Date: 20241121

Docket: T-1074-23

Citation: 2024 FC 1856

Ottawa, Ontario, November 21, 2024

PRESENT: The Honourable Madam Justice Blackhawk

BETWEEN:

ESKASONI FIRST NATION and CHIEF LEROY DENNY

Applicants

and

ATTORNEY GENERAL OF CANADA

Respondent

JUDGMENT AND REASONS

I. Overview

[1] This is a consolidated application for judicial review related to the readjustment of the federal election boundaries for the Province of Nova Scotia.

[2] The Applicants have filed an application in respect of the April 21, 2023 decision of the Federal Electoral Boundaries Commission for Nova Scotia (“Commission”), disposing of objections and finalising its report on revised electoral boundaries (“Decision”), pursuant to subsection 23(1) of the Electoral Boundaries Readjustment Act, RSC 1985, c-E-3 [EBRA].

[3] In addition, the Applicants seek to review the Governor-in-Council’s (“GIC”) issuance of the Proclamation Declaring the Representation Orders to be in Force Effective on the First Dissolution of Parliament that Occurs after April 22, 2024: SI/2023-57 (“Proclamation”).

[4] The issue of central importance with respect to both the Decision and the Proclamation is in addition to parity of voters: did the Commission give due consideration to the community of interest, community of identity in, or the historical pattern of the electoral district in accordance with the requirements of the EBRA?

[5] A short note on terminology. The terms “federal electoral boundaries,” “federal electoral district,” “constituencies,” or “ridings” appear throughout these reasons. These terms are used to describe the same thing; the “geographical areas represented by a member of Parliament (“MP”) in the House of Commons (“HOC”)” (see Elections Canada, “Home Page” (last modified September 16, 2024), online: <https://www.elections.ca/>). I use these terms interchangeably in a manner that is reflective of the terminology in particular pieces of evidence referenced before me.

[6] For the reasons that follow, this application is dismissed.

II. Background

A. The Applicants

[7] The Applicant, Eskasoni First Nation (“Eskasoni”) is located in Unama’ki (Cape Breton), Nova Scotia. Eskasoni brought an application in respect of the Commission’s Decision. The Applicant, Chief Leroy Denny (“Chief Denny”), is the elected Chief of Eskasoni. Chief Denny brought an application in respect of the Proclamation. Because both applications are related, the applications were consolidated into one judicial review.

[8] In his affidavit, Chief Denny noted that Eskasoni has the largest population of the Mi’kmaq Nation communities and is the largest Indigenous community in Atlantic Canada. At the time of filing his application, Eskasoni had 4,763 registered members, with 4,027 of those members residing on reserve. Eskasoni is home to the largest Mi’kmaq-speaking community in the world and they maintain close ties to traditional Mi’kmaq culture and beliefs.

[9] Chief Denny also noted that the Mi’kmaq entered into a series of treaties of peace, friendship, trade, and protection with the British sovereign (“Crown”) between 1630 and 1779. Together, these treaties constitute the Elikewake Compact, a transatlantic alliance and partnership between the Mi’kmaq Nation and the Crown (“Treaty Relationship”). I note that the Applicants did not provide evidence concerning the scope and content of the Elikewake Compact, nor did they provide the text of all the treaties or evidence of the oral promises that constitute the Elikewake Compact. Further, the Applicants did not highlight specific provisions or promises within the Elikewake Compact relevant to this application. In the absence of the aforementioned evidence, I am unable to make specific conclusions with respect to how the Elikewake Compact informs the issues in this Application.

[10] Prior to the readjustment of the electoral boundaries in Nova Scotia, Eskasoni was in the Sydney-Victoria electoral district (“SV District”). Following the Decision, Eskasoni will be in the Cape Breton-Canso-Antigonish electoral district (“CBCA District”).

B. Electoral district redistribution process

[11] The number of federal electoral districts for each province is determined by section 51 of the Constitution Act, 1867, 30 & 31 Victoria, c 3 (UK), which determines the number of MPs in the HOC allocated for each province. There are 11 electoral districts in Nova Scotia and corresponding MPs representing Nova Scotia in the HOC.

[12] After each decennial census, the boundaries for the federal electoral districts are readjusted to reflect movements and fluctuations within each province’s population, in accordance with subsection 3(2) of the EBRA. Non-partisan and independent commissions are established for each province under subsection 3(1) of the EBRA to examine the existing ridings and to develop a plan for their readjustment (if necessary), based on information related to the population demographics collected from the decennial census (Raîche v Canada (Attorney General), 2004 FC 679 [Raîche] at para 5). A boundary commission must ensure that the population range of each constituency remains within 25% more or 25% less of the electoral quota, unless there are extraordinary reasons to depart from that variance (EBRA, s 15(2)). In addition, a boundary commission shall consider two factors: “(i) the community of interest or community of identity in or the historical pattern of an electoral district in the province, and (ii) a manageable geographic size for districts in sparsely populated, rural or northern regions of the province” (EBRA, s 15(1)(b)).

[13] To briefly summarize the procedure to be followed, the commission creates a proposal for the necessary readjustments to the boundaries of the federal electoral districts (Raîche at para 5). The proposal is then published in the Canada Gazette and at least one newspaper of general circulation in the province, with maps of the proposed new constituencies (EBRA, ss 19(2)–(4); Raîche at para 5). Following publication of the proposal, the commission must hold at least one public consultation hearing (EBRA, s 19(1); Raîche at para 5). After consulting with communities, the commission is to consider and address the feedback and concerns raised during the public consultation hearing(s) (Raîche at para 5). Following this, a final report for the readjustment of the federal riding boundaries is developed (EBRA, s 14(2)) and the final report is transmitted to the Chief Electoral Officer (EBRA, s 20(1); Raîche at para 5).

[14] The Chief Electoral Officer refers the final report to the Speaker of the HOC (EBRA, s 20.1(1)(a); Raîche at para 6). The Speaker then refers the final report to the HOC Standing Committee on Procedure and House Affairs (“PROC”) (EBRA, s 21(1); Raîche at para 6). Once the PROC review is complete, the PROC returns the final report to the commission for reconsideration, along with any objections, the minutes of proceedings, and evidence of the PROC (EBRA, s 22(3)). The commission will then consider and address any objections and dispose of them accordingly, at which point the final report is referred back to the Chief Electoral Officer and the Speaker (EBRA, s 23).

[15] The Chief Electoral Officer then prepares a draft representation order and transmits it to the Minister (EBRA, s 24(1); Raîche at para 6). The GIC will then make a proclamation declaring the representation order to be in force, effective on the first dissolution of Parliament that occurs at least seven months after the proclamation (EBRA, s 25(1); Raîche at para 7).

[16] The readjustment process was developed, in part, to avoid the practice of gerrymandering; in other words, it attempts to avoid manipulating the electoral boundaries of a particular constituency that favour one representative, party, or class (see: Reference re the Final Report of the Electoral Boundaries Commission, 2017 NSCA 10 [Nova Scotia Reference] at para 29; Marc Bosc & André Gagnon, eds “The House of Commons and Its Members” in The House of Commons Procedure and Practice, 3rd ed (Ottawa: Éditions Yvon Blais, 2017).

C. The Federal Electoral Boundaries Commission for Nova Scotia

[17] On November 1, 2021, the Commission was established by an Order in Council pursuant to subsection 3(1) of the EBRA. The Commission had a mandate to examine, report, and readjust the boundaries of the 11 federal electoral districts within Nova Scotia following the 2021 decennial census. The work of the Commission was guided by paragraph 15(1)(b) of the EBRA.

[18] On April 27, 2022, the Commission prepared the Proposal of the Federal Electoral Boundaries Commission for the Province of Nova Scotia (“Proposal”) and an accompanying map. The Commission published the Proposal and map in three newspapers circulated throughout Nova Scotia (The Halifax Chronicle Herald, Cape Breton Post, and Le Courrier de la Nouvelle-Écosse). The Proposal included details about the planned public consultation process, which included both in-person and virtual hearings, and acceptance of written submissions.

[19] The Commission also provided public notice of the Proposal on its website, through social media (Facebook, Twitter, and YouTube) and via regional Canadian Broadcasting Corporation (“CBC”) broadcasts. The chairperson of the Commission gave interviews with print and radio media explaining the redistribution process and invited public participation.

[20] The Proposal indicated that population changes called for a shift in the federal ridings but did not note any extraordinary reasons to depart from the 25% plus or minus variance set out in paragraph 15(1)(a) of the EBRA. Further, section 3 of the Canadian Charter of Rights and Freedoms, s 7, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter] guided the Commission in their development of the Proposal. At publication, the Proposal did not include proposed changes to the SV District.

[21] The Commission received written submissions from the public until May 23, 2022, in both English and French. From May 30 to June 27, 2022, the Commission held nine public consultation hearings, including one virtual hearing, and received submissions from Nova Scotia residents on the proposed redistribution, in both official languages. There was no public hearing scheduled in Eskasoni or in other Mi’kmaq communities.

[22] The Certified Tribunal Record for this application indicates that no member of the Eskasoni community participated in the public consultation process. Specifically, neither Eskasoni Chief Denny nor SV District MP Jaime Battiste (“MP Battiste”) a member and resident of Eskasoni, participated in the public consultation process.

[23] The Commission made changes to the Proposal following the conclusion of the public consultation process, again noting its consideration of the paramount principles in section 15 of the EBRA and section 3 of the Charter.

[24] On November 15, 2022, the Commission published the Report of the Federal Electoral Boundaries Commission for the Province of Nova Scotia (“Report”), which set out the new electoral districts for Nova Scotia based on their readjustment review and the public consultation process.

[25] The Report recommended boundary readjustments in the Cape Breton region. Previously, the SV District included three Mi’kmaq communities: Eskasoni, Wagmatcook First Nation (“Wagmatcook”), and Membertou First Nation (“Membertou”). The Report broke down this described urban electoral district and created a new Sydney-Glace Bay electoral district (“SGB District”). Membertou will be the only Mi’kmaq community in the new SGB District. Eskasoni and Wagmatcook are now in the new described rural CBCA District, which includes five Mi’kmaq communities (Eskasoni, Wagmatcook, Waycobah First Nation, Potlotek (Chapel Island) First Nation, and Paq’tnkek First Nation).

[26] On November 17, 2022, the Report was tabled in the HOC and referred to the PROC.

D. Objection by MP Battiste

[27] On or about December 14, 2022, MP Battiste was interviewed by the CBC and issued a news release in response to the Commission’s Report. He argued that the Commission’s proposed changes to the electoral districts were unconstitutional and made without consultation with Eskasoni. He requested immediate reinstatement of the former electoral districts.

[28] MP Battiste raised several objections at the PROC Committee Meeting on January 31, 2023, regarding the Report. First, he argued that the Commission did not respect principles of procedural fairness and that the Commission breached its constitutional duty and the United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”) duty to consult with impacted Mi’kmaq communities. Second, MP Battiste asserted that the Report did not reflect the deep historical and present-day relationships among Mi’kmaq communities, and between Mi’kmaq communities and Sydney. Third, he argued that the Report did not adequately take into consideration its impact on Indigenous languages, and that the work of this Commission was not in accordance with the best practices of other electoral boundary commissions in respecting Indigenous rights. While it is not clear, MP Battiste appears to suggest that there is a constitutionally protected Aboriginal or Treaty right to effective representation of Indigenous persons in federal politics and to increase the potential to elect a Mi’kmaq MP. He seems to argue that any potential changes to electoral districts that may impact this asserted right triggers a duty to consult under section 35 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 (“section 35”).

[29] In March 2023, the Honourable Bardish Chagger, Chair of the PROC, prepared and released the Report of the Federal Electoral Boundaries Commission for the Province of Nova Scotia, 2022 (“PROC Report”). The PROC Report detailed the PROC’s support of MP Battiste’s objections and recommended that the Commission consider the objections favorably.

[30] The PROC Report also included a five-page dissenting report prepared by four MPs of the Conservative Party of Canada (“PROC Conservative Dissenting Report”). This dissenting report highlights that MP Battiste’s objections came very late in the process and that the request to keep the existing electoral districts was not feasible in light of the regional population and the permissible population variance established in section 15 of the EBRA.

E. The Decision

[31] In an Addendum to the Report: Disposition of Objections (“Addendum”) released April 21, 2023, the Commission addressed the objections raised by MP Battiste. Ultimately, the Commission declined to amend or revise any of the recommendations set out in the Report. However, the Commission did agree to a suggested name change for an electoral district suggested by now-Central Nova Scotia MP Sean Fraser. The Addendum addressed the objections based on i) a lack of procedural fairness; ii) a failure to consider section 35 Aboriginal and Treaty rights, the duty to consult, and UNDRIP; and iii) the rationale behind the Decision to move Eskasoni and Wagmatcook to a predominantly rural riding based on population parity issues. The Addendum also responded to concerns raised regarding effective representation for the Mi’kmaq. The inclusion of the Addendum to the Report is collectively referred to in these reasons as the “Final Report.”

[32] Eskasoni commenced the application for judicial review of the Decision on May 23, 2023.

[33] The Applicants allege that the Decision is procedurally unfair; breaches the section 35 constitutionally protected duty to consult, the UNDRIP, and the honour of the Crown; infringes Eskasoni’s right to effective representation pursuant to section 3 of the Charter; contravenes section 15 of the EBRA by failing to properly consider Eskasoni as a community of interest, its community identity, or the historical pattern of the SV District; and is not reasonable in light of the factual constraints. I note that the issues raised in this application appear to mirror the objections raised by MP Battiste at the PROC Committee Meeting on January 31, 2023.

F. The Proclamation

[34] Following receipt of the Final Report on September 18, 2023, the Chief Electoral Officer prepared the draft representation orders for all provinces and provided them to the Minister.

[35] On September 22, 2023, the GIC directed that a proclamation be issued to declare the representation orders into force. The GIC issued the Proclamation on September 17, 2023, declaring the new electoral boundaries effective on the first dissolution of Parliament that occurs after April 22, 2024. The new electoral boundaries are those identified by the Commission in its Final Report.

[36] The Applicants commenced the application for judicial review of the Proclamation on October 23, 2023.

[37] The Applicants allege that the changes to the electoral ridings in Nova Scotia have the following adverse impacts on Eskasoni:

• a)They will be separated from Membertou, a community with common interests, history, language, and political relationships;

• b)They will be separated from the City of Sydney, their main urban centre and economic partner;

• c)They will lose MP Battiste, a member and resident of Eskasoni, and will move to an electoral district with a non-Indigenous MP; and

• d)The voting power of the Mi’kmaq people will be diluted.

[38] The two applications were consolidated by order of Associate Judge Coughlan on November 15, 2023.

III. Issues and Standard of Review

[39] This application raises the following issues:

• a)What is the proper standard of review?

• b)Was there a breach of procedural fairness and/or the duty to consult?

• c)Were the Decision and/or Proclamation reasonable?

• d)What is the appropriate remedy?

A. Standard of review

(1) Decision and Proclamation

[40] Both the Applicants and Respondent submitted, and I agree, that the standard of review applicable to the Decision and the Proclamation is reasonableness.

[41] The presumptive standard of review is reasonableness (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov] at para 10). Reasonableness review is a deferential standard and requires an evaluation of the administrative decision to determine if the decision is transparent, intelligible, and justified (Vavilov at paras 12–15, 95). The starting point for a reasonableness review is the reasons for decision (Vavilov at para 13). Pursuant to the Vavilov framework, a reasonable decision is “one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker” (Vavilov at para 85). To intervene on an application for judicial review, the Court must find an error in the decision that is central or significant to render the decision unreasonable (Vavilov at para 100).

(2) Procedural fairness and/or duty to consult

[42] The Applicants combined their submissions on the applicable standard of review in respect of the alleged breaches of procedural fairness and the duty to consult. They argued that the appropriate standard of review in respect of both issues is correctness (Peguis First Nation v Canada (Attorney General), 2021 FC 990 at para 83; Coldwater First Nation v Canada (Attorney General), 2020 FCA 34 at para 38; Brar v Canada (Citizenship and Immigration), 2020 FC 70 at para 8).

[43] The Respondent took the position that there is no administrative law duty of procedural fairness nor a duty to consult owed to the Applicants in this case. However, they agreed that issues of procedural fairness are reviewed on a correctness standard (Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 [CP Railway] at paras 54–56; AP v Canada (Citizenship and Immigration), 2020 FC 906 [AP] at para 10; and Vavilov at para 77).

[44] The Respondent argued that where the existence or scope of the duty to consult is inextricably linked with findings of fact, as in the case at bar, the standard of review is reasonableness (Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73 [Haida] at paras 61–63; Squamish First Nation v Canada (Fisheries and Oceans), 2019 FCA 216 at para 30; ‘Namgis First Nation v Canada (Fisheries, Oceans and Coast Guard), 2020 FCA 122 at paras 21, 37).

[45] Breaches of procedural fairness have been considered reviewable on a correctness standard or a review that is “‘best reflected in the correctness standard’ even though, strictly speaking, no standard of review is being applied” (CP Railway at para 54, citing Eagle’s Nest Youth Ranch Inc v Corman Park (Rural Municipality #344), 2016 SKCA 20 at para 20; see also CP Railway at paras 55–56). Procedural fairness “is ‘eminently variable’, inherently flexible and context-specific;” it must be assessed with reference to all the circumstances, including the Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 [Baker] factors (AP at para 10, citing Vavilov at para 77). In other words, “the focus of the reviewing court is whether the process was fair” (AP at para 10; Vavilov at para 127).

IV. Analysis

A. Breach of procedural fairness and/or the duty to consult

[46] The Applicants argued that procedural fairness and the duty to consult are extrinsically linked as both required the Commission to consult with Eskasoni in respect of the proposed changes to the electoral districts. The Applicants claim that the Decision adversely impacts Eskasoni and breaches both the duty of procedural fairness and the section 35 duty to consult because prior to the Final Report and Decision, the Commission did not inform the Applicants there would be changes to the constituencies that would impact them directly. Similarly, prior to issuing the Proclamation, the GIC did not ensure that these duties were fulfilled.

[47] Conversely, the Respondent argued that the Commission was acting in a delegated legislative capacity; therefore, no duty of procedural fairness is owed to the Applicants nor was the section 35 duty to consult triggered in the context of the Decision or the Proclamation.

[48] Given the linkages between the alleged breaches of procedural fairness and the duty to consult, both parties made consolidated submissions on these issues. That said, I have separated these two issues in my reasons, as distinct legal principles and laws are applicable to each asserted duty.

(1) Defining electoral boundaries

[49] The exercise of reviewing and defining electoral boundaries is a general matter based on broad considerations of public policy, not facts pertaining to particular individuals or groups (Donald JM Brown & John M Evans, Judicial Review of Administrative Action (Toronto: Thomson Reuters Canada, 2024) at § 15:12.

[50] Recently, the Superior Court of Quebec considered the nature and functions of provincial electoral boundary commissions in Jennings c Commission de la représentation électorale du Québec, 2020 QCCS 1035 [Jennings]. The Court held that “[i]n holding public hearings and fixing electoral boundaries the Commission exercises a delegated legislative function, not a quasi-judicial one” (Jennings at para 32; see also paras 35 and 38). The public consultation process fulfilled the Commission’s mandate, as “the Commission exercises a legislative function and is not involved in an adversarial process where the rights of the state and the individual are arbitrated (lis inter partes)” (Jennings at para 35).

[51] The readjustment of electoral district boundaries is a delegated legislative function assigned to non-partisan and independent commissions (EBRA, s 12; Raîche at para 5). Commissions must follow their mandated instructions to develop recommendations for electoral boundary readjustments. Reports and recommendations of a commission then become a representation order proclaimed by the GIC, indicating its status as a delegated legislative function. As noted by the Saskatchewan Court of Appeal in Ref re: Electoral Boundaries Commission Act (Sask) ss 14, 20, 1991 CanLII 8030 (SK CA), 78 DLR (4th) 449 at para 49, “[i]t is not the function of the judicial branch to craft the electoral boundaries for constituencies. It is the responsibility of the Legislature to enact legislation to that end and to the end, of course, of ensuring that electoral boundaries meet the Charter’s requirements.”

[52] A review of the jurisprudence clarifies that courts have consistently found that the process of fixing or adjusting electoral boundaries is a legislative function (Jennings at paras 32, 35–38; Nova Scotia Reference at paras 4, 134; Reference re Prov Electoral Boundaries (Sask), [1991] 2 S.C.R. 158 [Carter]; Dixon v British Columbia, 1989 CanLII 248 (BC SC), 59 DLR (4th) 247 [Dixon] at 29, 51).

[53] In addition, in Canadian Union of Public Employees v Canada (Attorney General), 2018 FC 518 [CUPE], this Court confirmed that the proclamation of an order by the GIC is not subject to judicial review by the courts (CUPE at paras 120–123). This is not to say that such orders are immune from review; the review, however, is limited to vires and constitutional validity.

[54] The Supreme Court of Canada (“SCC”) noted that courts must be cautious of interfering in matters that involve the balancing of conflicting policy considerations. Specifically, in the context of electoral boundaries the SCC noted that “[t]he courts ought not to interfere with the legislature’s electoral map under [section] of the Charter unless it appears that reasonable persons applying the appropriate principles… could not have set the electoral boundaries as they exist” (Carter at 189, citing Dixon at 419).

[55] Finally, this Court has found that “… Parliament has also given the Commission very broad discretion, which would seem to indicate that this Court should show considerable deference” (Raîche at para 57).

(2) Section 12 of the Electoral Boundaries Readjustment Act

[56] A related issue in this application is the interpretation and application of section 12 of the EBRA:

[57] The Applicants submitted that the Commission unreasonably erred in its interpretation of this provision because the Commission failed to consider the Treaty Relationship enshrined in the Elikewake Compact. Further, they argued that consent was required to alter or make changes to the Treaty Relationship. The Applicants asserted that by virtue of the Treaty Relationship, both the honour of the Crown and section 35 duty to consult are engaged.

[58] However, the Applicants did not clearly articulate a section 35 Aboriginal right that may have triggered a duty to consult, nor did they attempt to establish said section 35 Aboriginal right in accordance with R v Van der Peet, [1996] 2 S.C.R. 507 [Van der Peet]. The Applicants also did not clearly articulate a particular treaty right that may have triggered a duty to consult, consistent with the framework established in R v Marshall, [1999] 3 S.C.R. 456 [Marshall]. I elaborate on section 35 Aboriginal and Treaty rights further in subsequent portions of these reasons.

[59] In support of their interpretation of section 12, the Applicants drew an analogy with Clyde River (Hamlet) v Petroleum Geo-Services Inc, 2017 SCC 40 [Clyde River]. In that case, the SCC noted that where a regulatory agency is exercising executive power, despite statutory provisions that establish the agency is independent of the Crown, the distinction between the two falls away because the agency is the vehicle through which the Crown operates (Clyde River at para 29). The Applicants argued that courts have interpreted “the Crown” broadly to include “government action” and “Crown conduct” (Clyde River at para 29).

[60] I do not agree with the Applicants that section 12 of the EBRA imparts the necessary executive authority on the Commission that would trigger the duty of procedural fairness. The plain wording of section 12 is clear that “[the] [C]ommission is not an agent” of His Majesty, and the “members are not part of the federal public administration.” It is a well-established approach to statutory interpretation that the “words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament” (Rizzo & Rizzo Shoes Ltd (Re), [1998] 1 S.C.R. 27 at para 21; Ruth Sullivan, The Construction of Statutes, 7th ed (Toronto: LexisNexis Canada, 2022) at 7; Interpretation Act, RSC 1985, c I-21, s 10.

[61] The duty of fairness is engaged when a decision-making body exercises an executive function such as making a “decision that effects the ‘rights, privileges or interests of an individual’… not when it acts in a legislative capacity to make rules of general application in the public interest” (Green v Law Society of Manitoba, 2017 SCC 20 at para 54, citing Dunsmuir v New Brunswick, 2008 SCC 9 at para 79 and Knight v Indian Head School Division No 19, [1990] 1 S.C.R. 653 at 669). As noted above, the core of the Commission’s work and the subsequent Proclamation by the GIC is in fulfillment of a legislative function (Jennings at para 32).

(3) Procedural fairness

[62] The jurisprudence is clear; the rules of procedural fairness do not apply to the exercise of legislative functions, including those followed by the Commission. As noted by the SCC in Reference Re Canada Assistance Plan (BC), [1991] 2 S.C.R. 525 at 557, “… the rules governing procedural fairness do not apply to a body exercising purely legislative functions.” See also Martineau v Matsqui Disciplinary Bd (1979), [1980] 1 S.C.R. 602 at 628.

[63] This was affirmed by this Court in CUPE, where it was noted, “[t]he Canadian jurisprudence is clear and leaves no room for CUPE’s position. No party is entitled to procedural fairness in the legislative process, which includes the making of regulations” (CUPE at para 123).

[64] The Quebec Superior Court in Jennings held there is no right to be consulted in the context of electoral boundary commissions. Rather, “[g]iven the Commission’s legislative function the petitioners have no more right to be heard than if the National Assembly had fixed the boundaries itself… The purpose [of] the public hearings… is to allow interested parties to present relevant information to the Commission and have their views considered before the Commission makes a final decision” (Jennings at para 38).

[65] Accordingly, I am of the view that the Commission did not owe either Eskasoni or the Mi’kmaq Nation a duty of procedural fairness to consult with or hold a separate engagement session in the context of the electoral boundaries readjustment process.

[66] MP Battiste, in his objections to the PROC, and Chief Denny’s affidavit in support of this application indicate that a number of factors may have hindered participation in the public engagement sessions by members of Eskasoni. These factors include but were not limited to: the distance and/or a lack of transportation as the nearest public engagement session was in Sydney, 50 kilometers south of Eskasoni; limited access to internet services to participate virtually; and Mi’kmaq language speakers would not be able to participate or express themselves in either English or French. I acknowledge that these challenges exist and may present real barriers to participation for Eskasoni members.

[67] However, it is not clear why MP Battiste, who is the MP for the electoral district that includes Sydney, or Chief Denny could not attend any of the nine public engagement sessions, including the virtual session, or provide written submissions to the Commission for their consideration. I accept that not all members of the community may have been able to participate in the public engagement sessions for the reasons outlined above. However, nothing before me explains the notable absence of MP Battiste, Chief Denny, or other Eskasoni leadership. The affidavit from Chief Denny speaks in general terms with respect to Eskasoni members but does not highlight any specific barriers to his own participation or the participation of other members of the Eskasoni council.

[68] As the Commission outlined in the Decision, “[w]ith respect, this demonstrates a fundamental misunderstanding on [MP Battiste’s] part of the redistribution process.” The Commission noted that changes to the Cape Breton riding were in contemplation based on the May 30, 2022 consultation meeting in Sydney, and as reported in the media following the meeting (Decision at p 40). The Commission went further, stating “[i]t is unfortunate [MP] Battiste did not take note of the media reports relating to the Commission’s work and disseminate it to his constituents. His failure to do so does not equate to a breach of procedural fairness by the Commission” (Decision at p 42).

[69] The PROC Conservative Dissenting Report contained similar opinions:

We observe that MP Battiste only took the position of maintaining the status quo on Cape Breton after the release of the Report of the Commission. MP Battiste did not object when the Commission originally proposed adjustments to the Cape Breton ridings, including extending Cape Breton-Canso onto the mainland. Indeed, MP Battiste did not provide input to the Commission, despite having ample opportunity to do so. Now late in the process he has decided to take his case to PROC.

…

Likewise, MP Battiste could have informed and encouraged members of the Eskasoni, Membertou, and Wagmatcook communities to provide input to the Commission. The location of the Commission’s public hearing at the Cambridge Suites hotel in Sydney is accessible to these communities. According to Google Maps, the hotel is only a six-minute drive from Membertou, a 33-minute drive from Eskasoni, and a one hour and nine-minute drive from Wagmatcook. There was also a virtual hearing plus the opportunity to make written submissions over several months.

Having done none of the above, it is unreasonable for MP Battiste, late in the process, after the release of the Commission’s final report, to now ask the Commission to make significant adjustments to the riding boundaries in Cape Breton.

[70] With respect, I do not find the Applicants’ evidence concerning reasons for not participating in the public engagement sessions compelling. While the Proposal did not contain specific changes to the then-SV District, the Commission’s mandate was to examine potential changes to electoral districts in the whole province of Nova Scotia. It would have been reasonable for MP Battiste, Chief Denny, and Eskasoni to make their views to the Commission known, that they wanted to maintain the status quo, and why. As noted above, the evidence concerning the general lack of participation by members of Eskasoni does not explain the lack of participation by Eskasoni leadership or MP Battiste.

[71] As noted by the SCC in Behn v Moulton Contracting Ltd, 2013 SCC 26 [Behn], there is a duty of “mutual good faith” that animates the discharge of the constitutional duty to consult, and this requires parties to participate in good faith in the processes (Behn at para 42). The lack of participation by Eskasoni leadership, in particular Chief Denny and MP Battiste, demonstrates an absence of mutual good faith participation with the Commission in the public engagement process.

(4) Section 35 Aboriginal and Treaty rights and the duty to consult

(a) Section 35 Aboriginal rights

[72] Section 35 of the Constitution Act, 1982 “recognizes and affirms” the existing Aboriginal and Treaty rights of Aboriginal peoples. Subsection 35(1) has two purposes: “to recognise the prior occupation of Canada by organized, autonomous societies” and “to reconcile their modern-day existence with the Crown’s assertion of sovereignty over them” (R v Desautel, 2021 SCC 17 [Desautel] at para 22).

[73] The Van der Peet framework for proof of a section 35 Aboriginal right requires that “an activity must be an element of a practice, custom, or tradition integral to the distinctive culture of the aboriginal group claiming the right” (Van der Peet at para 46). Section 35 rights are held by the Indigenous collective; however, certain rights have individual aspects and individual members may exercise the right that is held by the collective (Van der Peet at paras 220–221).

[74] There has been significant critique of the Van der Peet framework in the years following this seminal decision (see for example: R c Montour, 2023 QCCS 4154 [Montour]). The Court observed that there is concern that the temporal aspect of the Van der Peet framework is a “frozen in time” approach regarding the scope of rights that receive section 35 protection [Montour at paras 1256–1262]. In addition, the Court observed that there is a concern that the framework is not well suited to assess non-harvesting rights (hunting or fishing), because commercial, economic, and self-government rights do not tend to fit easily within the framework (Montour at paras 1265–1271). Finally, the Court noted that Van der Peet was decided prior to Canada’s endorsement and implementation of UNDRIP through the United Nations Declaration on the Rights of Indigenous Peoples Act, SC 2021, c 14 [UNDA].

[75] In Desautel, the SCC had an opportunity to consider the impact of the UNDRIP in relation to the Van der Peet framework. In that case, the Court endorsed the continued application of the Van der Peet framework as further articulated in Lax Kw’alaams Indian Band v Canada (Attorney General), 2011 SCC 56 [Lax Kw’alaams] to determine section 35 Aboriginal rights:

(a) Characterize the right claimed in light of the pleadings and evidence (Van der Peet, at para. 53; Gladstone, at para. 24; Mitchell at paras. 14-19).

(b) Determine whether the claimant has proven that a relevant pre-contact practice, tradition or custom existed and was integral to the distinctive culture of the pre-contact society (Van der Peet, at para. 46; Mitchell, at para. 12; Sappier, at paras. 40-45).

(c) Determine whether the claimed modern right is “demonstrably connected to, and reasonably regarded as a continuation of, the pre-contact practice”.

[Desautel at para 51, citing Lax Kw’alaams at para 46.]

[76] The SCC did not comment on how, if at all, the UNDRIP may affect the future application of the Van der Peet framework. The Desautel decision predates the passage of the UNDA. That said, in my view, the UNDA does not in and of itself supplant section 35, nor the jurisprudence developed by the SCC.

[77] While subsection 2(3) of the UNDA states that “[n]othing in this Act is to be construed as delaying the application of the Declaration in Canadian Law,” other sections contemplate an iterative implementation process that will be developed with Indigenous peoples. For example, section 5 states “[t]he Government of Canada must, in consultation and cooperation with Indigenous peoples, take all measures necessary to ensure that the laws of Canada are consistent with the Declaration.” Subsection 6(1) provides that “[t]he Minister must, in consultation and cooperation with Indigenous peoples and with other federal ministers, prepare and implement an action plan to achieve the objectives of the Declaration.”

[78] A review of the 2023–2028 Action Plan highlights that the work to ensure that Canadian laws are consistent with the UNDRIP is a “shared priority” among governments and Indigenous peoples (Canada, Department of Justice, United Nations Declaration on the Rights of Indigenous Peoples Act Action Plan (Ottawa: DOJ, 2023) at 25, online: <https://www.justice.gc.ca/eng/declaration/ap-pa/ah/pdf/unda-action-plan-digital-eng.pdf> (“Action Plan”). That said, a review of the Action Plan in respect of this issue does not indicate that among those priorities is a contemplated amendment to section 35. Nor does the Action Plan indicate or highlight that the current legal framework is no longer valid. Accordingly, the applicable legal framework for the determination of section 35 Aboriginal rights continues to be Van der Peet as set out by the SCC.

(b) Generic rights

[79] While not clear from the submissions, it may be that that the Applicants, in the alternative, are asserting a general or generic right to be consulted on all matters that have or may have an impact on their interests. In his submissions to the PROC, MP Battiste submitted:

If there is a decision that impacts an indigenous community, they have the right to be heard. “Nothing about us without us” is the premise that indigenous communities have stated over and over again… I would say that any testimony that they hear that talks about an indigenous community without them in the room requires them to consult with that community. At the point when the commission heard that they should remove an indigenous community or that they should split Mi’kmaq communities, they had the duty to consult.

[80] Legal scholars have noted distinctions between specific and generic section 35 Aboriginal rights. Generic rights are those rights held by all Aboriginal peoples and include rights to land, rights to subsistence resources and activities, the right to self-determination and self-government, and the right to practice and maintain their cultures and languages. Specific rights are rights held by a particular Indigenous collective in respect of a particular activity. These rights may be recognised by historic or modern treaties, or have been defined through litigation (Brian Slattery, “A Taxonomy of Aboriginal Rights” in Hamar Foster, Heather Raven & Jeremy Webber, eds, Let Right Be Done: Aboriginal Title, the Calder Case and the Future of Indigenous Rights (Vancouver: UBC Press, 2007) pp 111–128).

[81] The SCC recently affirmed a generic right of Indigenous governing bodies to make laws in relation to child and family services as an aspect of the inherent right of self-government (Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, 2024 SCC 5 [Reference re children]). In contrast, the generic right asserted in this application—a right to be consulted on any and all matters that are of interest to the community—is excessively broad in its scope. The asserted generic right is not linked to a section 35 Aboriginal right as per the Van der Peet framework or a specific Treaty right held by the Mi’kmaq Nation. Nor is the asserted generic right linked to the broad categories of generic rights identified above.

(c) Treaty rights

[82] The affidavit of Chief Denny asserts that the Mi’kmaq Nation entered into a series of peace, friendship, trade, and protection treaties with the Crown between 1630 and 1779, which form part of the Elikewake Compact. The Applicants have not, however, highlighted any specific promises (oral or written) within the various treaties that comprise the Elikewake Compact to support their asserted generic right to be consulted on changes to federal election boundaries.

[83] The Applicants have provided this Court with texts from the 1752 Peace and Friendship Treaty relied on in Simon v The Queen, [1985] 2 S.C.R. 387 [Simon] and the 1760-61 Peace and Friendship Treaty relied upon in Marshall. Set out below are brief summaries of the Simon and Marshall decisions, and in particular the asserted treaty rights in those matters. In my opinion, these decisions do not support the asserted general right to be consulted on changes to federal election boundaries or a general right to be consulted on any and all matters that are of interest to the community.

[84] In Simon, the SCC addressed the unique interplay between treaty rights and provincial legislation. Mr. Simon, a registered Indian under the Indian Act, RSC 1985, c I-5 [Indian Act] and member of the Shubenacadie Indian Brook Band (No. 2) of the Mi’kmaq Nation, was charged with illegal possession of a loaded firearm contrary to subsection 150(1) of Nova Scotia’s Lands and Forests Act, RSNS 1967, c 163 (Simon at paras 1–5). The accused argued that the right to hunt set out in the Treaty of 1752 granted him immunity from prosecution (Simon at para 4). The SCC allowed the appeal and quashed the convictions and entered acquittals for Mr. Simon, because the Court found that the hunting activity Mr. Simon was engaged in was permitted pursuant to the Treaty of 1752 (Simon at para 24). By virtue of section 88 of the Indian Act, the Treaty of 1752 prevailed over the provincial legislation (Simon at para 50). The Court found the existence of a treaty right to fish for a “moderate livelihood”—in other words, that Mr. Simon had a treaty right to fish and to trade in fish to support a moderate livelihood (Simon at para 7). This is not an open-ended right to fish on a commercial scale for the accumulation of wealth. The SCC did not make a finding of a generic or general right applicable to the issues here.

[85] In Marshall, the Court was tasked with determining if there is a treaty right to fish for trade. Mr. Marshall, a registered Indian under the Indian Act and member of the Membertou First Nation of the Mi’kmaq Nation, was charged with three offenses pursuant to three federal fishery regulations beneath subsection 7(1) of the Fisheries Act, RSC 1985, c F-14 [Fisheries Act]: the selling of eels without a licence, fishing with out a licence, and fishing during a closed season with illegal nets (Marshall at paras 62–66). The accused admitted he had caught the eels without a licence and with a prohibited net during a closed season. At issue was whether he possessed a treaty right to catch and sell fish, pursuant to the “truckhouse” provision in the Treaties of 1760-61 (Marshall at para 67). The SCC allowed the appeal, quashed the convictions, and acquitted Mr. Marshall. In so doing, the SCC provided a summary of the key principles for the interpretation of historic treaties between the Crown and Indigenous peoples and underscored the importance of interpreting treaties in a manner that gives meaning and substance to the oral promises made by the Crown in the negotiation process (Marshall at para 78):

1. Treaties are a unique type of agreement and attract special principles of interpretation;

2. Treaties should be liberally construed – any doubt or ambiguity should be resolved in favour of the aboriginal signatories;

3. The goal of treaty interpretation is to choose from the various possible interpretations to determine the common intention that best reconciles the interests of both parties at the time the treaty was signed;

4. In searching for the common intention, the integrity and honour of the Crown is presumed;

5. Courts must be sensitive the unique cultural and linguistic differences between the parties;

6. The words of the treaty must be given the meaning that the parties would have had at the time;

7. Technical or contractual interpretations of treaties should be avoided;

8. While generous interpretation is encouraged, courts cannot alter the terms or exceed what is possible or realistic based on the words in the treaty;

9. Treaty rights cannot be interpreted in a static or rigid way—treaty rights must be interpreted in a way that provides for their modern exercise.

[86] The SCC did not make a finding of a generic or general right applicable to the issues here.

[87] MP Battiste also relied on the decision in R v Denny, 1990 CanLII 2412 (NS CA), 94 NSR (2d) 253 [Denny] in support of his position. Briefly, this is another section 35 fishing rights case. Three Mi’kmaq individuals were charged with fishing in a time, manner, and place that violated the terms of the Fisheries Act. All three accused asserted that they were fishing for food. The Nova Scotia Court of Appeal found that the accused had a section 35 right to fish for food in the waters where they had been fishing (near their respective reserves). In addition, the Court found that the accused had a right to an allocation of the surplus in fisheries resources, which could be justifiably limited by conservation efforts, consistent with the framework established in R v Sparrow, [1990] 1 S.C.R. 1075. The Court of Appeal did not affirm a general or generic right to be consulted, nor to be consulted in respect of changes to electoral boundaries.

[88] A review of the Decision illustrates that “[t]he Commission [did] not take issue with the general principles set out above, however, a review of the authorities relied upon by [MP] Battiste demonstrate their questionable relevance to the matter at hand” (Decision at p 45).

[89] In my opinion, the Commission appropriately reviewed Simon, Marshal, Denny, and Mikisew Cree First Nation v Canada (Governor General in Council), 2018 SCC 40 [Mikisew], and correctly identified the key issues and ratios from those decisions (Decision at pp 45–48). Specifically, the Commission found that:

Mikisew does not establish the Mi’kmaq people (or the Mikisew) have a treaty right in relation to the federal electoral district in which they reside, or that a duty to consult is triggered should changes to the boundaries thereof be contemplated. It does stand for the principle that the government, before it infringes on a right contained in a treaty, must consult with the Indigenous peoples to which it relates. However, the wording of the particular treaty is important to the determination of whether such a right exists.

The Commission is satisfied a proper application of the legal principles articulated by the Supreme Court of Canada demonstrate that a duty to consult Indigenous communities does not arise in the present circumstances (other than providing Notice as set out in the EBRA and considering any representations received)…

[Decision at p 48.]

[90] The Mi’kmaq Nation is a rights-holding collective with constitutionally protected section 35 Aboriginal and Treaty rights. I agree that as a general proposition, the Treaty Relationship requires ongoing consultation on matters of importance to the Treaty beneficiaries, in this case Eskasoni. I also agree that where Crown conduct may affect the existence or exercise of treaty rights, there is an obligation to consult. Finally, I fully recognise that the Crown has generally failed to respect the Treaty Relationship and has not always upheld its promises.

[91] However, it is not clear which specific treaty promises the Applicants assert are relevant to determining their asserted generic right to be consulted in respect of changes to federal electoral boundaries, either as an aspect of procedural fairness or as part of the section 35 duty to consult.

[92] While MP Battiste’s PROC submissions referenced some important jurisprudence concerning the recognition of important section 35 Aboriginal and Treaty rights of the Mi’kmaq to fish, those cases do not stand for a general proposition that the Mi’kmaq have a right to be consulted on matters related to the boundaries of federal electoral districts.

(d) Duty to consult

[93] The duty to consult with Indigenous peoples and accommodate, where appropriate, their interests is rooted in the principle of the honour of the Crown (Haida at para 17; Beckman v Little Salmon/Carmacks First Nation, 2010 SCC 53 [Beckman] at para 38). Generally, the duty to consult is triggered “when the Crown has knowledge, real or constructive, of the potential existence of the Aboriginal right or title and contemplates conduct that might adversely affect it” (Haida at para 35). Consultation, and where appropriate accommodation, preserves the Indigenous interests, an essential corollary to the process of reconciliation (Haida at paras 16–17, 32–37; Rio Tinto Alcan Inc v Carrier Sekani Tribal Council, 2010 SCC 43 at paras 31–54).

[94] The scope and content of the duty to consult is proportionate to a preliminary assessment of the strength of the case (Haida at para 32). Where a particular claim falls along the depth of consultation spectrum established in Haida depends upon the circumstances of each claim (Haida at paras 44–45). Good faith is required from all parties at all stages and “[t]he common thread on the Crown’s part must be ‘the intention of substantially addressing [Aboriginal] concerns’ as they are raised through a meaningful process of consultation” (Haida at para 42, citing Delgamuukw v British Columbia, [1997] 3 S.C.R. 1010 at para 168).

[95] Like other section 35 rights, “[t]he duty to consult exists to protect the collective rights of Aboriginal peoples. For this reason, it is owed to the Aboriginal group that holds the section 35 rights, which are collective in nature” (Behn at para 30, citing Beckman at para 35 and Jack Woodward, Native Law, vol 1 (Toronto: Carswell, 1989) (loose-leaf updated 2013, release 5), at 5–55.

[96] The SCC has held that the development of legislation is an action that does not trigger the duty to consult (Mikisew at para 32). Specifically, “[t]he law-making process – that is, the development, passage, and enactment of legislation – does not trigger the duty to consult. The separation of powers and parliamentary sovereignty dictate that courts should forebear from intervening in the law-making process. Therefore, the duty to consult doctrine is ill-suited for legislative action” (Mikisew at para 32).

[97] The Applicants submitted that the Commission’s characterization of the Aboriginal and Treaty rights raised by MP Battiste—being the right to “enhance the effective representation of Indigenous persons and increase the potential of electing a Mi’kmaq representative to Parliament”—was not reasonable. They assert that the Commission took an overly narrow view of the Treaty right engaged, in part because the Commission failed to consult with Eskasoni. In the absence of particularization by the Applicants, it appears they are asserting a generic Aboriginal right to be consulted on changes to federal electoral boundaries.

[98] The Respondent submitted that because the readjustment of federal electoral districts is legislative in nature, this is not Crown conduct that would trigger the duty to consult. In the alternative, the Respondent argued that if the process of determining electoral boundaries is an executive function, the duty to consult was not triggered here because there are no clearly defined or articulated section 35 Aboriginal or Treaty rights that are affected by the Decision or the Proclamation.

(e) Summary on the asserted section 35 Aboriginal and Treaty rights and the duty to consult

[99] In my opinion, the Commission reasonably and correctly found that there is no evidence in the record of “any treaty between the Crown and the Mi’kmaq people that relates to their representation in the Parliament of Canada.” Further, the Commission reasonably and correctly determined that the duty to consult is not triggered in the case at bar:

… it is equally clear that even if such a duty [to consult] existed, it would not be triggered in this instance. The duty to consult arises in specific circumstances – when Crown action does or has the potential of adversely impacting on a pre-contact aboriginal right or one established by treaty. The proponent of such a right has the obligation to demonstrate its existence. With respect, neither objector has done so.

Although it is not entirely clear, it would seem that the “right” being asserted is to enhance the effective representation of Indigenous persons and increase the potential of electing a Mi’kma[q] representative to Parliament, and any potential adverse impact to that right would trigger a duty to consult. With respect, there is no evidence presented in either objection that establishes a claimed right relating to the constitution of federal electoral boundaries existed [sic] prior to European contact, or that other aspects of the Van der Peet test are met in these circumstances. A right to effective representation in a settler-imposed system of government cannot be seen to be a right held by the Mi’kmaq people prior to European arrival…

[Emphasis in original. Decision at p 48.]

B. Reasonableness of the Decision and Proclamation

[100] The Applicants submitted that the Decision and the Proclamation are unreasonable because the Commission and the GIC failed to provide sufficient justification given the factual and legal constraints that bear on the matter (Mason v Canada (Citizenship and Immigration), 2023 SCC 21 at para 64). Specifically, the Applicants argued that the Commission and the GIC failed to consider constraints imposed by section 3 of the Charter to properly interpret the EBRA; the obligation to interpret the EBRA in light of Articles 3, 5, and 20(1) of UNDRIP; and the administrative law requirement to assess if a decision will advance or impair reconciliation (Redmond v British Columbia (Forests, Lands, Natural Resource Operations and Rural Development), 2020 BCSC 561; Kits Point Residents Association v Vancouver (City), 2023 BCSC 1706 at para 182; Kainaiwa/Blood Tribe v Alberta (Energy), 2017 ABQB 107 at para 130; Restoule v Canada (Attorney General), 2018 ONSC 114 at para 56; AltaLink Management Ltd v Alberta (Utilities Commission), 2021 ABCA 342 at para 117).

[101] In addition, the Applicants submitted that the EBRA required the Commission to balance relative parity of voting power with other considerations including fair representation for communities of interest and minorities. They argued this is an extraordinary circumstance that engages the deviation permitted from the average population variance of plus or minus 25%, pursuant to section 15 of the EBRA.

[102] The Applicants submitted that the Commission’s Decision unreasonably “diminished the effective representation of Eskasoni;” in other words, that the Decision diluted their voting power. The Applicants submitted that the Commission prioritized the development of new urban and rural ridings and voter parity over a proper examination of the indicia for effective representation. They further argued that the Commission fettered its own discretion by insisting on deviations of less than 15% in all Nova Scotia electoral districts, despite subsection 15(2) of the EBRA. Finally, the Applicants argued that the GIC could not lawfully issue the Proclamation pursuant to section 25 of the EBRA.

[103] The Respondent argued that the section 3 Charter guarantee is a constitutionally protected right to effective representation and a right of participation. This is a process right, not a right to a particular outcome or representative. The SCC has been clear that effective representation is furthered first and foremost by parity of voting power (Carter at 183–85).

[104] The Respondent submitted that “effective voting power” is not a valid or recognised standard in a section 3 Charter analysis. They argued that section 15 of the EBRA sets out the relevant considerations that guide the work of commissions and expressly integrates relevant section 3 Charter considerations.

[105] The Respondent argued that as a collective, Eskasoni does not have section 3 Charter right to vote. This is an individual right, not a collective right (Figueroa v Canada (Attorney General), 2003 SCC 37 [Figueroa] at paras 33, 36). Eskasoni members have the right to vote; however, this does not equate to a collective right to determine the boundaries for federal electoral districts, nor does it equate to a collective right to a particular representative.

[106] The Respondent argued that the Decision is reasonable and justified, and that it did in fact consider communities of interest. They submitted that the Commission was required to balance numerous competing policy issues and interests in its primary task of reviewing the constituency boundaries in Nova Scotia, that the Commission properly considered these issues and interests, and that its Decision is entitled to deference.

[107] The Respondent submitted that neither UNDRIP nor UNDA require the consent of the Mi’kmaq prior to the readjustment of electoral boundaries in Nova Scotia.

(1) Section 3 of the Charter and section 15 of the Electoral Boundaries Readjustment Act

[108] Section 3 of the Charter:

[109] Section 15 of the EBRA:

[110] The Court owes considerable deference to the Commission’s reasons and ought to intervene only if they are clearly wrong or manifestly unreasonable (Vavilov at paras 13, 30, 75, 98, 100). The standard remains reasonableness, even where the effect of a decision limits rights under the Charter (Vavilov at para 57).

[111] In Carter, the SCC noted that electoral boundary commissions must balance a number of interests as part of the exercise of drawing boundaries for a province (Carter at 183–185). From the Final Report, it is clear that the Commission considered many competing factors and grappled with the impact on the Indigenous vote in the Cape Breton region. The Commission had deep expertise and considered a number of factors and evidence in reaching its Decision.

[112] The jurisprudence is clear that the purpose of section 3 of the Charter is to protect the right of citizens to have a meaningful role in the electoral process (Frank v Canada (Attorney General), 2019 SCC 1 [Frank] at paras 26–27; Figueroa at para 30). It is a right to participate and its value is independent of the actual outcome of an election (Figueroa at para 29).

(2) New urban and rural electoral districts in Cape Breton

[113] In its Final Report, the Commission highlighted the following views expressed at the public engagement sessions:

– The Commission was encouraged to keep in mind that “effective representation” may require different considerations in different areas of the province and that it does not mandate similar populations across all 11 electoral districts…

…

– Cape Breton should be divided into two electoral districts, one urban, reflecting “industrial” Cape Breton, and the other, more rural, not as proposed by the Commission.

– Cape Breton should constitute one riding not the present two…

[Decision at p 14.]

[114] Further at page 41 of the Decision, “[t]he predominant theme that [the Commission] heard was that there was a desire to have the two ridings in Cape Breton reflect a rural riding and to reflect an urban riding, which would see [the Commission’s] proposed boundaries in Cape Breton shifting somewhat…”

[115] It is clear that the Commission considered the impacts on the Mi’kmaq Nation. They noted that in the new CBCA District, “the First Nations of We’koqma’q, Potlotek, Paqntkek [sic], would be joined with Eskasoni and Wagmatcook to form a formidable-coalition with similar goals and perspectives that can effectively push for priorities attentive to the needs of Unama’ki… [T]his riding includes municipalities and provincial constituencies that have been working and lobbying together toward common goals for decades” (Decision at p 56).

[116] Reasonableness review requires that the reasons for a decision demonstrate that the decision-maker has “meaningfully grapple[d] with key issues or central arguments raised” (Vavilov at para 128). The standard is not perfection (Vavilov at para 91).

[117] It is clear that the Commission determined that two ridings, an urban and rural riding, were necessary for Cape Breton based on Nova Scotia’s 2021 decennial data, the factors identified at section 15 of EBRA, and feedback provided to the Commission through written submissions and at the nine public engagement sessions. I reiterate that the Applicants chose not to participate in any public engagement session nor did they submit written representations to the Commission.

(3) Fettering of discretion

[118] The Applicants asserted that the Commission unduly fettered its discretion by striving to maintain a population variance of 15% instead of the permitted 25%, pursuant to section 15 of the EBRA.

[119] The Decision sets out the Commission’s considerations with respect to the scope of their mandate and the desire to have voter parity. The Commission noted that some provinces applied a ceiling variance of 10% and identified the support in academic literature that the gap should be less than the permitted 25%. However, the Commission ultimately “concluded [it] should not apply such an approach within the Nova Scotian context, notably due to [its] geography and historic patterns of settlement” (Decision at p 16).

[120] In my view, the Commission did not unduly fetter its discretion with a particular view on the permissible variance in the readjustment of the boundaries in Nova Scotia. The Commission understood that while voter parity is important, “effective representation” required them to consider other factors, and it accepted “that ‘effective representation’ is not absolutely tied to the number of persons in an electoral district” (Decision at p 16). The Decision is consistent with Carter, where the Court underscores the importance of voter parity for effective representation but noted that other factors may be considered to ensure effective representation.

[121] While the Commission did not fetter its discretion by a particular variance, the Decision reflects that the Commission noted an increasing trend towards urbanization based on the 2021 decennial data. Accordingly, the Commission observed that future commissions may need to consider a fifth urban riding in the Halifax area. The Commission also noted that this would require future commissions to apply “novel approaches to providing effective representation to all Nova Scotians” (Decision at p 21).

(4) Consideration of section 35 Aboriginal and Treaty rights and the duty to consult

[122] The Final Report demonstrates that the Commission expressly considered the concerns raised by MP Battiste in respect of the asserted Aboriginal and Treaty rights, and the impact of UNDRIP. In particular, the Commission noted:

… We acknowledge the recognition of aboriginal and treaty rights has been a hard-fought battle for Indigenous peoples and that strong opposition to improper Crown conduct is entirely warranted.

To adequately respond to [MP] Battiste’s and Minister Fraser’s assertion the Commission breached the constitutionally protected duty to consult with Indigenous people, it is necessary to consider direction from the Supreme Court of Canada in relation to the nature and scope of aboriginal rights and when the duty to consult is triggered.

[Decision at p 42.]

[123] The Commission went on to review the seminal jurisprudence in respect of section 35 Aboriginal rights. The Final Report accurately sets out the legal framework for section 35 Aboriginal rights established by Van der Peet and affirmed in Desautel. The Commission also correctly set out the legal framework for the duty to consult from Haida. As noted above, the Applicants did not clearly articulate a section 35 Aboriginal right that would have triggered the duty to consult. Nor have they identified a specific treaty promise that would trigger the duty to consult in respect of the electoral boundary readjustment process.

[124] I do not dispute the importance of the evolution of the jurisprudence and legal frameworks developed in respect of section 35 Aboriginal and Treaty rights. The development of the legal frameworks that guide the Court’s consideration of the nature and scope of Aboriginal and treaty rights has been a long and iterative process. These frameworks have developed in the context of lengthy and complex litigation, despite all levels of court underscoring the importance of dialogue and negotiation, which are better suited to accommodate interests while preserving relationships.

[125] The Commission did not agree that the cases stood for the positions advanced by MP Battiste in his submissions to the PROC. With respect, neither do I. I find the Commission’s Decision both reasonable and correct at law on this point.

(5) United Nations Declaration on the Rights of Indigenous Peoples

[126] The Commission also addressed MP Battiste’s objections rooted in an application of UNDRIP. The Commission considered Articles 32(2) and 38 of UNDRIP, and sections 5 and 6 of UNDA in its Decision (at pp 49–50).

[127] In my opinion, the Commission incorrectly found that there is no obligation upon it to comply with UNDRIP. Essentially, the Commission determined it did not have a general or a specific obligation to comply with UNDRIP because the Action Plan contemplated by section 6 of the UNDA was under development and did not specifically reference the EBRA. The Commission incorrectly concluded that while the UNDA received Royal Assent, it is far from complete implementation, as the Action Plan is a work in progress. A plain reading of section 3 of the UNDA makes it clear that UNDRIP now has application in Canadian law and that “[n]othing in this Act is to be construed as delaying the application of the Declaration in Canadian law” (UNDA, s 2(3)).

[128] However, in my opinion, little turns on this. MP Battiste advanced Articles 3, 5, and 20(1) in his submissions to the PROC. It appears the Commission also considered Articles 32(2) and 38. The aforementioned articles are reproduced here:

3 Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

…

5 Indigenous peoples have the right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions, while retaining their right to participate fully, if they so choose, in the political, economic, social and cultural life of the State.

…

20(1) Indigenous peoples have the right to maintain and develop their political, economic and social systems or institutions, to be secure in the enjoyment of their own means of subsistence and development, and to engage freely in all their traditional and other economic activities.

…

32(2) States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploiting of mineral, water or other resources.

…

38 States in consultation and cooperation with indigenous peoples, shall take appropriate measures, including legislative measures, to achieve the ends of this Declaration.

[129] It is not clear how the articles advanced by MP Battiste ought to be applied or considered when determining if the duty to consult was triggered by the Decision or the Proclamation. The Applicants did not provide further submissions or argument with respect to this. Further, it is not clear why the Commission advanced Article 32(2) as applicable to the case at bar. While the Decision sets out geographic electoral boundaries for the province of Nova Scotia, the Decision does not affect the use of land or resources in the region. Rather, it determines which federal electoral region a resident may exercise their constitutional right to vote.

[130] Article 38 speaks to the obligation on the part of states to take measures to achieve the ends of the Declaration and is the only article advanced applicable here. To that end, Canada has brought the UNDRIP into Canadian law via the UNDA (Dickson v Vuntut Gwitchin First Nation, 2024 SCC 10 at para 47; Reference re children at para 4).

[131] The Applicants did not make submissions concerning how the Commission ought to have exercised its discretion differently in light of the UNDRIP. Accordingly, this issue is not determinative of the issues raised in this application.

[132] Further, as set out above, the UNDA does not in and of itself place specific additional obligations on the Commission, nor does it supplant the legal frameworks applicable to section 35 rights. The Applicants did not provide clear arguments regarding what additional obligations were placed on the Commission to comply with the UNDRIP. Accordingly, while I am of the view that the UNDRIP is now part of Canadian law (UNDA, s 3), it is not clear how that impacts that the matter before me. The UNDRIP articles highlighted by the Applicants do not place specific obligations or duties upon the Commission.

(6) Community of interest

[133] Consistent with section 15 of the EBRA and the Carter decision, commissions are to consider factors beyond voter parity when readjusting electoral districts. It is clear that the Commission factored these considerations in their Decision:

Because the communities are so similar, [the CBCA District] includes municipalities and provincial constituencies that have been working and lobbying together toward common goals for decades.

…

… We acknowledge that protecting and preserving Indigenous languages is a significant consideration. We do however, disagree with [MP] Battiste’s characterization of [the CBCA District] as a “nearly unilingual Anglophone riding.” To the contrary, this proposed riding has a rich linguistic tapestry of not only English, but French, Gaelic and Mi’kmaw. Eskasoni’s website acknowledges this linguistic diversity, and notes the community’s “close ties to Cape Breton Gaelic and French traditions.”

Eskasoni, the largest Indigenous community in the province is also home to the greatest number of Mi’kmaw speakers. However, it is not alone in its use of their ancestral language. Its use and preservation is also a priority in Wagmatcook…

[Decision at pp 56, 59.]

[134] It is evident that the Commission turned its mind to this important consideration. Indeed, they noted that the proportion of Mi’kmaw language speakers will be higher in the new CBCA District, according to the decennial census data (Decision at p 59).

[135] The Commission understood that Eskasoni has close ties to Sydney and rightly noted that the electoral boundaries will not limit an Eskasoni member’s ability to continue to do business, visit, or maintain ties with the city. Essentially, the Applicants are not happy with the Decision moving Eskasoni to a different electoral district where the current MP is not indigenous. I appreciate that they do not want to lose MP Battiste as their MP given he is a member of their community. However, the Charter right to vote does not guarantee individuals a right to a particular outcome or a particular representative; rather, this is a right to participate in a process (Carter at 183; Figueroa at paras 25–57; Frank at paras 26–27). Members of Eskasoni are still free to exercise their section 3 Charter right to participate in federal elections. Finally, I noted that based upon the record for this application, it appears that there will be a higher concentration of eligible Mi’kmaq Nation voters in the new CBCA District.

[136] In my opinion, the Commission properly exercised its discretion and considered all relevant factors in the readjustment of Nova Scotia’ electoral boundaries as evidenced from the Decision.

(7) Section 25 of EBRA

[137] The Applicants asserted that the GIC should not have issued the Proclamation pursuant to section 25 of the EBRA because of the Commission’s failure to consult with them, which renders the Decision unreasonable. The GIC does not, however, have the discretion to refuse to issue a proclamation following a ministerial order (EBRA, s 25(1)).

[138] I am of the view that the Commission’s Decision is reasonable; therefore, this issue is not addressed in my reasons.

C. Remedy

[139] I have found that the Commission’s Decision was reasonable and procedurally fair. Accordingly, I am not addressing the proposed remedies advanced by the Applicants.

V. Conclusion

[140] In conclusion, the Commission correctly and reasonably concluded that there is no duty of procedural fairness to consult separately with Eskasoni, nor was the section 35 duty to consult triggered in respect of the readjustment of federal electoral boundaries.

[141] I echo the SCC’s remarks that this “should not, however, be seen to diminish the value and wisdom of consulting Indigenous peoples prior to enacting legislation that has the potential to adversely impact the exercise of Aboriginal or treaty rights” (Mikisew at para 145). Even where there is no specific duty to consult with Indigenous peoples, the spirit of reconciliation behoves both Indigenous and non-indigenous governments and communities to find opportunities to exchange views in an effort to maintain and rebuild relationships. In the case at bar, there was a public engagement process to solicit views on the changes to the electoral ridings. The Applicants chose not to participate in this process. In my view, this choice was inconsistent with the duty of “mutual good faith” necessary to the development and maintenance of the relationship between parties (Behn at para 29).

[142] The Commission correctly and reasonably considered voter parity and other relevant considerations set out at section 15 of the EBRA when reaching its Decision concerning the readjustment of the federal electoral boundaries for Nova Scotia.

[143] I appreciate that Eskasoni is not happy with the Decision and that they are no longer represented by their fellow community member, the first Mi’kmaq MP in Canadian history. However, the section 3 Charter guarantee is a right to participate in a process, not a right to a particular outcome or representative. I am concerned that the issues raised by the Applicants, which appear to be concerned with the outcome and the loss of MP Battiste as their representative, risk veering into the realm of gerrymandering.

 

JUDGMENT in T-1074-23

THIS COURT’S JUDGMENT is that:

1. The application for judicial review is dismissed.

2. No order as to costs.

“Julie Blackhawk”

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:	T-1074-23
STYLE OF CAUSE:	ESKASONI FIRST NATION ET AL. v ATTORNEY GENERAL OF CANADA
PLACE OF HEARING:	Ottawa, Ontario
DATE OF HEARING:	JUNE 19, 2024
JUDGMENT AND REASONS:	BLACKHAWK J.
DATED:	November 21, 2024

APPEARANCES:

Alyssa Tomkins Michael Pal Keith Brown	For The ApplicantS
Gwen MacIsaac Kathryn Hill	For The Respondent

SOLICITORS OF RECORD:

Gowling WLG (Canada) LLP Barristers and Solicitors Ottawa, Ontario	For The ApplicantS
Attorney General of Canada Halifax, Nova Scotia	For The Respondent