Date: 20000721
Docket: T-22-00
BETWEEN:
LIIDLII KUE FIRST NATION
Applicant
- and -
THE ATTORNEY GENERAL OF CANADA and
MAUREEN BERNIER
Respondents
REASONS FOR ORDER
REED, J.:
[1] These reasons relate to the judicial review of a decision by a land use administrator, Mr. Hornby, to issue a land use permit to the respondent Maureen Bernier. The decision under review is dated December 9, 1999, and was made pursuant to the Territorial Land Use Regulations, C.R.C., c. 1524.
[2] The applicant's application seeks not only an order quashing Mr. Hornby's December 9, 1999, decision, but also: a declaration that there is a constitutional and fiduciary duty to adequately consult the applicant before a permit is issued; an order of mandamus compelling consultation "with respect to the scope, nature and extent of the impact" that the issuance of a permit might have on the applicant's treaty rights; an order prohibiting the issuance of a permit until such consultation is complete; an order retaining jurisdiction over the application for a land use permit, to allow any party to return to the Court for the disposition of issues that might arise out of the implementation of the Court's orders.
Background
[3] A land use permit application was submitted by Ms. Bernier, on December 7, 1998. It sought permission to test drill in areas on which Ms. Bernier held mining claims. A copy of the land use permit application was sent to a distribution list, on which the applicant was listed as one of the recipients. The Denendeh Resource Committee and the Deh Cho First Nation were also among those named on the distribution list. Comments on the application were requested by January 8, 1999.
[4] The applicant responded on January 8, 1999, insisting that the processing of Ms. Bernier's application be delayed in order to give it time to consult with its members who would be directly affected. It also insisted that the assessment of the impact the test drilling would have on aboriginal harvesting rights be done by someone knowledgeable about aboriginal harvesting practices or a mammalian biologist specializing in animal behaviour and population movements, not by a civil servant. The applicant objected to the quality of the material that had been sent to it. It stated that the maps were of poor quality and had inadequate reference points.
[5] On the same date, January 8, 1999, the administrator for the Denendeh Resource Committee responded that it objected to Ms. Bernier's application, "as it interferes with the traditional harvesters of the Liidlii Kue First Nation members Jane Mcpherson on Antoine Lake area and the Mouse family of the Liard River area". A letter supporting the applicant's objection was also sent by the Deh Cho First Nations. The letter stated that the mineral exploration would interfere with the livelihood of the Mouse, Cholo and McPherson families, as they relied on the trapping in the relevant area for a source of income and a way of life.
[6] Processing of the permit application was delayed to allow further consultation with the applicant. Mr. Hornby wrote to the applicant stating that consultation with those directly affected by the proposed test drilling would be useful:
| ... Details from the actual hunters and trappers themselves as to exactly how the operation will affect hunting and trapping will enable me to properly assess the potential impact on hunting and trapping success, and to understand the mechanisms whereby this impact takes place. Then it will be possible to determine if the impact can be reduced or avoided by designing appropriate mitigation or operational changes, or if that is not possible, to investigate other avenues. |
[7] On January 26, 1999, the Jean Marie River First Nation wrote, stating that it had not been informed of the application and that it was insisting on due notice and consultation concerning the impact of the permit. Mr. Hornby responded, apologizing for omitting the Jean Marie River First Nation from the first distribution list. He asked for comments to be submitted by February 28, 1999. The Jean Marie First Nation responded by letter dated February 8, 1999, stating that the application directly interfered with their Water Source and hunting in the area. The Jean Marie First Nation sought time within which to consult with members who would be affected by the proposed activity. It also sought assessment of the permit by someone other than a civil servant, and complained about the quality of the maps that had been provided.
[8] On January 28, 1999, the applicant insisted that since it was not in receipt of the co-ordinates of the drill sites, it only had the co-ordinates of the relevant mineral claims, it was impossible to evaluate areas and develop an appropriate work plan until it was made aware of the areas in which drilling would occur. Mr. Hornby responded that the very nature of the mineral exploration in question meant that a proponent could not know, before commencing, where the actual drill locations would be. The results obtained from one test drill core determines where the next test drill site will be located:
| Because the process is dynamic, and decisions about where to drill tomorrow are based on information retrieved from core being drilled today, it is not possible for a proponent to identify drill locations at the permit application stage. It is therefore necessary to develop application review procedures which sufficiently identify potential impacts and design adequate mitigation, without knowing the precise location of each individual drill hole. |
| I know this is possible. It certainly has been done countless times here in the past, with remarkable success. I am sure it can be done in this case. |
[9] As part of its decision to provide for more consultation with the applicant, the Crown agreed to fund the preparation of a study by the applicant. There was disagreement as to the scope this study should have.
[10] The applicant provided a work plan on February 12, 1999, the cost of which was estimated by it to be $66,575.00. Mr. Hornby rejected this work plan, stating that it was inappropriate because it related to a full scale mining operation, when all that the land use permit would allow was test drilling. He also advised the applicant that fewer than one percent of test sites become a mine development:
| In your letter of 12 February, you enclose a work plan which refers to assessing the potential impacts of subsequent mine development. This is clearly not necessary, nor is it reasonable to do at this time. Fewer than one percent of mineral prospects which are investigated by diamond drilling continue through the progressive exploration and delineation phases to become a mine development. Approval of exploration by diamond drilling does not imply automatic approval of any of the subsequent steps necessary to proceed to mine development. It is not necessary, and indeed, not permissible under existing law, to review the proposal for exploratory diamond drilling in the context of possible future mine development. |
[11] Mr. Hornby explained that the land use activity that would be undertaken involved drilling twelve diamond drill holes with a helicopter supported diamond drill:
| Simply put, the project consists of drilling up to twelve diamond drill holes with a helicopter supported diamond drill. Drill locations will be either a natural opening in the forest, or where necessary, in a hand cleared opening large enough to accommodate the drill and the helicopter. The drill will be moved from drill location to drill location by helicopter, a process which entails several round trips from location to location. The two man drill crew is moved to and from the drill by helicopter, which would involve two trips per day. The diamond drill requires a few thousand litres of water to drill a hole, this is normally obtained by pumping from a local water body. In addition to the drill core extracted by the drill, which is normally examined and stored in boxes at the drill site, the drill generates a small quantity of ground rock, varying in grain size from clayey platelets to fine sand. These cuttings, along with the drill water, are normally deposited in a sump, or local shallow depression, to keep them from flowing into fish bearing waters. This operation will have no camp, as the crew will be staying in existing commercial accommodation. |
[12] Mr. Hornby indicated that for his investigation, what he required was that an interviewer speak with most, if not all of the eight trappers referred to in the previous correspondence, to obtain their views as to how the proposed activity would impact on their hunting and trapping. He indicated that he would expect this to take only a few weeks and cost between $3,000 to $5000. He indicated that if the applicant was unable to support that interview process by utilizing existing Interim Resource Management Assistance ("IRMA") funding sources, Mr. Hornby's office should be advised. The applicant had been provided with approximately eighty thousand dollars of IRMA funding for the year.
[13] Disagreement continued, with the applicant insisting that there be no claim activity (under the Canada Mining Regulations, C.R.C., c. 1516) or land use activity (under the Territorial Land Use Regulations) without the applicant's consent. In a letter of 29 July, 1999, Mr. Hornby again identified what he considered to be the scope of the study required:
| I did commit to provide up to $5,000.00 to help answer the specific questions that I asked in my letters of February 26, and January 20, 1999. This includes identifying the trappers who use the area, interviewing them to determine where their trap lines are, and to find out from them where specific areas of sensitivity, such as mineral licks or dens, might be. The trappers could provide an explanation of how they understand helicopter supported diamond drilling would interfere with their pursuits. |
[14] Throughout the correspondence Mr. Hornby's position appears to have been that steps would be taken to mitigate any harm arising to those concerned from the test drilling, but that he would not be prepared to prohibit it. In a letter of December 7, 1999, to Ms. Bernier's geologist, Ms. Keough, he explained, for example, that if a trapper could show that he would be adversely affected by the test drilling, "the permittee may be required to pay compensation."
[15] In any event, the applicant on September 10, 1999, wrote to Mr. Hornby indicating that it accepted the $5,000, but was continuing to seek additional funding to assess the impact of the intended activity. The applicant enclosed a work plan, of similar scope to that originally submitted, and again reiterated its concern that it was not being advised as to the location of the actual drill sites. Mr. Hornby did not respond to this correspondence.
Analysis of Submissions
(i) Setting Aside the Decision - Mootness
[16] The Attorney General conceded, prior to the commencement of the hearing, that the permit should be quashed. There had been an agreement that the applicant would be paid $5,000 to enable it to consult with its members who might be directly affected by the issuance of the permit and to consult with the land use administrator. This commitment had not been kept. As I understand the Attorney General's position, it is that the ordinary principles of natural justice, the reasonable expectations doctrine, required the honouring of the commitment that had been made and, therefore, the decision under review should be set aside.
[17] The Attorney General argued that the rest of the applicant's judicial review application thereby became moot and should not be considered. Alternatively, it was argued that the remaining relief requested by the applicant could only be considered if the application was converted into an action.
[18] Both the applicant and the respondent Bernier objected to the setting aside of Mr. Hornby's decision without also dealing with the other remedies that had been sought. They were of the view that simply sending the matter back for reconsideration by another land use administrator would leave the constitutional issues unresolved, bringing the parties back to Court at a later date, thus prolonging the dispute. Counsel for Ms. Bernier was particularly concerned that his client was caught in the middle of a dispute, not of her making and that a practical solution to the dispute should be found. He perceived the stumbling block to be disagreement as to the scope of the information needed by the applicant to allow it to adequately consult.
[19] Counsel for the applicant argued that a resolution of the issues in dispute should not be considered moot, nor should the unresolved aspects of the applicant's judicial review application be converted into an action. He argued that not every aboriginal rights case needs a lengthy trial for its resolution and the issues in this case could be determined on judicial review.
[20] I accepted the submissions that the judicial review proceeding should continue with respect to those aspects on which no agreement had been reached. The issues are largely legal. Also, the applicant's position, given that the applicant was the initiator of the proceeding, should be accorded some deference with respect to the procedure to be followed. I agreed that, to the extent that it is possible to do so, the most economical use of time for all parties involved is to determine the unresolved issues in the context of the present proceeding.
(ii) Canada Mining Regulations
[21] The Canadian Mining Regulations provide for the issuance of prospecting licences with respect to federally owned lands in the Northwest Territories. A mining recorder is required to record a claim at the request of a licence holder, providing the Canadian Mining Regulations have been complied with. Ms. Bernier's claims were staked and recorded in accordance with that procedure.
[22] Ms. Bernier then sought permission to test drill in the areas covered by the claims. As noted, such permission is granted by a land use administrator pursuant to the Territorial Land Use Regulations.
[23] The applicant seeks to challenge the validity of the Canada Mining Regulations because they allow prospecting and the staking and recording of claims, on the lands in question, without any consultation with the applicant. It is asserted that those Regulations are therefore unconstitutional. The decision under review in this proceeding is that of December 9, 1999, by Mr. Hornby, pursuant to the Territorial Land Use Regulations. That decision does not involve the Canada Mining Regulations. The decision to issue Ms. Bernier a prospecting licence or permit, and subsequently to record the claims she staked are separate and earlier decisions from that under review. It is not open to the applicant to challenge the Canada Mining Regulations in this proceeding. Also, Federal Court Rule 302 states that only one decision may be the subject of a judicial review proceeding in an application. The decisions taken under the Canada Mining Regulations are not only earlier and separate from the decision under review in this application, but importing a review of those decisions into this proceeding would offend Rule 302.
(iii) Validity of Territorial Land Use Regulations
[24] Counsel for the applicant relies on the decisions in R. v. Adams, [1996] 3 S.C.R. 101 for the proposition that the Territorial Land Use Regulations are ultra vires because they do not contain explicit guidance as to how the treaty rights in question are to be accommodated. At paragraph 54 of the Adams decision, Chief Justice Lamer stated that Parliament could not simply adopt an unstructured discretionary administrative regime which risked infringing aboriginal rights in the absence of some explicit guidance set out in the legislation as to how the discretion should be applied.
| [54] I am of the view that the same approach should not be adopted in identifying infringements under s. 35(1) of the Constitution Act, 1982. In light of the Crown's unique fiduciary obligations towards aboriginal peoples, Parliament may not simply adopt an unstructured discretionary administrative regime which risks infringing aboriginal rights in a substantial number of applications in the absence of some explicit guidance. If a statute confers an administrative discretion which may carry significant consequences for the exercise of an aboriginal right, the statute or its delegate regulations must outline specific criteria for the granting or refusal of that discretion which seek to accommodate the existence of aboriginal rights. In the absence of such specific guidance, the statute will fail to provide representatives of the Crown with sufficient directives to fulfil their fiduciary duties, and the statute will be found to represent an infringement of aboriginal rights under the Sparrow test. |
[25] The Adams case is not relevant to the legislation in issue in the present case. In the Adams case, the particular provincial regulation in question authorized the issuing to "an Indian or an Inuk, to a band of Indians or to an Inuit group, a special licence permitting ... the catching of fish for food." In that context, then the Court held that the regulatory scheme was not adequate to curtail the aboriginal right to fish. The regulation in question was not declared invalid. It was simply inoperative vis à vis the appellant. The quotation set out above does not mean that all provincial and federal legislation of general application that might impinge on aboriginal rights has to have included in it provisions respecting the accommodation of aboriginal rights. The Adams case does not assist the applicant.
(iv) Material Not Before the Decision-Maker
[26] The Attorney General argues that much of the material filed in support of the applicant's application is not admissible because it was not before the decision-maker.
The record that was before the decision-maker, Mr. Hornby, was filed with the Court on January 28, 2000. After that date, six affidavits were filed in support of the applicant's judicial review application. The Attorney General subsequently filed two affidavits in response thereto. In the meantime, the applicant filed a motion to stay the use of the land use permit until the merits of the judicial review application were determined. In support of that motion, the applicant filed an affidavit of Petr Cizeck, to which was appended a report dated June 1998, entitled Liidlii Kue First Nation Traditional Land Use and Occupancy Mapping Project (1997-98), Final Report. This report had been updated in February 2000, by superimposing the co-ordinates of Ms. Bernier's mineral claims on the maps found in the report.
[27] Three affidavits were then filed in support of Ms. Bernier's position that a stay should not be granted: affidavits of Ms. Keough, Dr. Crichton and Mr. Broadbent. Dr. Crichton is a wildlife biologist. He expressed the opinion that while "continuous, long-term, low level flights over the same area may cause wildlife movement from the area ... the proposed level of helicopter traffic [for the test drilling] will have no significant impact on any of the wildlife in the immediate vicinity and will not cause the displacement of any of the wildlife from their traditional ranges".
[28] Ms. Keough, Ms. Bernier's geologist who has been working in the claims areas gave affidavit evidence that she had never seen any evidence of traplines or footpaths or trails in those areas. She also stated that because of the proximity to the Fort Simpson airport the areas were already subject to frequent overflight by low flying aircraft. Mr. Broadbent, a commercial helicopter pilot, confirmed that the claims were located in an area of regular low flight traffic, and that wildlife, in general, tends to ignore helicopter activity. He also stated that he had regularly picked up and dropped off First Nation members, at their request, in the area, as well as transporting equipment and supplies to them.
[29] On March 21, 2000, when the motion for a stay came before Mr. Justice Gibson, he ordered that the judicial review application should be heard on an expedited basis on the merits, and he set out a schedule, on consent, for the completion of all pre-hearing steps. The schedule contemplated the filing of further affidavits before April 7, 2000, and cross-examinations thereon. The applicant filed a further affidavit on April 7, 2000, an affidavit of Dr. Morgantini. He is a wildlife biologist and he expressed the opinion that the proposed exploration might have a negative impact on wildlife in the area but this could not be determined without better baseline data.
[30] All the above described material was made part of the application records filed for the purposes of the judicial review hearing. I agree that much of the information contained in these affidavits was not before the decision-maker. Indeed, it is regrettable that the 1998 Report of Petr Cizeck was not given to Mr. Hornby in January 1999. The failure of the applicant to disclose that it had this information in hand, at that time, does raise questions about the lack of candidness it has taken in its dealings with Mr. Hornby.
[31] The requirement that a decision must only be reviewed on the basis of the material before the decision-maker, applies when a decision is challenged on the ground that it is based on an erroneous finding of fact made in a perverse or capricious manner or without regard to the material before the decision-maker. The challenge to the decision in this case is not based on those grounds. It is based on the allegation that there was an obligation to adequately consult the applicant, which consultation it is alleged did not occur and is not contemplated.
[32] Challenges to decisions on the ground that procedural fairness has not occurred, because the affected party has not been given adequate opportunity to present its case, are likely to involve the adducing of information that was not before the decision-maker. In the present case, evidence relating to the status of an applicant, and whether a duty to consult exists, and the scope of that duty, is relevant, even though it may not have been before the decision-maker. To the extent that the new evidence relates to those issues, it is properly a part of the application records.
(v) Requirement to File a New Application
[33] The applicant argues that not only should the decision under review be quashed but Ms. Bernier should be required to file a new application to the Mackenzie Valley Land and Water Board. That Board was established by the Mackenzie Valley Resource Management Act, S.C. 1998, c. 25 and all applications for land use permits filed after March 21, 2000, will be decided by that Board.
[34] The relevant legislation makes it clear that the jurisdiction of the Mackenzie Valley Land and Waters Board is over applications for land use permits that are filed after the Board came into existence on March 31, 2000. Applications filed prior to that time continue to be disposed of in accordance with the Territorial Land Act Regulations. Subsection 154(1) of the Mackenzie Valley Resource Management Act states:
| 154.(1) An application made before the coming into force of sections 54 and 56 or of section 99 under regulations made pursuant to the Territorial Lands Act in respect of a use of land in a settlement area or in another portion of the MacKenzie Valley, as the case may be, shall be disposed of under those regulations as they read at the time of the application. |
[35] Neither Ms. Bernier, nor the Attorney General wish to see the process begun anew. They wish to preserve as much as possible of the investigative and consultative work that has already been done.
[36] While I accept that the Court may have jurisdiction on a judicial review application to grant the remedy sought (the filing of a completely new application), I do not find it appropriate to do so in this case. There is no compelling reason to make such an order.
| (vi) Jean Marie First Nation |
[37] Counsel for the applicant referred to "grave concerns" that the Jean Marie First Nation had expressed regarding the proposed drilling permit and stated that those concerns had never been addressed. The Jean Marie First Nation did not join with the applicant as a party to the present judicial review proceeding, nor did it commence one of its own. Accordingly, its alleged "grave concerns" are not matters before the Court.
(vii) Nature of the Applicant's Rights
[38] The land to which the drilling permit will apply is within the area covered by Treaty No. 11. That Treaty was signed by different bands starting on June 21, 1921, with the last signing being at Laird River on July 17, 1922. The Treaty was ratified by orders-in-council dated October 22, 1921, and March 29, 1923. It is useful to set out some of the terms of the Treaty:
| ... WHEREAS, the said Indians have been notified and informed by His Majesty's said commissioner that it is His desire to open for settlement, immigration, trade, travel, mining, lumbering and such other purposes as to His Majesty may seem meet, a tract of country bounded and described as hereinafter set forth, and to obtain the consent thereto of His Indian subjects inhabiting the said tract, and to make a treaty, so that there may be peace and goodwill between them and His Majesty's other subjects, and that His Indian people may know and be assured of what allowances they are to expect and receive from His Majesty's bounty and benevolence. |
| . . . |
| AND WHEREAS the said Commissioner has proceeded to negotiate a treaty with the Slave, Dogrib, Loucheux, Hare and other Indians inhabiting the district hereinafter defined and described, which has been agreed upon and concluded by the respective bands at the dates mentioned hereunder, the said Indians do hereby cede, release, surrender and yield up to the Government of the Dominion of Canada, for His Majesty the King and His Successors forever, all their rights, titles, and privileges whatsoever to the lands included within the following limits, ... |
| . . . |
| AND ALSO, the said Indian rights, titles and privileges whatsoever to all other lands wherever situated in the Yukon Territory, the Northwest Territories or in any other portion of the Dominion of Canada. |
| To have and to hold the same to His Majesty the King and His Successors forever. |
| AND His Majesty the King hereby agrees with the said Indians that they shall have the right to pursue their usual vocations of hunting, trapping and fishing throughout the tract surrendered heretofore described, subject to such regulations as may from time to time be made by the Government of the Country acting under the authority of His Majesty, and saving and excepting such tracts as may be required or taken up from time to time for settlement, mining, lumbering, trading or other purposes. |
| AND His Majesty the King hereby agrees and undertakes to lay aside reserves for each band, the same not to exceed in all one square mile for each family of five, or in that proportion for larger or smaller families; [Underling added.] |
[39] The treaties were oral agreements that were explained to the Indians and committed to writing by the Crown's negotiators. A series of principles applicable to the interpretation of these treaties has been articulated in the jurisprudence. The principles were summarized in Saanichton Marina Ltd. v. Tsawout Indian Band (1989), 57 D.L.R. (4th) 161 (B.C.C.A.). This summary was based on the principles found in Nowegijick v. R., [1983] 1 S.C.R 29; Simon v. The Queen, [1985] 2 S.C.R. 387; R. v. Bartleman (1984), 12 D.L.R. 73 (B.C.C.A.); Taylor v. The Queen (1981), 34 O.R. (2d) 360 (Ont. C.A.).
[40] The principles were elaborated more recently by the Supreme Court in R. v. Badger, [1996] 1 S.C.R. 771. Mr. Justice Cory at 798 stated:
| ... the applicable interpretive principles must be borne in mind. Treaties and statutes relating to Indians should be liberally construed and any uncertainties, ambiguities or doubtful expressions should be resolved in favour of the Indians. In addition, when considering a treaty, a court must take into account the context in which the treaties were negotiated, concluded and committed to writing. The treaties, as written documents, recorded an agreement that had already been reached orally and they did not always record the full extent of the oral agreement: see Alexander Morris, The Treaties of Canada with the Indians of Manitoba and the North-West Territories [Toronto: Belfords, Clark] (1880), at pp. 338-42; Sioui, supra at p. 1068 [p. 155 C.N.L.R.]; Report of the Aboriginal Justice Inquiry of Manitoba [Public Inquiry into the Administration of Justice and Aboriginal People; Winnipeg] (1991); Jean Friesen, Grant me Wherewith to Make My Living [Winnipeg: TARR Centre] (1985). The treaties were drafted in English by representatives of the Canadian government who, it should be assumed, were familiar with common law doctrines. Yet, the treaties were not translated in written form into the languages (here Cree and Dene) of the various Indian nations who were signatories. Even if they had been, it is unlikely that the Indians, who had a history of communicating only orally, would have understood them any differently. As a result, it is well settled that the words in the treaty must not be interpreted in their strict technical sense nor subjected to rigid modern rules of construction. Rather, they must be interpreted in the sense that they would naturally have been understood by the Indians at the time of the signing. This applies, as well, to those words in a treaty which impose a limitation on the right which has been granted. See Nowegijick, supra, at p. 36 [S.C.R.; p. 94 C.N.L.R.]; Sioui, supra, at pp. 1035-36 and 1044 [S.C.R.; pp. 133-34 and 139-40 C.N.L.R.]; Sparrow, supra, at p. 1107 [S.C.R.; pp. 179-80 C.N.L.R.]; and Mitchell, supra, where La Forest J. noted the significant difference that exists between the interpretation of treaties and statutes which pertain to Indians. |
[41] The Report of the Commissioner for Treaty No. 11 (H.A. Conroy) to the Deputy Superintendent General, Department of Indian Affairs, October 12, 1921, is similar to that reported with respect to Treaty No. 8 referred to in R. v. Badger. It refers to all the adhesions to the Treaty except those at Fort Liard, T.W. Harris was the Commissioner for the Fort Liard signing. The Commissioner Conroy's report re: Treaty No. 11 reads in part:
| ... I had several meetings with them, and explained the terms of treaty. They were very apt in asking questions, and here, as in all the other posts where the treaty was signed, the questions asked and the difficulties encountered were much the same. The Indians seemed afraid, for one thing, that their liberty to hunt, trap and fish would be taken away or curtailed, but were assured by me that this would not be the case, and the Government will expect them to support themselves in their own way, and, in fact, that more twine for nets and more ammunition were given under the terms of this treaty than under any of the preceding ones; this went a long way to calm their fears. I also pointed out that any game laws made were to their advantage, and, whether they took treaty or not, they were subject to the laws of the Dominion. They also seemed afraid that they would be liable for military service if the treaty was signed, that they would be confined on the reserves, but when told that they were exempt from military service, and that the reserves mentioned in the treaty would be of their own choosing, for their own use, and not for the white people, and that they would be free to come and go as they pleased, they were satisfied. |
[42] The present case, then, concerns the obligations that arise on the Crown with respect to land for which a treaty extinguishing aboriginal title has been signed, which treaty also grants the Indians the right to pursue their usual vocations of hunting, trapping and fishing, except on land "as may be required or taken up from time to time for ... mining ...". And with respect to which there is some evidence that the Indians were given assurances that their lifestyle would not be changed (see the affidavit of Chief Rita Cli).
[43] While the applicant bases its claim on the treaty right described above, counsel for the applicant referred to jurisprudence that seems to put the validity of that treaty in question. Counsel refers to the decision by Mr. Justice Morrow in Re: Paulette's Application, [1973] 6 W.W.R. 97 (N.W.T.). In that decision, Mr. Justice Morrow concluded that there was doubt about whether Treaty No. 11 had extinguished aboriginal title to the land in question. He questioned whether there had been a meeting of the minds between the Indians and the government negotiators. Mr. Justice Morrow's decision was not upheld by the Northwest Territories Court of Appeal, [1976] 2 W.W.R. 193 or the Supreme Court of Canada, [1977] 2 S.C.R. 628, but without reference to the possible invalidity of the Treaty. That question was not addressed. While counsel referred to Mr. Justice Morrow's decision, in argument he explained that a decision had been made not to place before the Court, for the purposes of this application, evidence respecting the disputed status of the treaty.
[44] Given that the applicant has asked that a decision be rendered on the basis of the present record, I must reach some conclusion about the nature of the applicant's rights on the basis of the evidence that has been put in front of me. This leaves open, of course, a fuller assessment, on the basis of other evidence, in another forum.
[45] I will consider the nature of the applicant's rights, in this case, then, on the basis of the applicant's rights as described in the text of the Treaty that has been put in evidence, amplified by the Commissioner's Report which has also been made part of the record, and the affidavit of Chief Rita Cli, as well as those of the other members of the Liidlii Kue First Nation.
[46] I interpret the treaty right as being a qualified or conditional right, the right to hunt, trap and fish on unoccupied Crown land, until the Crown seeks to use it. Limitations on the extent of the "taking-up" in which the Crown may engage, and still honour the committments made that the Indians should be able to continue to follow their lifestyle, need not be considered in this case, because the use that is contemplated is extremely limited, both in time and geographical extent.
(vi) Duty to Consult
[47] I accept that a constitutional obligation exists to consult with those exercising the right to hunt, trap and fish on unoccupied Crown land, pursuant to a treaty, when a decision is made to occupy the land. The treaties refer to the right as existing until the land is "required or taken up" (for the purpose of these reasons, I use the word "occupied' as the equivalent of "required or taken up", and unoccupied for land that has not been "required or taken up").
[48] While the decision in Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010, dealt with land over which Indian aboriginal title had not been extinguished by treaty, the principle of consultation enunciated therein was framed in general terms. It was described as arising not only when aboriginal title is in issue, but also when treaty rights to reserve lands are in issue. Chief Justice Lamer wrote at 1113:
| ... There is always a duty of consultation. Whether the aboriginal group has been consulted is relevant to determining whether the infringement of aboriginal title is justified, in the same way that the Crown failure to consult an aboriginal group with respect to the terms by which reserve land is leased may breach its fiduciary duty at common law: Guerin. The nature and scope of the duty of consultation will vary with the circumstances. In occasional cases, when the breach is less serious or relatively minor, it will be no more than a duty to discuss important decisions that will be taken with respect to lands held pursuant to aboriginal title. Of course, even in these rare cases when the minimum acceptable standard is consultation, this consultation must be in good faith, and with the intention of substantially addressing the concerns of the aboriginal peoples whose lands are at issue. In most cases, it will be significantly deeper than mere consultation. Some cases may even require the full consent of an aboriginal nation, particularly when provinces enact hunting and fishing regulations in relation to aboriginal lands. |
Equally, it seems that this requirement should apply to treaty rights of the more limited type, such as the right to hunt, trap and fish on unoccupied Crown lands.
[49] In addition, the British Columbia Court of Appeal in Halfway River First Nation v. British Columbia (Minister of Forests), [1999] 4 C.N.L.R. dealt with a duty to consult when prospective limitations were contemplated on the right to hunt and fish for food over unoccupied Crown land (under Treaty No. 8). The relevant wording of that Treaty is similar to Treaty No. 11.
[50] Although, a constitutional obligation is implicit in some of the reasoning in those cases, (see, for example paragraph 191 of the Halfway River decision) neither case explicitly elevates the duty to consult to constitutional status. Halfway River is based on the relevant provincial legislation and regulations requiring consultation. At the same time, it is hard to envisage provincial or federal legislation that purported to take away the common law duty to consult being constitutionally valid. I am willing to accept that the recognition and affirming of treaty rights by subsection 35(1) of the Constitution Act, 1982 ,carries with it a constitutional duty on the Crown to consult with those holding treaty rights to hunt, trap and fish on unoccupied Crown land in circumstance such as the present.
[51] In any event, Mr. Hornby recognized that there was a duty to consult (without finding it necessary to identify the legal basis of that duty). This is clear from the following: Ms. Bernier originally applied for the land use permission by way of an amendment to an existing land use permit that she held; Mr. Hornby refused to issue the amendment; in a letter dated November 27, 1998, he explained that his decision, stating "the area for which you have requested approval is not coincident with the previously approved area, and before I can authorize activities on crown land, I must ensure that there will be no interference with traditional aboriginal rights." The land use permit application and relevant maps were sent to the applicant and others who might be concerned. Comments were requested. Mr. Hornby extended the time for the submission of comments to allow for consultation. He expressly asked for consultation with those presently using the land. Thus, as a practical matter, the only purpose in identifying the legal source of the duty to consult, as constitutionally based, for present purposes, is because the Court agreed to consider the remedies sought by the applciant in its applciaiton, and because the constitutional basis may have relevance to the scope of the duty to consult.
(vii) Scope and Nature of Consultation - Jurisprudence
[52] The jurisprudence is clear that the scope of the duty to consult varies with the nature of the aboriginal rights in question.
[53] Much of the jurisprudence that has been cited deals with a different kind of right from that in issue here. Cases such as Delgamuukw and R. v. Sparrow, [1990] 1 S.C.R. 1075, deal with aboriginal rights when there has been no extinguishment of aboriginal title. Cases such as Guerin v. Canada, [1984] 2 S.C.R. 335 deal with aboriginal rights in lands set aside under the treaties for the exclusive use of the Indians (Indian reserve lands). Many of the cases that were cited deal with the application of provincial or federal laws to Indians when they are exercising their right to hunt, fish or trap on unoccupied Crown land (some deal with the extended right flowing from the Natural Resources Transfer Agreements). In the present case, the issue is what is the scope of the duty to consult when the federal government decides to use or allow others to use the land over which the Indians have a treaty right to hunt, fish and trap until the land is "required or taken up ... for mining".
[54] As well as varying with the nature of the aboriginal right in question, the scope and nature of the consultation required will also vary with the scope and nature of the obligations on Crown that arise as a result of the nature of the right. In Halfway River, Mr. Justice Finch indicated that the Sparrow justification test was applicable to limitations on treaty rights to hunt, trap and fish on unoccupied Crown lands:
| 145 The analysis required in deciding whether infringement of a treaty right is justified is referred to above briefly in paragraph 83. Although Sparrow was not a treaty case, in my view the same approach is warranted here as in cases of aboriginal rights, as both treaty and aboriginal rights have constitutional protection under s. 35(1) of the Constitution Act, 1982. |
| 146 Justification requires consideration of the following questions (said in Sparrow not to be an exhaustive or exclusive list): |
| 1. Whether the legislative or administrative objective is of sufficient importance to warrant infringement; |
| 2. Whether the legislative or administrative conduct infringes the treaty right as little as possible; |
| 3. Whether the effects of infringement outweigh the benefits derived from the government action; and |
| 4. Whether adequate meaningful consultation has taken place. |
[55] Madame Justice Huddart, on the other hand, was of the view that the Sparrow justification rules did not necessarily apply. With respect to the requirement that there be a legislative or administrative objective sufficiently important to warrant infringement, she noted, in paragraphs 186-187, that in the Halfway River case, infringement would occur as a result of the taking of timber from the land, and this was a purpose recognized by the treaty itself as a reason for government encroachment on the treaty right to hunt. Also, she was of the view that the Sparrow requirements were not applicable in their entirety when a determination was made that the non-aboriginal use and the aboriginal use were compatible:
| 190 Where the decision maker has determined the proposed uses are compatible with the Aboriginal right, the question becomes one of accommodation as opposed to one of exclusive exercise of either the Aboriginal right in question or the Crown's proposed use. In Sioui, supra, the Court held it was up to the Crown "to prove that its occupancy of the territory cannot be accommodated to reasonable exercise of the Hurons' rights," if the Crown wanted to assert its occupancy of the land in question was incompatible with the Hurons' religious customs or rites. It may be that guidance can be found in this concept for the review of an administrative decision on the allocation of resources among compatible uses. |
| 191 In summary, so as to fulfil the Crown's fiduciary and constitutional duties to Halfway, the District Manager is required to initiate a process of adequate and meaningful consultation with Halfway to ascertain the nature and scope of the treaty right at issue. Having done so, and having determined the effect of the proposed non-Aboriginal use, he then makes a determination as to whether the proposed use is compatible with the treaty right. If it is he must seek to accommodate the uses to each other. It will be that accommodation the court reviews within the contours of a justificatory standard yet to be determined. |
| 192 If the District Manager determines the proposed use is incompatible with the treaty right, he will be asserting a geographical limitation on the treaty right. In that event, I agree with Mr. Justice Finch that his decision may be reviewed under the Sparrow analysis. |
[56] In R. v. Badger, Mr. Justice Cory, writing for the majority of the Court dealt, first, with the geographical limitation on treaty rights to hunt, arising as a result of land having been "required or taken up" and, then, with the extent to which those rights could be regulated by provincial legislation. The Court determined that the treaty right to hunt did not extend to land that had been "required or taken-up", that is, when the land is put to a use that is visibly incompatible with the right to hunt. Mr. Justice Cory, then, applied the Sparrow test, but only for the purpose of assessing the extent to which provincial legislation could regulate the right to hunt over land that had not been "required or taken up".
[57] This issue was again addressed in R.v. Sundown, [1999] 1 S.C.R. 393. The applicability of provincial legislation to the right to hunt on land to which the Indians had a right of access pursuant to Treaty No. 6 was in issue. The Natural Resources Transfer Agreement with Sackatchewan was also in issue. Mr. Justice Cory, speaking for the Court, identified three restrictions on the treaty right to hunt: (1) provincial legislation that relates to conservation and passes the justificatory standard set out in Sparrow; (2) compatibility between the Crown's use of the land (in that case a provincial park) and the treaty right claimed (to construct and use a cabin for the purpose of hunting); (3) the limitation found in the terms of the treaty that restrict the right to hunt to lands not "required or taken up ...".
[58] With respect to the third limitation, Mr. Justice Cory wrote, at page 415:
| This is in essence a subset of the second limitation since by definition the use of lands taken up for settlement is a Crown use of land wholly incompatible with the right to hunt. Thus, if the park lands were to be converted into lands used for settlement, any rights in a hunting cabin would disappear if it was found that the right to hunt itself had been extinguished. |
And at page 417:
| ... It would not be sufficient for the Crown to simply assert that the regulations are "necessary" for conservation. |
| . . . |
| The Crown would also have to demonstrate that the legislation does not unduly impair treaty rights. Treaty rights must not be lightly infringed. Clear evidence of justification would be required before that infringement could be accepted. |
[59] Subsequent to the hearing of the present application, counsel for the Attorney General sought permission to file a copy of the decision in Ontario (Minister of Municipal Affairs and Housing) v. Transcanada Pipelines Ltd., [2000] O.J. No. 1066 (April 5, 2000). Counsel for the applicant objected because this jurisprudence had been available at the time of the hearing but not cited. Although permission was granted, with the other parties being given an opportunity to respond, I am not convinced that this decision aids the Attorney General in her argument.
[60] In the Transcanada Pipelines case, the Ontario Court of Appeal held that the duty to consult becomes engaged as a factor to consider in the "justificatory phase" of the proceeding. The Court held that "what triggers a consideration of the Crown's duty to consult is a showing by the First Nation of a violation of an existing Aboriginal or Treaty right recognized and affirmed by s. 35(1) of the Constitution Act, 1982." The Court of Appeal appears to have said that since the record before it was inadequate to conclusively establish that the requisite treaty or aboriginal right existed, it was therefore speculative as to whether the alleged treaty or aboriginal rights would be adversely affected by the municipal restructuring proposal under consideration, and therefore, there was no duty to consult.
[61] If I understand counsel for the Attorney General's argument correctly, it is that the applicant "has not submitted any information to Mr. Hornby to establish a prima facie treaty right and infringement of the treaty right". However, Mr. Hornby was clearly aware that the applicant was asserting treaty rights because he refers to this in his letter to Maureen Bernier of November 27, 1998. The Transcanada Pipelines case would be of greater relevance if the rights the applicant were asserting were of a more uncertain or unidentified nature.
[62] Another factor relevant to the nature and scope of the required consultation will be the nature of the prospective infringement. This is clear from the passage from Delgamuukw quoted above: "when the breach is less serious or relatively minor, it will be no more than a duty to discuss important decisions that will be taken ... In most cases, it will be significantly deeper than mere consultations ...". That the nature of the content of the duty to consult varies with the nature of the prospective infringement is also implied in Madame Justice Huddart's decision, when she discusses compatible uses in the Halfway River decision, and in Mr. Justice Cory's analysis in R. v. Sundown, referred to above.
[63] Lastly, Mr. Justice Finch of the British Columbia Court of Appeal, at paragraphs 160-161, stated:
| The Crown's duty to consult imposes on it a positive obligation to reasonably ensure that Aboriginal peoples are provided with all necessary information in a timely way so that they have an opportunity to express their interests and concerns, and to ensure that their representations are seriously considered and, wherever possible, demonstrably integrated into the proposed plan of action: see R. v. Sampson (1995), 16 B.C.L.R. (3d) 226 at 251 (C.A.); R. v. Noel, [1995] 4 C.N.L.R. 78 (Y.T.T.C.) at 94-95; R. v. Jack (1995), 16 B.C.L.R. (3d) 201 at 222-223 (C.A.); Eastmain Band v. Robinson (1992), 99 D.L.R. (4th) 16 at 27 (F.C.A.); and R. v. Nikal, supra. |
| There is a reciprocal duty on Aboriginal peoples to express their interests and concerns once they have had an opportunity to consider the information provided by the Crown, and to consult in good faith by whatever means are available to them. They cannot frustrate the consultation process by refusing to meet or participate, or by imposing unreasonable conditions: see Ryan et al v. Fort St. James Forest District (District Manager), [1994] B.C.J. No. 2642, (25 January, 1994) Smithers No. 7855, affirmed (1994), 40 B.C.A.C. 91. |
Scope and Nature of Consultation - Required in this Case
[64] As noted, I perceive the jurisprudence to require different content and standards of consultation depending on the circumstances of the particular case. In this case the right being asserted is a treaty right to hunt, trap and fish on unoccupied Crown land. As framed by the terms of the treaty, it is a conditional right, expressed to exist until the land is required for one of the uses listed in the treaty. The consent of the Indians to the taking of lands for one of the purposes is not required. At the same time, when the treaty was entered into there were commitments made that the right to hunt, trap and fish would not be taken away or curtailed. As has been noted, if the whole tract covered by the treaty or a significant part thereof was being taken up, or was in danger of being taken up, this would render the treaty right meaningless. Given the limited use proposed by the permit under consideration, however, this is not a serious consideration in this case.
[65] The obligations on the Crown, in my view, are expressed by Mr. Justice Finch in the passage from Halfway River. The aboriginal peoples must be provided with all necessary information in a timely way so that they have an opportunity to express their interests and concerns, and to ensue that their representations are seriously considered.
[66] I am not persuaded that an analysis in accordance with the Sparrow criteria is required to justify the land use that is contemplated. As noted by Madame Justice Huddart, the first criterion is satisfied by the terms of the treaty itself. The second and third fit awkwardly. Also, even if they are applicable, the assurances that have been given by Mr. Hornby and the offers of Ms. Bernier to ensure minimal impact of the drilling activity on those holding the treaty rights satisfies those requirements.
[67] The potential infringement is minimal and temporary. As noted, it involves drilling twelve holes with helicopter supported diamond drills. The individuals doing this work will be flown in and out of the various locations; there will be no camp. A commitment was given by Ms. Keough that there would be no drilling through cultural or burial sites, assuming she was told of their location.
[68] The scope of the consultation that has been offered is set out above at paragraph 5. I will repeat it here for ease of reference:
| ... Details from the actual hunters and trappers themselves as to exactly how the operation will affect hunting and trapping will enable me to properly assess the potential impact on hunting and trapping success, and to understand the mechanisms whereby this impact takes place. Then it will be possible to determine if the impact can be reduced or avoided by designing appropriate mitigation or operational changes, or if that is not possible, to investigate other avenues. |
[69] The conclusion to be drawn from the jurisprudence then is that the applicants have a constitutional right to be consulted about the proposed use. However, their consent to the proposed use is not required. The scope or content of the consultation required is directly related to the nature of the aboriginal right in question as well as the nature of the alleged infringing activity, and other relevant considerations. Mr. Hornby's approach in seeking specific information from those whose traplines etc. might be directly affected, in order to minimize the impact on them, was appropriate and sufficient to meet the constitutional obligations that exist. The type of detailed environmental impact study that the applicant sought to require, including the identifications of drill sites, when it is impossible to give them at that stage of the exploration, is not reasonable.
Conclusion
[70] As indicated, the decision under review will be set aside and returned for reconsideration by a different land use administrator under the Territorial Land Use Regulations. I do not think it is necessary to issue a declaration that there is a constitutional and fiduciary duty to adequately consult. As noted, the offer to consult that was made in this case was adequate in the circumstances. I do not find it necessary to issue an order of mandamus to compel consultation, nor an order prohibiting issuance of the order until consultation is complete. I perceive that the land use administrator will conduct himself or herself in that fashion. Given the length of time that has expired since Ms. Bernier's application for a permit, the order will require the land use administrator to complete his or her consideration of the permit application within three months and it will provide that that person may impose reasonable time limits on those with whom he or she consults, in order to ensure compliance with the time frame that is established. Alterations to the time limits set out in the order can be applied for if necessary.
Costs
[71] The failure to consider the non-response by Mr. Hornby to the September 10, 1999 letter, at an earlier date, and the last minute decision to concede that his decision be set aside (two days before the hearing) caused unnecessary expense for everybody. In the circumstances, the respondent Attorney General, should pay the costs of the applicant and Ms. Bernier on a party-party basis up to the date of the hearing. The applicant shall pay the costs,
incurred by the respondents, from the commencement of the hearing forward, on a party-party basis.
Judge
OTTAWA, ONTARIO
July 21, 2000