.
[26]
Negotiations toward a single Dene/Métis
Agreement proceeded throughout the 1980s and resulted in a Comprehensive Land
Claim Agreement dated April 4, 1990 between Canada, the Dene Nation and the
Métis Association of the Northwest Territories. However, neither the Dene Nation
nor the Métis Association of the Northwest Territories ratified this agreement,
and negotiations then ceased for a period of time.
[27]
Following the failure of the Dene/Métis
Comprehensive Land Claim Agreement, Canada subsequently entered into regional
land claim negotiations at the request of the Métis, the Gwich’in and the Sahtu
Dene. These negotiations proceeded on the basis of the Dene/Métis draft
agreement and the regions that had been predetermined for land selection
purposes: namely the Gwich’in, Sahtu, North Slave, South Slave and Dehcho
regions of the Northwest Territories.
[28]
Land claims agreements were concluded with the
Gwich’in and Sahtu Dene in 1992, and with the Métis in 1993. A land claim and
self-government agreement was subsequently concluded with the Tlicho First
Nation in 2005. This agreement largely covered the area known as the North
Slave region.
[29]
In the South Slave region, the First Nations (as
represented by the Akaitcho Dene Treaty 8 Tribal Corporation) pursued Treaty
Land Entitlement under Canada’s Specific Claims Policy. However, Specific
Claims (including Treaty Land Entitlements) are based on unfulfilled treaty
obligations, and are only available to First Nations who had been signatories
to treaties. As the Métis of the South Slave region did not have a treaty with
Canada, they were excluded from the Specific Claims negotiation process.
[30]
To address this situation, negotiations
recommenced between the Métis (as represented by the South Slave Métis Tribal
Council, a predecessor to the NWTMN), Canada and the GNWT. These negotiations
led to the signing of the South Slave Métis Framework Agreement in 1996.
According to the evidence of Christie Morgan, a senior negotiator with the
federal Department of Indian Affairs and Northern Development (now Indigenous
Affairs and Northern Development), Canada is negotiating an agreement with the
NWTMN that is based, to a large extent, on Canada’s Comprehensive Land Claims
Policy. This Policy has guided the negotiation of regional land claims in the
Northwest Territories.
[31]
Ms. Morgan further deposes that the negotiation
of a Final Agreement is intended to allow the indigenous Métis people of the
South Slave region of the Northwest Territories who were eligible for
enrollment under the failed Dene-Métis Agreement but were ineligible for Treaty
Land Entitlement to participate in a modern land and resources agreement with
Canada.
[32]
Since 1996, the NWTMN, Canada and the GNWT have
been actively negotiating the terms of the NWTMN AiP, which, as was noted
earlier, was signed on July 31, 2015. The NWTMN AiP will form the basis for the
negotiation of a Final NWTMN Land and Resources Agreement.
IV.
The Discussions with the NSMA
[33]
In addition to their negotiations with the
NWTMN, Canada and the GNWT determined that it was also appropriate to consult
with what Ms. Morgan described as “neighbouring
Aboriginal groups” whose rights could potentially be affected by a final
land and resources agreement. The purpose of this consultation would be to determine
“if and how those concerns might be addressed in the
AiP or in a Final Agreement”.
[34]
In order to identify the relevant groups for the
purpose of consultation, Canada first identified those Aboriginal groups whose
asserted or established Aboriginal or Treaty rights might fall within the NWTMN
AiP’s proposed Agreement Area. The Agreement Area covers a large area in the
east of the Northwest Territories, largely to the south and east of Great Slave
Lake. A copy of the map in the NWTMN AiP that identifies the Agreement Area is
attached as an appendix to these reasons. Canada and the GNWT were aware that
the NSMA asserted Aboriginal harvesting rights in the area north of Great Slave
Lake. Consequently, the NSMA was identified as an appropriate Aboriginal group
for Canada and the GNWT to consult with.
[35]
While Mr. Enge asserts that Canada and the GNWT
failed to consult with the NSMA prior to entering into the NWTMN AiP, there
were in fact discussions between the parties. Although there is a dispute as to
the adequacy of the consultation that took place, the parties did exchange
correspondence with respect to the terms of the NWTMN AiP. The NSMA was,
moreover, provided with funding to assist them in advancing the claims of its
members to Aboriginal harvesting rights in the area north of Great Slave Lake,
and with an opportunity to provide the two governments with documentary
evidence supporting these claims.
[36]
Amongst other things, the NSMA provided the two
governments with five reports (at least one of which had been commissioned by
Canada itself) that described the history, ethnogenesis, traditional knowledge
and land use patterns of the members of the NSMA. There were also two
face-to-face meetings at which Mr. Enge and other representatives of the NSMA
were able to discuss the terms of the NWTMN AiP and possible accommodation measures
with representatives of Canada and the GNWT.
[37]
While Canada had previously refused to consult
with the NSMA, the two levels of government jointly wrote to the NSMA on
October 10, 2012, advising that it would be consulted with respect to the NWTMN
AiP, and asking for the name of a main contact person for the consultation
process. The NSMA subsequently identified Mr. Enge as the contact person for
the consultation process.
[38]
The October 10, 2012 letter further asked the NSMA
“to identify potential adverse impacts that the
proposed NWTMN AiP may have on your Aboriginal group’s potential or established
Aboriginal or Treaty rights”. In response, the NSMA provided a substantial
amount of information to Canada and the GNWT, including documentation regarding
the NSMA’s section 35 harvesting rights and its concerns with the terms of the
NWTMN AiP.
[39]
On February 12, 2013, Canada wrote to Mr. Enge
stating that it had reviewed the information submitted by the NSMA in support
of its asserted section 35 rights and title and that it had “determined the NSMA has not provided sufficient evidence to
establish the existence of an ancestrally-based, present-day Métis community in
the North Slave area with links to a historic Métis community in that area”.
As a consequence, Canada stated that “the NSMA have not
established a credible claim to s. 35 Métis rights which would support
recognition of the NSMA as a distinct s. 35 Métis rights-holding community”.
[40]
Despite having taken the position that the NSMA
had not established that its members had a credible claim to section 35 Métis
rights, Canada and the GNWT jointly wrote to NSMA on June 11, 2013 in an
attempt to begin consultations with respect to the NWTMN AiP. They provided the
NSMA with a copy of the draft NWTMN AiP, and set a deadline of July 26, 2013
for the NSMA to complete its review of the document. The two governments also
offered funding to the NSMA to a maximum amount of $11,500 to support the
consultation process.
[41]
The June 11, 2013 letter to the NSMA noted that
Canada and the GNWT were aware that the NSMA was asserting Aboriginal rights to
harvest in the area north of Great Slave Lake. They went on to note that “[t]he draft NWTMN AiP contemplates providing non-exclusive
harvesting rights … to Métis Members … throughout the proposed Agreement Area”,
which, it will be recalled, is an area to the south and east of Great Slave
Lake. The letter further stated that “[t]here may exist
a small area of overlap between the northwest corner of the proposed
Agreement Area and the area over which the NSMA asserts an Aboriginal right to
harvest” [my emphasis].
[42]
Referring to the non-derogation clause in the
draft NWTMN AiP, the June 11, 2013 letter went on to state that “[i]n the course of negotiations, Canada and the GNWT have
been mindful to negotiate an agreement that would not affect the asserted
Aboriginal or Treaty rights of groups that are not party to the NWTMN final
agreement”. That said, Canada and the GNWT asked the NSMA to identify
any concerns that it may have in the event that any part of the draft NWTMN AiP
would adversely affect the asserted Aboriginal right of the NSMA’s members to
harvest in areas that overlapped with the Agreement Area.
[43]
By letter dated June 25, 2013, Mr. Enge provided
Canada and the GNWT with a copy of the decision of the Northwest Territories
Supreme Court in Enge v. Mandeville, 2013 NWTSC 33, [2013] N.W.T.J. No.
38 [Mandeville], asking whether that decision affected Canada’s
assessment of the strength of the NSMA’s section 35 claim.
A.
The Mandeville Decision
[44]
Mandeville was
another proceeding commenced by Mr. Enge, this one in the Northwest Territories
Supreme Court. There, Mr. Enge sought judicial review of a decision by the
Territorial Minister of the Environment and Natural Resources to deny a portion
of the annual quota for the harvest of Bathurst caribou to members of the NSMA.
[45]
Based on evidence similar to that before this
Court, the Court in Mandeville found that there was some evidence that
established, on a prima facie basis, that there is a contemporary
rights-bearing Métis community in the Great Slave Lake area of which Mr. Enge
and the other members of the NSMA are members: at para. 207. In addition, the
Court found that Mr. Enge had presented prima facie evidence that he is
a Métis person through his long-term self-identification as a Métis, his
ancestral connection to an historic Métis figure, and community acceptance by
other Métis people: at para. 213.
[46]
The Court also found that Mr. Enge had
established a good prima facie claim that he and the members of the NSMA
had the right to hunt caribou, based upon their asserted rights as Métis people
who have traditionally hunted in the Great Slave Lake area: Mandeville
at para. 230. In addition, the Court found that the Minister’s decision to deny
Mr. Enge and the other members of the NSMA the opportunity to participate in
the limited Aboriginal caribou harvest had a not insignificant adverse effect
on their Aboriginal rights: at para. 236.
[47]
In addition, the Court found that the GNWT’s consultation
process with respect to the caribou harvest at issue in Mandeville was
not reasonable: at para. 271. As a consequence, the Court concluded that the
GNWT had erred in failing to conduct a preliminary assessment of the strength of
the claims of Mr. Enge and the members of the NSMA, and the potential adverse
effects of denying them a portion of the limited Aboriginal harvest of the
Bathurst caribou herd. According to the Court, the GNWT had further erred in
fulfilling its duty to consult by failing to conduct a reasonable consultation
process: at para. 282.
[48]
After reviewing the decision in Mandeville,
Canada advised Mr. Enge that it had revised its preliminary assessment of the
strength of the NSMA’s claim to rights under section 35. In a letter to Mr.
Enge dated August 16, 2013, Canada acknowledged that the NSMA “has a good prima facie claim to the Aboriginal right
to hunt caribou on their traditional lands, and are entitled to an appropriate
measure of consultation when that asserted right may potentially be adversely
impacted by the Crown’s action”.
[49]
However, Canada’s letter further stated that its
revised assessment “is not a determination by Canada
that the North Slave Métis Alliance has any section 35 rights. The law relating
to the duty to consult makes it clear that an assessment of the strength of the
claim for the purposes of consultation is not a rights-determination process”.
B.
The NSMA’s Submissions
[50]
In a letter dated August 15, 2013, Mr. Enge
provided the NSMA’s initial submissions with respect to the NWTMN AiP,
identifying the portions of the agreement that raised concerns on the part of
the NSMA. Mr. Enge also indicated that the NSMA was concerned that the
definition of “Métis” in the NWTMN AiP was very
broad. The NWTMN AiP defines the term “Métis” as
meaning “an Aboriginal person of Cree, Slavey or
Chipewyan [collectively the “Dene”] ancestry who resided in, used and occupied
any part of the Agreement Area on or before December 31, 1921, or a descendant
of such person”. Mr. Enge also questioned whether it was Canada’s
intention “that if a person fails to meet all three
criteria, that that person would not be considered Métis for the purposes of
the Final Agreement”.
[51]
Mr. Enge’s August 15, 2013 letter specifically
raised the issue of how harvesting rights were being dealt with in the draft
NWTMN AiP. He asked whether it was Canada’s intention “to
extinguish the common law Aboriginal rights to harvest wildlife, fish, plants
and trees throughout the NWT held by Métis eligible to be enrolled under the
Final Agreement and confer new rights by the Final Agreement to harvest
wildlife, fish, plants and trees exercisable only in the Agreement Area … to
Métis eligible to be enrolled under the Final Agreement?” Or, in the
alternative, Mr. Enge asked whether it was Canada’s intention “that the certainty provided under subsection 2.3.1 will only
apply to the common law Aboriginal rights of the current members of the NWTMN
and its affiliate Métis Councils?”
[52]
The concerns of NSMA members were discussed
during two face-to-face meetings between NSMA, Canada, and the GNWT. Present at
those meetings were Mr. Enge and the NSMA’s legal counsel, and representatives
of Canada and the GNWT. The first such meeting occurred on August 29, 2013, and
the second on October 24, 2013. The purpose of these meetings was to for Canada
and the GNWT to discuss the draft NWTMN AiP with the NSMA.
[53]
At the August 29 meeting, the NSMA
representatives requested additional funding to allow them to participate fully
in the consultation process. Canada refused this request, but agreed to
consider further requests for additional funding as the parties moved toward a
Final Agreement.
[54]
The principle concern expressed by the
representatives of the NSMA at this first meeting was that neither Canada nor
the GNWT be permitted to unilaterally extinguish the Aboriginal harvesting
rights of the members of the NSMA that had received judicial recognition in the
Mandeville case. To this end, the NSMA proposed a modification to the
provisions dealing with who was to be bound by a Final Agreement.
[55]
The draft NWTMN AiP provided that the agreement
would provide certainty with respect to the use and ownership of lands in the
Northwest Territories by individuals who were “eligible
to be enrolled under the Final Agreement”. According to the “Eligibility” provision in Chapter 3.1.1 of the
NWTMN AiP, “[a]n individual will be ‘eligible to
enrolled’ under the Final Agreement if he or she is a Canadian citizen who a)
is Métis; or b) was adopted as a Child, under Laws or under NWTMN custom, by a
Métis or is a descendant of such person”. The term “Métis” is defined in Chapter 1 of the NWTMN AiP as
meaning “an Aboriginal person of Cree, Slavey or
Chipewyan ancestry who resided in, used and occupied any part of the Agreement
Area on or before December 31, 1921, or a descendant of such people”.
[56]
Chapter 2.4.1 of the NWTMN AiP states that “[t]he Final Agreement will provide that the NWTMN represents
and warrants to Government that, with respect to the matters dealt with in the
Final Agreement, it has the authority to enter into the Final Agreement on
behalf of all individuals who are eligible to be enrolled under the
Final Agreement in accordance with the Eligibility and Enrolment chapter.”
[my emphasis].
[57]
The NSMA does not accept that the NWTMN has the
mandate or authority to enter into a Final Agreement on behalf of all of the
individuals who are “eligible to be enrolled”
under the agreement. According to the NSMA, this warranty would be a
misrepresentation of the facts, as the NSMA is not a member society of the
NWTMN and was not a party to the NWTMN AiP negotiations between Canada, the
GNWT, and the NWTMN. The NSMA thus asked that the NWTMN AiP be amended so that
the words “eligible to be enrolled” in the “Certainty” provision (Chapter 2.3.1) be replaced with
the words “who are members of” so that the amended
provision would read “[t]he Final Agreement will
provide certainty with respect to the use and ownership of lands and resources
within the Northwest Territories and the Wood Buffalo National Park by Métis
who are members of the NWTMN and the Métis Councils” [my
emphasis].
[58]
Also relevant is the “non-derogation”
clause (Chapter 2.5.1) in the NWTMN AiP, which provides that “No provision in the Final Agreement will be construed to …
affect …any Aboriginal Rights of any Aboriginal people other than individuals eligible
to be enrolled under the Final Agreement” [my emphasis].
[59]
In asking that the words “eligible to be enrolled” be deleted from the “Certainty” provision and the “non-derogation”
clause in the NWTMN AiP, the NSMA’s concern was that if the language was not
altered, these provisions would operate to extinguish at least some NSMA
members’ rights as Métis north of Great Slave Lake based solely on the fact that
the Dene ancestry of these members would make them “eligible
to be enrolled” under the Final Agreement. This extinguishment would,
moreover, occur without the NSMA members’ elected representatives having
participated in the negotiations.
[60]
Canada’s position was that if an individual held
Aboriginal rights in the area north of Great Slave Lake as a member of another
Aboriginal people (independent of his or her other ancestral ties to the south
Slave region of the Northwest Territories), the ability of these individuals to
exercise their Aboriginal rights should not be affected by a Final Agreement by
virtue of the agreement’s “non-derogation”
clause. If, however, the individual’s ancestral ties were just to the south
Slave area, and they met the eligibility criteria of the Final Agreement, then
that individual would be bound by the decision of the collective to ratify the
agreement. This would be the case whether or not the individual had chosen to
align him- or herself with another organization such as the NSMA.
[61]
Mr. Enge’s counsel stated that its proposed
changes to the wording of the NWTMN AiP would address two fundamental interests
on the part of the NSMA. First, they would ensure that the Aboriginal rights of
the NSMA members, including their right to harvest in the area north of Great
Slave Lake, could only be extinguished where those NSMA members had applied
for, and been accepted for enrollment under the Final Agreement. This would
mean that there could be no extinguishment by operation of law, as there would
have to be a clear choice made by individuals who elected to sign on to the
agreement.
[62]
Mr. Enge further noted that this accommodation
measure would also allow for the South Slave Métis people to proceed with their
Final Agreement.
[63]
Canada and the GNWT rejected the NSMA’s proposed
modification to the language of the NWTMN AiP at the October 24, 2013 meeting
on the basis that it was inconsistent with Canada’s approach to negotiations of
agreements of this nature, which was that agreements were intended to deal with
the rights of all of those who are eligible for enrollment under the
agreement in question.
[64]
The NSMA then proposed that it be included as a
party to post-NWTMN AiP negotiations towards a Final Agreement, so as to ensure
that NSMA members had meaningful participation in negotiations that were
intended to extinguish their Aboriginal hunting rights in the North Slave
region. This proposal was also rejected by Canada and the GNWT.
C.
The End of the Discussions
[65]
Following a further exchange of correspondence,
Canada and the GNWT advised the NSMA by letter dated April 7, 2014 that there
would be no further consultation with respect to the NWTMN AiP. This letter
stated that Canada and the GNWT were negotiating with the NWTMN “by virtue of its members’ Aboriginal ancestry, and not on
the basis of the NWTMN representing a rights-bearing Powley community”
[referring to the criteria for determining who qualifies as a Métis established
by the Supreme Court in R. v. Powley, 2003 SCC 43, [2003] 2 S.C.R. 207.
[66]
Canada and the GNWT took the position that “if the NSMA is a rights-bearing collective as
contemplated by the Supreme Court of Canada in Powley, then the NSMA
would be an Aboriginal group distinct from the NWTMN” and the rights of
its members would thus be protected by virtue of the non-derogation clause
contained in the Agreement. Canada and the GNWT further suggested that the NSMA
discuss the situation with the NWTMN to see if the two organizations could come
to some form of understanding.
[67]
During the process leading up to the signing of
the NWTMN AiP, Mr. Enge was in communication with the President of the NWTMN
with respect to the Agreement in Principle. A meeting between representatives
of the two organizations took place on December 5, 2014. However, the two sides
were unable to reach an agreement on the issues that divided them.
[68]
By letter dated August 18, 2015, Canada and the
GNWT officially notified NSMA that the NWTMN AiP had been concluded on July 31,
2015. This followed the ratification of the Agreement at a meeting of the NWTMN
at which 43 unidentified members of the organization were present.
V.
The Decision under Review
[69]
The decision at issue in this proceeding is
Canada’s decision to enter into the NWTMN AiP with the NWTMN and the GNWT.
[70]
The NWTMN AiP confirms the right of “Métis members” to harvest all species of wildlife
year-round in the “Agreement Area”, which, as
was mentioned earlier, is defined as that portion of the Northwest Territories
that is to the south and east of Great Slave Lake. If the terms of the NWTMN
AiP are ultimately incorporated into a Final Agreement between Canada, the
NWTMN and the GNWT, Mr. Enge states that the effect of this Agreement would be
to extinguish the judicially-recognized section 35 right of the members of the
NSMA to hunt caribou in the area to the north of Great Slave Lake. Indeed,
Canada has confirmed that its intent is that a final land and resources
agreement with the Métis of the Northwest Territories would extinguish the
section 35 harvesting rights outside of the Agreement Area for Métis whose
ancestors lived in the South Slave area.
[71]
As noted earlier, the NWTMN AiP defines the term
“Métis” as meaning “an
Aboriginal person of Cree, Slavey or Chipewyan ancestry who resided in, used
and occupied any part of the Agreement Area on or before December 31, 1921, or
a descendant of such people”.
[72]
The applicants say that Canada and the GNWT are
negotiating an agreement with the NWTMN that is blind to the constitutional
distinction between “Métis” and “Indian” peoples. Eligibility under the NWTMN AiP is
based on the Dene ancestry of the members of the NWTMN and their ancestral ties
to the area south of Great Slave Lake. Mr. Enge notes that Aboriginal ancestry
is just one of the indicia of being a Métis, and that as it is used in
section 35 of the Constitution Act, 1982, the term “Métis” “does not encompass all individuals with mixed Indian
and European heritage”. It instead refers to “distinctive
peoples who, in addition to their mixed ancestry, developed their own customs,
and recognizable group identity separate from their Indian or Inuit and
European forebears”: both quotes from Powley, above at para. 10.
[73]
Ms. Morgan, who, it will be recalled, was
Canada’s senior negotiator in the negotiations with respect to the Northwest
Territories land and resources agreement, acknowledged that the definition of “Métis” in the NWTMN AiP does not incorporate the
elements of the Powley test.
[74]
In contrast, Mr. Enge asserts that the members
of the NSMA are ethnically “Métis”, as
contemplated by subsection 35(2) of the Constitution Act, 1982, as
they satisfy the criteria established by the Supreme Court in the Powley
case. They are, moreover, a distinct section 35 rights-bearing Métis collective
whose traditional harvesting activities were carried out north of Great Slave
Lake - an area that is largely outside the area that was being dealt with in
the NWTMN negotiations.
[75]
In accordance with the non-derogation clause in
the NWTMN AiP, no provision in any Final Agreement between Canada, the NWTMN
and the GNWT will be construed to affect any Aboriginal or treaty rights of any
Aboriginal People other than individuals who are “eligible
to be enrolled under the Final Agreement”.
[76]
Mr. Enge acknowledges that those members of the
NSMA who share ancestral ties to the Dene of the South Slave region would be “eligible to be enrolled” under the Final Agreement,
and that that the non-derogation clause would only protect the rights of
Aboriginal groups who are distinct from those with ancestral ties to the Dene
of the south Slave region. Mr. Enge submits, however, that it should be open to
such individuals to choose to assert Powley-type Métis rights through
the NSMA, rather than participate in the NWTMN negotiation process by virtue of
their Dene ancestry.
[77]
Before addressing the merits of Mr. Enge’s
application for judicial review, however, there is a preliminary matter that
must be addressed. That is, as was mentioned earlier, Canada and the NWTMN
assert that Mr. Enge has failed to satisfy the requirements of Rule 114 of the Federal
Courts Rules, as he has not been properly authorized to act on behalf of
the members of the NSMA, and he has failed to demonstrate that he can fairly
and adequately represent their interests. As the issue of Mr. Enge’s standing
to bring this application could potentially be determinative of this
application, it will be addressed first.
VI.
Does Mr. Enge have Standing to Bring this
Application on Behalf of the Members of the NSMA?
[78]
Mr. Enge brings this application for judicial
review on his own behalf and on behalf of the members of the NSMA. He
acknowledges that as such, the application is governed by the provisions of
Rule 114(1) of the Federal Courts Rules, which provides that:
|
114 (1) Despite rule 302, a proceeding, other than a proceeding
referred to in section 27 or 28 of the Act, may be brought by or against a
person acting as a representative on behalf of one or more other persons on
the condition that
|
114 (1) Malgré la règle 302, une instance — autre qu’une instance
visée aux articles 27 ou 28 de la Loi — peut être introduite par ou contre
une personne agissant à titre de représentant d’une ou plusieurs autres
personnes, si les conditions suivantes sont réunies :
|
|
(a) the issues
asserted by or against the representative and the represented persons
|
a) les points de
droit et de fait soulevés, selon le cas :
|
|
(i) are common
issues of law and fact and there are no issues affecting only some of those
persons, or
|
(i) sont communs
au représentant et aux personnes représentées, sans viser de façon
particulière seulement certaines de celles-ci,
|
|
(ii) relate to a
collective interest shared by those persons;
|
(ii) visent
l’intérêt collectif de ces personnes;
|
|
(b) the
representative is authorized to act on behalf of the represented persons;
|
b) le représentant
est autorisé à agir au nom des personnes représentées;
|
|
(c) the
representative can fairly and adequately represent the interests of the
represented persons; and
|
c) il peut
représenter leurs intérêts de façon équitable et adéquate;
|
|
(d) the use of a
representative proceeding is the just, most efficient and least costly manner
of proceeding
|
d) l’instance par
représentation constitue la façon juste de procéder, la plus efficace et la
moins onéreuse.
|
[79]
Canada and the NWTMN submit that Mr. Enge has
not satisfied the requirements of Rule 114(1)(b) and Rule 114(1)(c). That is,
they argue that he has not been duly authorized to act on behalf of the members
of the NSMA, and he has not demonstrated that he can fairly and adequately
represent their interests. The GNWT does not dispute Mr. Enge’s standing to
bring this application on behalf of the members of the NSMA, perhaps because
they conceded as much in Mandeville.
[80]
While accepting that Mr. Enge is a member of a
rights-bearing group, Canada and the NWTMN submit that this does not give him
standing to bring this application.
[81]
Citing the Supreme Court of Canada’s decisions
in Behn v. Moulton Contracting Ltd., 2013 SCC 26 at para. 30, [2013]
S.C.R. 227, and Beckman v. Little Salmon/Carmacks First Nation, 2010 SCC
53 at para. 35, [2010] 3 S.C.R. 103, these respondents observe that Aboriginal
rights are collective rights, and the Crown does not owe a duty to consult
individual members of an Aboriginal group. Consequently, Canada and the NWTMN
submit that if Mr. Enge has not been duly authorized to bring this application
for judicial review on behalf of the members of the NSMA, it follows that the
application should be summarily dismissed.
A.
Was Mr. Enge Authorized to Act on Behalf of the
Members of the NSMA?
[82]
Rule 184(1) of the Federal Courts Rules provides
that allegations of fact asserted in a pleading that have not been admitted by
the opposing party or parties will be deemed to have been denied. Rule 184(2)(a)
further provides that is it not necessary for a party to prove his or her right
to bring a claim in a representative capacity, unless that right has been
denied by an adverse party. That is the case here.
[83]
In support of its contention that Mr. Enge has
not been duly authorized to act on behalf of the members of the NSMA in this
case, Canada notes that no specific authority was given to Mr. Enge by the
members of the NSMA prior to the filing of his application for judicial review
on August 26, 2015. No resolution of the Board of Directors of the NSMA was
ever passed authorizing this application, and because minutes of Board meetings
are not kept, it is not clear whether the bringing of this application was ever
discussed or approved by the Board of the NSMA.
[84]
According to Canada, the only authorization
given for Mr. Enge to bring this application for judicial review is the ex
post facto resolution passed at an Annual General Meeting of the NSMA that
was held on April 9, 2016. This resolution ratified the filing of this
application some seven months earlier. While acknowledging that such
after-the-fact approval might by sufficient to comply with the requirements of
Rule 114(1)(b) in some cases, Canada contends that it is not sufficient in this
case because of the inadequacies of the notice that was given to members of the
NSMA with respect to the Annual General Meeting of the organization.
[85]
One advertisement informing the public of the
upcoming Annual General Meeting of the members of the NSMA was placed in “The
Yellowknifer”, a local Yellowknife newspaper. Canada acknowledges that this
notice complied with the requirements of Article 8.2 of the NSMA’s By-laws,
which require that notice of an Annual General Meeting be given by way of “public advertisement” not less than 30 days prior to
the date of the meeting. However, Canada says that there is good reason to
believe that many of the members of the NSMA were unaware of the meeting.
[86]
In support of this contention, Canada points out
that many of the NSMA’s members do not live in Yellowknife and would thus not
have seen the advertisement. Moreover, the NSMA holds Annual General Meetings
only sporadically, with the last such meeting having taken place in 2013.
Consequently, the members of the NSMA would have had no reason to expect an
Annual General Meeting to take place in April of 2016. Canada further notes
that there were any number of ways that the NSMA could have given notice of its
upcoming Annual General Meeting to its members, including, for example, by posting
a notice on the NSMA’s website, sending notice to members of the NSMA by
regular mail or email, or including a notice in a NSMA newsletter. For whatever
reason, it chose not to avail itself of any of these methods of communication.
[87]
When he was asked in cross-examination why none
of these other methods were used to provide NSMA members with notice of the
upcoming Annual General Meeting, Mr. Enge stated that a single notice in the
newspaper “was good enough for the Registrar of
Societies so it is good enough for the NSMA”. Mr. Enge further suggested
that the onus was on members of the NSMA who lived outside of Yellowknife to
keep themselves informed as to what was going on with the organization.
[88]
Canada notes that Mr. Enge’s claim to having had
a “clear mandate” to pursue this application
stemmed not from the collectively expressed views of the members of the NSMA
who had been informed of the contents of the NWTMN AiP, but rather from the
objects of the organization, as set out in the NSMA’s Constitution, and from
the provision in NSMA membership application forms designating the NSMA as the
representative of the members’ interests. Canada says that such a mandate is “too general” to support the proposition that the
members of the NSMA had specifically authorized Mr. Enge to commence legal
proceedings on their behalf, the results of which would be binding on them.
[89]
The NWTMN notes that the position taken by the
NSMA with respect to the NWTMN AiP was formulated by Mr. Enge, his brother, his
cousin and his legal counsel, and that the members of the NSMA were not
consulted regarding their views of the NWTMN AiP prior to the commencement of
this application for judicial review. Mr. Enge made virtually no effort,
moreover, to inform the members of the NSMA of the issues that he had raised
during the consultation process with respect to the NWTMN AiP, and he made only
minimal effort to seek the views of the NSMA’s membership and their authority
to commence this proceeding.
[90]
The NWTMN also argues that Mr. Enge seemed to
accept that a specific mandate to commence this application for judicial review
was required. That is, when he was asked why he had sought a resolution
authorizing him to bring this application for judicial review after he had
already done so, Mr. Enge explained that “[t]he North
Slave Métis Alliance Board of Directors felt it was necessary to secure a
general mandate and confirmation from its members that this judicial review was
in the best interests of the North Slave Métis Alliance people”.
[91]
The NWTMN notes that the NSMA’s 2016 Annual
General Meeting was attended by only 22 unnamed members of the NSMA, out of a
total membership of 283. The NWTMN submits that the low turnout was explained
by the inadequacy of the notice given with respect to the meeting, the result
of which is that this retroactive authorization does not provide sufficient
authority for Mr. Enge to bring this application as a representative
proceeding. This is especially so, the NWTMN says, in light of the fact that
the advertisement in “The Yellowknifer” did not specify that the
membership would be asked to vote on a resolution authorizing Mr. Enge’s
actions in bringing this application on behalf of the NSMA’s members. While no
copy of the advertisement appears in the record, Mr. Enge stated in his
cross-examination that the advertisement simply indicated that “the following business will be conducted: financial
statements, resolutions, something like that”.
[92]
Mr. Enge argues that independent of any
resolution specifically authorizing the commencement of this application for
judicial review, he had the requisite authority to commence this application by
virtue of his office as President of the NSMA. He further submits that he can
personally assert section 35 Aboriginal rights through this application on his
own behalf and on behalf of others, as he is himself a member of the Métis of
the north Slave area who has section 35 Aboriginal harvesting rights. Finally,
Mr. Enge contends that there is no evidence before the Court of any other
organization (including the NWTMN) that is authorized to represent Métis asserting
harvesting rights in the area to the north of Great Slave Lake.
B.
The History and Purpose of Rule 114
[93]
In determining whether Mr. Enge has the
necessary standing to bring this application on behalf of the members of the
NSMA, it is helpful to start by reviewing the history and purpose of Rule 114.
[94]
The Federal Courts Rules historically had
a rule permitting representative proceedings which only applied to actions, and
not to applications. The rule was, however, repealed in 2002 when the Rules were
amended to allow for class actions. The view at the time was that proceedings
that had previously been brought as representative actions would now be brought
as class actions: Chief Justice Allan Lutfy and Emily McCarthy, “Rule-Making
in a Mixed Jurisdiction: the Federal Court (Canada)” (2010) 49 S.C.L.R.
(2d) 313 at para. 33.
[95]
Rule 114 was re-introduced into the Federal
Courts Rules a few years later, however, at the request of members of the
Aboriginal litigation bar who submitted that representative proceedings were
more suitable than class actions for the group litigation of claims relating to
Aboriginal and Treaty rights. Not only do representative actions not have the
costly and complex certification requirements of class actions, there is,
moreover, an important distinction between the two types of proceeding. Members
of a class have the ability to opt out of a class action, something that is not
appropriate when collective Aboriginal rights are being asserted. In contrast,
in representative proceedings, all of the members of a group will be bound by
the outcome of the proceeding: Gill v. Canada, 2005 FC 192 at para. 13,
271 F.T.R. 139; Lutfy and McCarthy, above at para. 38.
[96]
The re-enacted Rule 114 established a number of
requirements that a representative party must meet in order to protect the
individual members of Aboriginal groups: Kwicksutaineuk Ah-Kwa-Mish First
Nation v. Canada, 2012 FC 517 at para. 84, 409 F.T.R. 82. One such
requirement is that a representative applicant be duly authorized to act on
behalf of the represented persons.
[97]
As the Supreme Court observed in Behn, “[t]he duty to consult exists to protect the collective
rights of Aboriginal peoples”: above at para. 30. Because of the
collective nature of Aboriginal rights, the duty to consult is not owed to
individuals, but rather to the Aboriginal group that holds the section 35
rights: Beckman, above at para. 35. Consequently, the fact that Mr. Enge
may himself enjoy section 35 harvesting rights does not give him a personal
right to be consulted with respect to the NWTMN AiP, nor is it enough to allow
him to represent the other members of the NSMA in this application.
[98]
This is because self-appointed individuals will
not be permitted to assert collective Aboriginal rights on behalf of an Aboriginal
community: Ross River Dena Council v. Canada (Attorney General), 2009
YKSC 38 at para. 26, [2009] Y.J. No. 55 citing Queackar-Komoyue Nation v.
British Columbia (Atty. Gen.), 2006 BCSC 1517 at para. 35, [2007] 1
C.N.L.R. 286. An Aboriginal group can, however, authorize an individual or
organization to represent it for the purpose of asserting its section 35
rights.
[99]
The question, then, is whether Mr. Enge has been
properly authorized to assert collective Aboriginal rights on behalf of the
members of the NSMA.
C.
The Sufficiency of the Authority Given to Mr.
Enge
[100] Mr. Enge contends that independent of any resolution specifically
authorizing the commencement of this application for judicial review, he had
the authority to commence this application by virtue of his office as the
duly-elected President of the NSMA, an office that he has held since 2004. As
will be explained below, I agree with this submission.
[101] According to its Constitution, the NSMA is an organization whose
purpose is “to advance the interests of its members by
whatever means as are appropriate”, and to promote and support the
recognition and advancement of the Aboriginal rights of the Métis community of
the North Slave area of the Northwest Territories.
[102] The objects of the NSMA include “undertak[ing]
any activities related directly or indirectly that are of interest or concern
to the Alliance”, and “advanc[ing] and
support[ing] the constitutional, legal, political, social and economic rights
of the Indigenous Métis of the North Slave area of the Northwest Territories”.
The objects of the NSMA also include “negotiat[ing],
ratify[ing] and implement[ing] agreements to advance and support the inherent
right of self-government and self-determination of the community of Indigenous
Métis of the North Slave area in the Northwest Territories for the benefit of
the Alliance and its members between the federal Crown as represented by the
Government of Canada and the territorial Crown as represented by the Government
of the Northwest Territories”.
[103] Thus the assertion of Aboriginal harvesting rights in the area north
of Great Slave Lake is part of the very raison d’être of the NSMA, and
Mr. Enge’s actions in bringing this application for judicial review are
entirely consistent with the objects of the organization.
[104] Furthermore, the NSMA’s membership application includes a provision
whereby applicants confirm that they have voluntarily chosen the NSMA as their
sole representative for the purpose of pursuing any Aboriginal rights that they
may have in the North Slave Region of the Northwest Territories. This further
supports Mr. Enge’s authority to bring this proceeding on behalf of the members
of the NSMA.
[105] As a registered society, the NSMA has all the rights and powers of a
corporation: Societies Act, subsection 4(2). Corporations, in turn, have
all the rights, powers and privileges of natural persons: Business
Corporations Act, S.N.W.T. 1996, c.19, subsection 15(1). The Business
Corporations Act further provides that “it is not
necessary for a bylaw to be passed in order to confer any particular power on
the corporation or its directors”: subsection 16(1).
[106] The By-laws of the NSMA do, however, provide that the Board of
Directors of the NSMA is the governing body of the organization and is
responsible for upholding its Constitution. The President of the NSMA has
overall responsibility for the governance of the day-to-day business and
activities of the organization.
[107] Mr. Enge evidently developed the position taken by the NSMA with
respect to the NWTMN AiP in conjunction with two members of the organization’s
Board of Directors. Mr. Enge has further stated that the rest of the Board
members were kept apprised of the position that he and the other two Board
members were taking in their discussions with Canada and the GNWT. This is
consistent with the role of Mr. Enge as President and of the Board of Directors
as the governing body of the NSMA.
[108] As the Manitoba Court of Appeal noted in Chartrand v. De la Ronde
(1996), 113 Man.R. (2d) 12 at para 50, [1996] M.J. No. 433, (citing Shaw
& Sons (Salford) Ltd. v. Shaw, [1935] 2 K.B. 113 (C.A.) at p. 134), “[a] company is an entity distinct alike from its
shareholders and its directors. Some of its powers may, according to its
articles, be exercised by directors, certain other powers may be reserved for
the shareholders in general meeting”. Canada and the NWTMN have not
identified any provision in either the NSMA’s Constitution or its By-laws that
require that the members of the NSMA approve any litigation brought on their
behalf. I am thus not persuaded that it was necessary for Mr. Enge to obtain
the specific approval of the membership of the NSMA before commencing this
application for judicial review.
[109] Moreover, the Court went on in Shaw to note that “[t]he only way in which the general body of the shareholders
can control the exercise of the powers vested by the articles in the directors
is by altering their articles, or, if opportunity arises under the articles, by
refusing to re‑elect the directors of whose actions they disapprove”.
[110] Mr. Enge was first elected President of the NSMA in 2004. According
to Article 5 of the NSMA’s By-laws, elections are to be held every four years.
Consequently, it appears that Mr. Enge would likely have been re-elected
President of the NSMA in 2016 – after this application was commenced, and after
he had successfully asserted Aboriginal harvesting rights in the area north of
Great Slave Lake on behalf of the members of the NSMA in the Mandeville
case.
[111] Mr. Enge’s re-election to the Presidency of the NSMA in 2016
suggests that the members of the organization were satisfied with his actions
in bringing both of these cases.
[112] Indeed, it appears that the main impetus for the commencement of
this application was to ensure that Canada and/or the GNWT could not extinguish
the Aboriginal harvesting rights of the members of the NSMA in the area north
of Great Slave Lake that received judicial recognition in Mandeville.
[113] Moreover, without losing sight of the fact that the onus is on Mr.
Enge to demonstrate that he has the requisite authority to bring this
application for judicial review on behalf of the members of the NSMA, I note
that neither Canada nor the NWTMN has identified a single member of the NSMA
who does not support Mr. Enge’s actions in bringing this application on his or
her behalf.
[114] Finally, even if the specific authorization of the members of the
NSMA was required for Mr. Enge to commence this application, such authority was
obtained (albeit it on an after-the-fact basis) through the resolution passed
at the Annual General Meeting of the organization held on April 9, 2016
ratifying the filing of this application.
[115] This resolution provides that:
The members affirm that the President of the
North Slave Métis Alliance, acting with the approval of the NSMA Board of
Directors, has the authority to pursue all necessary legal and political
actions to preserve NSMA members’ Aboriginal rights as Métis of the Great Slave
Lake area of the Northwest Territories from the effect of the Final Agreement
as signified by NWTMN AiP including, but not limited to, the prosecution of the
Application for Judicial Review, Federal Court File No. T-1427-15.
[116] While better notice of the Annual General Meeting of the NSMA could
perhaps have been provided, the fact is that the notice that was given complied
with the provisions of both the Societies Act of the Northwest
Territories and the By-laws of the NSMA.
[117] For all of these reasons, I am satisfied that Mr. Enge has
sufficient authority to bring this application on behalf of the members of the
NSMA so as to satisfy the requirements of Rule 114(1)(b) of the Federal
Courts Rules.
[118] The next question is whether Mr. Enge can fairly and adequately
represent the interests of the members of the NSMA.
D.
Has Mr. Enge Demonstrated that He Can Fairly and
Adequately Represent the Interests of the Members of the NSMA?
[119] The respondents Canada and the NWTMN also claim that Mr. Enge has failed
to demonstrate that he can fairly and adequately represent the interests of the
members of the NSMA as he has failed to take reasonable steps to inform himself
of their views. As a result, they say that he is unaware of the opinions of
most of the members of the NSMA with respect to the NWTMN AiP.
[120] In Western Canadian Shopping Centres Inc. v. Dutton, 2001 SCC
46 at para. 41, [2001] 2 S.C.R. 534, the Supreme Court of Canada addressed the
type of considerations that a court should take into account in assessing
whether an individual litigant has the capacity to adequately represent a
group. Amongst other things, the Supreme Court stated that regard may be given
to “the motivation of the representative, the
competence of the representative’s counsel, and the capacity of the
representative to bear any costs that may be incurred by the representative in
particular (as opposed to by counsel or by the class members generally)”.
The Court went on to state that “[t]he proposed
representative need not be ‘typical’ of the class, nor the ‘best’ possible
representative”. The Court should, however, be satisfied that the
proposed representative “will vigorously and capably
prosecute the interests of the class”, citing W. K. Branch, Class
Actions in Canada (1998), at paras. 4.210-4.490; Friedenthal, Kane and
Miller, Civil Procedure (2nd ed. 1993), at pp. 729-32.
[121] While the Court’s comments were made in the context of class actions,
they are also relevant in the case of representative proceedings.
[122] Inasmuch as Canada and the NWTMN’s argument relates to the extent of
Mr. Enge’s consultation with the members of the NSMA before bringing this
application for judicial review, I have already concluded that he had the
necessary authority to bring this application for judicial review on behalf of
the members of the NSMA, and that his action in doing so and the position taken
in the application accords with the NSMA’s Constitution. He has, moreover,
demonstrated through his leadership role in the Mandeville case that he
has the necessary knowledge of the facts and issues involved in this
application, coupled with the ability to successfully assert section 35
Aboriginal harvesting rights on behalf of the members of the NSMA. Mr. Enge is,
moreover, represented by experienced counsel who successfully prosecuted the Mandeville
case on behalf of Mr. Enge and the members of the NSMA.
[123] Consequently I am satisfied that Mr. Enge has satisfied the
requirements of Rule 114(1)(c), and that he can fairly and adequately
represent the interests of the members of the NSMA in this application.
[124] This then takes us to the merits of the application for judicial
review.
VII.
The Issues
[125] Mr. Enge asserts that Canada has failed in its duty to properly
consult with the members of the NSMA prior to entering into the NWTMN AiP with
the NWTMN. Consequently he asks, amongst other things, that negotiation of any Final
Agreement be stayed until such time as meaningful consultation and
accommodation has occurred between Canada and the NSMA with respect to the
concerns that it has raised.
[126] In particular, Mr. Enge asserts that Canada has erred in law by:
(1)
Failing to conduct a preliminary assessment of
the strength of the NSMA members’ claim;
(2)
Failing to correctly identify the parameters of
the scope and content of its duty to consult;
(3)
Failing to reassess the strength of the NSMA
members’ claims during the consultation process; and by
(4)
Relying on the non-derogation clause in the
NWTMN AiP as a mitigation measure.
[127] Mr. Enge further asserts that the consultation process that was
carried out by Canada was unreasonable because it:
(1)
Took a rigid and inflexible position by relying
on its regional claims negotiation policy and ignoring legal principles;
(2)
Took an “ends justify
the means” approach to consultation; and
(3)
Refused to conduct deep consultation and to
consider appropriate accommodation measures given the extreme nature of the
potential adverse effects contemplated by the NWTMN AiP.
[128] Before addressing Mr. Enge’s issues, however, I will first address
the GNWT’s argument that this application for judicial review should be
dismissed on the basis that it is premature. I will also address Canada’s
argument that no duty to consult with the NSMA was triggered in this case, as
the members of the NSMA are part of the Métis community of the Northwest
Territories – the group with whom Canada has been negotiating, as represented
by the NWTMN.
[129] In order to put the issues raised by this application into context,
however, it is helpful to start by reviewing the law relating to the source and
function of the duty to consult.
VIII.
The Source and Function of the Duty to Consult
[130] As the Supreme Court of Canada observed in Mikisew Cree First
Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69, [2005] 3
S.C.R. 388, the management of the relationship between Canada’s Aboriginal and
non-Aboriginal peoples “takes place in the shadow of a
long history of grievances and misunderstanding”. The Court noted that
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”: both quotes from para. 1.
[131] It was in this context that the Supreme Court stated that “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”:
Mikisew, above at para. 1; Clyde River (Hamlet) v. Petroleum Geo
Services Inc., 2017 SCC 40 at para. 19, [2017] S.C.J. No. 40. The duty to
consult is grounded in the honour of the Crown, and seeks to protect Aboriginal
and treaty rights while furthering reconciliation between Indigenous peoples
and the Crown: Clyde River, above at para. 19, citing Rio Tinto Alcan
Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43 at para. 34, [2010] 2
S.C.R. 650.
[132] In order to act honourably, the Crown cannot “cavalierly run roughshod over Aboriginal interests where
claims affecting these interests are being seriously pursued in the process of
treaty negotiation and proof”: Haida Nation v. British Columbia
(Minister of Forests), 2004 SCC 73 at para. 27, [2004] 3 S.C.R. 511.
Instead, the Crown must respect these potential, but as yet unproven, interests
and must consult with the affected Aboriginal group or groups before any
decision is made that may affect the Aboriginal or treaty rights of the group
in question. As the Supreme Court noted in Clyde River, “‘consultation’ in its least technical definition is talking
together for mutual understanding”: above at para. 49, citing T. Isaac
and A. Knox, “The Crown’s Duty to Consult Aboriginal People” (2003), 41
Alta. L. Rev. 49, at p. 61.
[133] The duty to consult has both a legal and a constitutional character:
Rio Tinto, above at para. 34; R. v. Kapp, 2008 SCC 41 at para. 6,
[2008] 2 S.C.R. 483. The constitutional dimension of the duty to consult is
grounded in the honour of the Crown: Kapp, above at para. 6. It is
enshrined in section 35(1) of the Constitution Act, 1982, which
recognizes and affirms existing Aboriginal and treaty rights: Clyde River
at para. 19, citing Taku River Tlingit First Nation v. British Columbia
(Project Assessment Director), 2004 SCC 74 at para. 24, [2004] 3 S.C.R.
550.
[134] It is, moreover, “a corollary of the Crown’s
obligation to achieve the just settlement of Aboriginal claims through the
treaty process”: Rio Tinto, above at para. 32, citing Haida
Nation at para. 20
[135] The Supreme Court has explained that the duty to consult “derives from the need to protect Aboriginal interests while
land and resource claims are ongoing or when the proposed action may impinge on
an Aboriginal right”: Rio Tinto, above at para. 33. The duty to
consult requires that the Crown take contested or established Aboriginal rights
into account before making a decision that may have an adverse impact on them: Rio
Tinto, above at para. 35.
[136] The duty to consult is primarily a procedural right: Mikisew,
above at para. 57. It is not based on the common law duty of fairness, however.
Rather, it is a duty based on “a process of fair
dealing and reconciliation that begins with the assertion of sovereignty and
continues beyond formal claims resolution”: Haida Nation, above
at para. 32.
[137] While primarily procedural in nature, the duty to consult also has a
substantive dimension. The duty “is not fulfilled simply
by providing a process within which to exchange and discuss information”:
Wii'litswx v. British Columbia (Minister of Forests), 2008 BCSC 1139 at
para. 178, [2008] 4 C.N.L.R. 315. Consultation must instead be meaningful, and
be conducted in good faith “with the intention of
substantially addressing the concerns of the Aboriginal peoples whose lands are
at issue”: Clyde River, above at para. 23; Delgamuukw v.
British Columbia, [1997] 3 S.C.R. 1010 at para. 168, [1997] S.C.J. No. 108;
see also Arthur Pape, “The Duty to Consult and Accommodate: A Judicial
Innovation Intended to Promote Reconciliation” in Aboriginal Law since
Delgamuukw, ed. Maria Morellato (Aurora, ON: Cartwright Group Ltd., 2009)
at 317. In addition to being meaningful, consultation must also allow for
accommodation where necessary. The representations of the Aboriginal group must
be “seriously considered and, wherever possible,
demonstrably integrated into the proposed plan of action”: Halfway
River First Nation v. British Columbia, 1999 BCCA 470 at para. 160, [1999]
4 C.N.L.R. 1.
[138] Canada is required to consult with its Aboriginal peoples where it “has knowledge, real or constructive, of the potential
existence of the Aboriginal right or title and contemplates conduct that might
adversely affect it”: Haida Nation, above at para. 35. The
knowledge threshold that must be met to trigger the duty to consult and
accommodate is not high: see Rio Tinto, above at para. 40. Indeed,
knowledge of a credible but unproven claim is sufficient to trigger the duty: Haida
Nation, above at para. 37.
[139] Although it is essential that the Aboriginal people establish the
existence of a potential claim, proof that the claim will succeed is not
required: see Rio Tinto, above at para. 40.
[140] While the threshold for triggering a duty to consult is relatively
low, once it is triggered, the degree of consultation that will be required in
a specific case will depend on the strength of the Aboriginal claim, and the
seriousness of the potential impact on the right: Chippewas of the Thames
First Nation v. Enbridge Pipelines Inc., 2017 SCC 41 at para. 38 (CTFN),
[2017] S.C.J. No. 41, citing Haida Nation, at paras. 39 and 43-45. Each
case must be considered on its individual merits, and “flexibility
is required, as the depth of consultation required may change as the process
advances and new information comes to light”: Clyde River, above
at para. 20, citing Haida Nation, at paras. 39 and 43-45.
[141] A weak claim may only require the giving of notice, whereas a
stronger claim may attract more onerous obligations on the part of the Crown: Haida
Nation, above at para. 37. The content of the duty to consult in the
circumstances of this case will be discussed in greater detail later in these
reasons.
[142] The duty to consult does not provide Aboriginal groups with a veto: CTFN,
above at para. 59. As long as the consultation is meaningful, there is no
obligation on the Crown to reach an agreement with the Aboriginal groups in
issue. Rather, accommodation requires that “Aboriginal
concerns be balanced reasonably with the potential impact of the particular
decision on those concerns and with competing societal concerns. Compromise is
inherent to the reconciliation process”: Taku River, above at
para. 92.
[143] Where, however, “there is a strong Aboriginal
claim that may be significantly and adversely affected by the proposed Crown
action, meaningful consultation may require the Crown to modify its proposed
course to avoid or minimize infringement of Aboriginal interests pending their
final resolution”: Wii’litswx, above at para. 178. See also Haida
Nation, above at paras. 41-42, 45-50. Consultation must be meaningful, and cannot
simply be an opportunity for the Aboriginal group in issue to “blow off steam”: Mikisew, above at para. 54.
[144] The Crown has discretion as to how it structures the consultation
process and how the duty to consult is met: Gitxaala Nation v. Canada,
2016 FCA 187 at para. 203, [2016] 4 F.C.R. 418, leave to appeal refused, [2016]
S.C.C.A. No. 386, SCC 37201, Cold Lake First Nations v. Alberta (Minister of
Tourism, Parks and Recreation), 2013 ABCA 443 at para. 39, 566 A.R. 259
(Alta. C.A.).
[145] Perfect satisfaction of the duty to consult is not required. As long
as the Crown “makes reasonable efforts to inform and
consult the First Nations which might be affected by the Minister’s intended
course of action, this will normally suffice to discharge the duty”: Ahousaht
Indian Band v. Canada (Minister of Fisheries and Oceans), 2008 FCA 212, at
para. 54, [2008] F.C.J. No. 946.
[146] In all cases, the fundamental question is what is necessary 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: Haida
Nation, above at para. 45. The honour of the Crown also mandates that it
balance societal and Aboriginal interests in making decisions that may affect
Aboriginal claims: Haida Nation, above at para. 45. Consequently, any
decision affecting Aboriginal or treaty rights that is made without proper
consultation will not be in compliance with the duty to consult, and should be
quashed on judicial review: Clyde River, above at para. 24.
[147] With this understanding of the source and function of the duty to
consult and accommodate, I turn next to consider the GNWT’s prematurity
argument.
IX.
The GNWT’s Prematurity Argument
[148] The GNWT notes that the focus of Mr. Enge and NSMA in this
application is on the actions of Canada, and that only Canada’s actions are
identified in the grounds for review in the applicants’ Notice of Application.
The GNWT further submits that Canada was “in the
driver’s seat” in the discussions with the NSMA, and that it merely
followed Canada’s lead in this regard.
[149] The GNWT concedes that it had a duty to consult with, and, if
appropriate, accommodate the NSMA with respect to its members’ asserted
Aboriginal harvesting rights in the area to the north of Great Slave Lake. It
further concedes that this duty was triggered by the negotiation of the draft
NWTMN AiP, and that the GNWT will, moreover, continue to have a duty to consult
with the NSMA through to the conclusion of any Final Agreement. The GNWT
submits, however, that because there will be further consultation with the NSMA
prior to the conclusion of a Final Agreement, this application for judicial
review is therefore premature. I do not agree.
[150] The duty to consult is not limited to decisions that have an
immediate impact on lands and resources: Clyde River, above at para.
25. As I observed in Sambaa K’e Dene Band v. Duncan, 2012 FC 204, 405
F.T.R. 182, “the duty to consult extends to strategic,
higher level decisions that may have an impact on Aboriginal claims and rights,
even if that impact on the disputed lands or resources may not be immediate”:
at para. 164, citing Rio Tinto, above at para. 44.
[151] Consultation must, moreover, be timely: Halfway River, above
at para. 160. As I said in Sambaa K’e, “[i]f it
is to be meaningful, consultation cannot be postponed until the last and final
point in a series of decisions”. This is because “[o]nce important preliminary decisions have been made there
may well be ‘a clear momentum’ to move forward with a particular course of
action”: at para. 165, citing Squamish Indian Band v. British
Columbia (Minister of Sustainable Resource Management), 2004 BCSC 1320 at
para. 75, 34 B.C.L.R. (4th) 280. Such momentum, may, moreover, develop even if
the preliminary decisions are not legally binding on the parties: both quotes
from Sambaa K’e, above at para. 165.
[152] The duty to consult has been found to have been engaged by a Crown
decision to enter into an agreement in principle with respect to lands and
resources: Sambaa K’e, above at paras. 164-168; Huron-Wendat Nation
of Wendake v. Canada, 2014 FC 1154, at para. 102-105. [2015] 3 C.N.L.R. 53.
[153] Indeed, the case law shows that the non-binding nature of
preliminary decisions does not necessarily mean that there can be no duty to
consult. For example, in Dene Tha’ First Nation v. Canada (Minister of
Environment), 2006 FC 1354, 303 F.T.R. 106, negotiations leading to a
non-binding Cooperation Plan nonetheless triggered a duty to consult that fell
at the high end of the consultation spectrum.
[154] While there is still much to be resolved with respect to the terms
of a final land and resources agreement, as the GNWT itself acknowledged, the
NWTMN AiP provides “a general framework” for
those discussions.
[155] As a consequence, this application for judicial review is not
premature. It is open to Mr. Enge and the NSMA to challenge the adequacy of the
consultation that has taken place with it to this point with respect to the
NWTMN AiP.
[156] The next question, then, is whether the duty to consult with the
NSMA has been triggered in this case.
X.
Has the Duty to Consult with the Members of the
NSMA been Triggered in this Case?
[157] While the GNWT concedes that it had a duty to consult with the NSMA
that was triggered by its decision to negotiate the NWTMN AiP, Canada does not
agree that it owed a duty to consult with the NSMA, or that any such duty was
triggered in this case. Canada says that this is because the members of the
NSMA are part of the group with whom it has been negotiating, namely the NWTMN.
[158] According to Canada, the Métis rights that will potentially be
affected by a Final Agreement are the rights held by Métis people who are
eligible for enrollment in accordance with the terms of the NWTMN AiP. It will
be recalled that the NWTMN AiP defines “Métis”
as meaning “an Aboriginal person of Cree, Slavey or
Chipewyan ancestry who resided in, used and occupied any part of the Agreement
Area on or before December 31, 1921, or a descendant of such person”.
This is essentially the Métis community that Canada says that is has been
negotiating with for many years, as represented by the NWTMN.
[159] While it had been negotiating with the NWTMN for a long time, Canada
says that it started consulting with the NSMA in 2012 based on its
understanding that the NSMA represented a distinct Aboriginal group that was
asserting section 35 Aboriginal rights in the North Slave area. However, in the
course of its consultations with the NSMA, Canada says that it learned that
many members of the NSMA were in fact eligible for enrollment under the terms
of the NWTMN AiP, and would thus be eligible to participate in the Final
Agreement contemplated by the NWTMN AiP.
[160] Canada further notes that a binding final agreement will not be
imposed on the Métis of the Northwest Territories. A final agreement will only
come into existence if it is ratified by a majority of the people who are
eligible for membership under its terms.
[161] According to Canada, this case is thus not fundamentally about the
adequacy of Crown consultation; it is, rather, a challenge to the NWTMN as the
proper representative of the Métis people whose Aboriginal ancestors were
indigenous to the South Slave region of the Northwest Territories.
[162] Canada accepts that it had an obligation to consult with the Métis
community of the Northwest Territories prior to entering into the NWTMN AiP.
Canada further accepts that the Métis of the Great Slave Lake area have a good prima
facie claim to a right to harvest caribou in their traditional asserted
territory, which includes the area north of Great Slave Lake. What Canada
disputes is whether it had any duty to consult with the members of the NSMA,
independent of its obligation to consult with the Métis community of the
Northwest Territories as represented by the NWTMN.
[163] The question for determination is thus whether Canada owed a duty to
consult with the members of the Métis community of the Northwest Territories
who are represented by the NSMA, in addition to the duty that it owed to
consult with the members of the NWTMN. Before addressing this question,
however, I will first examine the appropriate standard of review to be applied
to Canada’s choice of negotiating partner.
A.
The Standard of Review
[164] The Supreme Court of Canada discussed the standards of review to be
applied to Crown decisions relating to the duty to consult in Haida Nation,
above at paras. 61-63. The Supreme Court held that on questions of law, the
decision-maker must generally be correct, whereas a reviewing Court may owe a
degree of deference to the decision-maker on questions of fact or mixed fact
and law: above at para. 61.
[165] Haida Nation was decided before the
Supreme Court’s decision in Dunsmuir v. New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190. However, in Ahousaht, above at para. 34, the
Federal Court of Appeal confirmed that Dunsmuir did not change the
standards of review to be applied in reviewing decisions relating to the duty
to consult.
[166] The question of whether a duty on the part of the Crown to consult
with a particular Aboriginal group has been triggered is a question of law,
inasmuch as it defines a legal duty. As such, it is reviewable on the standard
of correctness. That said, it also involves an assessment of the facts such as
the composition of the Métis community in the Northwest Territories, and the
nature of the two organizations that purport to represent that community.
Consequently, a degree of deference is owed to Canada’s assessment of the facts
underlying its choice of negotiating partner in this case: Haida Nation,
above at para. 61.
B.
The Duty to Consult in the Métis Context
[167] To a large extent, the disagreement between the parties with respect
to whether a duty to consult is owed to the NSMA stems from the fact that the
Aboriginal people whose rights are at stake in this proceeding are Métis,
rather than “Indians”, as that term is used in
the Indian Act.
[168] The governance structures and legal status of groups of “Indians” are largely governed by the provisions of
the federal Indian Act. Because of this, it will usually be clear which
entity represents which Aboriginal group, and which entity must thus be
consulted with respect to Crown actions that may have an impact on the
Aboriginal rights held by members of the group in question. There is no
comparable legislation at the federal or territorial level that creates legal
identities and governance structures for identifiable Métis collectives,
although some provinces have legislated in this area. As a result, it may be
unclear who the Crown must consult prior to taking action that may affect the
Métis’ Aboriginal rights.
[169] As was noted earlier in these reasons, Canada has been engaged in
negotiations with the Métis community of the Northwest Territories since the
1980s. After the failure of the Dene/Métis Land and Resource Negotiation,
Canada entered into regional land claim negotiations in each of the five
regions of the Northwest Territories, including the North and South Slave
regions. It appears that it was initially understood that the Métis of the
North Slave region would be pursuing their interests separately from the Métis
of the South Slave Region, in conjunction with the Dogrib Treaty 11 Tribal
Council.
[170] In 1996, Canada negotiated a framework agreement called the “South Slave Métis Framework Agreement” with the GNWT,
the Métis of Fort Smith Métis Nation Local #50, the Hay River and Area Métis
Nation Local #51, and the Fort Resolution Métis Nation Local #53, as
represented by the South Slave Métis Tribal Council (SSMTC). The SSMTC was an
umbrella organization representing the Métis of the South Slave region of the
Northwest Territories, and was the predecessor to the NWTMN. According to
Canada, this Framework Agreement continues to govern its negotiations with the
Métis community of the Northwest Territories.
[171] At the same time, the NSMA was asking that it be recognized as the
party to be consulted with respect to Métis claims relating to the area north
of Great Slave Lake. This request appears to have been rejected on the basis that
at least some of the members of the NSMA were eligible for membership in the
NWTMN.
[172] Although it appears to have had limited information regarding the
NWTMN (perhaps because it never asked the NWTMN for information regarding the
Aboriginal group that it purported to represent), Canada says that after the
failure of the Dene/Métis negotiations, it was an “easy
decision” to continue negotiating the terms of a land and resources
agreement with the NWTMN as the representative of the Métis people of the
Northwest Territories.
[173] Canada has, moreover, taken the position that any concern with
respect to the make-up of the NWTMN can be addressed through the ratification
process. That is, Canada says that the successful ratification of a Final Agreement
would signify that the NWTMN had been granted the necessary authority to enter
into the agreement. The applicants call this an “ends
justify the means” approach.
[174] While the successful ratification of a Final Agreement would signify
that the majority of the members of the NWTMN approve of the agreement, it
would not address the question of who had to be consulted with respect to the
terms of that agreement. Nor would it address any shortcomings in the
consultation process leading up to the ratification vote.
C.
Comparing the NSMA and the NWTMN
[175] The NSMA and the NWTMN were both established in the mid-1990s and both
are registered societies under the Societies Act of the Northwest
Territories. Although they have different criteria for membership, both
organizations purport to represent the Métis people of the Northwest
Territories who have section 35 rights to harvest in the area surrounding Great
Slave Lake.
[176] While both the NWTMN and the NSMA assert section 35 harvesting
rights in and around Great Slave Lake, the NSMA clearly represents a different
constituency within the Métis community than does the NWTMN. The focus of the
NWTMN appears to be on preserving the rights of its members in the area south
of Great Slave Lake, whereas the focus of the NSMA is to preserve the rights of
its members in the area to the north of Great Slave Lake.
[177] Although both organizations accept that there is a single Métis
community in the Northwest Territories whose traditional territory encompasses
the whole of the Territories, the two organizations have different objectives,
different priorities and different criteria for membership.
[178] One of the objects of the NWTMN is promoting the unity of the Métis
in the region to the south of Great Slave Lake in the Northwest Territories.
Other goals include protecting, promoting and enhancing the Aboriginal rights
of the Métis of the South Slave Region. According to the affidavit of Gary
Bailey, the President of the NWTMN, the mandate of the NWTMN is, in general
terms, “to serve and protect the interests of Indigenous
Métis who are members of the Fort Smith Métis Council, the Hay River Métis
Council, and the Fort Resolution Métis Council”. Mr. Bailey further
asserts that this mandate includes “the affirmation,
protection and recognition of Métis aboriginal rights throughout the
traditional territory of the NWTMN”, which, it says, includes the
entirety of the Northwest Territories.
[179] In contrast, the aims of the NSMA include promoting the unity of
the Métis in the North Slave Region of the Northwest Territories, and promoting
and supporting the recognition of the Aboriginal rights and title and treaty
rights of the community of indigenous Métis of the North Slave Region.
[180] The two organizations also appear to have different priorities, and
to represent different constituencies within the Métis community of the
Northwest Territories. While the focus of the NSMA is on protecting the
Aboriginal harvesting rights of the community of indigenous Métis in the north
Slave area of the Northwest Territories, Canada acknowledges that the NWTMN AiP
contemplates the extinguishment of Aboriginal harvesting rights in the
area to the north of Great Slave Lake.
[181] The NWTMN does not agree that the NWTMN AiP contemplates the
extinguishment of Aboriginal wildlife harvesting rights in the area north of
Great Slave Lake, stating that the extinguishment of its members’ Aboriginal
rights outside of the agreement area is a matter that is “not under negotiation”. However, although the terms
of the Final Agreement remain to be negotiated, the extinguishment of
Aboriginal harvesting rights in the area north of Great Slave Lake does seem to
be exactly what is contemplated by the NWTMN AiP. Indeed, Canada made clear
that this was its intention throughout the consultation process.
[182] Indeed, during the October 24, 2013 meeting, Canada advised Mr. Enge
and the NSMA of its intent that a final land and resources agreement with the
Métis would extinguish the Aboriginal harvesting rights north of Great Slave
Lake of those individuals eligible to be enrolled under the Final Agreement.
Canada further conceded at the hearing of this application that Mr. Enge was “probably correct” in his understanding of the impact
of the eligibility provisions in the NWTMN AiP on the rights of the members of
the NSMA in the area north of Great Slave Lake.
[183] The NWTMN and the NSMA also appear to have different views as to who
should be considered to be Métis for the purposes of a Final Agreement with the
Crown. Both the By-laws of the NWTMN and the NWTMN AiP define “Métis” solely by reference to Aboriginal ancestry.
However, as was noted by Mr. Enge and the NSMA, while all Métis have Aboriginal
ancestry, not everyone with Aboriginal ancestry qualifies as “Métis”, as that term has been understood by the
Supreme Court of Canada in cases such as Powley and Daniels v. Canada
(Indian Affairs and Northern Development), 2016 SCC 12, [2016] 1 S.C.R.
99. Indeed, in Powley, the Supreme Court specifically rejected the idea
that the term “Métis” includes everyone with
mixed Indian and European heritage.
[184] Section 35 of the Constitution Act, 1982 affirms Métis
rights, but is silent as to the definition of what it means to be “Métis”. The Supreme Court attempted to provide
guidance on this point in Powley, setting out indicia of Métis
identity for the purpose of claiming Métis rights under section 35. In addition
to ancestral connection, these include self-identification and community
acceptance: at paras. 31-33. In Daniels, the Supreme Court affirmed that
that the criteria in Powley were developed specifically for purposes of
applying section 35 of the Constitution Act, 1982, which, it
said, “is about protecting historic community-held
rights”: at para 49, citing Powley, above, at para 13.
[185] The Supreme Court further emphasized the case-by-case nature of the Powley
analysis, noting that although determining who will be considered to be a
member of a Métis community “might not be as simple as
verifying membership in, for example, an Indian band”. That does not,
however, “detract from the status of Métis people as
full-fledged rights-bearers”. The Supreme Court further observed that “[a]s Métis communities continue to organize themselves more
formally and to assert their constitutional rights, it is imperative that
membership requirements become more standardized so that legitimate
rights-holders can be identified”. In the interim, the Court stated
that “courts faced with Métis claims will have to
ascertain Métis identity on a case-by-case basis”: all quotes from para.
29.
[186] Although Canada says that the NSMA has essentially the same
membership criteria as NWTMN, the eligibility criteria for membership in the
NWTMN focus largely on Aboriginal ancestry, whereas the eligibility criteria
for membership in the NSMA includes other Powley-type considerations
such as community recognition.
[187] The NSMA currently has 283 members, whose names have been provided
to the two governments in the course of the consultation process. While the
Bylaws of the NSMA prohibit the membership of those individuals with status
under the Indian Act, Canada has noted that 33 of the individuals on the
NSMA’s membership list have the same name as individuals registered as “Indians” under the Indian Act. It has not,
however, established that they are in fact the same individuals.
[188] The NWTMN claims that there are 2,169 Métis people in Canada who are
eligible for membership in the organization, and it says that it is
currently undertaking a questionnaire process to identify additional Indigenous
Métis who are eligible for membership in one of its the three member Councils. The
NWTMN has, however, refused to provide any actual membership numbers nor has it
provided the names of its members. We thus have no way of knowing how the size
of the membership of the NWTMN compares to that of the NSMA.
D.
Conclusion as to Whether a Duty on the Part of
Canada to Consult with the NSMA was Triggered in this Case
[189] While the entitlement of an Aboriginal organization to be consulted
is not strictly a numbers game, I am prepared to draw an adverse inference from
the fact that the NWTMN has refused to disclose its current membership numbers.
I find that this information would likely have not assisted the NWTMN in
demonstrating that it was the only organization that was entitled to be
consulted with respect to a land and resources agreement between the Métis of
the Northwest Territories and the federal and territorial Crown.
[190] There is no suggestion that the two government respondents ever
asked the NWTMN to establish the strength of its members’ claims to Aboriginal
rights. Nor have the respondents established that the NWTMN has any greater
right to represent the interests of the Métis people of the Northwest
Territories than does the NSMA. The respondents have also not established that
the NWTMN has any greater right than the NSMA to be consulted with respect to
the terms of a land and resources agreement between the Métis of the Northwest
Territories and the federal and territorial Crown.
[191] The Supreme Court has, moreover, affirmed that Métis communities
have a significant role to play in the identification of membership
requirements and the development of organizational and governance structures: Alberta
(Aboriginal Affairs and Northern Development) v. Cunningham, 2011 SCC 37 at
para. 81, [2011] 2 S.C.R. 670, citing Powley, above at para. 29. It is
thus not for Canada to decide which organization is better suited to represent
the interests of the Métis community of the Northwest Territories, nor is it
for Canada to decide which organization has the more appealing agenda.
[192] Furthermore, the law is clear that “[t]he
Crown cannot run roughshod over one group’s potential and claimed Aboriginal
rights in favour of reaching a treaty with another”: Haida Nation,
above at para. 27.
[193] It is not appropriate to try to set out a set of guiding principles
that should be taken into account in determining whether a specific
organization purporting to represent a Métis collective is entitled to be
consulted in a particular case. This is a fact-driven question that must
instead be addressed on a case-by-case basis.
[194] In this case, it appears that Canada and the GNWT were negotiating
with the NWTMN for historical reasons, based on its members’ Aboriginal
ancestry, and not because the members of the NWTMN necessarily represented a
section 35 rights-bearing Powley Métis community.
[195] As the Supreme Court observed in Haida Nation, above at paragraph
37, knowledge of a credible but unproven claim is sufficient to trigger a duty
to consult and accommodate. Canada was clearly aware that the members of the
NSMA asserted a section 35 Aboriginal right to hunt caribou in the area north
of Great Slave Lake. Not only was it provided with copious evidence supporting
that claim, as of June, 2013, it was also aware that the Supreme Court of the
Northwest Territories had found in Mandeville that Mr. Enge had
established a good prima facie claim that he and the members of the NSMA
had a right to hunt caribou, based upon their asserted rights as Métis people
who had traditionally hunted in the area north of Great Slave Lake.
[196] Once it determined that some members of the NSMA were eligible for
membership in the NWTMN and were eligible to be enrolled under the NWTMN AiP,
Canada appears to have concluded that it had no obligation to consult with the
NSMA. It never considered the differences in the objects, priorities and
criteria for membership between the two organizations. Nor did it consider the
credibility of the organizations as representatives of the Métis community of
the Northwest Territories, or whether the organizations represented different
constituencies within that community. Canada’s conclusion that no duty to
consult was owed to the NSMA therefore lacks the justification, transparency
and intelligibility required of a reasonable decision. It is thus both
unreasonable and incorrect.
[197] Indeed, I am satisfied that, in this case, the NSMA is a credible
organization that has existed for many years, advocating for the rights of the
Métis of the north Slave region. The NSMA further represents a sizeable and
identifiable constituency within the Métis community of the Northwest
Territories, one with concerns and priorities that differ from those of the
NWTMN. As such, it was, and is, entitled to be consulted with respect to any
actions of the Crown that may have an adverse impact on the Aboriginal rights
of its members.
[198] As was noted earlier, the duty to consult is triggered when the
Crown has actual or constructive knowledge of a potential Aboriginal claim or
Aboriginal or treaty rights that might be adversely affected by Crown conduct.
The knowledge threshold that must be met to trigger the duty to consult and
accommodate is not high: see Mikisew, above at para. 55. Knowledge of a
credible but unproven claim is sufficient to trigger that duty: Haida Nation,
above at para. 37.
[199] Canada was aware that the members of the NSMA were asserting section
35 Aboriginal rights to harvest in the area north of Great Slave Lake, and
that, as of June, 2013, the Supreme Court of the Northwest Territories had
found that Mr. Enge had established a good prima facie claim that he and
the members of the NSMA had the Aboriginal right to hunt caribou in the area
north of Great Slave Lake, based upon their asserted section 35 rights as Métis
people who have traditionally hunted in that area: Mandeville at paras.
230 and 233.
[200] The negotiation of the NWTMN AiP was, moreover, an action on the
part of the Crown that could have an adverse impact on the Aboriginal rights of
the members of the NSMA. While the NWTMN does not agree, Canada itself
acknowledges its intention to extinguish the Aboriginal harvesting rights of
the Métis community of the Northwest Territories in the area north of Great
Slave Lake in exchange for a codified set of rights in the Agreement Area. This
is clearly contemplated conduct that may adversely affect an Aboriginal claim
or right: Haida Nation, above at para. 35.
[201] In these circumstances, I am satisfied that a duty on the part of
Canada to consult with the NSMA was triggered in this case.
[202] This then takes us to a consideration of what actually happened in
this case, how Canada approached the discussions with Mr. Enge and the NSMA,
and whether those discussions were sufficient to fulfill Canada’s duty to
consult with the NSMA with respect to the terms of a proposed land and
resources agreement between Canada and the Métis of the Northwest Territories.
XI.
Did the Crown Properly Assess the Extent of its
Duty to Consult the NSMA?
[203] As previously noted, Canada’s primary position appears to be that it
does not owe any duty to consult with the NSMA as the members of the NSMA are
part of the group with whom it has already been negotiating. Canada argues, in
the alternative, that if such a duty does arise, it was adequately discharged
by the consultations that have already taken place with the NSMA. As I have concluded
that Canada did indeed have a duty to consult with the NSMA, I will now
consider whether the interaction between the NSMA and the two levels of
government was sufficient to discharge that duty.
[204] Amongst other things, Mr. Enge and the NSMA argue that Canada erred
in law by failing to conduct a preliminary assessment of the strength of the
NSMA members’ claims to Aboriginal harvesting rights, by failing to correctly
identify the parameters of the scope and content of its duty to consult and by
failing to reassess the strength of the NSMA’s members’ claims during the
consultation process.
[205] Before examining what occurred in this case, however, it is helpful
to start by reviewing the law with respect to the need for a preliminary
assessment of the strength of an Aboriginal claim.
A.
The Law Relating to the Need for a Preliminary
Assessment of the Strength of a Claim
[206] Once triggered, the content of the duty to consult 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 ABCA 137 at para.
71, [2010] A.J. No. 479; Ahousaht, above at para. 39.
[207] 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.
[208] In contrast, where a strong prima facie case has been
established for the Aboriginal right or title in question, 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.
[209] The scope of the duty to consult is thus proportionate to a
preliminary assessment of the strength of the case supporting the existence of
the right or title, and of the seriousness of the potentially adverse effect
upon the right or title claimed: Haida Nation, above at para. 39. 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.
[210] The failure of the Crown to conduct a preliminary assessment of the
strength of an Aboriginal claim, to determine the scope of the consultation
required, and to discuss its preliminary assessment with the Aboriginal group
in question can itself be a breach of the duty to consult: West Moberly
First Nations v. British Columbia (Ministry of Energy, Mines and Petroleum
Resources), 2011 BCCA 247 at para. 113, [2011] 3 C.N.L.R. 343.
B.
The Applicable Standard of Review
[211] I understand the parties to agree that the standard of review to be applied
to the Crown’s assessment of the extent of its duty to consult, including its
assessment of the strength of the Aboriginal claim in issue, and the potential impact
on the right in question is that of correctness: West Moberly, above at
para. 174. However, as was noted in Haida Nation, some deference should
be shown to the Crown’s assessment of the facts: at para. 61.
[212] With this understanding of the applicable legal principles, I turn
now to consider the sufficiency of Canada’s preliminary assessment of the
strength of the NSMA members’ claim.
C.
Canada’s Assessment of the Extent of its Duty to
Consult with the NSMA
[213] According to the evidence of Ms. Morgan, the only preliminary
assessment that was carried out by Canada with respect to the strength of the Aboriginal
harvesting claims asserted by the members of the NSMA was that contained in an
undated table that was provided to the NSMA in the course of this application
for judicial review. The GNWT evidently prepared its own “Partial Preliminary Assessment of the Depth of the Duty to
Consult”, which does not assess either the strength of the claims of the
NSMA’s members nor the depth of consultation to which they were entitled. Ms.
Morgan was, moreover, clear that Canada had minimal input into this document.
[214] Although Ms. Morgan initially claimed in her cross-examination that
Canada’s assessment had likely been prepared in the summer of 2012, prior to it
entering into discussions with the NSMA, she subsequently conceded that the
document had to have been prepared sometime after June of 2013, as it contained
references to the decision in Mandeville. That decision was rendered on
June 20, 2013, and was provided to Canada by the NSMA shortly thereafter.
[215] Ms. Morgan also stated that this was the only assessment of
the strength of the claims of the members of the NSMA that had been carried out
by Canada. However, it appears that Canada had in fact previously assessed the
strength of the NSMA’s claims in early 2013.
[216] Over the years, the NSMA had provided Canada with copious amounts of
information in support of the section 35 harvesting rights being asserted by
its members in the area north of Great Slave Lake. In a letter to Mr. Enge
dated February 12, 2013, the Acting Director of Aboriginal and Territorial
Relations advised that Canada had conducted a “thorough
review” of the information that had been provided to support the NSMA
members’ claim to section 35 Aboriginal rights, and had that it had determined
that that the NSMA had “not provided sufficient
evidence to establish the existence of an ancestrally-based present-day Métis
community in the North Slave area with links to a historic Métis community in
that area”. Consequently, the letter stated that the NSMA had “not established a credible claim to s. 35 Métis rights which
would support the recognition of the NSMA as a distinct s. 35 Métis
rights-holding community”. The letter nevertheless concluded by
suggesting a meeting to discuss the issue.
[217] As noted by the applicants, the law requires that a single preliminary
assessment of the strength of a claim to an Aboriginal right may not be enough,
and that 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.
[218] However, despite the applicants’ assertion that Canada failed to
reassess the strength of the NSMA’s members’ claims during the consultation
process, it appears that Canada’s initial assessment was indeed reviewed in light
of the Mandeville decision. This second assessment is the one identified
by Ms. Morgan.
[219] The assessment in question identifies the right at issue as being
the “Aboriginal right to hunt for food, according to
traditional practices”. The document further notes that the NSMA
members’ traditional harvesting and land use area was “almost
identical to the land area affected by the GNWT’s Bathurst caribou management
zones”, referencing Mandeville at para. 231. Ms. Morgan
acknowledged in her cross-examination that Canada was in fact relying on the
assessment of the nature and scope of the rights that were identified in Mandeville.
[220] This revised preliminary assessment further states that the NWTMN
AiP “contemplates providing harvesting rights to the
Métis throughout the proposed Agreement Area”, and that “[t]he provision of harvesting rights to the Métis in an area
that overlaps with the asserted traditional territory could be perceived as
potentially affecting North Slave Métis Alliance harvesting rights”.
[221] There are a number of problems with this revised assessment.
[222] First, this second assessment was never shared with Mr. Enge and the
NSMA, and was only produced to them in the context of this application for
judicial review. However, the jurisprudence clearly requires that the Crown
provide an affected Aboriginal group with an opportunity to comment on a
preliminary assessment of the strength of a claim and the potential impact of
the proposed decision on the asserted rights: Adams Lake Indian Band v.
British Columbia (Lieutenant Governor in Council), 2011 BCSC 266 at para.
131, [2011] B.C.J. No. 363, rev’d, but not on this issue, 2012 BCCA 333.
[223] As the Court observed in Adams Lake, “[t]his
is necessarily a key step in the consultation process because 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’”:
at para. 131, citing Haida Nation at para. 39. As the Supreme Court
further observed in Haida Nation, the Crown is required to complete a
preliminary assessment because “one cannot meaningfully
discuss accommodation or justification of a right unless one has some idea of
the core of that right and its modern scope”: Haida Nation, above
at para. 36, citing R. v. Marshall, [1999] 3 S.C.R. 456 at para 112.
[224] Indeed, as the Federal Court of Appeal observed in Gitxaala,
the preliminary assessment “defines the subjects over
which dialogue must take place: a broad and strong claim to rights and title
over an asserted territory means that broad subjects within that territory must
be discussed and, perhaps, must be accommodated”: at para. 290.
[225] Once the Crown has completed its preliminary assessment of the claim
to Aboriginal rights, the Crown must undertake a process that is tailored to
the “spectrum of consultation”: Haida Nation
at para 44.
[226] As noted above, the first assessment of the strength of the claims
asserted by Mr. Enge and the members of the NSMA was that contained in Canada’s
February 12, 2013 letter to Mr. Enge. This letter simply states that the NSMA
had not established the existence of a credible claim to section 35 Métis
rights which would support the recognition of the NSMA as a distinct section 35
Métis rights-holding community.
[227] Insofar as the preliminary assessment identified by Ms. Morgan is
concerned, although Canada had by this point conceded that the members of the
NSMA had a good prima facie claim to the Aboriginal right to hunt
caribou on their traditional lands, there is nothing in the document regarding
Canada’s assessment of the strength of the claims of the NSMA’s members to
section 35 harvesting rights as Métis in the area north of Great Slave Lake.
[228] Nor is there any indication in the document identified by Ms. Morgan
as Canada’s preliminary assessment as to what assessment, if any, the Crown had
made concerning the scope of its duty to consult with the NSMA. The law,
however, requires that the Crown correctly identify the legal parameters of the
content of the duty to consult in order for it to be able to properly determine
what will constitute adequate consultation: Mandeville, above at para.
145; Klahoose First Nation v. Sunshine Coast Forest District (District Manager),
2008 BCSC 1642 at para. 18, [2009] 1 C.N.L.R. 110; Wii'litswx, above at
para. 15. To proceed without having done so would be an error of law: Nunatukavut
Community Council Inc. v. Canada (Attorney General), 2015 FC 981 at para.
91, [2015] F.C.J. No. 969; Mandeville, above at paras. 172-180.
[229] Indeed, as the Federal Court of Appeal observed in Gitxaala,
affected Aboriginal peoples are “entitled to know
Canada’s information and views concerning the content and strength of their
claims so they would know and would be able to discuss with Canada what was in
play in the consultations, the subjects on which Canada might have to
accommodate, and the extent to which Canada might have to accommodate”:
at para. 309. That did not happen here.
[230] Notwithstanding an invitation from the NSMA to do so, Canada refused
to assess the strength of the claimed right of the members of the NSMA to hunt
in the area north of Great Slave Lake as Métis.
[231] As noted earlier, the NWTMN AiP defines “Métis”
as meaning “an Aboriginal person of Cree, Slavey or
Chipewyan ancestry who resided in, used and occupied any part of the Agreement
Area on or before December 31, 1921, or a descendant of such person”.
The focus of the NWTMN AiP is thus on individuals of Indian ancestry, at least
some of whom might not qualify as “Métis” under
the criteria that were established by the Supreme Court in Powley.
Indeed, Ms. Morgan acknowledged in her cross-examination that negotiations with
the NWTMN with respect to a Northwest Territories land and resources agreement
were being carried out on the basis of Dene ancestry, and not Métis identity.
[232] This approach is the result of the fact that negotiations towards a
land and resources agreement with the Métis of the Northwest Territories
started, not just before the decision of the Supreme Court in Powley,
but before the enactment of the Constitution Act, 1982 with its section 35
protection for the rights of Canada’s Indigenous people. The language in the
NWTMN AiP was evidently based on language contained in the pre-Powley
South Slave Métis Framework Agreement, and the governments did not reconsider
their approach to the negotiations after the release of the Powley
decision. Indeed, Canada candidly admitted during the consultation process that
it did not much care which kind of Aboriginal rights were held by those who
were “eligible to be enrolled” under a final
agreement, as long as Canada achieved the certainty it was seeking with respect
to the use of lands and resources.
[233] The NSMA was clear in its discussions with Canada and the GNWT that
its members were asserting section 35 rights as Métis. Canada’s
representatives were, however, indifferent to the distinction between the Métis
and people with Cree, Slavey or Chipewyan ancestry. When representatives of the
NSMA attempted to discuss the issue at the October 24, 2013 meeting, a
representative of Canada stated “… you can call
yourself whatever you want to call yourself, but what is being settled in the
claim is ‘what are your Aboriginal rights?’ Not your Métis rights, not your
Indian rights, your Aboriginal rights”.
[234] The more fundamental problem with Canada’s revised preliminary
assessment is that it missed the most significant potential adverse effect
contemplated by the NWTMN AiP. This was the extinguishment of the Aboriginal
harvesting rights in the area north of Great Slave Lake of those NSMA members
who had Dene ancestors from the South Slave region, in exchange for codified
harvesting rights in the area south of the Lake being provided to those
individuals.
[235] Ms. Morgan confirmed in her cross-examination that in assessing the
scope of the consultation with the NSMA that was required, Canada focussed on
the impact of the agreement on the small area of overlap between the proposed
Agreement Area and the territory to the north of Great Slave Lake to which the
Supreme Court of the Northwest Territories had found that NSMA members had a
good prima facie claim to Aboriginal harvesting rights. Ms. Morgan
further confirmed that this was the only potential adverse impact that
Canada identified in its preliminary assessment.
[236] This is consistent with the June 11, 2013 letter to the NSMA, which
noted that Canada and the GNWT were aware that the NSMA was asserting
Aboriginal rights to harvest in the area north of Great Slave Lake. They went
on to note, however, that “[t]he draft NWTMN AiP
contemplates providing non-exclusive harvesting rights … to Métis Members …
throughout the proposed Agreement Area”, which, it will be recalled is
an area to the south and east of Great Slave Lake. The letter further stated
that “[t]here may exist a small area of overlap
between the northwest corner of the proposed Agreement Area and the area over
which the NSMA asserts an Aboriginal right to harvest” [my emphasis].
[237] However, in his August 16, 2013 letter to Mr. Enge, the Minister of
Aboriginal Affairs and Northern Development expressly acknowledged that members
of the NSMA have “a good prima facie claim to
the Aboriginal right to hunt caribou on their traditional lands” (which
include the area to the north of Great Slave Lake, and not merely a small area
bordering on the Agreement Area), and that they were entitled to “an appropriate measure of consultation when that asserted
right may potentially be adversely impacted by the Crown’s actions”.
[238] As was noted earlier, Canada acknowledged at the October 24, 2013
meeting with Mr. Enge and other members of the NSMA that it was its intent that
a Final Agreement with the NWTMN would extinguish Métis harvesting rights in
the area north of Great Slave Lake for those individuals with ancestral ties to
the Dene of the south Slave region. The impact of such an agreement would thus
be on the entirety of the traditional territory of the members of the NSMA, and
not merely on a “small area of overlap” along
the northeast corner of the proposed Agreement Area.
[239] As the Supreme Court observed in Haida Nation, where
Aboriginal 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. That is essentially what happened here.
[240] 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.
[241] “Deep consultation” may require that the Aboriginal group in question be provided with
an opportunity to make submissions, to participate in the decision-making
process, and to receive written reasons that demonstrate that their concerns
were considered, and which reveal the impact those concerns had on the decision:
Haida Nation, above at para. 44; Clyde River, above at para. 47.
[242] Consultation founded upon a fundamental misconception of the
Aboriginal interests at stake does not discharge the Crown's obligation to
consult in good faith: Kwakiutl First Nation v. North Island Central Coast
Forest District, 2015 BCCA 345 at para. 66, 69, [2015] 4 C.N.L.R. 225.
[243] Canada had already acknowledged in its August 16, 2013 letter to Mr.
Enge that the members of the NSMA have a good prima facie claim to the
Aboriginal right to hunt caribou on their traditional lands, and that they
therefore were entitled to “an appropriate measure of
consultation” when their asserted right may potentially be adversely
impacted by Crown action. However, Canada appears to have completely misunderstood
the extent of the impact that a final land and resources agreement could have
on that right.
[244] Although the NWTMN AiP states that the parties would enter into land
selection negotiations to identify Métis land and Métis community land for
inclusion in a Final Agreement, the Aboriginal right at issue in this case does
not involve title to the lands in question. That said, the right to hunt is
nevertheless an important Aboriginal right – one that has played a central role
in the history and culture of the Métis of the Northwest Territories. Moreover,
an agreement that has the effect of extinguishing an important Aboriginal right
in a group’s traditional territory is clearly a Crown action that would have a
profound impact on an asserted Aboriginal right and a traditional way of life –
damage that would not be readily compensable. This would suggest that
consultation towards the deeper end of the spectrum would be required in this
case.
[245] However, having misunderstood the extent of the potential impact that
the NWTMN AiP and a final land and resources agreement would have on the
Aboriginal harvesting rights of the members of the NSMA, Canada entered into
its consultation with the NSMA based on a fundamental misconception of the
nature and scope of its duty to consult. Moreover, without fully understanding
the seriousness of the potential impact that a land and resources agreement
would have on the section 35 rights of the members of the NSMA, Canada could
not properly assess what, if any, accommodation measures would be appropriate.
[246] While the applicants were able to provide oral and written
submissions to the federal and territorial Crown, they were not included in the
decision-making process that led up to the conclusion of the NWTMN AiP in July
of 2015. Indeed, there was no attempt to consult with the NSMA until such time
as Canada and the GNWT had already arrived at a draft NWTMN AiP. This was, in
my view, too little, too late. It was a breach of the duty to consult that was
owed to the NSMA and its members by the Crown.
[247] Given that this finding is sufficient to dispose of this
application, it is not necessary to address the other issues raised by the
applicants.
XII.
Remedy
[248] As the Supreme Court observed in Clyde River, “judicial review is no substitute for adequate consultation.
True reconciliation is rarely, if ever, achieved in courtrooms.” The
Court further noted that “[j]udicial remedies may seek
to undo past infringements of Aboriginal and treaty rights, but adequate Crown
consultation before project approval is always preferable to
after-the-fact judicial remonstration following an adversarial process”:
both quotes at para. 24, emphasis in the original. That is certainly the case
here.
[249] That said, we are now at the litigation stage, and I must attempt to
craft a remedy that would undo, to the extent possible, what I have found to be
the breach of the NSMA members’ right to be properly consulted with respect to
the potential infringement of their section 35 Aboriginal harvesting rights in
the area north of Great Slave Lake.
[250] Although the GNWT and the NWTMN have been named as respondents in
this application, the decision under review in this case is the decision of the
federal Minister of Indian Affairs and Northern Development not to consult the
applicants sufficiently with respect to the NWTMN AiP prior to signing the
agreement. Consequently, the remedy provided by the Court should be addressed
solely to Canada. This is consistent with the relief sought in the applicants’
Notice of Application.
[251] I have concluded that as the representative of those members of the
Métis community of the Northwest Territories who assert section 35 harvesting
rights in the area north of Great Slave Lake, the NSMA is entitled to be
consulted and, if necessary, accommodated with respect to potential adverse effects
of the NWTMN AiP and any Final Agreement to be negotiated with the Métis of the
Northwest Territories on the Aboriginal rights of its members. I have also
concluded that Canada failed to consult sufficiently deeply with the NSMA prior
to entering into the NWTMN AiP on July 31, 2015. Consequently, a declaration to
that effect will issue.
[252] Having further concluded that the NSMA is entitled to be consulted
at the mid to deep end of the spectrum with respect to a future land and resources
agreement that would potentially adversely affect the Aboriginal harvesting
rights of its members, a declaration to that effect will issue.
[253] Canada must also consider whether accommodation measures are
appropriate to address the concerns of the members of the NSMA who are eligible
to be enrolled under the terms of a final land and resources agreement, as
contemplated by the eligibility provisions of the NWTMN AiP. Measures for
consideration by the parties shall include:
(i)
whether the words “eligible
to be” should be removed from subsections 2.3.1, 2.4.1 and 2.5.1(b) of
any Final Agreement; and
(ii)
whether the NSMA should be included as a party
to the negotiations of the final land and resources agreement in order to
ensure that its members have meaningful participation in the NWTMN land claim
negotiations that are intended to extinguish their Aboriginal harvesting rights
in the North Slave Region;
[254] No final land and resources agreement between the federal and
territorial governments and the Métis of the Northwest Territories contemplated
by the NWTMN AiP shall be concluded until there has been meaningful
consultation with the members of the NSMA at the mid to deep end of consultation
spectrum and the appropriate accommodation measures have been considered with
respect the concerns raised by NSMA.
[255] Finally, this process is to be conducted with the aim of reconciling
outstanding differences between the parties, in a manner that is consistent
with the honour of the Crown and the principles articulated by the Supreme
Court in Haida Nation and Taku River, above.
XIII.
Costs
[256] I have been advised that there is an outstanding offer to settle in
this case that may have a bearing on the question of costs. Consequently, the
applicants shall have 10 days in which to provide written submissions on the
issue of costs, which are not to exceed five pages in length. The respondents
shall then have 10 days in which to respond with written submissions that are
not to exceed five pages in length. The applicants will then have a further five
days in which to reply with written submissions that shall not exceed three
pages in length.
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