Canada v. Long Plain First Nation

Canada v. Long Plain First Nation
Court (s) Database
Federal Court of Appeal Decisions
Date
2015-08-14
Neutral citation
2015 FCA 177
File numbers
A-34-13
Notes
A correction was made on January 11, 2016
Digest
Decision Content
Date: 20150814
Docket: A-34-13
Citation: 2015 FCA 177
CORAM:
PELLETIER J.A.
DAWSON J.A.
STRATAS J.A.
BETWEEN:
HER MAJESTY THE QUEEN, represented by the Attorney General of Canada,
The Hon. Chuck Strahl in his capacity as Minister of Indian
Affairs and Northern Development, The Hon. Vic Toews in his capacity
as President of Treasury Board, The Hon. Peter MacKay in his
capacity as Minister of National Defence, The Hon. Lawrence Cannon in
his capacity as Minister Responsible for
Canada Lands Company
Appellants
and
LONG PLAIN FIRST NATION,
PEGUIS FIRST NATION, ROSEAU RIVER ANISHINABE FIRST NATION,
SAGKEENG FIRST NATION, SANDY BAY OJIBWAY FIRST NATION,
SWAN LAKE FIRST NATION,
Collectively being Signatories to Treaty No. 1
and known as “Treaty One First Nations”
Respondents
Heard at Winnipeg, Manitoba, on January 13, 2014.
Judgment delivered at Ottawa, Ontario, on August 14, 2015.
REASONS FOR JUDGMENT BY:
STRATAS J.A.
CONCURRED IN BY:
PELLETIER J.A.
DAWSON J.A.
Date: 20150814
Docket: A-34-13
Citation: 2015 FCA 177
CORAM:
PELLETIER J.A.
DAWSON J.A.
STRATAS J.A.
BETWEEN:
HER MAJESTY THE QUEEN, represented by the Attorney General of Canada,
The Hon. Chuck Strahl in his capacity as Minister of Indian
Affairs and Northern Development, The Hon. Vic Toews in his capacity
as President of Treasury Board, The Hon. Peter MacKay in his
capacity as Minister of National Defence, The Hon. Lawrence Cannon in
his capacity as Minister Responsible for
Canada Lands Company
Appellants
and
LONG PLAIN FIRST NATION,
PEGUIS FIRST NATION, ROSEAU RIVER ANISHINABE FIRST NATION,
SAGKEENG FIRST NATION, SANDY BAY OJIBWAY FIRST NATION,
SWAN LAKE FIRST NATION,
Collectively being Signatories to Treaty No. 1
and known as “Treaty One First Nations”
Respondents
REASONS FOR JUDGMENT
STRATAS J.A.
A. Introduction [1] This is an appeal from the judgment dated December 20, 2012 of the Federal Court (per Justice Hughes): 2012 FC 1474.
[2] Before the Federal Court was an application for judicial review brought by the respondents. The respondents sought to set aside a decision by the appellants (“Canada”) to transfer a property called the Kapyong Barracks to a non-agent Crown corporation. The Barracks are located on lands which the respondents claimed to have the right to purchase in priority to other potential purchasers.
[3] The six respondents alleged that Canada owed them a duty to consult with them before the sale and Canada had not fulfilled that duty. They applied for judicial review to the Federal Court for a declaration to that effect and an order restraining the sale.
[4] The Federal Court found that Canada owed a duty to consult four of the respondents and, further, that Canada had failed to fulfil that duty. It restrained the sale until Canada demonstrated that it had fulfilled that duty and imposed a form of court supervision. Canada appeals the Federal Court’s judgment.
[5] The Federal Court held that Canada did not owe two of the respondents, Sagkeeng First Nation and Sandy Bay Ojibway First Nation, a duty to consult. Both Sagkeeng and Sandy Bay Ojibway cross-appeal this aspect of the Federal Court’s judgment.
[6] For the reasons that follow, I would allow the appeal only on the issue of remedy and would dismiss the cross-appeals with costs.
B. Facts [7] As will be seen, a number of questions determined by the Federal Court fall to be reviewed in this Court on the basis of the correctness standard of review. Therefore, a full understanding of the facts giving rise to the Federal Court’s judgment is required.
[8] At a broad level of generality, this case is about whether Canada should have consulted with the respondent Aboriginal bands and should have considered their interests when deciding how to deal with the Kapyong Barracks.
[9] This issue does not sit in isolation. Surrounding it is a larger context. For over a century, Canada had broken a treaty promise to provide certain Aboriginal bands with lands. And to remedy the broken promise, Canada entered into certain agreements with some of the bands, including four of the respondent bands, to facilitate their acquisition of lands.
[10] These agreements and their purpose in remedying the broken treaty promise are a large part of the backdrop against which Canada’s actions must be judged.
(1) The treaty promise: Treaty No. 1 [11] In 1871, certain Aboriginal First Nations in Manitoba signed Treaty No. 1 with Canada. Under that Treaty, these First Nations agreed to give up their title to land that now comprises a large portion of southern Manitoba, including all of the present City of Winnipeg. In the words of the Treaty, they did “cede, release, surrender and yield up to Her Majesty the Queen and successors forever” their lands. This was meant to facilitate immigration and the acquisition and development of land by immigrants.
[12] In return, Canada was to set aside a certain amount of land in specific areas for their exclusive use. None of that land was in the City of Winnipeg. The amount of land to be set aside was 160 acres for every family of five. Over the years, this requirement has been called the “per capita provision.”
(2) Canada’s broken promise [13] The Aboriginal bands fulfilled their side of the bargain under Treaty No. 1. But Canada did not. It never fulfilled the per capita provision. It broke the solemn promise it had made.
(3) Initial efforts to remedy the broken promise [14] Roughly sixty years later, the Constitution Act, 1930 came into force. Section 11 of the Constitution Act, 1930 provided for the setting aside of lands for reserves to enable treaty obligations to be fulfilled.
[15] It was not until the 1990’s, some 120 years later, that Canada took concrete steps to remedy its breach of Treaty No. 1.
(4) Recognition of the land claims of five First Nations [16] These concrete steps to remedy Canada’s breach of Treaty No. 1 began with Canada’s recognition of the land claims of five Aboriginal bands. Four of these are respondents to this appeal: the Long Plain First Nation, the Swan Lake First Nation, the Roseau River Anishinabe First Nation and the Peguis First Nation.
(5) The development of treaty lands entitlement agreements [17] In the 1990’s, a committee comprised of representatives of First Nations, Canada and Manitoba drafted a treaty lands entitlement framework agreement. This framework agreement was signed in 1997 and became a template for specific treaty lands entitlement agreements.
[18] Some First Nations chose not to participate in the treaty land entitlement framework agreement process and negotiated their own agreements. Thus, the Long Plain First Nation concluded its treaty land entitlement agreement in 1994, the Swan Lake First Nation signed its own treaty land entitlement agreement in 1995 while the Roseau River Anishinabe First Nation’s treaty land entitlement agreement was signed in 1996. Only the Peguis First Nation participated in the framework agreement process and signed a treaty land entitlement agreement based on the framework agreement. There are significant differences between the earlier agreements and the Peguis First Nation’s agreement.
[19] A fifth band whose land claim was recognized, the Brokenhead Ojibway Nation, ultimately discontinued its claim. Although Brokenhead was involved in many of the events giving rise to this matter, ultimately its involvement has no bearing on this matter and so it will not be referred to further in these reasons.
[20] In the rest of these reasons, the remaining four respondents who had signed treaty land entitlement agreements with Canada shall be referred to collectively as the “four respondents.”
(6) Sagkeeng First Nation and Sandy Bay Ojibway First Nation [21] Canada did not recognize the land claims of two Aboriginal bands who are respondents to this appeal: the Sagkeeng First Nation and the Sandy Bay Ojibway First Nation.
[22] The claim of Sagkeeng remains outstanding, with Canada awaiting further submissions and evidence concerning it. In the present case, Sagkeeng has not filed any evidence in support of an unfulfilled per capita reserve land entitlement under Treaty No. 1.
[23] In the case of Sandy Bay, both Canada and the Indian Claims Commission have rejected its claim on the ground that its treaty land entitlement has already been fulfilled. Accordingly, Canada has not entered into treaty land entitlement agreements with Sagkeeng and Sandy Bay.
(7) The four treaty land entitlement agreements [24] The agreements with Long Plain First Nation and Swan Lake First Nation provide that Canada will provide the First Nations with a sum of money (which has been paid) to enable each First Nation to purchase land on the open market (within certain limits). Canada also undertakes to take all necessary steps to set the purchased land aside as a reserve for the benefit of the First Nations, if certain conditions are met, one of which is that the purchased land is located in the First Nation’s traditional territory.
[25] In the case of the Roseau River Anishinabe First Nation, Canada entered into a more detailed agreement. Like the agreements with Long Plain and Swan Lake, Roseau River was provided with funds with which to acquire lands which Canada undertook to set aside as reserve lands, if certain conditions were met, one of which was that the purchased land was in Roseau River’s traditional territory or in the Treaty 1 territory. However, the agreement went further. Under section 4.10 of the agreement, Canada promised that in fulfilling its obligations under the agreement that it would reasonably exercise any discretions that are preconditions to its acts, it would perform its obligations on a timely basis and it would “use its best efforts” to achieve the agreement’s objectives. Further in section 4.12, Canada promised Roseau River that it could acquire at fair market value land under Canada’s administration and control that Canada was prepared to make available.
[26] The agreement with the Peguis First Nation is substantially different. Peguis can select a specified amount of unoccupied provincial land and subject to certain conditions, land anywhere in Manitoba, which includes surplus federal land. Under subsection 3.09(6) of the treaty land entitlement agreement, Canada agreed that “wherever possible” title to surplus federal land should be transferred to Peguis, subject to the claims of other bands. Subsection 3.09(7) confirmed that an expression of interest by Peguis in land “does not provide a right or create a guarantee that the land will be available” or that it can be set aside as a reserve. In sections 28.01 and 28.02 of the agreement, Canada also agreed that it would “in good faith, use [its] best efforts to fulfil the terms” of the agreement and to act on a timely basis. Canada is obligated to provide funding to Peguis so that it could purchase land. The Peguis Agreement also requires Canada to provide notice whenever it intends to dispose of certain surplus federal land: see subclause 1.01(82). Like the other agreements, the Peguis agreement does not obligate Canada to sell surplus federal land to Peguis. Rather, Peguis can acquire such land on a willing buyer / willing seller basis.
[27] Canada did not ratify the agreement with the Peguis First Nation until April 2008. Although the agreement became effective only after Canada made the decision being reviewed (in 2007), the Kapyong Barracks today remain in Canada’s possession, unsold. Peguis submits, and I agree, that Canada is now obligated to deal with the Barracks in accordance with the agreement.
[28] All four agreements contain a broad release in favour of Canada. While the wording of each is somewhat different, all mirror the terminology used in the release provision in the agreement with Long Plain. Under that provision, Long Plain “cede[d], release[d] and surrender[ed] to Canada all claims, rights, title and interest it ever had, now has or may hereafter have by reason of or in any way arising out of the Per Capita Provision.” It also “release[d] and forever discharge[d] Canada…from… all obligations imposed on and promises and undertakings made by Canada relating to land entitlement under the Per Capita Provision.”
(8) The Kapyong Barracks [29] The Kapyong Barracks, located in the City of Winnipeg, is in two parts. One part, roughly 160 acres, has a former armed forces base on it. This part of the Barracks, which I shall call the “Barracks property” for the remainder of these reasons, was the subject of the application for judicial review before the Federal Court. The other part, roughly 62 acres and containing quarters for married personnel, was not part of the application. The Barracks property lies within the lands covered by Treaty No. 1.
[30] From the perspective of the four respondents, the Barracks property is unique and important. It is a large parcel of land in an urban area that is available for sale and could be redeveloped by the respondents. Some of the traditional lands formerly inhabited by some of the four respondents now constitute the City of Winnipeg. These days, large pieces of available land in an urban area are not commonplace.
(9) The announcement of the closing of the Barracks [31] In April 2001, the Department of National Defence announced that it was closing the military base located on the Kapyong Barracks. The four respondents learned of the decision through the news media—Canada did not advise them of the decision.
(10) Initial expressions of interest in the Barracks property [32] Later in April 2001, two First Nations, the Brokenhead Ojibway Nation and the Long Plain First Nation, expressed interest in the Barracks property. Over a year later, in August 2002, Long Plain wrote again, expressing interest in the Barracks property and observing that it had not received a response to its initial expression of interest.
[33] At this time, Long Plain could do nothing more than make a general expression of interest. Canada had not advised any of the four respondents how much of the Barracks property it was selling, the characteristics of the land or any information bearing upon the value of the land.
(11) Canada’s initial plans [34] Around the time of these initial expressions of interest, Canada went ahead with certain decisions about the Barracks property.
[35] In November 2001, Canada decided that the Barracks property would be dealt with through a Treasury Board policy entitled “Treasury Board Policy on the Disposal of Surplus Real Property” and a “strategic disposal process” within the meaning of the policy. The significance of this is discussed immediately below.
[36] In September 2002, Canada finally responded to the Long Plain First Nation’s initial expression of interest in April 2001. Canada notified it that it had classified the Barracks property as “strategic” under the Treasury Board policy.
(12) The Treasury Board policy [37] The Treasury Board policy governed the disposition of surplus federal property. Under section 7.5 of that policy, surplus federal land fell into two categories, “routine” and “strategic.”
[38] Properties of lesser value that could be sold easily and without any substantial investment fell within the “routine” classification. For these properties, interests expressed by the Department of Indian Affairs and Northern Development would be taken into account.
[39] Properties with potential for enhanced value or that were highly sensitive or a combination of the two fell within the “strategic” classification. Under the “strategic” classification, input could be had from “government agencies.” The end result of the properties in the “strategic” classification is usually their transfer to the Canada Lands Company Limited. This company, a federal non-agent corporation, disposes of property for the federal government to third parties.
[40] Canada placed the Barracks property into the “strategic” category. This meant that the Barracks property was not going to be made available to the four respondents on a priority basis. Instead, as a “strategic” property, Canada could assess the value of the Barracks property and could transfer it to the Canada Lands Company.
[41] In this case, the parties have proceeded on the basis that, on the current state of the law, the Canada Lands Company is not subject to any duties to consult with Aboriginal peoples. This is open to question, as the Government of Canada controls the Canada Lands Company and, in appropriate circumstances, could be ordered to cause the Canada Lands Company to act or not act in a particular way. Nevertheless, the parties before us have proceeded on the basis that dealing with the Barracks property through a “strategic disposal process” could have a significant practical effect: the Barracks property would be transferred from an entity subject to duties to consult with Aboriginal peoples (Canada) to a private entity free from any such duties (Canada Lands Company). On this view of things, the Canada Lands Company could then transfer the Barracks property to any third party free from any need to consult with Aboriginal peoples.
(13) Canada’s conduct immediately after classifying the Barracks property as “strategic” [42] A few months after the Barracks property was classified as “strategic,” Long Plain renewed with Canada its expression of interest.
[43] Canada replied that any disposal of the Barracks property would take place as a “strategic disposal process” through the Canada Lands Company.
[44] Despite that position, Canada was well aware that the four respondents might have an interest in the Barracks property. The four respondents obtained access to information documents evidencing communications between the Department of Indian Affairs and Northern Development and the Department of National Defence. These show that Canada knew that Aboriginal bands with treaty land entitlement agreements might express interest in the Barracks property.
[45] Despite that knowledge, in December 2002 the Department of Indian Affairs and Northern Development sent a letter to each of the four respondents notifying them that the Barracks property had been classified as “strategic” and so their interests would not be considered on a priority basis. However, the Department advised them that if they had an interest in the Barracks property, they should contact a particular person at the Department of National Defence. The Department offered no information about the land itself.
(14) Responses to Canada’s invitation to express interest [46] The Long Plain First Nation was the only one of the four respondents to respond to Canada’s December 2002 letter. It told Canada that it was still interested in the Barracks property. Having no information about the land, it offered no particulars as to its interest.
(15) Canada invites Long Plain to disclose its plans [47] In March 2003, Canada invited the Long Plain First Nation to advise how much of the Barracks property it was interested in acquiring, what it was willing to pay for it, and what it was going to do with the land. This was an empty invitation—Long Plain had been given no information about the Barracks property, no appraisals, no environmental assessments, no photos. At this time, Long Plain was not even invited to view the Barracks property.
[48] In June 2003, a representative of Canada met with Long Plain. Canada provided Long Plain with aerial photographs of the Barracks property and information about the buildings on it. Around this time, Canada reconfirmed that the Barracks property would be dealt with as a strategic disposal. During the summer of 2003, Long Plain requested more time to provide Canada with information about its desire to acquire the Barracks property.
[49] By September 2003, the Department of National Defence had in hand an appraisal of the Barracks property. This appraisal was not provided to any of the First Nations.
[50] An important meeting took place at this same time. Representatives of Canada met with representatives of Long Plain and Roseau River. Canada asked them to prepare their proposals for the development of the Barracks property so that their interest could be taken into account by the Department of National Defence when it prepared its submission to Treasury Board regarding the disposition of the Barracks property. Again, though, by this time Canada had already advised the four respondents that the Barracks property would be dealt with through the strategic disposal process involving Canada Lands Company.
[51] Notes of the meeting taken by Canada’s representative show that Long Plain and Roseau River took a strong position in response:
[The First Nations] [w]ould not entertain any notion of a balancing of Crown interest in the disposal; their interest comes first and must be addressed before all others. Would similarly not accept the idea that the property was to be re-integrated into the community employing local (that is, City of Winnipeg) planning processes. The perspective of balancing of interests was rejected out of hand.
At this time, Canada had never consulted with any of the four respondents about any of its desires concerning the future use of the Barracks property, including its desire that local planning processes be followed and the Barracks property be re-integrated into the community.
[52] In his notes, Canada’s representative also noted that Long Plain and Roseau River considered Canada’s policy considerations to be irrelevant when it comes to treaty obligations. Nor did they “once talk about their vision for the property,” preferring instead to offer “polemical” views. He recorded that Long Plain and Roseau River wanted Canada to acquire the property for them or they should be allowed to purchase it at less than market value, and that they should be able to “develop the property as they see fit.”
[53] At the same time, the notes of Canada’s representative reveal that Long Plain and Roseau River found it difficult to make any offer based on the information given and needed a site visit. In the words of the notes, “[a] site visit was seen to be a pre-condition for a proposal.”
[54] Several meetings followed between Long Plain and the Department of Indian Affairs and Northern Development.
[55] In January and February 2004, representatives of Long Plain were given a tour of the Barracks property. At no time were they given a copy of the appraisal of the property. In fact, during the events giving rise to these proceedings, none of the four respondents had ever been given a copy of the appraisal to assist them. There is no evidence in the record showing why they could not be given the appraisal.
[56] In January 2004, counsel for Canada wrote to counsel for Long Plain, advising as follows:
…Long Plain has been asked, if it is interested in doing so, to provide a proposal to acquire some, or all, of the land. That proposal, if one is made, could be considered before a final decision is made on disposal. It is my understanding that no proposal has yet been submitted by your client. [If] Long Plain is interested in acquiring some or all of the property, this proposal should be submitted as soon as possible. Any proposal should be submitted to [the Department of National Defence].”
[57] For a while after January 2004, matters fell silent. In Canada’s case, it had no further communication with any of the four respondents for three years. But it continued to work its way towards a disposal of the Barracks property.
(16) Treasury Board’s approval of the sale of the Barracks property to the Canada Lands Company [58] On May 10, 2005, in furtherance of the decision taken long ago to dispose of the Barracks property through the strategic disposition process, Treasury Board approved the sale of the Barracks property to the Canada Lands Company. Canada did not advise any of the four respondents of this development.
(17) The Treasury Board policy is replaced [59] In November 2006, Treasury Board issued a directive entitled “Directive on the sale or Transfer of Surplus Real Property.” It replaced the 2001 policy referred to in paragraph 35, above. It maintained the classification of properties as “routine” and “strategic.” But it added a new requirement: the disposal of “strategic” property was subject to an “assessment of federal and other stakeholder interests.” Canada did not disclose this to the four respondents.
[60] At this point, the Barracks property had not actually been transferred to the Canada Lands Company, though that transfer had already been approved. In the Federal Court, there was no evidence to the effect that although the Barracks property had been classified as “strategic,” it could not be reclassified under the new policy. In this Court, in response to questioning, Canada could not point to any impediment to reclassifying the Barracks property in order to facilitate their acquisition by the four respondents under their treaty land entitlement agreements.
(18) The bands pursue their interests [61] In November 2006, a number of the respondents—not knowing that the sale of the Barracks property had already been approved—wrote to the Treasury Board asking for assurances that their rights would be respected. They requested a meeting. In January 2007, Treasury Board replied stating that there was “no change to the approach through which priority interests have an opportunity to express an interest in surplus lands.”
[62] In August 2007, the respondents wrote to the Department of Indian Affairs and Northern Development, asserting a claim against the Barracks property as part of their rights under their treaty land entitlement agreements. Initially, the respondents asserted a claim to Aboriginal title to the whole City of Winnipeg. Later, in legal proceedings, they asserted a right to be consulted stemming from the unfulfilled per capita provision in Treaty No. 1. The respondents sought assurances that their claims would be respected and requested a meeting to discuss the matter. Having received no response, the respondents wrote again in September and November 2007.
(19) Canada confirms the approval of the transfer of the Barracks property to the Canada Lands Company [63] As mentioned above, in May 2005 Treasury Board had already approved the transfer of the Barracks property to the Canada Lands Company. On November 23, 2007, Treasury Board confirmed that approval.
[64] It appears that confirmation was required because the Department of National Defence had submitted revised plans. The revised plans did not affect the thrust of the matter. As far as Canada was concerned—as it had intended from the very outset—the Barracks property was to be transferred to the Canada Lands Company for disposal.
[65] Canada did this without meeting any representatives of the respondents or responding to their August, September and November letters.
[66] The November 23, 2007 confirmation of approval became the subject-matter of the respondents’ application for judicial review, the Federal Court’s judgment in this case and this appeal.
(20) Canada responds to the respondents’ letters [67] In December 2007, Canada finally replied to the respondents’ letters of August, September and November 2007. It told them that Aboriginal title to the Barracks property had been surrendered by Treaty No. 1.
[68] In its December 2007 letter, Canada added that once the Barracks property was transferred to the Canada Lands Company, the respondents should approach that corporation. Seen from the perspective of the four respondents, this was an empty offer: they were concerned that if the Canada Lands Company were free from any duties to consult they would simply be treated as one group of bidders among so many other bidders.
(21) Legal proceedings begin [69] The respondents challenged the Treasury Board’s decision by way of judicial review. Among other things, they sought a declaration that Canada had a legal duty to consult and accommodate them before transferring the Barracks property. They also sought an order restraining the transfer of the Barracks property to the Canada Lands Company.
[70] Having been told little about Canada’s plans for the Barracks property, the respondents were driven during the litigation to pursue access to information requests to find out what had happened behind the scenes. Broadly speaking, that information showed a measure of confusion among various departments and ministries of Canada concerning the proper process to follow concerning the sale of the Barracks property.
(22) Initial determinations by the Federal Court and this Court [71] The Federal Court (per Justice Campbell) held that Canada had a legal duty to consult before it disposed of the Barracks property and Canada did not fulfil that duty: 2009 FC 982.
[72] This Court reversed the judgment of the Federal Court: 2011 FCA 148, 419 N.R. 289. It held that the Federal Court’s reasons were inadequate. Rather than finding facts itself, this Court remitted the matter to the Federal Court for re-decision. The judgment of the Federal Court in that re-decision is the matter now before us.
(23) The Federal Court’s re-decision: the matter now before us [73] During the second hearing in the Federal Court, for the first time Canada conceded that it owed a duty to the four respondents to consult with them. However, it submitted that Canada had fulfilled that duty.
[74] The Federal Court rejected that submission and allowed the application for judicial review as it pertained to the four respondents.
[75] The Federal Court held that the scope of the duty was fairly demanding, around the middle of the spectrum of consultation outlined by the Supreme Court in Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511. This meant that Canada had to give notice, disclose information, meet with the First Nations to hear and discuss their concerns, take their concerns into meaningful consideration and advise of the course of action taken and why.
[76] According to the Federal Court, Canada fell way short of the mark (at paragraphs 78-80). It described Canada’s conduct as “egregious” (at paragraph 79). In its view, Canada did not respond in a meaningful way to the concerns raised by the respondents from 2001-2004 (at paragraphs 76-78). From 2006-2007, Canada simply ignored the respondents who were later told to take their concerns to Canada Lands Company.
[77] In its judgment, the Federal Court set aside the Treasury Board’s November 23, 2007 confirmation of approval of the sale of the Barracks property to the Canada Lands Company. It restrained Canada from selling the Barracks property to the Canada Lands Company or anyone else “until [it] can demonstrate to the Court that [it has] fulfilled in a meaningful way [its] duty to consult with the [First Nations].” In effect, this was not just a restraining order; it was also a supervision order.
[78] As for the Sagkeeng First Nation and Sandy Bay Ojibway First Nation, the Federal Court held that Canada owed them no duty to consult. On the evidence before it (see paragraphs 21-23 above), Sagkeeng and Sandy Bay had not established any rights or interests necessary to establish such a duty. In particular, neither had demonstrated any unfulfilled per capita reserve land entitlement under Treaty No. 1 and neither had a treaty land entitlement agreement.
[79] Other specific aspects of the Federal Court’s reasons will be commented upon in the course of these reasons.
C. The issues [80] In this case, the Federal Court was reviewing the Treasury Board’s November 23, 2007 decision approving the transfer of the Barracks property to the Canada Lands Company. The question before the Federal Court was whether that decision could stand on the basis of the consultations undertaken by Canada.
[81] In the circumstances of this case, that general question resolved itself into a number of particular questions:
(1) Did Canada owe duties to Sagkeeng First Nation and Sandy Bay Ojibway First Nation to consult with them?
(2) To the extent that duties were owed (and Canada conceded the existence of duties to consult owed to the four respondents), what is the content and scope of those duties?
(3) On the facts of this case, were those duties fulfilled?
(4) If not, what remedy should be ordered?
[82] In these reasons, I shall deal with the Federal Court’s answers to these questions in that order. But first, some comments about the standard of review are apposite.
D. The standard of review [83] The first task for this Court on an appeal from a judgment on an application for judicial review is to determine whether the Federal Court judge chose the proper standard of review: Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559 at paragraphs 46-47.
[84] Taking the first three questions set out above, the Federal Court held that the standard of review was correctness on the first two questions and reasonableness on the third question (at paragraph 20).
[85] Before us, the parties agree that the Federal Court properly chose the standard of review.
[86] Although this Court is not bound by the parties’ agreement concerning the standard of review (see Monsanto Canada Inc. v. Ontario (Superintendent of Financial Services), 2004 SCC 54, [2004] 3 S.C.R. 152), I agree with the parties. The standard of review adopted by the Federal Court is consistent with holdings on this point by the Supreme Court: Haida Nation, above at paragraph 61; Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43, [2010] 2 S.C.R. 650 at paragraphs 63-65; Beckman v. Little Salmon/Carmacks First Nation, 2010 SCC 53, [2010] 3 S.C.R. 103 at paragraph 48. I would add only one gloss to this. To the extent that the existence, content and scope of the duties to consult depends upon factual findings, a “degree of deference” to those findings “may be appropriate”: Haida Nation at paragraph 61.
[87] There remains one final standard of review issue to be resolved. Having set aside the November 23, 2007 decision approving the sale of the Barracks property to the Canada Lands Company, the Federal Court had to consider what remedy to give. As mentioned above, among other things, it decided to restrain Canada from selling the Barracks property until such time as Canada demonstrated that it had fulfilled its duty to consult. Its choice of remedy was a factually-suffused exercise of discretion. What is the standard of review for that sort of remedial decision?
[88] Remedial decisions by the Federal Court on judicial review fall into a special category. They are decisions not about what the administrative decision-maker has decided—a realm where the administrative law standards of review in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 hold sway—but rather what the Court should do, not unlike decisions it makes itself on preliminary objections to the hearing of the judicial review, such as the existence of an adequate alternative forum, mootness or prematurity. This Court has ruled that the appellate standard of review set out in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 should apply to those decisions: Budlakoti v. Canada (Citizenship and Immigration), 2015 FCA 139 at paragraphs 37-39; Wilson v. Atomic Energy of Canada Limited, 2015 FCA 17, 467 N.R. 201 at paragraphs 25-26.
[89] It seems to me that remedial decisions of the Federal Court as a reviewing court fall into the same category. Thus, consistent with Housen, where the remedy depends upon the factual appreciation and discretion of the court—a question of mixed fact and law where facts and discretion predominate—the appellate court should accord deference to the remedial decision. This standpoint is consistent with other decisions of this Court: see, e.g., Canada (Attorney General) v. Jodhan, 2012 FCA 161, 350 D.L.R. (4th) 400 at paragraph 75.
[90] The Supreme Court has not definitively and overtly resolved the standard of review for remedial decisions in administrative law. However, it does seem to accord deference to the factually-suffused decisions of reviewing courts that smack of remedial discretion, provided there is no error in principle: see, e.g., Strickland v. Canada (Attorney General), 2015 SCC 37 at paragraph 39 (“deference” for this Court’s decision to dismiss an application for judicial review because of the existence of an adequate alternative forum); see also Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3 at paragraph 87 (absent any error in an extricable legal principle, deference should be given to an exercise of remedial discretion in favour of ongoing court supervision).
[91] Accordingly, for the purposes of the Federal Court’s remedial decision in this case, absent any error in legal principle the standard of review shall be one of deference.
E. Should the Federal Court’s judgment stand? [92] Having found that the Federal Court chose the proper standard of review on the various questions it had to address, we must ask whether the Federal Court properly applied the standard of review: Agraira, above at paragraphs 46-47. If it did, then, subject to its choice of remedy, its judgment must stand.
[93] In the case of the questions that we review for correctness, we simply assess whether the Federal Court erred. In the case of those questions subject to reasonableness review, we re-do the reasonableness analysis to see if we reach the same conclusion as the Federal Court. In Agraira at paragraph 46, the Supreme Court likened this to “step[ping] into the shoes’ of the lower court.”
(1) Did Canada owe duties to Sagkeeng First Nation and Sandy Bay Ojibway First Nation to consult with them? [94] As mentioned above, we are to review the Federal Court’s answer to this question for correctness.
[95] The Federal Court concluded that Canada did not owe duties to Sagkeeng and Sandy Bay. It relied upon the facts summarized at paragraphs 21-23 above. Simply put, there was no evidence in the record to support that either had a land claim or an unfulfilled per capita reserve land entitlement under Treaty No. 1. In fact, in Sandy Bay’s case, Canada and the Indian Claims Commission have found that its treaty land entitlement has already been fulfilled. Therefore, the Federal Court did not find that any of the necessary prerequisites for a duty to consult were met.
[96] I find no error on the part of the Federal Court on this issue. Therefore, I would dismiss the cross-appeals of Sagkeeng and Sandy Bay.
[97] At the beginning of the hearing of the application in the Federal Court, Canada conceded that it owed the other four respondents a duty to consult, a concession which it re-affirmed before this Court. As the respondents framed their case in terms of the duty to consult, and the Federal Court initially decided the case on that basis, this concession did not appear to require any justification. However, this case may or may not fall within the ambit of the jurisprudence in which a duty to consult has been found because government action threatened to permanently interfere with lands in which First Nations claimed an aboriginal right or title. In light of Canada’s concession, the way in which this case has been developed to date, and the undesirability of seeking further submissions at this point, I am proceeding on the basis that the issues before us—to be assessed according to the standard of review above—are the content and scope of Canada’s duty to consult with the other four respondents, whether Canada fulfilled that duty and, if not, what remedy should be granted.
[98] Whether or not cases such as this one come within the duty to consult as art