Innu Nation Inc. v. Canada (Crown-Indigenous Relations)

Innu Nation Inc. v. Canada (Crown-Indigenous Relations)
Court (s) Database
Federal Court Decisions
Date
2024-06-12
Neutral citation
2024 FC 896
File numbers
T-1606-19
Decision Content
Date: 20240612
Docket: T-1606-19
Citation: 2024 FC 896
Ottawa, Ontario, June 12, 2024
PRESENT: The Honourable Madam Justice Strickland
BETWEEN:
INNU NATION INC.
Applicant
and
THE ATTORNEY GENERAL OF CANADA (Representing The Minister Of Crown-
Indigenous Relations) and NUNATUKAVUT COMMUNITY COUNCIL INC.
Respondents
and
NUNATSIAVUT GOVERNMENT
Intervener
JUDGMENT AND REASONS
[1] This is an application for judicial review of the September 5, 2019, decision of the Minister of Crown-Indigenous Relations [Minister] to enter into a Memorandum of Understanding on Advancing Reconciliation [MOU] with the Respondent, the Nunatukavut Community Council [NCC].
The Parties Innu Nation Inc. – Applicant [2] The submission of the Applicant, Innu Nation Inc. [Applicant or Innu Nation Inc.], describes the Innu people as belonging primarily to Mushuau Innu First Nation and Sheshatshiu Innu First Nation, referring collectively to these peoples as the “Innu of Labrador,” who the Applicant states are an Aboriginal people under section 35 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Constitution Act, 1982]. Innu Nation Inc. is described as a corporation incorporated under the laws of the Province of Newfoundland and Labrador [Province] to represent the rights and interests of the Innu, including in ongoing land claim and self-government negotiations.
[3] Innu Nation Inc. indicates that treaty negotiations between Canada, the Province and Innu Nation started in 1978, after Innu Nation submitted a claim under the Comprehensive Land Claims Policy, and that negotiations toward a final agreement are ongoing. Innu Nation Inc. submits that a final agreement, once ratified, will recognize a range of rights to lands and waters in Labrador, including ownership and jurisdiction over lands in some areas and rights to hunt, harvest, fish and benefit from economic developments in others. In that regard, Canada’s submissions indicate that the Innu Nation, Canada and the Province have been engaged in modern treaty negotiations since 1997 and, as a part of that process, those parties signed a Framework Agreement on March 29, 1996, and an Agreement-in-Principle on November 18, 2011, and are now at the stage of completing negotiations for a Final Agreement.
NunatuKavut Community Council Inc. – Respondent [4] The Respondent, NCC, describes itself as an Inuit governing body. It indicates that it was formed in 1981 as the Labrador Métis Association [LMA] and incorporated into a society in 1985 to advocate for the recognition and protection of its people’s rights as Indigenous people. LMA changed its name in 1998 to Labrador Métis Nation and, finally, to NCC in 2010.
[5] NCC indicates that it has been in the process of seeking recognition from Canada of its rights since 1991, when it submitted its first claim application as an “Inuit descendants claim” under the Comprehensive Land Claims Policy as it existed at that time. NCC subsequently applied on at least two other occasions under that policy, but these applications were also unsuccessful.
[6] NCC indicates that in late 2016, Canada invited NCC to participate in a reconciliation engagement process to advance the acceptance of NCC’s comprehensive land claim, which concluded in 2017. In July 2018, the Minister established a Recognition of Indigenous Rights and Self-Determination [RIRSD] discussion table with NCC to advance reconciliation. Subsequently, NCC and Canada, as represented by the Minister, entered into the MOU.
Attorney General of Canada – Respondent [7] The Attorney General for Canada [Attorney General] represents the Minister of Crown-Indigenous Relations in this application for judicial review. The Minister’s powers, duties, functions and responsibilities are described in the Department of Crown-Indigenous Relations and Northern Affairs Act, SC 2019, c 29 (cif July 15, 2019) [CIRNA Act].
Nunatsiavut Government – Intervener [8] The Nunatsiavut Government [NG] was granted leave to intervene in this application by Order of the Case Management Judge on May 2, 2023. The NG was permitted to file a memorandum of fact and law not to exceed 10 pages in length. The Order also states that, subject to the discretion of the applications judge, the NG shall not present oral submissions at the hearing of the application. I declined a subsequent request by NG to be permitted to make oral submissions.
[9] The NG describes itself as the successor to the Labrador Inuit Association, which completed a land claims agreement with Canada and the Province that came into force in 2005. The Labrador Inuit Land Claims Agreement is a land claims agreement protected by section 35 of the Constitution Act, 1982 (Labrador Inuit Land Claims Agreement Act, SC 2005, c 27, ss 3 and 11).
The Challenge to the MOU [10] The content of the MOU is described below and a copy of the MOU is attached as Schedule A to these reasons. The decision of the Minister to enter into the MOU is challenged by the Applicant.
[11] The Applicant, in essence, asserts that the MOU recognizes NCC as “an Indigenous collective capable of holding section 35 Aboriginal rights for the purpose of entering into discussions regarding rights recognition and self-determination,” committing Canada and NCC to discussing what Aboriginal rights NCC may have; the beneficiaries of those rights; NCC jurisdiction over land, sea and ice; and, the exercise of NCC rights over land, sea and ice. However, that the lands to which NCC asserts Aboriginal title and rights are the subject of treaty negotiations between the Innu Nation, Canada and the Province. That treaty will, once concluded, recognize and protect the Innu of Labrador’s Aboriginal rights and title to those lands. Given that NCC’s Aboriginal rights and title claim overlaps with the Innu’s, the Applicant asserts that the MOU threatens to impact the Innu’s Constitution Act, 1982, section 35 rights [Section 35 Rights], delay the completion of the Innu’s treaty and/or undermine the recognition or scope of the Innu’s rights and title under the treaty. The Applicant submits that the MOU adversely impacts the Innu’s Section 35 Rights and, therefore, is reviewable by this Court.
[12] The Applicant also submits that the decision was incorrect. The Applicant says that this is because the MOU is inconsistent with section 35 of the Constitution Act, 1982. Section 35(1) only recognizes and affirms the rights of the “Aboriginal peoples of Canada.” Section 35(2) identifies the “Aboriginal peoples of Canada” as Indian, Inuit and Métis peoples. NCC claims to be Inuit, but Canada has previously found that there is insufficient evidence supporting NCC’s claim to be Inuit. Despite this, the MOU states that NCC is “capable of holding” Section 35 Rights as an “Indigenous collective.” This gives NCC a legal recognition to which it is not entitled: only the Aboriginal peoples of Canada are “capable of holding” Section 35 Rights. NCC is not one of the Aboriginal peoples of Canada, and it cannot hold Section 35 Rights as an “Indigenous collective.” The decision is therefore inconsistent with section 35 of the Constitution Act, 1982. It also exceeded the Minister’s statutory authority, which is limited to relations with the Aboriginal peoples of Canada. Because NCC is not one of the Aboriginal peoples of Canada, the Minister had no authority to conclude the MOU with them.
[13] The Applicant also submits that the decision is unreasonable. This is because it cannot be justified in relation to the governing statutory scheme, the CIRNA Act. NCC is not one of the Aboriginal peoples of Canada, and the Minister’s powers, duties, functions and responsibilities under the CIRNA Act do not extend to relations with the NCC. Further, the decision cannot be justified in relation to the facts constraining the Minister’s decision making, including Canada’s previous findings that there is insufficient evidence that NCC is one of the Aboriginal peoples of Canada. Nor can the MOU be justified in relation to common law tests for determining whether a group is one of the Aboriginal peoples of Canada.
[14] Finally, the Applicant submits that, because the MOU adversely impacts their Section 35 Rights, the Minister was obligated to consult with them prior to deciding to enter into the MOU, but the Minister failed in their duty to consult.
[15] The Applicant requests that the Court grant an order quashing the MOU and declaring that the Minister did not have the statutory authority or jurisdiction to enter into the MOU. In the alternative, that the Court grant an order quashing the MOU and declaring that the Minister failed to discharge the Crown’s duty to consult and accommodate the Applicant and directing the Minister to promptly initiate and engage in deep, meaningful and adequate consultation.
The MOU
[16] By way of summary, the MOU is a six-page document. It starts with a preamble that, among other things, states that, by entering into the MOU, Canada and NCC commit to renewing and strengthening their nation-to-nation relationship; that the parties wish to explore new ways to advance reconciliation based on recognition of rights, respect, co-operation and meaningful partnership; that NCC identifies as an Inuit collective and has a longstanding assertion of Indigenous rights (including Aboriginal Title and Treaty Rights) to their asserted traditional territory of NunatuKavut; that Canada has recognized NCC as an Indigenous collective capable of holding section 35 Aboriginal rights, for the purpose of entering into discussions regarding rights recognition and self-determination; that the parties wish to work towards a common understanding of the scope and nature of the legal rights of NCC’s membership; and, that the Minister is representing Canada in these RIRSD discussions and will invite other federal departments and agencies to participate, as appropriate, in the RIRSD discussion-table process.
[17] The MOU acknowledges that an RIRSD discussion table has been established and identifies its objectives. These objectives are (a) to identify the nature of the rights that NCC may hold, identify the beneficiaries of those rights and include this information for consideration in any Joint Mandate Proposal, and (b) to develop one or more mutually acceptable joint negotiation mandates [Joint Mandates] for approval through each party’s internal process, to serve as the basis for negotiations between the parties to advance reconciliation (MOU, para 2).
[18] The MOU states that, when approved by both parties, the Joint Mandate(s) will identify NCC priorities, which are not limited to but may include, among other topics, “[j]urisdiction over land, sea and ice and exercise of rights over land, sea and ice, where established” (MOU, para 3(a)). Where approved by both parties, any Joint Mandate(s) will also define the process for negotiations (MOU, para 4).
[19] The MOU addresses its legal status and states that, except for paragraphs 13, 14-15, 17-19, 22 and 25, the MOU is not legally binding and is “intended only as an expression of good will and political commitment, and does not create, amend, recognize or deny any legal or constitutional right or obligation on the part of either Party” (MOU, paras 13 and 25).
[20] The MOU states that the parties acknowledge that Canada may have a duty to consult an Indigenous group other than NCC which has or may have rights that are protected by section 35 of the Constitution Act, 1982 and that may be adversely affected by a product of the RIRSD discussion table. And, in order to ensure that such duty is fulfilled, Canada may disclose to the other Indigenous group all or part of such product (in final or draft form) (MOU, para 19(a)). Similarly, the parties acknowledge that Canada may have a duty to consult NCC in respect of a product (final or draft) of negotiations between Canada and another Indigenous group which may adversely affect the asserted or established Section 35 Rights of NCC (MOU, para 20). The parties also acknowledge that where there is any overlap between the asserted rights of NCC, and the asserted or established rights of other Indigenous groups, it is desirable that the overlap be addressed by discussions between NCC and the other Indigenous group (MOU, para 21(a)).
Issues [21] The Applicant identifies the issues in this matter as whether the Minister’s decision to enter the MOU was correct and reasonable and whether the Minister discharged their constitutional duty to consult the Applicant prior to entering the MOU.
[22] Having reviewed the submissions of the parties, I would frame the issues as follows:
Is the challenged Crown conduct, the entering into the MOU, justiciable?
Does the Applicant have standing to bring this application for judicial review?
Did the Minister have a duty to consult with the Applicant prior to entering into the MOU?
Was the Minister’s decision to enter the MOU correct or reasonable?
Preliminary Observation [23] It may add some context and clarity to the reasons that follow to state, at the outset, what is and is not the subject matter of this judicial review. This judicial review is concerned solely with the Minister’s decision to enter into the MOU. Questions as to whether the NCC is, or is not, an “aboriginal peoples of Canada” as defined in section 35(2) of the Constitution Act, 1982 or what, if any, Aboriginal rights NCC may or may not have, and the relative strengths of any asserted rights of the Applicant and NCC with respect to any overlapping claims, are well beyond the scope of this judicial review.
[24] In that regard, I acknowledge that the Applicant has expended considerable effort in asserting its view that NCC has previously failed to establish, under the Comprehensive Land Claims Policy, that NCC is an Aboriginal people of Canada.
[25] For its part, the NCC has expended considerable effort in asserting its view that its efforts to establish itself as an Aboriginal people of Canada, with associated rights, have been ongoing, and that various courts have recognized its claim as credible.
[26] It is not in dispute that the NCC has previously made unsuccessful claims under Canada’s Comprehensive Land Claims Policy.
[27] In that regard, the background to NCC’s claims is described in the affidavit of Mr. Casiel Rosenberg, Manager of Federal Negotiations, Northwest Territories Negotiations Directorate, Treaties and Aboriginal Government, Department of Crown-Indigenous Relations and Northern Affairs [Rosenberg Affidavit], filed by Canada in response to this application for judicial review. The Rosenberg Affidavit states that it provides background information about Canada’s Comprehensive Land Claims Policy and the Recognition of Indigenous Rights and Self-Determination (RIRSD) Framework, as well as information about the status of modern treaty negotiations with the Innu Nation and background information about the development of the MOU.
[28] With respect to the NCC, the Rosenberg Affidavit states that the NCC is a corporate body under the laws of the Province and self-identifies as an Inuit organization. The NCC represents communities of people in central and southern Labrador who identify as southern Inuit. The NCC, or its predecessor, submitted a claim under Canada's Comprehensive Land Claims Policy on November 8, 1991. Following the initial claim submission, NCC, or its predecessor, filed two additional claim submissions. The claim was reviewed by Canada under the presumption that the claim was being made by an Inuit group. On several occasions from 1998 onward, Canada informed the NCC, or its predecessors, that the claim did not contain sufficient evidence to be accepted as a comprehensive land claim.
[29] However, as NCC and Canada point out, there have also been a number of court decisions involving NCC.
[30] The most significant of these is Labrador Métis Nation v Newfoundland & Labrador, 2007 NLCA 75 [Labrador Métis Nation]. The Newfoundland and Labrador Court of Appeal [NLCA] addressed the underlying issue of whether individuals of aboriginal descent living in southern Labrador had a sufficiently credible claim to communal aboriginal rights to trigger an obligation on the Crown to consult with them concerning wetland and watercourse crossings affected by Phase III of the Trans-Labrador Highway [TLH]. The applications judge had concluded they did. The Crown based its appeal primarily on the grounds that the LMN failed to produce sufficient evidence of a continuing aboriginal community and that neither it nor an individual representing the LMN should have standing to pursue the claim.
[31] The NLCA held that it was not always necessary to self-identify as either Inuit or Métis before the Crown's duty to consult and accommodate was triggered and that there had been sufficient evidence before the applications judge to support a credible claim that the claimants belong to an aboriginal people within section 35(1) of the Constitution Act, 1982:
36 I do not accept the appellants' submission that claimants always have to self-identify as either Inuit or Métis before the Crown's duty to consult and accommodate is triggered. I agree with the respondents that it was sufficient in the present case to assert a credible claim that the claimants belong to an aboriginal people within s. 35(1) of the Constitution Act, 1982. The respondents have established this by the affidavit evidence of Carter Russell, Todd Russell and Trent Parr, showing they are of mixed Inuit and European ancestry whose Inuit bloodlines have originated from those Inuit ancestors that resided in south and central Labrador prior to European contact. The unrefuted evidence before the applications judge was sufficient to demonstrate a credible claim that the members of the 24 LMN communities know they have genetic, cultural and land use continuity with their Inuit forebears, have a regional consciousness of a regional community, and occupy and use, for traditional hunter/gatherer purposes, lands and waters threatened with adverse effects by construction of the TLH.
37 Whether the present day LMN communities are the result of an ethnogenesis of a new culture of aboriginal peoples, that arose between the period of contact with Europeans and the date of the effective imposition of European control, is not yet established, although it is possible that such an ethnogenesis occurred. If so, the members of the LMN communities could be, in law, constitutional Métis.
38 However, it is also possible that the LMN communities are simply the present-day manifestation of the historic Inuit communities of south and central Labrador that were present in the area prior to contact with the Europeans. Or they may be the manifestation of a culture which developed only after effective European control in Labrador had occurred, in which case, on the basis of Powley, the culture could be viewed as involving non-aboriginal customs and practices, unprotected by s. 35(1). The fact that the actual bloodlines of the present-day aboriginal persons may have a mix of European and Inuit ancestry does not detract from the argument that the LMN communities may have "Inuit" aboriginal rights. The present-day manifestation of this authentic Inuit culture may simply have been impacted by centuries of Euro-Canadian encounter and influence.
39 The LMN communities have not refused to self-identify with a specific constitutional definition but they reasonably say they are unable, at the present time, to do so definitively. This position may change as further historical, archeological, anthropological and other information is obtained and as the law provides further guidance on these complex issues. In any event, definitive and final self-identification with a specific aboriginal people is not needed in the present circumstances before the Crown's obligation to consult arises. All the respondents had to do was establish, as they did, certain essential facts sufficient to show a credible claim to aboriginal rights based on either Inuit or Métis ancestry. The situation might be different if the right adversely affected only flowed from one of the Inuit or Métis cultures. But that is not the case. Here fishing rights are in issue. Those rights are not dependent upon whether the claim is Inuit or Métis-based. Fishing rights flow from both types of claims. The applications judge did not need to determine the issue of ethnicity.
[32] The NLCA also found that while the evidence before the applications judge was insufficient to establish an ethnogenesis or the actual date of effective control, the judge’s other findings were sufficient to satisfy the test from R v Van der Peet, [1996] 2 SCR 507 and establish a credible claim based upon Inuit ancestry. Accordingly, that the Crown's analysis should have arrived at the same result, namely, that the LMN had a credible claim which triggered a duty to consult (paras 43-45).
[33] With respect to the scope of the duty to consult, a "preliminary evidence-based assessment" of the strength of the respondents' claim, such as discussed in Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73 [Haida] at paras 37 and 39, supported the view that the LMN was more than a "dubious" or "peripheral" or "tenuous" one, which would attract merely a duty of notice. Rather, the LMN had “established a prima facie connection with pre-contact Inuit culture and a continuing involvement with the traditional Inuit lifestyle. They have presented sufficient evidence to establish that any aboriginal rights upheld will include subsistence hunting and fishing” (para 51).
[34] The NLCA concluded, among other things, that: the LMN need not ethnically identify themselves definitively as Inuit or Métis before the Crown's duty to consult and accommodate arises; the applications judge erred in identifying the respondents as Métis, when the parties had made their submissions on the basis of Inuit rights, but this error did not invalidate his ultimate conclusion; the applications judge did not err in concluding that the respondents had a credible but unproven claim, giving rise to the Crown's duty to consult; and, the LMN’s claim was at least strong enough to trigger a duty to consult at the low level requested.
[35] Other cases cited by NCC and Canada include Nunatukavut Community Council Inc v Canada (Attorney General), 2015 FC 981. There, the NCC challenged a decision of the Minister of Fisheries and Oceans authorizing impacts to fish and fish habitat arising from the construction of the proposed Muskrat Falls hydro-electric generating station. In that case, I noted that the NCC described itself as the self-governing organization representing the interests of the Inuit descendants (sometimes referred to as Inuit-Métis) of central and southern Labrador; that the NCC was formed in 2010; that, in 1991, the NCC's predecessor, the LMA (later known as the LMN), filed a land claim document with Canada; and that it filed additional research in 1996 and did so again in 2010 in the form of a document entitled Unveiling NunatuKavut, Describing the Lands and People of South/Central Labrador, document in Pursuit of Reclaiming a Homeland, NunatuKavut, 2010 [Unveiling NunatuKavut]. In the matter then before me, there was no dispute as to whether the Crown owed a duty to consult with NCC with respect to the project. Rather, at issue was the scope of that duty and, therefore, the depth of the consultations required. I noted that, generally speaking, the scope of the duty is proportional to a preliminary assessment of the strength of the case supporting the existence of the right or title claimed, and the seriousness of the potential adverse effects on that right or title (Haida at para 39). At that time, NCC's claim, although originally rejected by Canada, was being re-assessed. Before me, the NCC had not made substantive submissions supporting the strength of its claim in the context of a spectrum analysis. And, while Unveiling NunatuKavut was in the record, the Court had not been asked to and was not in a position to assess that document so as to determine the strength of the NCC's claim. Accordingly, I found that the best that could be done in those circumstances was to adopt the finding of the NLCA in Labrador Métis Nation, being that the claim was at least strong enough to trigger a duty to consult at the lower level.
[36] Canada and NCC also refer to cases pertaining to injunctive relief. These include Nalcor Energy v NunatuKavut Community Council Inc, 2014 NLCA 46 and Nunatukavut Community Council Inc v Newfoundland & Labrador Hydro-Electric Corp, 2011 NLTD 44.
[37] In sum, the 2007 decision of the NLCA in Labrador Métis Nation is the only case of those cited by Canada and the NCC that actually substantively engaged (at the applications level) with NCC’s asserted rights. I described it in some detail above to demonstrate what that decision actually determined. Specifically, that LMN (now NCC) had a credible but unproven claim that was at least strong enough to trigger a low level of consultation. Subsequent case law has also recognized this. However, NCC’s claim to be an Aboriginal people of Canada with attendant Section 35 Rights has not been otherwise litigated. All efforts to resolve the claim have been by way of negotiation.
Preliminary Evidentiary Issues [38] The jurisprudence is clear that, as a general rule, the evidentiary record before a reviewing court on judicial review is restricted to the evidentiary record that was before the decision-maker. Evidence that was not before the decision-maker and that goes to the merits of the matter is, with certain limited exceptions, not admissible (Association of Universities and Colleges of Canada v Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22 at para 19 [Access Copyright]. The exceptions are an affidavit that: provides general background in circumstances where that information might assist the court in understanding the issues relevant to the judicial review; brings to the attention of the reviewing court procedural defects that cannot be found in the evidentiary record of the administrative decision-maker, so that the judicial review court can fulfil its role of reviewing for procedural unfairness; or, highlights the complete absence of evidence before the administrative decision-maker when it made a particular finding (Access Copyright at paras 19-20; Bernard v Canada Revenue Agency, 2015 FCA 263 [Bernard] at para 30).
i. NCC Evidentiary Challenge [39] NCC submits that Exhibit G of the Affidavit of Grand Chief Etienne Rich, a member of Sheshatshiu Innu First Nation and Grand Chief of Innu Nation Inc. [Chief Rich Affidavit], affirmed on November 3, 2022, and submitted by the Applicant in support of the application for judicial review, is inadmissible or should be afforded no weight.
[40] Exhibit G is a document obtained by the Applicant by way of an Access to Information Act request made in 2003. It is a review of LMN’s Comprehensive Land Claims Policy submission. It is partially redacted and conducts a review of academic articles. It is undated and unsigned. The Applicant, and Chief Rich in his affidavit, rely on this document to support their view that NCC is not an Aboriginal collective capable of holding Section 35 Rights.
[41] This document is not contained in the certified tribunal record [CTR] and, therefore, is inadmissible on judicial review unless it falls within one of the above-described exceptions. The Applicant makes no submissions in that regard in their written submissions. When appearing before me, the Applicant asserted that the document supported their contention that the Minister’s decision to enter the MOU was not justified, as the document was not found in the CTR or considered by the Minister. Even if I were to consider the document to be general background information or to provide factual or contextual matters not explicitly evident elsewhere in the CTR, but which was obviously known to the Minister (Leahy v Canada (Citizenship and Immigration), 2023 FCA 227 at para 145), nothing turns on this document. It is not disputed that NCC has, in the past, submitted claims under the Comprehensive Land Claims Policy that were not accepted because of insufficient information. Accordingly, I afford Exhibit G little weight.
ii. Canada’s Evidentiary Challenge [42] Canada submits that Exhibits G, O, P, R, S, V and T of the Chief Rich Affidavit are inadmissible.
[43] I have dealt with the admissibility of Exhibit G above.
[44] Exhibits O and P do not match their descriptions in the Chief Rich Affidavit. The Chief Rich Affidavit and the Attorney General both say Exhibits O and P are letters to the Province from counsel for the Applicant concerning a provincial consultation process. However, Exhibit O is a letter from NCC’s counsel to the Province responding to an invitation by the Province to address any concerns arising from a commercial cutting permit application. Exhibit P is a copy of the MOU, the decision under review. To the extent that the Applicant takes issue with NCC’s involvement in the Province’s commercial cutting permit application – the Chief Rich Affidavit asserts that this is interference with a benefits agreement entered into by the Applicant and the project proponent – that issue is not relevant to the matter before me, nor is Exhibit O found in the CTR. Accordingly, Exhibit O is not admissible.
[45] Exhibits R, S, and V are copies of news articles that report about the signing of the MOU. They post-date the signing of the MOU. Generally speaking, newspaper articles are inadmissible as they are hearsay and because they lack the necessary reliability to be admitted as evidence before a court (Democracy Watch v Canada (Attorney General), 2024 FCA 75 at para 7).
[46] Exhibits R and S are referred to in support of Chief Rich’s understanding of what the scope of the negotiations between NCC and Canada might be, including creating a formal process with Canada that may give rise to agreement about NCC’s rights. However, the MOU is the decision under review. Thus, it is the terms of the MOU, and not a newspaper article discussing the MOU, that may delimit the scope of any negotiations.
[47] Exhibit V reports that Ms. Yvonne Jones, a Member of Parliament [MP], was named as a respondent in the subject application for judicial review and that she took issue with the Innu Nation’s position. The Chief Rich Affidavit is unclear as to what the news article demonstrates. He refers to a conversation between his predecessor and Ms. Jones (to which Chief Rich was not a party) and his belief that she stated during that conversation that discussions with NCC did not involve land claims. Chief Rich asserts this was not correct because a month later the MOU was signed. Further, that Ms. Jones used her position as an MP to criticize the Innu Nation’s leadership.
[48] It is possible that Exhibit V was intended to support the allegation found in the Amended Notice of Application that the MOU is “based on the political interest of Ms. Jones and the Minister,” which are improper considerations that would render the decision to enter into the MOU ultra vires. However, the claim that the decision was made for an improper purpose was not pursued in the Applicant’s written or oral submissions. The article is therefore irrelevant.
[49] I agree with the Attorney General that these news articles are inadmissible hearsay and that they are extrinsic to the record without falling into any of the exceptions to admissibility on judicial review. They are inadmissible.
[50] Exhibit T is a bundle of documents apparently obtained in response to another Access to Information Act request. The documents contained in the bundle are partially redacted and are comprised mostly of email communications setting meeting dates and agendas as well as entirely redacted RIRSD meeting notes. Chief Rich attests that the Applicant is shocked and frustrated at the apparent urgency with which Canada is treating NCC’s claim as opposed to the Innu Nation’s claim. Chief Rich states that he is advised by counsel that these documents “appear to show” negotiations between NCC and Canada continue even after the application for judicial review was filed. However, the Applicant did not seek an injunction to stay any RIRSD discussion table discussions or other interactions between Canada and NCC pending the outcome of this judicial review. Therefore, in that regard, the documents are not relevant as NCC and Canada were free to continue the RIRSD discussions. With the exception of the question of the duty to consult, I agree with the Attorney General that this exhibit is irrelevant to the matters at issue, as well as being extrinsic to the record without falling into any of the exceptions. With respect to the duty to consult, the bundle is admissible as the documents could, potentially, demonstrate events triggering that duty. However, as in fact they do not demonstrate any developments in the RIRSD discussion table process, I afford them little weight.
iii. Applicant’s Evidentiary Challenge [51] The Applicant takes issue with paragraphs 4-7, 21-22, 26, and 30 of the affidavit of Todd Russell, President of NCC, sworn on May 25, 2023 [Russell Affidavit], and filed in response to this application for judicial review. The basis of the Applicant’s challenge is that these paragraphs are not restricted to the affiant’s personal knowledge and attempt to bootstrap the CTR.
[52] Paragraphs 4-7 of the Russell Affidavit describe who the NunatuKavut Inuit are, how they are descended from pre-contact Inuit, where their territory was located, and the activities they engaged in (and continue to engage in) with respect to that territory. Paragraphs 21-22 and 26 provide an explanation of the former use of the term “Métis” by the LMA and assert that the NCC have always been Inuit with an unbroken line of continuity with respect to living on the lands, to the heritage and to the culture of the NunatuKavut Inuit. Paragraph 30 explains that, at the time the original land claim was made 32 years ago, the necessary evidence to advance the NCC’s claim did not exist.
[53] It is true that Rule 81(1) of the Federal Courts Rules, SOR/98-106 [Rules] requires that affidavits be confined to facts within the deponent’s personal knowledge. It is also obvious that Mr. Russell cannot have personal knowledge of the ancestral history of the NCC. Nor does he purport to provide expert opinion evidence. I am also not persuaded, as NCC proposes, that this is a circumstance where the Federal Court’s Practice Guidelines for Aboriginal Law Proceedings (September 2021, 4th Edition) are appropriately applied. Here, testimony is not being given orally by an Elder (there is no evidence that Mr. Russell is an Elder or an equivalent thereof) or as to an oral history of NCC.
[54] However, for purposes of this application for judicial review, what is relevant and what is not disputed is that NCC has, in the past, submitted claims under the Comprehensive Land Claims Policy that were not accepted because of insufficient information. Accordingly, I accept these paragraphs as general background information providing only NCC’s perspective as to its claim to be entitled to be recognized as an Aboriginal people of Canada with associated rights, and afford them little weight.
Justiciability Applicant’s Position [55] The Applicant submits that the Crown’s conduct in the present case is justiciable because it affects the legal rights of NCC, and because it affects the legal rights of and causes prejudicial effects to the Innu Nation. According to the Applicant, the MOU affects NCC’s rights because it determines that NCC, as an Indigenous collective, is capable of holding Section 35 Rights. And, even if Canada reaffirms that NCC does not have Section 35 Rights or title, giving NCC “a seat at the table” to discuss what Section 35 Rights it may have is a “legal benefit” to which NCC, as a mere Indigenous collective, has no constitutional entitlement. Canada has previously found that NCC is incapable of holding Section 35 Rights.
[56] Further, that the MOU affects the Applicant’s rights. This is because it is a strategic high-level decision that may impact the Applicant’s claims and rights, which triggered the duty to consult. The obligation to consult includes an obligation by the Crown to consult with Indigenous groups when it signs preliminary agreements to negotiate with another Indigenous group that has an overlapping rights or title claim, even if, like the MOU, such an agreement is not legally binding and its impacts may not be immediate (citing Sambaa K’e Dene Nation v Duncan, 2012 FC 204 at paras 164-170 and 174 [Sambaa]).
[57] According to the Applicant, any discussion of NCC’s jurisdiction over land, sea and ice and the exercise of such rights, which discussions the MOU commits Canada and NCC to having, will invariably encroach on the Innu’s claim area. Recognition of NCC’s rights will also lead to greater competition for economic benefits from development in that territory. The MOU therefore adversely impacts the Innu’s Section 35 Rights, making the decision to enter into the MOU justiciable.
Intervener’s Position [58] The NG did not make submissions specific to the issue of justiciability.
NCC’s Position [59] The NCC submits that the Crown conduct at issue does not affect legal rights, impose legal obligations or cause prejudicial effects (citing Democracy Watch v Canada (Attorney General), 2021 FCA 133 at para 23 [Democracy Watch]). The Minister’s decision to enter the MOU is a political commitment and does not have an impact on the rights of the parties. Nor does the MOU create or recognize rights or obligations. It also does not recognize NCC as an Aboriginal people under section 35 of the Constitution Act, 1982. Accordingly, any impact on NCC’s, Canada’s or the Applicant’s rights are entirely speculative and do not arise from the MOU.
[60] The NCC suggests that the Applicant is really attacking Canada’s decision to enter into discussions with NCC in the first place ‒ but that decision pre-dates the MOU and does not impact the Applicant’s rights. NCC was invited to join the RIRSD discussion table in July 2018. The Applicant is, according to the NCC, attempting to use the MOU to bring Canada’s earlier decision to enter discussions before the Court. This should not be permitted (citing Air Canada v Toronto Port Authority, 2011 FCA 347 at paras 29, 35, 42-43 [Air Canada]).
Canada’s Position [61] On justiciability, the Attorney General says that the decision to enter into the MOU is not adjudicative in nature and is therefore not amenable to judicial review. The MOU does not create, recognize or deny any legal or constitutional right or obligation on the part of either party. The MOU does not recognize the NCC as “Aboriginal peoples of Canada” pursuant to section 35 of the Constitution Act, 1982. Rather, the MOU is a policy decision to engage in without-prejudice discussions with NCC. It is intended as an expression of goodwill and a political commitment to discussion. This distinction – whether the decision is political or adjudicative in nature – is what determines whether an issue is justiciable. The Attorney General also voices concern that the Applicant fuses the distinct roles that negotiation and litigation play in advancing reconciliation. The outcomes of negotiated arrangements need not be resolved as they would through judicial proceedings. A finding that the MOU is amenable to review on substantive grounds would undermine the reconciliatory object of section 35 of