Sambaa K'e Dene First Nation v. Duncan

Sambaa K'e Dene First Nation v. Duncan
Court (s) Database
Federal Court Decisions
Date
2012-02-10
Neutral citation
2012 FC 204
File numbers
T-1946-10
Notes
Digest
Decision Content
Date: 20120210
Docket: T-1946-10
Citation: 2012 FC 204
Ottawa, Ontario, February 10, 2012
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
SAMBAA K'E DENE BAND and
NAHANNI BUTTE DENE BAND
Applicants
and
JOHN DUNCAN, MINISTER OF
INDIAN AFFAIRS AND NORTHERN DEVELOPMENT, GOVERNMENT OF THE NORTHWEST TERRITORIES, and
ACHO DENE KOE FIRST NATION
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
[1] The Sambaa K’e Dene Band [“SKDB”], the Nahanni Butte Dene Band [“NBDB”] and the Acho Dene Koe First Nation [“ADKFN”] have overlapping claims to land in the south-western corner of the Northwest Territories [“NWT”].
[2] The SKDB and NBDB seek judicial review of a decision of the Minister of Indian Affairs and Northern Development [“Canada” or “the Minister”] postponing consultations with them until such time as an agreement in principle is reached with the ADKFN in relation to the ongoing comprehensive land claims negotiations between Canada and the ADKFN. The SKDB and the NBDB have also named the Government of the Northwest Territories [“GNWT”] and the ADKFN as respondents in this application.
[3] The SKDB and NBDB say that by delaying consultation with them until after an agreement in principle is entered into between Canada and the ADKFN, Canada has failed to comply with its legal and constitutional duty to consult with and properly accommodate the SKDB and the NBDB
[4] For the reasons that follow, I have concluded that Canada had a duty to consult with the SKDB and the NBDB in a timely and meaningful fashion, and that it has breached that duty. As a consequence, the application for judicial review will be granted.
The Relationship between the SKDB, NBDB and ADKFN
[5] The members of the SKDB, NBDB and ADKFN are Aboriginal peoples within the meaning of section 35(1) of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c. 11, and all are parties to Treaty 11, which was signed on June 27, 1921.
[6] Treaty 11 purported to surrender vast tracts of Aboriginal lands to the Crown. These lands are described generally in the Report of the Commissioner accompanying the Treaty as being “north of the 60th parallel, along the Mackenzie river and the Arctic ocean”.
[7] In exchange for this surrender, the Crown made a number of commitments to the Aboriginal peoples. In particular, the Crown undertook to set aside a specific quantum of reserve lands. According to the Report of the Commissioner, when the Aboriginal peoples expressed the concern that they would be confined to the reserves, they were assured that the reserve lands were to be “of their own choosing, for their own use”, and that they would be free to come and go at will. However, the promised reserves were never established.
[8] Treaty 11 further provided for the preservation of the right of the Aboriginal peoples to trap, hunt and fish within the Treaty boundaries. The parties agree that the SKDB and NBDB continue to enjoy these Treaty rights. There is, however, a disagreement between the First Nations and Canada as to whether Treaty 11 extinguished Aboriginal title to the lands in question, and as to the effect of the Treaty on other Aboriginal rights such as governance.
[9] The SKDB, NBDB and ADKFN all continue to assert Aboriginal title over their respective traditional lands, whereas Canada’s position is that Treaty 11 extinguished the First Nations’ Aboriginal title.
[10] The SKDB, NBDB and ADKFN each have traditional lands in the south-western corner of the NWT, a region known as “the Dehcho” (previously known as the “Deh Cho”). However, two-thirds of the lands claimed by the ADKFN as their traditional lands are located in the Yukon and British Columbia, whereas the majority of the lands claimed by the SKDB and the NBDB are located in the NWT.
[11] There is also a dispute between the ADKFN on the one hand, and the SKDB and the NBDB on the other, as to the boundaries of each of their traditional lands, and whether each First Nation enjoyed exclusive use of these lands.
The Comprehensive Land Claims Process
[12] Once Canada agrees to negotiate a comprehensive land claim asserted by an Aboriginal people, the process begins with the parties signing a “framework agreement” which delineates the process to be followed in the negotiations.
[13] Assuming that the initial negotiations reveal sufficient common ground, the parties will then sign an “agreement in principle” outlining the essential points of agreement. An agreement in principle is not legally binding, and terms in an agreement in principle can be the subject of further negotiation.
[14] Once agreement is reached on all of the outstanding issues, a final agreement is prepared, which may include agreements with respect to matters such as land ownership, financial benefits, governance issues and land overlaps. Should the final agreement be ratified by all of the parties, it becomes constitutionally protected, and is recognized as a Treaty under section 35 of the Constitution Act, 1982.
The Dehcho Process
[15] The Dehcho First Nations filed a comprehensive land claim which was accepted for negotiation by Canada in 1998. The SKDB, NBDB and ADKFN were all part of this process.
[16] In or about 1999, Canada entered into comprehensive land claims settlement negotiations with the Dehcho Tribal Council, in accordance with the provisions of the “Deh Cho Framework Agreement”. These negotiations are ongoing, and are known as the “Dehcho Process”. The Dehcho Process relates only to lands in the NWT.
[17] Because the ADKFN claimed that two-thirds of its traditional territory was outside of the NWT, it had originally requested that Canada establish a separate comprehensive land claims process to cover lands claimed by it in the NWT, Yukon and British Columbia. In a March, 1999, response, Canada advised the ADKFN that it was not willing to undertake community-by-community negotiations. Consequently, while the ADKFN initially participated in the Dehcho Process, it did, however, reiterate its concerns from time to time with respect to the inability of the Dehcho Process to resolve all of its outstanding issues.
[18] Amongst other things, the Deh Cho Framework Agreement provided that the Dehcho Process negotiations would not be confidential. It also identified the reaching of an agreement with respect to the use, management and conservation of land, water and other resources as one of its objectives.
[19] The Deh Cho Framework Agreement further committed the parties to “explore options and identify processes for addressing transboundary issues in respect of the Dehcho territory located outside the Northwest Territories”.
[20] The Dehcho Process is coordinated by the Dehcho First Nations [“DFN”], through the Dehcho Tribal Council. The SKDB, NBDB and ADKFN are all part of the Dehcho Tribal Council, along with other First Nations in the Dehcho region. However, each retained its status as an independent First Nation, with its own Aboriginal and Treaty rights within its respective traditional use area.
[21] The Dehcho Process negotiations are ongoing, and no agreement in principle has as yet been reached.
[22] In addition to the longstanding boundary disputes between the SKDB and the ADKFN, and between the ADKFN and the NBDB, there have also been disagreements between the three First Nations with respect to oil and gas development in the region. The ADKFN has been more interested in pursuing the development of oil and gas resources than have the SKDB and the NBDB. Indeed, the SKDB is on record as having stated that it would prefer to wait until the outstanding land claims have been resolved before pursuing the development of oil and gas reserves.
[23] While the SKDB and the NBDB have sought to have portions of the lands subject to overlapping claims designated as Protected Areas within the Dehcho process, ADKFN has sought to open up this land for oil and gas exploration.
[24] A proposal by Canada in 1999 to mediate the boundary disputes between the First Nations did not proceed. Two years later, as part of the Dehcho Process, the Dehcho First Nations passed a motion requiring that there be boundary agreements between the SKDB, the NBDB and the ADKFN.
[25] While the land claims themselves remain outstanding, a number of agreements have been reached through the Dehcho Process. These include an “Interim Measures Agreement” entered into in 2001 between the Dehcho First Nations, Canada and the GNWT. Amongst other things, this Agreement clarified the role of the Dehcho First Nations in resource management decisions while negotiations are in progress. The Agreement also provides guidance to stakeholders until a final agreement is in place.
[26] The Dehcho Land Use Planning Committee [“DCLUPC”] was also established in 2001. Canada is a member of this Committee, which regulates conservation, development and utilization of the land, waters and other resources in the region.
[27] The DCLUPC developed maps for land use planning purposes, which attempted to show the boundaries between the traditional lands of the SKDB, the NBDB and the ADKFN. Correspondence was exchanged during this process, in which the SKDB and the NBDB identified each of their respective primary and traditional land use areas.
[28] An Interim Resource Development Agreement was entered into in October of 2003, which was designed to encourage oil and gas development in the Dehcho region in a way that allowed the Dehcho First Nations to benefit directly from resource development in advance of a final agreement.
[29] In 2005 and 2006, the SKDB, NBDB and ADKFN were in correspondence with the DCLUPC with respect to the boundaries between the lands of the SKDB, the ADKFN and the NBDB, for land use zoning purposes. In addition to recording the areas of disagreement between the First Nations, the correspondence from the SKDB and the NBDB also identified primary land use areas which fell squarely within the Settlement Area now being asserted by the ADKFN.
[30] In 2006, some of the primary land use areas claimed by the SKDB and the NBDB were accepted by the DCLUPC. This was reflected in the final draft Dehcho Land Use Planning zoning map, which was subsequently approved by the Dehcho First Nations.
The ADKFN Land Claims Process
[31] While Canada was initially unwilling to undertake community-by-community negotiations in relation to the land claims of individual First Nations within the Northwest Territories, this position appears to have changed sometime in 2007 or 2008, when Canada and the GNWT agreed to enter into community-based land claims discussions directly with the ADKFN. As was noted earlier, the ADKFN had felt for some time that its interests were not being adequately represented through the Dehcho Process, in part because of its extensive claims to lands outside the NWT.
[32] On July 14, 2008, the ADKFN signed its own framework agreement with Canada and the GNWT [“the ADKFN Framework Agreement”] in an effort to achieve its own comprehensive land claims agreement. The recitals to the ADKFN Framework Agreement provide that the parties to the Agreement intend to negotiate a comprehensive land claim to define and provide clarity to certain asserted lands, resources and governance rights of the ADKFN within the NWT.
[33] The ADKFN Framework Agreement outlines the objectives and timetables for the parties’ negotiations, the subject matters of those negotiations, and the approvals process for an eventual agreement in principle and final agreement.
[34] One of the issues identified in the ADKFN Framework Agreement as a “matter for negotiation” is the issue of “settlement area, land selection and tenure of Settlement Lands”. Section 12 of the ADKFN Framework Agreement provides that “[p]rior to concluding the Phase I Final Agreement, the Parties will finalize the Settlement Area taking into account any agreement concluded to resolve any overlap issues [in the NWT] between the Acho Dene Koe First Nation and any Aboriginal group”.
[35] Section 4.3 of the ADKFN Framework Agreement further provides that “Canada and the GNWT will offer and the Acho Dene Koe First Nation will accept a settlement offer based on their proportionate share of the offer made to the Dehcho First Nations through the Dehcho Process”.
[36] The ADKFN Framework Agreement relates to lands described as “the ADKFN Asserted Territory” which are identified on a map appended to the Agreement. Although lands in the Yukon and British Columbia are identified as ADKFN traditional territory on this map, the ADKFN Framework Agreement makes it clear that it is only the lands claimed by the ADKFN in the NWT that are the subject of the negotiations under the Agreement. These lands include areas claimed as primary use areas by the SKDB and the NBDB – lands which had been accepted as their primary use areas by the DCLUPC (of which Canada was a member) in 2006.
[37] Section 8 of the ADKFN Framework Agreement stipulates that negotiations under the Agreement are to be confidential. The ADKFN has, however, released the contents of the agreement to the public.
[38] Canada did not notify or consult with the SKDB and the NBDB prior to entering into the ADKFN Framework Agreement.
The Overlap Negotiations
[39] Canada has long been aware of the overlapping claims to land in the Dehcho region of the NWT. Canada’s policy has been that overlap issues should be resolved internally between the affected First Nations, wherever possible.
[40] To this end, Canada has encouraged the Dehcho First Nations, including the SKDB, NBDB and ADKFN, to resolve their boundary and overlap issues between themselves. The SKDB and the NBDB agree that this would be the most desirable way of resolving overlap issues.
[41] In an effort to assist the First Nations in resolving their overlap issues, Canada provided funding for negotiations between the three First Nations. Between 2008 and 2011, the SKDB and the NBDB were provided with $435,000 by Canada to support them in resolving the boundary issues. This money was used by the SKDB and NBDB to conduct research, to compile relevant documents, to hold community meetings, and to prepare for and attend meetings with the ADKFN.
[42] In July of 2008, Canada appointed Mr. Bob Overvold to act as the Minister’s Special Representative, to explore options for resolving overlapping interests in the Dehcho region generally. Although part of Mr. Overvold’s mandate required him to engage in discussions with Aboriginal groups regarding their interests in overlap areas, he had no mandate to engage in consultation on issues arising from the land claims negotiations processes.
[43] An information sheet provided to the SKDB and NBDB by Mr. Overvold outlines Canada’s approach to First Nation overlap issues, stating that overlap issues “should be dealt with early and throughout the negotiation process”.
[44] Mr. Overvold was invited to one meeting by the SKDB and NBDB. He also assembled information regarding the overlap concerns of the various First Nations and prepared a report and recommendations for the Minister. Amongst other things, his report questioned Canada’s current policy regarding consultation in relation to overlap issues, suggesting that Canada may want to “look for opportunities to begin overlap discussions, if not necessarily consultation, earlier”.
[45] A number of meetings were held between the three First Nations, but by June of 2010, the negotiations had broken down. Particular points of contention arose from the groups’ divergent views as to the issues and different visions for the process to follow in resolving them.
[46] By way of example, the ADKFN wanted a peace treaty, whereas the SKDB and the NBDB wanted an overlap and boundary agreement. The SKDB and the NBDB insisted on a meeting with elders and harvesters in order to establish historical and contemporary land use, while the ADKFN objected to such an approach. The ADKFN wanted to negotiate a comprehensive land claims treaty jointly with the SKDB and NBDB, whereas the SKDB and NBDB preferred to remain part of the Dehcho process.
[47] After the breakdown of the overlap negotiations, the SKDB and NBDB then contacted Mr. Overvold, explaining the situation to him, and advising that the SKDB and NBDB expected direct consultations with Canada to commence.
Notice Provided to Canada of the SKDB and NBDB’s Concerns
[48] In July of 2008, the SKDB notified Canada that a portion of the land identified as the ADKFN’s asserted territory in the ADKFN Framework Agreement was the SKDB’s “primary land use area”. The SKDB advised Canada that “any proposed development or assignment of lands within this area requires consultation with and approval of the [SKDB]”.
[49] The NBDB also wrote to Canada that same month, advising that the map appended to the ADKFN Framework Agreement indicating the ADKFN’s asserted territory included a portion of the NBDB’s traditional territory. The NBDB also advised Canada that any proposed development or assignment of this area required consultation with and approval of the NBDB.
[50] The SKDB and the NBDB also provided Canada with substantial documentation supporting their claims to the lands in question, including a map showing the extent of the overlapping claims, land use data, archaeological reports, traditional place names maps, and traditional use studies.
[51] Peter Redvers was the Negotiation Facilitator for the joint SKDB/NBDB negotiation team. In November of 2009, Mr. Redvers came into possession of a brochure prepared by Canada entitled “Acho Dene Koe First Nation and Fort Liard Métis Community-based Land, Resource and Governance Negotiations, Agreement-in-Principle Negotiations and the Land Selection Process”.
[52] Under the heading “Federal Offer”, the document stated that the ADKFN “would be able to select a total of 6,474 square kilometres of land within the NWT, for which it would own both the surface and sub-surface rights” [the “ADKFN Land Quantum”].
[53] According to Mr. Redvers’ affidavit, the SKDB and the NBDB have calculated that there are only 6,064 square kilometres of land in the south-west corner of the NWT that are outside of the SKDB and NBDB primary land use areas. Moreover, the surface and sub-surface rights to some of this land is currently in the hands of third parties. As a result, there is not enough land available to satisfy the ADKFN Land Quantum without infringing on the SKDB and NBDB’s primary land use areas, thus infringing their Aboriginal and Treaty rights.
[54] In November of 2009, counsel to the SKDB and the NBDB wrote to the Honourable Chuck Strahl, the then-Minister of Indian and Northern Affairs, formally advising him that the SKDB and the NBDB were of the view that the ADKFN Framework Agreement contemplated an “inevitable infringement” of their Treaty 11 and Aboriginal rights. As a consequence, the SKDB and NBDB were seeking immediate formal, direct and deep consultations with Canada.
[55] Canada responded to the SKDB and NBDB by way of letter dated December 21, 2009 from Pamela McCurry, the Senior Assistant Deputy Minister for Policy and Strategic Direction. The letter stated that the settlement area for the ADKFN would not be finalized until the final agreement phase. Ms. McCurry further stated that “the Government of Canada feels that it would be premature to enter into consultation until the outcome of these overlap discussions [with the ADKFN] is known” [my emphasis].
[56] In March of 2010, the SKDB and NBDB obtained a copy of a map that had been prepared by Canada which indicated the ADKFN’s asserted territory, which territory was now being called the “ADK Settlement Area”. The SKDB and the NBDB immediately contacted Canada, advising that the description in the map was “inaccurate and misleading and also prejudices current [boundary] negotiations”.
[57] According to the SKDB and NBDB, the ADKFN effectively terminated the overlap negotiations in a letter dated June 24, 2010, wherein ADKFN Chief Kotchea asserted that, based on the ADKFN’s Traditional Use Study, the “ADK [is] the sole owner and user of lands that you [SKDB and NBDB] assert you have interests in”.
[58] On May 21, 2011, the SKDB and NBDB wrote to the Minister himself, affirming their longstanding concern that negotiations carried out under the ADKFN Framework Agreement would inevitably lead to an infringement of their rights. They observed that Canada’s response to date had been to refer them to direct negotiations with the ADKFN in order to resolve the overlap and boundary issues. The SKDB and NBDB advised the Minister of the difficulties that they had encountered in these discussions, noting that the overlap negotiations did not relieve Canada of its duty to consult with them.
[59] The SKDB and the NBDB advised the Minister that they had been told that the ADKFN and Canada were close to reaching an agreement in principle which was to include a draft settlement map encompassing primary traditional lands of the SKDB and NBDB. Given their belief that this agreement would have a direct impact on their Aboriginal and Treaty rights, the SKDB and the NBDB renewed their request for the establishment of “a direct and formal consultation process between Canada and the SKDB-NBDB in the immediate future”.
[60] Receiving no response to their request for consultation, apart from a verbal confirmation of the receipt of their letter, the SKDB and NBDB renewed their efforts to be consulted. Counsel for the SKDB and NBDB wrote to Minister Duncan personally on August 30, 2011, stating that his letter “serve[d] as a final request of the SKDB and NBDB for Canada to fulfill its duty to consult and engage in immediate, meaningful and substantive consultations with the SKDB and the NBDB as to the potential infringements of the Treaty rights and the Aboriginal rights of the SKDB and NBDB concerning the ADKFN overlap”.
[61] Counsel further asked Canada to commit that it would not enter into any further agreements with the ADKFN until such time as consultations with the SKDB and NBDB were concluded, as any future agreement between Canada and the ADKFN “may eliminate consultation options and thereby prejudice the SKDB and the NBDB”.
The Decision under Review
[62] In a letter dated October 25, 2010, Minister Duncan responded to the SKDB and NBDB’s May 21, 2010 correspondence. The Minister stated:
I can assure you that the [SKDB] and the [NBDB] will be consulted. In order for such consultations to be meaningful and productive, however, they usually occur after the signing of an agreement-in-principle and no agreement-in-principle with the [ADKFN] has yet been signed.
[63] The Minister went on to explain that:
This is done for a number of reasons. First, the parameters of the draft agreement-in-principle are still under negotiations and are undefined. Second, defining the geographic scope of the settlement areas or of settlement lands is not required at the agreement-in-principle stage. This process will be done during final agreement negotiations. Third, the confidentiality of our negotiation processes prevents the sharing of draft agreements-in-principle. They become public documents upon signature by the parties.
[64] The Minister observed that agreements in principle are not legally binding, and that Canada would therefore be able to consider and address, “where warranted”, the claims and interests of other Aboriginal groups expressed through consultations occurring at that time. The Minister also noted that provisions are included in agreements in principle and final agreements that are intended to ensure that the Aboriginal and Treaty rights of other Aboriginal peoples are not affected by the agreements.
[65] The Minister concluded his letter by encouraging the SKDB and NBDB to continue to try to resolve the overlap issues through negotiations with the ADKFN, characterizing this as “the best way forward”.
[66] It is this decision that underlies this application for judicial review.
The SKDB and NBDB’s Application for Judicial Review
[67] The SKDB and the NBDB say that by delaying consultation with them until after an agreement in principle is entered into by Canada and the ADKFN, Canada has failed to comply with its legal and constitutional duty to consult with and properly accommodate the SKDB and NBDB.
[68] The applicants seek the following remedies:
1. A declaration that Canada owes the SKDB and NBDB a legal and constitutional duty to adequately consult with them in a timely manner as to the subjects of the land claim with ADKFN that would affect or potentially affect the Aboriginal and Treaty rights of the SKDB and NBDB, including the determination of lands and resources forming the settlement area or settlement lands of the ADKFN’s land claim, the use of such lands and resources, and the regulation or management of such lands and resources;
2. A declaration that the Minister’s decision to postpone consultation until after an AIP is signed with the ADKFN does not meet, fulfill or discharge the legal and constitutional duty of Canada as described above;
3. An order setting aside the Minister’s decision postponing the initiation and engagement in substantive consultations with the SKDB and NBDB;
4. An order directing the Minister to promptly initiate and engage in deep, meaningful and adequate consultation with the SKDB and NBDB with the intention of developing workable accommodation measures to address their concerns about the determination of lands and resources forming the settlement area or settlement lands of the ADKFN’s land claim, and the regulation or management of such lands and resources, in such a manner consistent with the reasons for judgment of this Court and subject to the following terms:
a. The terms of consultation are as determined by agreement between the Minister and the SKDB and NBDB, and in the event of failure to agree to such terms of consultation, either party can apply to this Court to establish them; and
b. Any of the parties is at liberty to reapply to this Court for such further additional relief as is required to advance and conclude the consultations;
5. An order prohibiting the Minister from negotiating further any term or condition under the ADKFN Framework Agreement that would reasonably affect the SKDB or the NBDB and from engaging in interim land withdrawals pursuant to such negotiations, pending conclusion of adequate consultation with the SKDB and NBDB; and
6. Its costs of this application on a solicitor-client basis.
The Issues
[69] Certain matters are not in dispute in this case. In particular, Canada concedes that:
1. The SKDB and NBDB enjoy the right to hunt, trap and fish throughout much of the area covered by Treaty 11;
2. The SKDB and NBDB have Treaty rights in relation to lands within the ADKFN Asserted Territory;
3. Canada is considering changes to the Treaty regime;
4. The SKDB and NBDB also claim to have Aboriginal rights to title to the land itself that are independent of their Treaty rights;
5. Canada has a duty to consult with, and if necessary, accommodate the SKDB and NBDB; and
6. Canada’s duty to consult with the SKDB and NBDB has been triggered by the negotiation of the ADKFN Framework Agreement.
[70] While there is no issue with respect to the existence of the duty to consult, what is in dispute in this case is the timing, scope and content of that duty.
[71] The first question to be addressed is the standard of review to be applied to the Minister’s decision with respect to the timing, scope and content of its consultations with the SKDB and NBDB.
Standard of Review
[72] In Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511 at paras. 61-63 [Haida Nation], the Supreme Court of Canada established the standard of review to be applied to Crown decisions relating to the duty to consult.
[73] Haida Nation teaches that on questions of law, the decision-maker must generally be correct, whereas a reviewing Court may owe a degree of deference to the decision-maker on questions of fact or mixed fact and law: above at para. 61.
[74] As noted in the preceding section of these reasons, the Crown concedes that it has a duty to consult with the SKDB and NBDB in this case. Insofar as the Minister’s determination of the extent of that duty is concerned, the Supreme Court stated in Haida Nation that the “extent of the duty to consult or accommodate is a legal question in the sense that it defines a legal duty. However, it is typically premised on an assessment of the facts. It follows that a degree of deference to the findings of fact of the initial adjudicator may be appropriate”: above at para. 61.
[75] The Court further noted that “[t]he need for deference and its degree will depend on the nature of the question the tribunal was addressing and the extent to which the facts were within the expertise of the tribunal”. The Court recognized that “[a]bsent error on legal issues, the tribunal may be in a better position to evaluate the issue than the reviewing court, and some degree of deference may be required”. In such cases, “the standard of review is likely to be reasonableness”: all quotes from Haida Nation, above at para. 61.
[76] Where “the issue is one of pure law, and can be isolated from the issues of fact, the standard is correctness”. However, where the factual and legal issues are inextricably entwined, the standard will likely be reasonableness: Haida Nation, above at para. 61.
[77] Insofar as the consultation process is concerned, the Supreme Court held in Haida Nation that “the process itself would likely fall to be examined on a standard of reasonableness”. Moreover, “[p]erfect satisfaction” is not required. According to the Supreme Court, “[t]he government is required to make reasonable efforts to inform and consult”. As long as “every reasonable effort is made to inform and to consult, such efforts would suffice”: all quotes from Haida Nation above at para. 62.
[78] Finally, the Supreme Court stated in Haida Nation that “[s]hould the government misconceive the seriousness of the claim or impact of the infringement, this question of law would likely be judged by correctness”. However, if the government is correct on these matters and acts on the appropriate standard “the decision will be set aside only if the government’s process is unreasonable”. The focus should not be on the outcome, but rather on the process of consultation and accommodation: both quotes from Haida Nation, above at para. 63.
[79] It should be noted that Haida Nation was decided before the Supreme Court’s decision in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190. However, in Ahousaht Indian Band v. Canada (Minister of Fisheries and Oceans), 2008 FCA 212, 297 D.L.R. (4th) 722 at para. 34, the Federal Court of Appeal confirmed that Dunsmuir did not change the applicable standard of review in relation to decisions regarding the duty to consult. See also Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43, [2010] 2 S.C.R. 650, at para. 74.
The Source and Function of the Duty to Consult and Accommodate
[80] In order to put the issues raised by this application into context, it is helpful to start by considering the law relating to the source and function of the duty to consult and accommodate.
[81] As the Supreme Court of Canada observed in Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69, [2005] 3 S.C.R. 388 at para. 1, the management of the relationships between Canada’s Aboriginal and non-Aboriginal peoples “takes place in the shadow of a long history of grievances and misunderstanding”. The Court noted that the “multitude of smaller grievances created by the indifference of some government officials to Aboriginal people's concerns, and the lack of respect inherent in that indifference has been as destructive of the process of reconciliation as some of the larger and more explosive controversies”: at para. 1.
[82] It was in this context that the Supreme Court stated that “the fundamental objective of the modern law of Aboriginal and Treaty rights is the reconciliation of Aboriginal peoples and non-Aboriginal peoples and their respective claims, interests and ambitions”: Mikisew, above at para. 1.
[83] The duty to consult and, if indicated, to accommodate, is grounded in the honour of the Crown. In order to act honourably, the Crown cannot “cavalierly run roughshod over Aboriginal interests where claims affecting these interests are being seriously pursued in the process of treaty negotiation and proof”: Haida Nation, above at para. 27. Instead, the Crown must respect these potential, but as yet unproven, interests.
[84] While Haida Nation involved Aboriginal rights rather than Treaty rights, subsequent jurisprudence has confirmed that the same principles apply in treaty cases: see, for example, Mikisew, above at para. 34, and Ka'a'Gee Tu First Nation v. Canada (Attorney General), 2007 FC 763, 315 F.T.R. 178 at para. 96.
[85] The duty to consult has both a legal and a constitutional character: Rio Tinto, above at para. 34, and R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483 at para. 6. It is, moreover, “a corollary of the Crown's obligation to achieve the just settlement of Aboriginal claims through the treaty process”: Rio Tinto, above at para. 32, citing Haida Nation at para. 20.
[86] As the Supreme Court observed in Rio Tinto, “[w]hile the treaty claims process is ongoing, there is an implied duty to consult with the Aboriginal claimants on matters that may adversely affect their Treaty and Aboriginal rights, and to accommodate those interests in the spirit of reconciliation”: Rio Tinto, above at para. 32, citing Haida Nation at para. 20. The duty to consult requires that the Crown take contested or established Aboriginal rights into account before making a decision that may have an adverse impact on them: Rio Tinto, above at para. 35.
[87] The Supreme Court explained that the duty to consult “derives from the need to protect Aboriginal interests while land and resource claims are ongoing or when the proposed action may impinge on an Aboriginal right”: Rio Tinto, above at para. 33. In the absence of such a duty, Aboriginal groups would have to commence litigation and seek injunctive relief in order to stop the threatening activity, a process that has often met with obstacles.
[88] The duty to consult is primarily a procedural right: Mikisew, above at para. 33. It is not based on the common law duty of fairness, however. Rather, it is a duty based on “a process of fair dealing and reconciliation that begins with the assertion of sovereignty and continues beyond formal claims resolution”: Haida Nation, above at para. 32.
[89] While primarily procedural in nature, the duty to consult also has a substantive dimension. The duty “is not fulfilled simply by providing a process within which to exchange and discuss information”: Wii'litswx v. British Columbia (Minister of Forests), 2008 BCSC 1139, [2008] 4 C.N.L.R. 315 at para. 178. Rather, consultation must be meaningful and conducted in good faith “with the intention of substantially addressing the concerns of the Aboriginal peoples whose lands are at issue”: Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010, [1997] S.C.J. No. 108 at para. 168; see also Arthur Pape, “The Duty to Consult and Accommodate: A Judicial Innovation Intended to Promote Reconciliation” in Aboriginal Law since Delgamuukw, ed. Maria Morellato (Aurora, ON: Cartwright Group Ltd., 2009) at 317.
[90] As long as the consultation is meaningful, there is no obligation on the Crown to reach an agreement. Rather, accommodation requires that “Aboriginal concerns be balanced reasonably with the potential impact of the particular decision on those concerns and with competing societal concerns. Compromise is inherent to the reconciliation process”: Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), 2004 SCC 74, [2004] 3 S.C.R. 550 at para. 2.
[91] However, “where there is a strong Aboriginal claim that may be significantly and adversely affected by the proposed Crown action, meaningful consultation may require the Crown to modify its proposed course to avoid or minimize infringement of Aboriginal interests pending their final resolution”: Wii’litswx, above at para. 178. See also Haida Nation, above at paras. 41-42, 45-50; Taku River, above at para. 29; Mikisew, above at para. 54.
[92] With this understanding of the source and function of the duty to consult and accommodate, I turn next to consider when it is that the duty to consult will arise.
When Does the Duty to Consult and Accommodate Arise?
[93] Canada is required to consult with its Aboriginal peoples where it “has knowledge, real or constructive, of the potential existence of the Aboriginal right or title and contemplates conduct that might adversely affect it”: see Haida Nation, above at para. 35.
[94] The knowledge threshold that must be met to trigger the duty to consult and accommodate is not high: see Mikisew, above at para. 55. Indeed, knowledge of a credible but unproven claim is sufficient to trigger the duty: Haida Nation, above at para. 37. The Crown will always have knowledge of Treaty rights, as a Treaty party: Mikisew, above at para. 34.
[95] Although it is essential that the Aboriginal people establish the existence of a potential claim, proof that the claim will succeed is not required: see Rio Tinto, above at para. 40.
[96] While the threshold for triggering a duty to consult is relatively low, the content of the duty to consult will vary with the circumstances. One relevant consideration is the strength of the claim. A weak claim may only require the giving of notice whereas a stronger claim may attract more onerous obligations on the part of the Crown: see Haida Nation, above at para. 37. The content of the duty to consult in the circumstances of this case will be discussed in greater detail later in these reasons.
a) The Nature of the Claims in Question and the Crown’s Knowledge of the Claims
[97] The SKDB and NBDB claim to have both Aboriginal and Treaty rights in relation to the lands claimed by them. As the Supreme Court of Canada noted in R. v. Badger, [1996] 1 S.C.R. 771, [1996] S.C.J. No. 39, Aboriginal and Treaty rights “differ in both origin and structure”. Aboriginal rights “flow from the customs and traditions of the native peoples” and “embody the right of native people to continue living as their forefathers lived”. In contrast, Treaty rights “are those contained in official agreements between the Crown and the native peoples”: all quotes from para. 76.
[98] There is no issue in this case as to the existence of the SKDB and NBDB’s Treaty rights. As was noted earlier, the Crown accepts that the SKDB and NBDB have ongoing rights under Treaty 11 to hunt, fish and trap within the lands claimed by the ADKFN as its exclusive territory.
[99] Canada also does not dispute that it has knowledge sufficient to trigger a duty to consult with the SKDB and NBDB in relation to these Treaty rights. Canada maintains, however, that this consultation should not occur until after Canada has reached an agreement in principle with the ADKFN.
[100] Canada does not concede that the SKDB and NBDB have Aboriginal rights to the land itself. While Canada disputes the well-foundedness of these claims, it clearly has knowledge of them by virtue of its participation in land claims negotiations with SKDB and NBDB in Dehcho Process.
[101] I am therefore satisfied that the Crown has sufficient knowledge to trigger a duty of consult in relation to both the Treaty rights and the Aboriginal claims (including rights to the land) asserted by the SKDB and NBDB.
b) The G