Eskasoni First Nation v. Canada (Attorney General)

Eskasoni First Nation v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2024-11-21
Neutral citation
2024 FC 1856
File numbers
T-1074-23
Notes
A correction was made on December 12, 2024
Decision Content
Date: 20241121
Docket: T-1074-23
Citation: 2024 FC 1856
Ottawa, Ontario, November 21, 2024
PRESENT: The Honourable Madam Justice Blackhawk
BETWEEN:
ESKASONI FIRST NATION and CHIEF LEROY DENNY
Applicants
and
ATTORNEY GENERAL OF CANADA
Respondent
JUDGMENT AND REASONS
I. Overview [1] This is a consolidated application for judicial review related to the readjustment of the federal election boundaries for the Province of Nova Scotia.
[2] The Applicants have filed an application in respect of the April 21, 2023 decision of the Federal Electoral Boundaries Commission for Nova Scotia (“Commission”), disposing of objections and finalising its report on revised electoral boundaries (“Decision”), pursuant to subsection 23(1) of the Electoral Boundaries Readjustment Act, RSC 1985, c-E-3 [EBRA].
[3] In addition, the Applicants seek to review the Governor-in-Council’s (“GIC”) issuance of the Proclamation Declaring the Representation Orders to be in Force Effective on the First Dissolution of Parliament that Occurs after April 22, 2024: SI/2023-57 (“Proclamation”).
[4] The issue of central importance with respect to both the Decision and the Proclamation is in addition to parity of voters: did the Commission give due consideration to the community of interest, community of identity in, or the historical pattern of the electoral district in accordance with the requirements of the EBRA?
[5] A short note on terminology. The terms “federal electoral boundaries,” “federal electoral district,” “constituencies,” or “ridings” appear throughout these reasons. These terms are used to describe the same thing; the “geographical areas represented by a member of Parliament (“MP”) in the House of Commons (“HOC”)” (see Elections Canada, “Home Page” (last modified September 16, 2024), online: <https://www.elections.ca/>). I use these terms interchangeably in a manner that is reflective of the terminology in particular pieces of evidence referenced before me.
[6] For the reasons that follow, this application is dismissed.
II. Background A. The Applicants [7] The Applicant, Eskasoni First Nation (“Eskasoni”) is located in Unama’ki (Cape Breton), Nova Scotia. Eskasoni brought an application in respect of the Commission’s Decision. The Applicant, Chief Leroy Denny (“Chief Denny”), is the elected Chief of Eskasoni. Chief Denny brought an application in respect of the Proclamation. Because both applications are related, the applications were consolidated into one judicial review.
[8] In his affidavit, Chief Denny noted that Eskasoni has the largest population of the Mi’kmaq Nation communities and is the largest Indigenous community in Atlantic Canada. At the time of filing his application, Eskasoni had 4,763 registered members, with 4,027 of those members residing on reserve. Eskasoni is home to the largest Mi’kmaq-speaking community in the world and they maintain close ties to traditional Mi’kmaq culture and beliefs.
[9] Chief Denny also noted that the Mi’kmaq entered into a series of treaties of peace, friendship, trade, and protection with the British sovereign (“Crown”) between 1630 and 1779. Together, these treaties constitute the Elikewake Compact, a transatlantic alliance and partnership between the Mi’kmaq Nation and the Crown (“Treaty Relationship”). I note that the Applicants did not provide evidence concerning the scope and content of the Elikewake Compact, nor did they provide the text of all the treaties or evidence of the oral promises that constitute the Elikewake Compact. Further, the Applicants did not highlight specific provisions or promises within the Elikewake Compact relevant to this application. In the absence of the aforementioned evidence, I am unable to make specific conclusions with respect to how the Elikewake Compact informs the issues in this Application.
[10] Prior to the readjustment of the electoral boundaries in Nova Scotia, Eskasoni was in the Sydney-Victoria electoral district (“SV District”). Following the Decision, Eskasoni will be in the Cape Breton-Canso-Antigonish electoral district (“CBCA District”).
B. Electoral district redistribution process [11] The number of federal electoral districts for each province is determined by section 51 of the Constitution Act, 1867, 30 & 31 Victoria, c 3 (UK), which determines the number of MPs in the HOC allocated for each province. There are 11 electoral districts in Nova Scotia and corresponding MPs representing Nova Scotia in the HOC.
[12] After each decennial census, the boundaries for the federal electoral districts are readjusted to reflect movements and fluctuations within each province’s population, in accordance with subsection 3(2) of the EBRA. Non-partisan and independent commissions are established for each province under subsection 3(1) of the EBRA to examine the existing ridings and to develop a plan for their readjustment (if necessary), based on information related to the population demographics collected from the decennial census (Raîche v Canada (Attorney General), 2004 FC 679 [Raîche] at para 5). A boundary commission must ensure that the population range of each constituency remains within 25% more or 25% less of the electoral quota, unless there are extraordinary reasons to depart from that variance (EBRA, s 15(2)). In addition, a boundary commission shall consider two factors: “(i) the community of interest or community of identity in or the historical pattern of an electoral district in the province, and (ii) a manageable geographic size for districts in sparsely populated, rural or northern regions of the province” (EBRA, s 15(1)(b)).
[13] To briefly summarize the procedure to be followed, the commission creates a proposal for the necessary readjustments to the boundaries of the federal electoral districts (Raîche at para 5). The proposal is then published in the Canada Gazette and at least one newspaper of general circulation in the province, with maps of the proposed new constituencies (EBRA, ss 19(2)–(4); Raîche at para 5). Following publication of the proposal, the commission must hold at least one public consultation hearing (EBRA, s 19(1); Raîche at para 5). After consulting with communities, the commission is to consider and address the feedback and concerns raised during the public consultation hearing(s) (Raîche at para 5). Following this, a final report for the readjustment of the federal riding boundaries is developed (EBRA, s 14(2)) and the final report is transmitted to the Chief Electoral Officer (EBRA, s 20(1); Raîche at para 5).
[14] The Chief Electoral Officer refers the final report to the Speaker of the HOC (EBRA, s 20.1(1)(a); Raîche at para 6). The Speaker then refers the final report to the HOC Standing Committee on Procedure and House Affairs (“PROC”) (EBRA, s 21(1); Raîche at para 6). Once the PROC review is complete, the PROC returns the final report to the commission for reconsideration, along with any objections, the minutes of proceedings, and evidence of the PROC (EBRA, s 22(3)). The commission will then consider and address any objections and dispose of them accordingly, at which point the final report is referred back to the Chief Electoral Officer and the Speaker (EBRA, s 23).
[15] The Chief Electoral Officer then prepares a draft representation order and transmits it to the Minister (EBRA, s 24(1); Raîche at para 6). The GIC will then make a proclamation declaring the representation order to be in force, effective on the first dissolution of Parliament that occurs at least seven months after the proclamation (EBRA, s 25(1); Raîche at para 7).
[16] The readjustment process was developed, in part, to avoid the practice of gerrymandering; in other words, it attempts to avoid manipulating the electoral boundaries of a particular constituency that favour one representative, party, or class (see: Reference re the Final Report of the Electoral Boundaries Commission, 2017 NSCA 10 [Nova Scotia Reference] at para 29; Marc Bosc & André Gagnon, eds “The House of Commons and Its Members” in The House of Commons Procedure and Practice, 3rd ed (Ottawa: Éditions Yvon Blais, 2017).
C. The Federal Electoral Boundaries Commission for Nova Scotia [17] On November 1, 2021, the Commission was established by an Order in Council pursuant to subsection 3(1) of the EBRA. The Commission had a mandate to examine, report, and readjust the boundaries of the 11 federal electoral districts within Nova Scotia following the 2021 decennial census. The work of the Commission was guided by paragraph 15(1)(b) of the EBRA.
[18] On April 27, 2022, the Commission prepared the Proposal of the Federal Electoral Boundaries Commission for the Province of Nova Scotia (“Proposal”) and an accompanying map. The Commission published the Proposal and map in three newspapers circulated throughout Nova Scotia (The Halifax Chronicle Herald, Cape Breton Post, and Le Courrier de la Nouvelle-Écosse). The Proposal included details about the planned public consultation process, which included both in-person and virtual hearings, and acceptance of written submissions.
[19] The Commission also provided public notice of the Proposal on its website, through social media (Facebook, Twitter, and YouTube) and via regional Canadian Broadcasting Corporation (“CBC”) broadcasts. The chairperson of the Commission gave interviews with print and radio media explaining the redistribution process and invited public participation.
[20] The Proposal indicated that population changes called for a shift in the federal ridings but did not note any extraordinary reasons to depart from the 25% plus or minus variance set out in paragraph 15(1)(a) of the EBRA. Further, section 3 of the Canadian Charter of Rights and Freedoms, s 7, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter] guided the Commission in their development of the Proposal. At publication, the Proposal did not include proposed changes to the SV District.
[21] The Commission received written submissions from the public until May 23, 2022, in both English and French. From May 30 to June 27, 2022, the Commission held nine public consultation hearings, including one virtual hearing, and received submissions from Nova Scotia residents on the proposed redistribution, in both official languages. There was no public hearing scheduled in Eskasoni or in other Mi’kmaq communities.
[22] The Certified Tribunal Record for this application indicates that no member of the Eskasoni community participated in the public consultation process. Specifically, neither Eskasoni Chief Denny nor SV District MP Jaime Battiste (“MP Battiste”) a member and resident of Eskasoni, participated in the public consultation process.
[23] The Commission made changes to the Proposal following the conclusion of the public consultation process, again noting its consideration of the paramount principles in section 15 of the EBRA and section 3 of the Charter.
[24] On November 15, 2022, the Commission published the Report of the Federal Electoral Boundaries Commission for the Province of Nova Scotia (“Report”), which set out the new electoral districts for Nova Scotia based on their readjustment review and the public consultation process.
[25] The Report recommended boundary readjustments in the Cape Breton region. Previously, the SV District included three Mi’kmaq communities: Eskasoni, Wagmatcook First Nation (“Wagmatcook”), and Membertou First Nation (“Membertou”). The Report broke down this described urban electoral district and created a new Sydney-Glace Bay electoral district (“SGB District”). Membertou will be the only Mi’kmaq community in the new SGB District. Eskasoni and Wagmatcook are now in the new described rural CBCA District, which includes five Mi’kmaq communities (Eskasoni, Wagmatcook, Waycobah First Nation, Potlotek (Chapel Island) First Nation, and Paq’tnkek First Nation).
[26] On November 17, 2022, the Report was tabled in the HOC and referred to the PROC.
D. Objection by MP Battiste [27] On or about December 14, 2022, MP Battiste was interviewed by the CBC and issued a news release in response to the Commission’s Report. He argued that the Commission’s proposed changes to the electoral districts were unconstitutional and made without consultation with Eskasoni. He requested immediate reinstatement of the former electoral districts.
[28] MP Battiste raised several objections at the PROC Committee Meeting on January 31, 2023, regarding the Report. First, he argued that the Commission did not respect principles of procedural fairness and that the Commission breached its constitutional duty and the United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”) duty to consult with impacted Mi’kmaq communities. Second, MP Battiste asserted that the Report did not reflect the deep historical and present-day relationships among Mi’kmaq communities, and between Mi’kmaq communities and Sydney. Third, he argued that the Report did not adequately take into consideration its impact on Indigenous languages, and that the work of this Commission was not in accordance with the best practices of other electoral boundary commissions in respecting Indigenous rights. While it is not clear, MP Battiste appears to suggest that there is a constitutionally protected Aboriginal or Treaty right to effective representation of Indigenous persons in federal politics and to increase the potential to elect a Mi’kmaq MP. He seems to argue that any potential changes to electoral districts that may impact this asserted right triggers a duty to consult under section 35 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 (“section 35”).
[29] In March 2023, the Honourable Bardish Chagger, Chair of the PROC, prepared and released the Report of the Federal Electoral Boundaries Commission for the Province of Nova Scotia, 2022 (“PROC Report”). The PROC Report detailed the PROC’s support of MP Battiste’s objections and recommended that the Commission consider the objections favorably.
[30] The PROC Report also included a five-page dissenting report prepared by four MPs of the Conservative Party of Canada (“PROC Conservative Dissenting Report”). This dissenting report highlights that MP Battiste’s objections came very late in the process and that the request to keep the existing electoral districts was not feasible in light of the regional population and the permissible population variance established in section 15 of the EBRA.
E. The Decision [31] In an Addendum to the Report: Disposition of Objections (“Addendum”) released April 21, 2023, the Commission addressed the objections raised by MP Battiste. Ultimately, the Commission declined to amend or revise any of the recommendations set out in the Report. However, the Commission did agree to a suggested name change for an electoral district suggested by now-Central Nova Scotia MP Sean Fraser. The Addendum addressed the objections based on i) a lack of procedural fairness; ii) a failure to consider section 35 Aboriginal and Treaty rights, the duty to consult, and UNDRIP; and iii) the rationale behind the Decision to move Eskasoni and Wagmatcook to a predominantly rural riding based on population parity issues. The Addendum also responded to concerns raised regarding effective representation for the Mi’kmaq. The inclusion of the Addendum to the Report is collectively referred to in these reasons as the “Final Report.”
[32] Eskasoni commenced the application for judicial review of the Decision on May 23, 2023.
[33] The Applicants allege that the Decision is procedurally unfair; breaches the section 35 constitutionally protected duty to consult, the UNDRIP, and the honour of the Crown; infringes Eskasoni’s right to effective representation pursuant to section 3 of the Charter; contravenes section 15 of the EBRA by failing to properly consider Eskasoni as a community of interest, its community identity, or the historical pattern of the SV District; and is not reasonable in light of the factual constraints. I note that the issues raised in this application appear to mirror the objections raised by MP Battiste at the PROC Committee Meeting on January 31, 2023.
F. The Proclamation [34] Following receipt of the Final Report on September 18, 2023, the Chief Electoral Officer prepared the draft representation orders for all provinces and provided them to the Minister.
[35] On September 22, 2023, the GIC directed that a proclamation be issued to declare the representation orders into force. The GIC issued the Proclamation on September 17, 2023, declaring the new electoral boundaries effective on the first dissolution of Parliament that occurs after April 22, 2024. The new electoral boundaries are those identified by the Commission in its Final Report.
[36] The Applicants commenced the application for judicial review of the Proclamation on October 23, 2023.
[37] The Applicants allege that the changes to the electoral ridings in Nova Scotia have the following adverse impacts on Eskasoni:
a)They will be separated from Membertou, a community with common interests, history, language, and political relationships;
b)They will be separated from the City of Sydney, their main urban centre and economic partner;
c)They will lose MP Battiste, a member and resident of Eskasoni, and will move to an electoral district with a non-Indigenous MP; and
d)The voting power of the Mi’kmaq people will be diluted.
[38] The two applications were consolidated by order of Associate Judge Coughlan on November 15, 2023.
III. Issues and Standard of Review [39] This application raises the following issues:
a)What is the proper standard of review?
b)Was there a breach of procedural fairness and/or the duty to consult?
c)Were the Decision and/or Proclamation reasonable?
d)What is the appropriate remedy?
A. Standard of review (1) Decision and Proclamation [40] Both the Applicants and Respondent submitted, and I agree, that the standard of review applicable to the Decision and the Proclamation is reasonableness.
[41] The presumptive standard of review is reasonableness (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov] at para 10). Reasonableness review is a deferential standard and requires an evaluation of the administrative decision to determine if the decision is transparent, intelligible, and justified (Vavilov at paras 12–15, 95). The starting point for a reasonableness review is the reasons for decision (Vavilov at para 13). Pursuant to the Vavilov framework, a reasonable decision is “one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker” (Vavilov at para 85). To intervene on an application for judicial review, the Court must find an error in the decision that is central or significant to render the decision unreasonable (Vavilov at para 100).
(2) Procedural fairness and/or duty to consult [42] The Applicants combined their submissions on the applicable standard of review in respect of the alleged breaches of procedural fairness and the duty to consult. They argued that the appropriate standard of review in respect of both issues is correctness (Peguis First Nation v Canada (Attorney General), 2021 FC 990 at para 83; Coldwater First Nation v Canada (Attorney General), 2020 FCA 34 at para 38; Brar v Canada (Citizenship and Immigration), 2020 FC 70 at para 8).
[43] The Respondent took the position that there is no administrative law duty of procedural fairness nor a duty to consult owed to the Applicants in this case. However, they agreed that issues of procedural fairness are reviewed on a correctness standard (Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 [CP Railway] at paras 54–56; AP v Canada (Citizenship and Immigration), 2020 FC 906 [AP] at para 10; and Vavilov at para 77).
[44] The Respondent argued that where the existence or scope of the duty to consult is inextricably linked with findings of fact, as in the case at bar, the standard of review is reasonableness (Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73 [Haida] at paras 61–63; Squamish First Nation v Canada (Fisheries and Oceans), 2019 FCA 216 at para 30; ‘Namgis First Nation v Canada (Fisheries, Oceans and Coast Guard), 2020 FCA 122 at paras 21, 37).
[45] Breaches of procedural fairness have been considered reviewable on a correctness standard or a review that is “‘best reflected in the correctness standard’ even though, strictly speaking, no standard of review is being applied” (CP Railway at para 54, citing Eagle’s Nest Youth Ranch Inc v Corman Park (Rural Municipality #344), 2016 SKCA 20 at para 20; see also CP Railway at paras 55–56). Procedural fairness “is ‘eminently variable’, inherently flexible and context-specific;” it must be assessed with reference to all the circumstances, including the Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817 [Baker] factors (AP at para 10, citing Vavilov at para 77). In other words, “the focus of the reviewing court is whether the process was fair” (AP at para 10; Vavilov at para 127).
IV. Analysis A. Breach of procedural fairness and/or the duty to consult [46] The Applicants argued that procedural fairness and the duty to consult are extrinsically linked as both required the Commission to consult with Eskasoni in respect of the proposed changes to the electoral districts. The Applicants claim that the Decision adversely impacts Eskasoni and breaches both the duty of procedural fairness and the section 35 duty to consult because prior to the Final Report and Decision, the Commission did not inform the Applicants there would be changes to the constituencies that would impact them directly. Similarly, prior to issuing the Proclamation, the GIC did not ensure that these duties were fulfilled.
[47] Conversely, the Respondent argued that the Commission was acting in a delegated legislative capacity; therefore, no duty of procedural fairness is owed to the Applicants nor was the section 35 duty to consult triggered in the context of the Decision or the Proclamation.
[48] Given the linkages between the alleged breaches of procedural fairness and the duty to consult, both parties made consolidated submissions on these issues. That said, I have separated these two issues in my reasons, as distinct legal principles and laws are applicable to each asserted duty.
(1) Defining electoral boundaries [49] The exercise of reviewing and defining electoral boundaries is a general matter based on broad considerations of public policy, not facts pertaining to particular individuals or groups (Donald JM Brown & John M Evans, Judicial Review of Administrative Action (Toronto: Thomson Reuters Canada, 2024) at § 15:12.
[50] Recently, the Superior Court of Quebec considered the nature and functions of provincial electoral boundary commissions in Jennings c Commission de la représentation électorale du Québec, 2020 QCCS 1035 [Jennings]. The Court held that “[i]n holding public hearings and fixing electoral boundaries the Commission exercises a delegated legislative function, not a quasi-judicial one” (Jennings at para 32; see also paras 35 and 38). The public consultation process fulfilled the Commission’s mandate, as “the Commission exercises a legislative function and is not involved in an adversarial process where the rights of the state and the individual are arbitrated (lis inter partes)” (Jennings at para 35).
[51] The readjustment of electoral district boundaries is a delegated legislative function assigned to non-partisan and independent commissions (EBRA, s 12; Raîche at para 5). Commissions must follow their mandated instructions to develop recommendations for electoral boundary readjustments. Reports and recommendations of a commission then become a representation order proclaimed by the GIC, indicating its status as a delegated legislative function. As noted by the Saskatchewan Court of Appeal in Ref re: Electoral Boundaries Commission Act (Sask) ss 14, 20, 1991 CanLII 8030 (SK CA), 78 DLR (4th) 449 at para 49, “[i]t is not the function of the judicial branch to craft the electoral boundaries for constituencies. It is the responsibility of the Legislature to enact legislation to that end and to the end, of course, of ensuring that electoral boundaries meet the Charter’s requirements.”
[52] A review of the jurisprudence clarifies that courts have consistently found that the process of fixing or adjusting electoral boundaries is a legislative function (Jennings at paras 32, 35–38; Nova Scotia Reference at paras 4, 134; Reference re Prov Electoral Boundaries (Sask), [1991] 2 SCR 158 [Carter]; Dixon v British Columbia, 1989 CanLII 248 (BC SC), 59 DLR (4th) 247 [Dixon] at 29, 51).
[53] In addition, in Canadian Union of Public Employees v Canada (Attorney General), 2018 FC 518 [CUPE], this Court confirmed that the proclamation of an order by the GIC is not subject to judicial review by the courts (CUPE at paras 120–123). This is not to say that such orders are immune from review; the review, however, is limited to vires and constitutional validity.
[54] The Supreme Court of Canada (“SCC”) noted that courts must be cautious of interfering in matters that involve the balancing of conflicting policy considerations. Specifically, in the context of electoral boundaries the SCC noted that “[t]he courts ought not to interfere with the legislature’s electoral map under [section] of the Charter unless it appears that reasonable persons applying the appropriate principles… could not have set the electoral boundaries as they exist” (Carter at 189, citing Dixon at 419).
[55] Finally, this Court has found that “… Parliament has also given the Commission very broad discretion, which would seem to indicate that this Court should show considerable deference” (Raîche at para 57).
(2) Section 12 of the Electoral Boundaries Readjustment Act [56] A related issue in this application is the interpretation and application of section 12 of the EBRA:
12 A commission is not an agent of [His] Majesty and the members of a commission as such are not part of the federal public administration.
12 Les commissions ne sont pas mandataires de Sa Majesté et leurs membres ne font pas, à ce titre, partie de l’administration publique fédérale.
[57] The Applicants submitted that the Commission unreasonably erred in its interpretation of this provision because the Commission failed to consider the Treaty Relationship enshrined in the Elikewake Compact. Further, they argued that consent was required to alter or make changes to the Treaty Relationship. The Applicants asserted that by virtue of the Treaty Relationship, both the honour of the Crown and section 35 duty to consult are engaged.
[58] However, the Applicants did not clearly articulate a section 35 Aboriginal right that may have triggered a duty to consult, nor did they attempt to establish said section 35 Aboriginal right in accordance with R v Van der Peet, [1996] 2 SCR 507 [Van der Peet]. The Applicants also did not clearly articulate a particular treaty right that may have triggered a duty to consult, consistent with the framework established in R v Marshall, [1999] 3 SCR 456 [Marshall]. I elaborate on section 35 Aboriginal and Treaty rights further in subsequent portions of these reasons.
[59] In support of their interpretation of section 12, the Applicants drew an analogy with Clyde River (Hamlet) v Petroleum Geo-Services Inc, 2017 SCC 40 [Clyde River]. In that case, the SCC noted that where a regulatory agency is exercising executive power, despite statutory provisions that establish the agency is independent of the Crown, the distinction between the two falls away because the agency is the vehicle through which the Crown operates (Clyde River at para 29). The Applicants argued that courts have interpreted “the Crown” broadly to include “government action” and “Crown conduct” (Clyde River at para 29).
[60] I do not agree with the Applicants that section 12 of the EBRA imparts the necessary executive authority on the Commission that would trigger the duty of procedural fairness. The plain wording of section 12 is clear that “[the] [C]ommission is not an agent” of His Majesty, and the “members are not part of the federal public administration.” It is a well-established approach to statutory interpretation that the “words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament” (Rizzo & Rizzo Shoes Ltd (Re), [1998] 1 SCR 27 at para 21; Ruth Sullivan, The Construction of Statutes, 7th ed (Toronto: LexisNexis Canada, 2022) at 7; Interpretation Act, RSC 1985, c I-21, s 10.
[61] The duty of fairness is engaged when a decision-making body exercises an executive function such as making a “decision that effects the ‘rights, privileges or interests of an individual’… not when it acts in a legislative capacity to make rules of general application in the public interest” (Green v Law Society of Manitoba, 2017 SCC 20 at para 54, citing Dunsmuir v New Brunswick, 2008 SCC 9 at para 79 and Knight v Indian Head School Division No 19, [1990] 1 SCR 653 at 669). As noted above, the core of the Commission’s work and the subsequent Proclamation by the GIC is in fulfillment of a legislative function (Jennings at para 32).
(3) Procedural fairness [62] The jurisprudence is clear; the rules of procedural fairness do not apply to the exercise of legislative functions, including those followed by the Commission. As noted by the SCC in Reference Re Canada Assistance Plan (BC), [1991] 2 SCR 525 at 557, “… the rules governing procedural fairness do not apply to a body exercising purely legislative functions.” See also Martineau v Matsqui Disciplinary Bd (1979), [1980] 1 SCR 602 at 628.
[63] This was affirmed by this Court in CUPE, where it was noted, “[t]he Canadian jurisprudence is clear and leaves no room for CUPE’s position. No party is entitled to procedural fairness in the legislative process, which includes the making of regulations” (CUPE at para 123).
[64] The Quebec Superior Court in Jennings held there is no right to be consulted in the context of electoral boundary commissions. Rather, “[g]iven the Commission’s legislative function the petitioners have no more right to be heard than if the National Assembly had fixed the boundaries itself… The purpose [of] the public hearings… is to allow interested parties to present relevant information to the Commission and have their views considered before the Commission makes a final decision” (Jennings at para 38).
[65] Accordingly, I am of the view that the Commission did not owe either Eskasoni or the Mi’kmaq Nation a duty of procedural fairness to consult with or hold a separate engagement session in the context of the electoral boundaries readjustment process.
[66] MP Battiste, in his objections to the PROC, and Chief Denny’s affidavit in support of this application indicate that a number of factors may have hindered participation in the public engagement sessions by members of Eskasoni. These factors include but were not limited to: the distance and/or a lack of transportation as the nearest public engagement session was in Sydney, 50 kilometers south of Eskasoni; limited access to internet services to participate virtually; and Mi’kmaq language speakers would not be able to participate or express themselves in either English or French. I acknowledge that these challenges exist and may present real barriers to participation for Eskasoni members.
[67] However, it is not clear why MP Battiste, who is the MP for the electoral district that includes Sydney, or Chief Denny could not attend any of the nine public engagement sessions, including the virtual session, or provide written submissions to the Commission for their consideration. I accept that not all members of the community may have been able to participate in the public engagement sessions for the reasons outlined above. However, nothing before me explains the notable absence of MP Battiste, Chief Denny, or other Eskasoni leadership. The affidavit from Chief Denny speaks in general terms with respect to Eskasoni members but does not highlight any specific barriers to his own participation or the participation of other members of the Eskasoni council.
[68] As the Commission outlined in the Decision, “[w]ith respect, this demonstrates a fundamental misunderstanding on [MP Battiste’s] part of the redistribution process.” The Commission noted that changes to the Cape Breton riding were in contemplation based on the May 30, 2022 consultation meeting in Sydney, and as reported in the media following the meeting (Decision at p 40). The Commission went further, stating “[i]t is unfortunate [MP] Battiste did not take note of the media reports relating to the Commission’s work and disseminate it to his constituents. His failure to do so does not equate to a breach of procedural fairness by the Commission” (Decision at p 42).
[69] The PROC Conservative Dissenting Report contained similar opinions:
We observe that MP Battiste only took the position of maintaining the status quo on Cape Breton after the release of the Report of the Commission. MP Battiste did not object when the Commission originally proposed adjustments to the Cape Breton ridings, including extending Cape Breton-Canso onto the mainland. Indeed, MP Battiste did not provide input to the Commission, despite having ample opportunity to do so. Now late in the process he has decided to take his case to PROC.
…
Likewise, MP Battiste could have informed and encouraged members of the Eskasoni, Membertou, and Wagmatcook communities to provide input to the Commission. The location of the Commission’s public hearing at the Cambridge Suites hotel in Sydney is accessible to these communities. According to Google Maps, the hotel is only a six-minute drive from Membertou, a 33-minute drive from Eskasoni, and a one hour and nine-minute drive from Wagmatcook. There was also a virtual hearing plus the opportunity to make written submissions over several months.
Having done none of the above, it is unreasonable for MP Battiste, late in the process, after the release of the Commission’s final report, to now ask the Commission to make significant adjustments to the riding boundaries in Cape Breton.
[70] With respect, I do not find the Applicants’ evidence concerning reasons for not participating in the public engagement sessions compelling. While the Proposal did not contain specific changes to the then-SV District, the Commission’s mandate was to examine potential changes to electoral districts in the whole province of Nova Scotia. It would have been reasonable for MP Battiste, Chief Denny, and Eskasoni to make their views to the Commission known, that they wanted to maintain the status quo, and why. As noted above, the evidence concerning the general lack of participation by members of Eskasoni does not explain the lack of participation by Eskasoni leadership or MP Battiste.
[71] As noted by the SCC in Behn v Moulton Contracting Ltd, 2013 SCC 26 [Behn], there is a duty of “mutual good faith” that animates the discharge of the constitutional duty to consult, and this requires parties to participate in good faith in the processes (Behn at para 42). The lack of participation by Eskasoni leadership, in particular Chief Denny and MP Battiste, demonstrates an absence of mutual good faith participation with the Commission in the public engagement process.
(4) Section 35 Aboriginal and Treaty rights and the duty to consult (a) Section 35 Aboriginal rights [72] Section 35 of the Constitution Act, 1982 “recognizes and affirms” the existing Aboriginal and Treaty rights of Aboriginal peoples. Subsection 35(1) has two purposes: “to recognise the prior occupation of Canada by organized, autonomous societies” and “to reconcile their modern-day existence with the Crown’s assertion of sovereignty over them” (R v Desautel, 2021 SCC 17 [Desautel] at para 22).
[73] The Van der Peet framework for proof of a section 35 Aboriginal right requires that “an activity must be an element of a practice, custom, or tradition integral to the distinctive culture of the aboriginal group claiming the right” (Van der Peet at para 46). Section 35 rights are held by the Indigenous collective; however, certain rights have individual aspects and individual members may exercise the right that is held by the collective (Van der Peet at paras 220–221).
[74] There has been significant critique of the Van der Peet framework in the years following this seminal decision (see for example: R c Montour, 2023 QCCS 4154 [Montour]). The Court observed that there is concern that the temporal aspect of the Van der Peet framework is a “frozen in time” approach regarding the scope of rights that receive section 35 protection [Montour at paras 1256–1262]. In addition, the Court observed that there is a concern that the framework is not well suited to assess non-harvesting rights (hunting or fishing), because commercial, economic, and self-government rights do not tend to fit easily within the framework (Montour at paras 1265–1271). Finally, the Court noted that Van der Peet was decided prior to Canada’s endorsement and implementation of UNDRIP through the United Nations Declaration on the Rights of Indigenous Peoples Act, SC 2021, c 14 [UNDA].
[75] In Desautel, the SCC had an opportunity to consider the impact of the UNDRIP in relation to the Van der Peet framework. In that case, the Court endorsed the continued application of the Van der Peet framework as further articulated in Lax Kw’alaams Indian Band v Canada (Attorney General), 2011 SCC 56 [Lax Kw’alaams] to determine section 35 Aboriginal rights:
(a) Characterize the right claimed in light of the pleadings and evidence (Van der Peet, at para. 53; Gladstone, at para. 24; Mitchell at paras. 14-19).
(b) Determine whether the claimant has proven that a relevant pre-contact practice, tradition or custom existed and was integral to the distinctive culture of the pre-contact society (Van der Peet, at para. 46; Mitchell, at para. 12; Sappier, at paras. 40-45).
(c) Determine whether the claimed modern right is “demonstrably connected to, and reasonably regarded as a continuation of, the pre-contact practice”.
[Desautel at para 51, citing Lax Kw’alaams at para 46.]
[76] The SCC did not comment on how, if at all, the UNDRIP may affect the future application of the Van der Peet framework. The Desautel decision predates the passage of the UNDA. That said, in my view, the UNDA does not in and of itself supplant section 35, nor the jurisprudence developed by the SCC.
[77] While subsection 2(3) of the UNDA states that “[n]othing in this Act is to be construed as delaying the application of the Declaration in Canadian Law,” other sections contemplate an iterative implementation process that will be developed with Indigenous peoples. For example, section 5 states “[t]he Government of Canada must, in consultation and cooperation with Indigenous peoples, take all measures necessary to ensure that the laws of Canada are consistent with the Declaration.” Subsection 6(1) provides that “[t]he Minister must, in consultation and cooperation with Indigenous peoples and with other federal ministers, prepare and implement an action plan to achieve the objectives of the Declaration.”
[78] A review of the 2023–2028 Action Plan highlights that the work to ensure that Canadian laws are consistent with the UNDRIP is a “shared priority” among gove