Enge v. Canada (Indigenous and Northern Affairs)

Enge v. Canada (Indigenous and Northern Affairs)
Court (s) Database
Federal Court Decisions
Date
2017-10-19
Neutral citation
2017 FC 932
File numbers
T-1427-15
Notes
Digest
Decision Content
Date: 20171019
Docket: T-1427-15
Citation: 2017 FC 932
Ottawa, Ontario, October 19, 2017
PRESENT: The Honourable Madam Justice Mactavish
REPRESENTATIVE PROCEEDING
BETWEEN:
WILLIAM ENGE, ON HIS OWN BEHALF AND ON BEHALF OF THE MEMBERS OF THE NORTH SLAVE MÉTIS ALLIANCE
Applicant
and
THE MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT, GOVERNMENT OF THE NORTHWEST TERRITORIES, FORT SMITH MÉTIS COUNCIL, HAY RIVER MÉTIS GOVERNMENT COUNCIL, FORT RESOLUTION MÉTIS COUNCIL AND NORTHWEST TERRITORY MÉTIS NATION
Respondents
JUDGMENT AND REASONS
TABLE OF CONTENTS
Para
I. Introduction
1
II. The Métis Parties
17
III. The History of the Negotiations Leading Up to the NWTMN AiP
24
IV. The Discussions with the NSMA
33
A. The Mandeville Decision
44
B. The NSMA’s Submissions
50
C. The End of the Discussions
65
V. The Decision under Review
69
VI. Does Mr. Enge have Standing to Bring this Application on Behalf of the Members of the NSMA?
78
A. Was Mr. Enge Authorized to Act on Behalf of the Members of the NSMA?
82
B. The History and Purpose of Rule 114
93
C. The Sufficiency of the Authority Given to Mr. Enge
100
D. Has Mr. Enge Demonstrated that He Can Fairly and Adequately Represent the Interests of the Members of the NSMA?
119
VII. The Issues
125
VIII. The Source and Function of the Duty to Consult
130
IX. The GNWT’s Prematurity Argument
148
X. Has the Duty to Consult with the Members of the NSMA been Triggered in this Case?
157
A. The Standard of Review
164
B. The Duty to Consult in the Métis Context
167
C. Comparing the NSMA and the NWTMN
176
D. Conclusion as to Whether a Duty on the Part of Canada to Consult with the NSMA was Triggered in this Case
189
XI. Did the Crown Properly Assess the Extent of its Duty to Consult the NSMA?
203
A. The Law Relating to the Need for a Preliminary Assessment of the Strength of a Claim
206
B. The Applicable Standard of Review
211
C. Canada’s Assessment of the Extent of its Duty to Consult with the NSMA
213
XII. Remedy
248
XIII. Costs
256
I. Introduction [1] William Enge is a Métis person and a member of the Métis community of the Great Slave Lake area in the Northwest Territories. He is also the President of the North Slave Métis Alliance (NSMA).
[2] Mr. Enge brings this application for judicial review on his own behalf and as the representative of the members of the NSMA. Mr. Enge says that he and the members of the NSMA have Aboriginal harvesting rights that have been judicially recognized and affirmed under subsection 35(1) of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c.11.
[3] By this application, Mr. Enge challenges the adequacy of the consultation by the Minister of Indian Affairs and Northern Development with the members of the NSMA with respect to the “Northwest Territory Métis Nation Land and Resources Agreement-in-Principle” (NWTMN AiP) that was approved on July 31, 2015.
[4] Mr. Enge asserts that the members of the NSMA are a Métis people whose Aboriginal harvesting rights in the area north of Great Slave Lake in the Northwest Territories will be adversely affected by a Final Agreement negotiated pursuant to the NWTMN AiP. He further asserts that Canada intends to extinguish the Aboriginal rights held by NSMA members to harvest in the area north of Great Slave Lake, notwithstanding the fact that the NSMA and its members have been largely excluded from the negotiations leading up to the conclusion of the NWTMN AiP.
[5] According to Mr. Enge, Canada’s decision to exclude the NSMA from consultations was based on several errors of law and was, moreover, unreasonable. The result of these errors is that the parties were unable to have meaningful and fair discussions about how Canada should accommodate the Aboriginal rights held by NSMA members prior to it signing the NWTMN AiP.
[6] As a consequence, Mr. Enge asserts that negotiations towards a final Northwest Territory Métis Nation land and resources agreement (Final Agreement) should be stayed until such time as meaningful consultation with the NSMA can occur. This consultation should consider accommodation measures to address the NSMA’s concerns with respect to the extinguishment of their Aboriginal harvesting rights as Métis north of Great Slave Lake.
[7] The respondent Minister of Indian Affairs and Northern Development (Canada) submits that this case is not fundamentally about the adequacy of Crown consultation, but is rather a challenge to the authority of the Northwest Territory Métis Nation (NWTMN) as the proper representative of the Métis people whose Aboriginal ancestors were indigenous to the south Slave region of the Northwest Territories. Canada further submits that the duty to consult does not arise in this case, as the members of the NSMA are part of the group with whom Canada has been negotiating. In the alternative, Canada submits that if the Crown’s duty to consult does arise here, the duty has been adequately discharged.
[8] Canada further disputes Mr. Enge’s standing to bring this application as a representative of the NSMA. According to Canada, Mr. Enge did not obtain the authority of the members of the NSMA to bring this application, nor did he take effective steps to determine the prevailing views of the membership in relation to the NWTMN AiP. Consequently, Canada submits that Mr. Enge has not satisfied the requirements of Rule 114 (the provision of the Federal Courts Rules governing representative actions).
[9] The Government of the Northwest Territories (GNWT), the Fort Smith Métis Council, the Hay River Métis Government Council, the Fort Resolution Métis Council and the NWTMN have also been named as respondents to this application.
[10] The GNWT accepts that the NSMA was entitled to be consulted with respect to the NWTMN AiP. It submits, however, that, in coordination with Canada, it consulted with the NSMA regarding the potential adverse impact of the NWTMN AiP on the Aboriginal rights that are allegedly held by the members of the NSMA. The GNWT also states that deeper consultation and, if appropriate, accommodation will take place as the parties move closer to a final agreement. Given that consultation with the NSMA with respect to the final agreement is ongoing, the GNWT submits that this application is premature.
[11] The NWTMN is a registered society under the Societies Act, R.S.N.W.T. 1988, c. S-11 of the Northwest Territories. It is a representative body whose mandate is to serve and protect the interests of the Indigenous Métis of the south Slave region who are members of the three respondent councils: the Fort Smith Métis Council, the Hay River Métis Government Council, and the Fort Resolution Métis Council. The NWTMN and the three respondent councils will be referred to collectively in these reasons as the NWTMN.
[12] The NWTMN notes that it is not a party to the consultations between Canada, the GNWT and the NSMA, and that it does not owe a duty of consultation to the NSMA. The NWTMN further contends that it has no control over how Canada or the GNWT approached the consultation process with the NSMA.
[13] The NWTMN submits, however, that while Mr. Enge’s application for judicial review is framed in terms of the adequacy of consultation, it is, in reality, a challenge to the legal basis or authority of the NWTMN to enter into the Agreement in Principle on behalf of the Métis of the Northwest Territories. The NWTMN also denies that Mr. Enge has the requisite standing to bring this application as a representative proceeding because they say that he has failed to satisfy the requirements of Rule 114 of the Federal Courts Rules, SOR/98-106. Consequently, the NWTMN submits that this application should be dismissed on this basis alone.
[14] For the reasons that follow, I have concluded that Mr. Enge has the necessary standing to bring this application on behalf of the members of the NSMA, and that his application for judicial review is not premature. I have further concluded that the NSMA was entitled to be consulted with respect to the potential adverse impact of the NWTMN AiP on the Aboriginal rights held by its members. I am also satisfied that Canada erred by failing to share its preliminary assessment of the strength of the NSMA members’ claim with the NSMA.
[15] Canada also misapprehended the severity of the potential impact that a final land and resources agreement negotiated in accordance with the terms of the NWTMN AiP would have on the Aboriginal rights of the NSMA’s members. Having misunderstood the extent of the potential impact that such an agreement would have on the Aboriginal harvesting rights of the members of the NSMA, Canada entered into its consultation with the NSMA based on a fundamental misconception of the nature and scope of its duty to consult. Moreover, without fully understanding the seriousness of the potential impact that a land and resources agreement would have on the section 35 rights of the members of the NSMA, Canada could not properly assess what, if any, accommodation measures would be appropriate.
[16] Consequently, Mr. Enge’s application for judicial review will be granted.
II. The Métis Parties [17] Mr. Enge has been the President of NSMA since 2004. The NSMA is a registered society under the provisions of the Societies Act. It represents those members of the contemporary ethnic Métis community of the Northwest Territories who assert their Aboriginal rights as Métis north of Great Slave Lake. The over-arching objective of the NSMA is to protect the Aboriginal rights of its members in the area north of Great Slave Lake.
[18] The NSMA claims to have 283 members out of a community of approximately 500 people. I understand the parties to agree that many of these individuals have ancestral ties to the area south of Great Slave Lake. Membership in the NSMA is limited to “Indigenous Métis”. Since 2011, individuals registered as “Indians” under the provisions of the Indian Act, R.S.C. 1985, c. I-5 have been expressly prohibited from membership in the NSMA by the organization’s By-laws.
[19] The NSMA’s Bylaws define an “Indigenous Métis” as being “a person who is descendant of the Métis People of the Northwest Territories including the North Slave area and is recognized by the Community of Indigenous Métis of the North Slave area as a descendant of the Métis People who resided in, or used and occupied the Northwest Territories including the North Slave area prior to the federal Crown taking effective control of their traditional lands including the North Slave area”.
[20] The parties agree that there is only one Métis community in the Northwest Territories whose traditional territory encompassed the entirety of the Northwest Territories and the northern portion of the provinces that abut the Northwest Territories. However, as was noted earlier, the NSMA is not the only organization purporting to represent the interests of the Métis community. The NWTMN also claims to have a similar purpose, although its focus is predominantly on the area south of Great Slave Lake, whereas the members of the NSMA claim to have Aboriginal rights in the area north of Great Slave Lake.
[21] According to its Constitution, the objectives of the NWTMN include promoting the unity of Métis in the south Slave region of the NWT, as well as developing and implementing Métis land claims, the inherent right of self-government and constitutional development. The mandate of the NWTMN is also to serve and protect the interests of Indigenous Métis who are members of the Fort Smith Métis Council, the Hay River Métis Government Council and the Fort Resolution Métis Council. This mandate includes the affirmation, protection and recognition of Métis aboriginal rights throughout the traditional territory of the NWTMN.
[22] The NWTMN maintains that it represents the interests of all Indigenous Métis of the Northwest Territories regardless of their current residence. The By-laws of the NWTMN define an “Indigenous Métis” as being a person who has:
a) resided in a designated community [i.e. Fort Smith, Fort Resolution, Hay River]; and
b) used or occupied the South Slave on or before December 31, 1921; or
c) is a descendant of a person described in (a) and (b);
d) is a descendant of a person registered as an Indian under the Indian Act who:
(i) resided in a designated community; and
(ii) used and occupied the South Slave on or before December 31, 1921.
e) is not registered as an Indian under the Indian Act, and
f) is not enrolled as a beneficiary in another land claim agreement in Canada.
[23] While the NWTMN claims that 2,169 Indigenous Métis people across Canada are eligible for membership in the organization, it has refused to provide any actual membership numbers. The NWTMN says that it is currently undertaking a questionnaire process to identify additional Indigenous Métis who are eligible for membership in one of its three member Councils. The NWTMN is verifying the information provided by applicants, including information regarding their genealogy, such as birth certificates, death certificates, baptismal certificates and historic records.
III. The History of the Negotiations Leading Up to the NWTMN AiP [24] In 1978, Canada accepted land claim submissions from the Indian Brotherhood of the Northwest Territories and the Métis Association of the Northwest Territories and agreed to undertake the negotiation of a single land claim with both groups with respect to an area covering the entire Mackenzie Valley. This became known as the “Dene/Métis Land and Resource Negotiation”.
[25] Because of the many familial and community connections between the Dene and the Métis of the Northwest Territories, Canada decided that the best approach was to negotiate a single land claim for all of the Aboriginal people indigenous to the Northwest Territories rather than to pursue a divisive approach, trying to distinguish between the Dene and the Métis for the purpose of the negotiations.
[26] Negotiations toward a single Dene/Métis Agreement proceeded throughout the 1980s and resulted in a Comprehensive Land Claim Agreement dated April 4, 1990 between Canada, the Dene Nation and the Métis Association of the Northwest Territories. However, neither the Dene Nation nor the Métis Association of the Northwest Territories ratified this agreement, and negotiations then ceased for a period of time.
[27] Following the failure of the Dene/Métis Comprehensive Land Claim Agreement, Canada subsequently entered into regional land claim negotiations at the request of the Métis, the Gwich’in and the Sahtu Dene. These negotiations proceeded on the basis of the Dene/Métis draft agreement and the regions that had been predetermined for land selection purposes: namely the Gwich’in, Sahtu, North Slave, South Slave and Dehcho regions of the Northwest Territories.
[28] Land claims agreements were concluded with the Gwich’in and Sahtu Dene in 1992, and with the Métis in 1993. A land claim and self-government agreement was subsequently concluded with the Tlicho First Nation in 2005. This agreement largely covered the area known as the North Slave region.
[29] In the South Slave region, the First Nations (as represented by the Akaitcho Dene Treaty 8 Tribal Corporation) pursued Treaty Land Entitlement under Canada’s Specific Claims Policy. However, Specific Claims (including Treaty Land Entitlements) are based on unfulfilled treaty obligations, and are only available to First Nations who had been signatories to treaties. As the Métis of the South Slave region did not have a treaty with Canada, they were excluded from the Specific Claims negotiation process.
[30] To address this situation, negotiations recommenced between the Métis (as represented by the South Slave Métis Tribal Council, a predecessor to the NWTMN), Canada and the GNWT. These negotiations led to the signing of the South Slave Métis Framework Agreement in 1996. According to the evidence of Christie Morgan, a senior negotiator with the federal Department of Indian Affairs and Northern Development (now Indigenous Affairs and Northern Development), Canada is negotiating an agreement with the NWTMN that is based, to a large extent, on Canada’s Comprehensive Land Claims Policy. This Policy has guided the negotiation of regional land claims in the Northwest Territories.
[31] Ms. Morgan further deposes that the negotiation of a Final Agreement is intended to allow the indigenous Métis people of the South Slave region of the Northwest Territories who were eligible for enrollment under the failed Dene-Métis Agreement but were ineligible for Treaty Land Entitlement to participate in a modern land and resources agreement with Canada.
[32] Since 1996, the NWTMN, Canada and the GNWT have been actively negotiating the terms of the NWTMN AiP, which, as was noted earlier, was signed on July 31, 2015. The NWTMN AiP will form the basis for the negotiation of a Final NWTMN Land and Resources Agreement.
IV. The Discussions with the NSMA [33] In addition to their negotiations with the NWTMN, Canada and the GNWT determined that it was also appropriate to consult with what Ms. Morgan described as “neighbouring Aboriginal groups” whose rights could potentially be affected by a final land and resources agreement. The purpose of this consultation would be to determine “if and how those concerns might be addressed in the AiP or in a Final Agreement”.
[34] In order to identify the relevant groups for the purpose of consultation, Canada first identified those Aboriginal groups whose asserted or established Aboriginal or Treaty rights might fall within the NWTMN AiP’s proposed Agreement Area. The Agreement Area covers a large area in the east of the Northwest Territories, largely to the south and east of Great Slave Lake. A copy of the map in the NWTMN AiP that identifies the Agreement Area is attached as an appendix to these reasons. Canada and the GNWT were aware that the NSMA asserted Aboriginal harvesting rights in the area north of Great Slave Lake. Consequently, the NSMA was identified as an appropriate Aboriginal group for Canada and the GNWT to consult with.
[35] While Mr. Enge asserts that Canada and the GNWT failed to consult with the NSMA prior to entering into the NWTMN AiP, there were in fact discussions between the parties. Although there is a dispute as to the adequacy of the consultation that took place, the parties did exchange correspondence with respect to the terms of the NWTMN AiP. The NSMA was, moreover, provided with funding to assist them in advancing the claims of its members to Aboriginal harvesting rights in the area north of Great Slave Lake, and with an opportunity to provide the two governments with documentary evidence supporting these claims.
[36] Amongst other things, the NSMA provided the two governments with five reports (at least one of which had been commissioned by Canada itself) that described the history, ethnogenesis, traditional knowledge and land use patterns of the members of the NSMA. There were also two face-to-face meetings at which Mr. Enge and other representatives of the NSMA were able to discuss the terms of the NWTMN AiP and possible accommodation measures with representatives of Canada and the GNWT.
[37] While Canada had previously refused to consult with the NSMA, the two levels of government jointly wrote to the NSMA on October 10, 2012, advising that it would be consulted with respect to the NWTMN AiP, and asking for the name of a main contact person for the consultation process. The NSMA subsequently identified Mr. Enge as the contact person for the consultation process.
[38] The October 10, 2012 letter further asked the NSMA “to identify potential adverse impacts that the proposed NWTMN AiP may have on your Aboriginal group’s potential or established Aboriginal or Treaty rights”. In response, the NSMA provided a substantial amount of information to Canada and the GNWT, including documentation regarding the NSMA’s section 35 harvesting rights and its concerns with the terms of the NWTMN AiP.
[39] On February 12, 2013, Canada wrote to Mr. Enge stating that it had reviewed the information submitted by the NSMA in support of its asserted section 35 rights and title and that it had “determined the NSMA has not provided sufficient evidence to establish the existence of an ancestrally-based, present-day Métis community in the North Slave area with links to a historic Métis community in that area”. As a consequence, Canada stated that “the NSMA have not established a credible claim to s. 35 Métis rights which would support recognition of the NSMA as a distinct s. 35 Métis rights-holding community”.
[40] Despite having taken the position that the NSMA had not established that its members had a credible claim to section 35 Métis rights, Canada and the GNWT jointly wrote to NSMA on June 11, 2013 in an attempt to begin consultations with respect to the NWTMN AiP. They provided the NSMA with a copy of the draft NWTMN AiP, and set a deadline of July 26, 2013 for the NSMA to complete its review of the document. The two governments also offered funding to the NSMA to a maximum amount of $11,500 to support the consultation process.
[41] The June 11, 2013 letter to the NSMA noted that Canada and the GNWT were aware that the NSMA was asserting Aboriginal rights to harvest in the area north of Great Slave Lake. They went on to note that “[t]he draft NWTMN AiP contemplates providing non-exclusive harvesting rights … to Métis Members … throughout the proposed Agreement Area”, which, it will be recalled, is an area to the south and east of Great Slave Lake. The letter further stated that “[t]here may exist a small area of overlap between the northwest corner of the proposed Agreement Area and the area over which the NSMA asserts an Aboriginal right to harvest” [my emphasis].
[42] Referring to the non-derogation clause in the draft NWTMN AiP, the June 11, 2013 letter went on to state that “[i]n the course of negotiations, Canada and the GNWT have been mindful to negotiate an agreement that would not affect the asserted Aboriginal or Treaty rights of groups that are not party to the NWTMN final agreement”. That said, Canada and the GNWT asked the NSMA to identify any concerns that it may have in the event that any part of the draft NWTMN AiP would adversely affect the asserted Aboriginal right of the NSMA’s members to harvest in areas that overlapped with the Agreement Area.
[43] By letter dated June 25, 2013, Mr. Enge provided Canada and the GNWT with a copy of the decision of the Northwest Territories Supreme Court in Enge v. Mandeville, 2013 NWTSC 33, [2013] N.W.T.J. No. 38 [Mandeville], asking whether that decision affected Canada’s assessment of the strength of the NSMA’s section 35 claim.
A. The Mandeville Decision [44] Mandeville was another proceeding commenced by Mr. Enge, this one in the Northwest Territories Supreme Court. There, Mr. Enge sought judicial review of a decision by the Territorial Minister of the Environment and Natural Resources to deny a portion of the annual quota for the harvest of Bathurst caribou to members of the NSMA.
[45] Based on evidence similar to that before this Court, the Court in Mandeville found that there was some evidence that established, on a prima facie basis, that there is a contemporary rights-bearing Métis community in the Great Slave Lake area of which Mr. Enge and the other members of the NSMA are members: at para. 207. In addition, the Court found that Mr. Enge had presented prima facie evidence that he is a Métis person through his long-term self-identification as a Métis, his ancestral connection to an historic Métis figure, and community acceptance by other Métis people: at para. 213.
[46] The Court also found that Mr. Enge had established a good prima facie claim that he and the members of the NSMA had the right to hunt caribou, based upon their asserted rights as Métis people who have traditionally hunted in the Great Slave Lake area: Mandeville at para. 230. In addition, the Court found that the Minister’s decision to deny Mr. Enge and the other members of the NSMA the opportunity to participate in the limited Aboriginal caribou harvest had a not insignificant adverse effect on their Aboriginal rights: at para. 236.
[47] In addition, the Court found that the GNWT’s consultation process with respect to the caribou harvest at issue in Mandeville was not reasonable: at para. 271. As a consequence, the Court concluded that the GNWT had erred in failing to conduct a preliminary assessment of the strength of the claims of Mr. Enge and the members of the NSMA, and the potential adverse effects of denying them a portion of the limited Aboriginal harvest of the Bathurst caribou herd. According to the Court, the GNWT had further erred in fulfilling its duty to consult by failing to conduct a reasonable consultation process: at para. 282.
[48] After reviewing the decision in Mandeville, Canada advised Mr. Enge that it had revised its preliminary assessment of the strength of the NSMA’s claim to rights under section 35. In a letter to Mr. Enge dated August 16, 2013, Canada acknowledged that the NSMA “has a good prima facie claim to the Aboriginal right to hunt caribou on their traditional lands, and are entitled to an appropriate measure of consultation when that asserted right may potentially be adversely impacted by the Crown’s action”.
[49] However, Canada’s letter further stated that its revised assessment “is not a determination by Canada that the North Slave Métis Alliance has any section 35 rights. The law relating to the duty to consult makes it clear that an assessment of the strength of the claim for the purposes of consultation is not a rights-determination process”.
B. The NSMA’s Submissions [50] In a letter dated August 15, 2013, Mr. Enge provided the NSMA’s initial submissions with respect to the NWTMN AiP, identifying the portions of the agreement that raised concerns on the part of the NSMA. Mr. Enge also indicated that the NSMA was concerned that the definition of “Métis” in the NWTMN AiP was very broad. The NWTMN AiP defines the term “Métis” as meaning “an Aboriginal person of Cree, Slavey or Chipewyan [collectively the “Dene”] ancestry who resided in, used and occupied any part of the Agreement Area on or before December 31, 1921, or a descendant of such person”. Mr. Enge also questioned whether it was Canada’s intention “that if a person fails to meet all three criteria, that that person would not be considered Métis for the purposes of the Final Agreement”.
[51] Mr. Enge’s August 15, 2013 letter specifically raised the issue of how harvesting rights were being dealt with in the draft NWTMN AiP. He asked whether it was Canada’s intention “to extinguish the common law Aboriginal rights to harvest wildlife, fish, plants and trees throughout the NWT held by Métis eligible to be enrolled under the Final Agreement and confer new rights by the Final Agreement to harvest wildlife, fish, plants and trees exercisable only in the Agreement Area … to Métis eligible to be enrolled under the Final Agreement?” Or, in the alternative, Mr. Enge asked whether it was Canada’s intention “that the certainty provided under subsection 2.3.1 will only apply to the common law Aboriginal rights of the current members of the NWTMN and its affiliate Métis Councils?”
[52] The concerns of NSMA members were discussed during two face-to-face meetings between NSMA, Canada, and the GNWT. Present at those meetings were Mr. Enge and the NSMA’s legal counsel, and representatives of Canada and the GNWT. The first such meeting occurred on August 29, 2013, and the second on October 24, 2013. The purpose of these meetings was to for Canada and the GNWT to discuss the draft NWTMN AiP with the NSMA.
[53] At the August 29 meeting, the NSMA representatives requested additional funding to allow them to participate fully in the consultation process. Canada refused this request, but agreed to consider further requests for additional funding as the parties moved toward a Final Agreement.
[54] The principle concern expressed by the representatives of the NSMA at this first meeting was that neither Canada nor the GNWT be permitted to unilaterally extinguish the Aboriginal harvesting rights of the members of the NSMA that had received judicial recognition in the Mandeville case. To this end, the NSMA proposed a modification to the provisions dealing with who was to be bound by a Final Agreement.
[55] The draft NWTMN AiP provided that the agreement would provide certainty with respect to the use and ownership of lands in the Northwest Territories by individuals who were “eligible to be enrolled under the Final Agreement”. According to the “Eligibility” provision in Chapter 3.1.1 of the NWTMN AiP, “[a]n individual will be ‘eligible to enrolled’ under the Final Agreement if he or she is a Canadian citizen who a) is Métis; or b) was adopted as a Child, under Laws or under NWTMN custom, by a Métis or is a descendant of such person”. The term “Métis” is defined in Chapter 1 of the NWTMN AiP as meaning “an Aboriginal person of Cree, Slavey or Chipewyan ancestry who resided in, used and occupied any part of the Agreement Area on or before December 31, 1921, or a descendant of such people”.
[56] Chapter 2.4.1 of the NWTMN AiP states that “[t]he Final Agreement will provide that the NWTMN represents and warrants to Government that, with respect to the matters dealt with in the Final Agreement, it has the authority to enter into the Final Agreement on behalf of all individuals who are eligible to be enrolled under the Final Agreement in accordance with the Eligibility and Enrolment chapter.” [my emphasis].
[57] The NSMA does not accept that the NWTMN has the mandate or authority to enter into a Final Agreement on behalf of all of the individuals who are “eligible to be enrolled” under the agreement. According to the NSMA, this warranty would be a misrepresentation of the facts, as the NSMA is not a member society of the NWTMN and was not a party to the NWTMN AiP negotiations between Canada, the GNWT, and the NWTMN. The NSMA thus asked that the NWTMN AiP be amended so that the words “eligible to be enrolled” in the “Certainty” provision (Chapter 2.3.1) be replaced with the words “who are members of” so that the amended provision would read “[t]he Final Agreement will provide certainty with respect to the use and ownership of lands and resources within the Northwest Territories and the Wood Buffalo National Park by Métis who are members of the NWTMN and the Métis Councils” [my emphasis].
[58] Also relevant is the “non-derogation” clause (Chapter 2.5.1) in the NWTMN AiP, which provides that “No provision in the Final Agreement will be construed to … affect …any Aboriginal Rights of any Aboriginal people other than individuals eligible to be enrolled under the Final Agreement” [my emphasis].
[59] In asking that the words “eligible to be enrolled” be deleted from the “Certainty” provision and the “non-derogation” clause in the NWTMN AiP, the NSMA’s concern was that if the language was not altered, these provisions would operate to extinguish at least some NSMA members’ rights as Métis north of Great Slave Lake based solely on the fact that the Dene ancestry of these members would make them “eligible to be enrolled” under the Final Agreement. This extinguishment would, moreover, occur without the NSMA members’ elected representatives having participated in the negotiations.
[60] Canada’s position was that if an individual held Aboriginal rights in the area north of Great Slave Lake as a member of another Aboriginal people (independent of his or her other ancestral ties to the south Slave region of the Northwest Territories), the ability of these individuals to exercise their Aboriginal rights should not be affected by a Final Agreement by virtue of the agreement’s “non-derogation” clause. If, however, the individual’s ancestral ties were just to the south Slave area, and they met the eligibility criteria of the Final Agreement, then that individual would be bound by the decision of the collective to ratify the agreement. This would be the case whether or not the individual had chosen to align him- or herself with another organization such as the NSMA.
[61] Mr. Enge’s counsel stated that its proposed changes to the wording of the NWTMN AiP would address two fundamental interests on the part of the NSMA. First, they would ensure that the Aboriginal rights of the NSMA members, including their right to harvest in the area north of Great Slave Lake, could only be extinguished where those NSMA members had applied for, and been accepted for enrollment under the Final Agreement. This would mean that there could be no extinguishment by operation of law, as there would have to be a clear choice made by individuals who elected to sign on to the agreement.
[62] Mr. Enge further noted that this accommodation measure would also allow for the South Slave Métis people to proceed with their Final Agreement.
[63] Canada and the GNWT rejected the NSMA’s proposed modification to the language of the NWTMN AiP at the October 24, 2013 meeting on the basis that it was inconsistent with Canada’s approach to negotiations of agreements of this nature, which was that agreements were intended to deal with the rights of all of those who are eligible for enrollment under the agreement in question.
[64] The NSMA then proposed that it be included as a party to post-NWTMN AiP negotiations towards a Final Agreement, so as to ensure that NSMA members had meaningful participation in negotiations that were intended to extinguish their Aboriginal hunting rights in the North Slave region. This proposal was also rejected by Canada and the GNWT.
C. The End of the Discussions [65] Following a further exchange of correspondence, Canada and the GNWT advised the NSMA by letter dated April 7, 2014 that there would be no further consultation with respect to the NWTMN AiP. This letter stated that Canada and the GNWT were negotiating with the NWTMN “by virtue of its members’ Aboriginal ancestry, and not on the basis of the NWTMN representing a rights-bearing Powley community” [referring to the criteria for determining who qualifies as a Métis established by the Supreme Court in R. v. Powley, 2003 SCC 43, [2003] 2 S.C.R 207.
[66] Canada and the GNWT took the position that “if the NSMA is a rights-bearing collective as contemplated by the Supreme Court of Canada in Powley, then the NSMA would be an Aboriginal group distinct from the NWTMN” and the rights of its members would thus be protected by virtue of the non-derogation clause contained in the Agreement. Canada and the GNWT further suggested that the NSMA discuss the situation with the NWTMN to see if the two organizations could come to some form of understanding.
[67] During the process leading up to the signing of the NWTMN AiP, Mr. Enge was in communication with the President of the NWTMN with respect to the Agreement in Principle. A meeting between representatives of the two organizations took place on December 5, 2014. However, the two sides were unable to reach an agreement on the issues that divided them.
[68] By letter dated August 18, 2015, Canada and the GNWT officially notified NSMA that the NWTMN AiP had been concluded on July 31, 2015. This followed the ratification of the Agreement at a meeting of the NWTMN at which 43 unidentified members of the organization were present.
V. The Decision under Review [69] The decision at issue in this proceeding is Canada’s decision to enter into the NWTMN AiP with the NWTMN and the GNWT.
[70] The NWTMN AiP confirms the right of “Métis members” to harvest all species of wildlife year-round in the “Agreement Area”, which, as was mentioned earlier, is defined as that portion of the Northwest Territories that is to the south and east of Great Slave Lake. If the terms of the NWTMN AiP are ultimately incorporated into a Final Agreement between Canada, the NWTMN and the GNWT, Mr. Enge states that the effect of this Agreement would be to extinguish the judicially-recognized section 35 right of the members of the NSMA to hunt caribou in the area to the north of Great Slave Lake. Indeed, Canada has confirmed that its intent is that a final land and resources agreement with the Métis of the Northwest Territories would extinguish the section 35 harvesting rights outside of the Agreement Area for Métis whose ancestors lived in the South Slave area.
[71] As noted earlier, the NWTMN AiP defines the term “Métis” as meaning “an Aboriginal person of Cree, Slavey or Chipewyan ancestry who resided in, used and occupied any part of the Agreement Area on or before December 31, 1921, or a descendant of such people”.
[72] The applicants say that Canada and the GNWT are negotiating an agreement with the NWTMN that is blind to the constitutional distinction between “Métis” and “Indian” peoples. Eligibility under the NWTMN AiP is based on the Dene ancestry of the members of the NWTMN and their ancestral ties to the area south of Great Slave Lake. Mr. Enge notes that Aboriginal ancestry is just one of the indicia of being a Métis, and that as it is used in section 35 of the Constitution Act, 1982, the term “Métis” “does not encompass all individuals with mixed Indian and European heritage”. It instead refers to “distinctive peoples who, in addition to their mixed ancestry, developed their own customs, and recognizable group identity separate from their Indian or Inuit and European forebears”: both quotes from Powley, above at para. 10.
[73] Ms. Morgan, who, it will be recalled, was Canada’s senior negotiator in the negotiations with respect to the Northwest Territories land and resources agreement, acknowledged that the definition of “Métis” in the NWTMN AiP does not incorporate the elements of the Powley test.
[74] In contrast, Mr. Enge asserts that the members of the NSMA are ethnically “Métis”, as contemplated by subsection 35(2) of the Constitution Act, 1982, as they satisfy the criteria established by the Supreme Court in the Powley case. They are, moreover, a distinct section 35 rights-bearing Métis collective whose traditional harvesting activities were carried out north of Great Slave Lake - an area that is largely outside the area that was being dealt with in the NWTMN negotiations.
[75] In accordance with the non-derogation clause in the NWTMN AiP, no provision in any Final Agreement between Canada, the NWTMN and the GNWT will be construed to affect any Aboriginal or treaty rights of any Aboriginal People other than individuals who are “eligible to be enrolled under the Final Agreement”.
[76] Mr. Enge acknowledges that those members of the NSMA who share ancestral ties to the Dene of the South Slave region would be “eligible to be enrolled” under the Final Agreement, and that that the non-derogation clause would only protect the rights of Aboriginal groups who are distinct from those with ancestral ties to the Dene of the south Slave region. Mr. Enge submits, however, that it should be open to such individuals to choose to assert Powley-type Métis rights through the NSMA, rather than participate in the NWTMN negotiation process by virtue of their Dene ancestry.
[77] Before addressing the merits of Mr. Enge’s application for judicial review, however, there is a preliminary matter that must be addressed. That is, as was mentioned earlier, Canada and the NWTMN assert that Mr. Enge has failed to satisfy the requirements of Rule 114 of the Federal Courts Rules, as he has not been properly authorized to act on behalf of the members of the NSMA, and he has failed to demonstrate that he can fairly and adequately represent their interests. As the issue of