Opening against newly-elected Prime Minister Justin Trudeau’s pledge of a “renewed, nation-to-nation relationship with Aboriginal peoples,” 2016 was a year of great expectations for Canadian Aboriginal law—and not least in the ever-changing domain of the Crown’s duty to consult and treaty rights.
10. The NEB and EA reviews
In August and November, the federal government launched expert panels to review Canada’s environmental assessment processes and develop recommendations to “modernize” the National Energy Board, respectively. These reviews each reflected a heightened focus on Aboriginal participation in regulatory processes.
The EA review panel’s report was released on April 5, 2017 while the NEB review panel’s report is slated to be released by May 15, 2017.
9. Courtoreille v Canada
A December decision in Courtoreille v Canada (2016 FCA 311) is the latest to consider whether the legislative process itself—and not just government decision-making under law—is constrained by the Crown’s constitutional duty to consult Aboriginal groups. In its December 2016 decision, the Federal Court of Appeal answered “no.”
Courtoreille saw the Mikisew Cree First Nation allege the duty’s breach in the process around 2012’s Bill C-38, which streamlined Canadian environmental regulation. Justices de Montigny and Webb found that the First Nation’s conception of consultation would offend the separation of powers and parliamentary privilege. A Supreme Court leave application was filed for Courtoreille in February 2017.
8. The Tla’amin treaty
On April 5, what is only the fourth modern treaty in British Columbia, the Tla’amin Final Agreement, came into effect after two decades of negotiations under the B.C. Treaty Commission process.
The treaty grants the Tla’amin Nation a capital transfer of $33.9 million, an economic development fund of $7.9 million and 8,323 hectares of treaty land.
7. Ktunaxa Nation
On December 1, the Supreme Court of Canada heard an appeal in Ktunaxa Nation v British Columbia (Minister of Forests). In Ktunaxa, the First Nation claimed that a ski resort development would irreparably harm its relationship with the Grizzly Bear Spirit, notwithstanding that its religious practices were carried on off the site.
The court has not previously opined on the relationship between Aboriginal rights and Charter section 2(a) religious rights. Its ruling could have wide-ranging impacts on land development, especially on and around B.C.’s Crown lands.
6. Algonquin and Innu treaty negotiations
On October 18, and after 24 years of negotiations, the federal and Ontario governments signed an Agreement-in-Principle with the 10 Eastern Ontario communities making up the Algonquins of Ontario. This could result in Ontario’s first modern treaty, awarding the Algonquins some 117,500 acres of Crown land extending from Ottawa to North Bay, together with an estimated $300 million or more in government funds.
During the year, progress was also achieved in negotiations stemming from a 2004 Agreement-in-Principle with Québec Innu communities. Negotiations with three such communities (Mashteuiatsh, Essipit and Nutashkuan) may lead to a final treaty in 2017 or 2018 over large parts of the province’s Saguenay-Lac-St-Jean and Côte-Nord regions.
5. Pro-oil First Nations
An October conference in Calgary, “Pipeline Gridlock: A Nation-to-Nation Gathering on Strategy and Solutions,” highlighted the perspectives of the many First Nations backers—and beneficiaries—of Canadian resource projects. Earlier, in September, a set of U.S. and Canadian Aboriginal groups called the Treaty Alliance Against Tar Sands Expansion had committed to “ban” all major pipeline proposals in Canada.
On November 29, the Trudeau government denied the Enbridge Northern Gateway project (see below). In response, the 31 Aboriginal Equity Partners supporting the project called for equal consultation and for “governments to stop politicizing projects which take place on our lands—especially projects that are owned by Indigenous peoples.”
4. The pipeline decisions
On November 29, Prime Minister Trudeau announced his cabinet’s decisions on three major oil pipeline projects: Kinder Morgan’s Trans Mountain Expansion (approved), Enbridge’s Northern Gateway (rejected), and Enbridge’s Line 3 Replacement (approved).
Each project saw Aboriginal groups divided between opposition and support, and several MPs from Trudeau’s own party expressed disapproval. In announcing the decisions, Trudeau cited the need to balance environmental goals and economic growth, adding that “there isn’t a country in the world that would find billions of barrels of oil and leave it in the ground while there is a market for it.” Both the Trans Mountain and Line 3 decisions are being challenged at the Federal Court of Appeal.
3. Daniels v Canada
In April, the Supreme Court of Canada issued its most significant Aboriginal law ruling of 2016: Daniels v Canada (2016 SCC 12). Daniels raised the question of whether Métis and other “non-status” Indians were under the legislative authority of the federal government under section 91(24) of the Constitution Act, 1867, which grants Parliament the power to legislate over “Indians, and Lands reserved for the Indians.”
In finding “Indians” to be inclusive of all Aboriginal peoples, Justice Abella described the Métis and non-status Indians as being caught in a “jurisdictional wasteland” between provincial and federal governments each denying their authority to legislate.
2. Chippewas and Clyde River
On November 30, the Supreme Court of Canada heard Chippewas of the Thames First Nation v Enbridge Pipelines Inc. and Hamlet of Clyde River v TGS-NOPEC Geophysical Co, each considering claims of inadequate Aboriginal consultation in relation to an NEB decision.
In Chippewas, an Ontario First Nation under a historic treaty appealed Enbridge’s Line 9B Reversal and Line 9 Capacity Expansion Project. In Clyde River, an Inuit hamlet under a modern treaty challenged the NEB’s authorization of offshore seismic testing in Baffin Bay. In both cases, the court will consider the much-debated issue of whether an administrative tribunal's regulatory process can discharge the Crown's duty to consult.
1. The adoption of UNDRIP
On May 10, the Trudeau government declared Canada a “full supporter” of the United Nations Declaration on the Rights of Indigenous Peoples “without qualification.” The prior Conservative government had described UNDRIP as an “aspirational document” only.
Controversy has surrounded UNDRIP’s requirement that states consult “in order to obtain the free, prior and informed consent” of Indigenous peoples prior to “adopting and implementing legislative or administrative measures that may affect them.” While Minister Bennett has opined that UNDRIP confers no veto (consistent with the constitutional law duty to consult), any implementation of UNDRIP can be expected to have major implications for investment in Canada and the future of Aboriginal communities across the country.
Alexandre-Philippe Avard is a partner and Simon Kupi is an associate from Dentons Canada LLP.