Long Plain First Nation v. Canada

Long Plain First Nation v. Canada
Court (s) Database
Federal Court Decisions
Date
2012-12-20
Neutral citation
2012 FC 1474
File numbers
T-139-08
Decision Content
Date: 20121220
Docket: T-139-08
Citation: 2012 FC 1474
Toronto, Ontario, December 20, 2012
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
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 OF
TREATY NO.1 AND KNOWN AS "TREATY
ONE FIRST NATIONS"
Applicants
and
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
Respondents
AMENDED REASONS FOR JUDGMENT AND JUDGMENT
[1] This application deals with real property located within the City of Winnipeg known as the Kapyong Barracks. This property lies within the territory dealt with under a treaty known as Treaty No. 1, entered into in 1871 between Her Majesty Queen Victoria and certain aboriginal bands located within that territory. Her Majesty in Right of Canada is the successor to Queen Victoria and has used that property for military purposes. The Applicants are a number of aboriginal bands who, as successors to the Treaty signatories, have made various claims as to their interest in this property. In November 2007, the Government of Canada decided that it would sell this property to a non-agent Crown corporation for the purpose of disposal by that corporation. The Applicants are seeking to set aside that decision.
[2] For the reasons that follow, I find that the application made by some but not all of the applicants is allowed, the decision to sell the property will be set aside and any further decision to sell is enjoined until after Canada has fulfilled its duty to consult in a meaningful way.
[3] For convenience, I am providing the following index to these Reasons:
INDEX
HISTORY OF THIS LITIGATION
Paras 4 to 8
DETERMINATIONS BY THE FEDERAL COURT OF APPEAL
Para 9
DETERMINATIONS BY JUSTICE CAMPBELL
Paras 10 to 11
THE PARTIES
Paras 12 to 17
WHAT IS THE PROPERTY AT ISSUE?
Paras 18 to 20
BASIS FOR THE CLAIM
Paras 21 to 27
SAGKEENG AND SANDY BAY
Paras 28 to 29
LONG PLAIN, SWAN LAKE, ROSEAU RIVER
Paras 30 to 35
PEGUIS
Paras 36 to 42
WHAT DECISION WAS MADE BY CANADA IN RESPECT OF THE PROPERTY AT ISSUE?
Para 43 to 44
DOCUMENTS AND ACTIONS RELATING TO THE DECISION
Paras 45 to 60
RELIEF REQUESTED
Para 61
ISSUES
Para 62
STANDARD OF REVIEW
ISSUE #1: Whether Canada had a duty to consult with some or all of the Applicants?
ISSUE #2: If there was a duty to consult, what was the scope of that duty?
ISSUE #3: If there was a duty, did Canada adequately fulfil that duty within the required
Scope?
Paras 63 to 80
Paras 66 to 67
Paras 68 to 74
Paras 75 to 80
IN CONCLUSION
Paras 81 to 82
HISTORY OF THIS LITIGATION
[4] This litigation has an unhappy history. The matter came before Justice Campbell of this Court in 2009. In a Judgment dated September 30, 2009, he declared that:
Canada had a legal duty to consult on its decision to dispose of surplus federal lands at Kapyong Barracks and Canada did not meet that duty; and, in particular,
Canada acted contrary to law by failing to meet the mandatory legal requirement of consultation with the Brokenhead and Peguis First Nations before the making of the November 2007 decision to transfer the surplus lands at Kapyong Barracks to the Canada Lands Company pursuant to the Treasury Board Directive on the Sale or Transfer of Surplus Real Property; and, as a result,
The November 2007 decision is invalid.
I award cost of the present Application to the Applicant First Nations.
[5] Justice Campbell provided reasons cited as 2009 FC 982, [2009] FCJ No 1150.
[6] The Respondent, Canada, appealed from that decision and the matter was heard by the Federal Court of Appeal; Nadon, Letourneau and Sexton JJA, in 2011. They allowed the appeal with costs and sent the matter back to this Court, to a Judge other than Campbell J, for redetermination in light of their Reasons (cited as 2011 FCA 148, [2011] FCJ No 638), written by Nadon JA for the Court. I repeat the conclusion of those Reasons at paragraphs 50 to 54:
50 I therefore conclude that the Judge's reasons are inadequate. They do not grapple with and attempt to resolve the difficult legal issues and the confusing evidentiary record that were before him. At paragraph 55 of her Reasons in R.E.M., the Chief Justice sets forth what, in her view, appellate courts should be looking for when attempting to determine whether a judge's reasons are adequate:
[55] The appellate court, proceeding with deference, must ask itself whether the reasons, considered with the evidentiary record, the submissions of counsel and the live issues at the trial, reveals the basis for the verdict reached. It must look at the reasons in their entire context. It must ask itself whether, viewed thus, the trial judge appears to have seized the substance of the critical issues on the trial. If the evidence is contradictory or confusing, the appellate court should ask whether the trial judge appears to have recognized and dealt with the contradictions. If there is a difficult or novel question of law, it should ask itself if the trial judge has recognized and dealt with that issue.
51 In my view, the Judge failed to seize the substance of the critical issues before him. He also failed to deal adequately with the evidence before him in that he did not address key aspects thereof and did not, as a result, make any findings in regard thereto which would have allowed this Court to conduct a meaningful appellate review.
52 The only alternative open to us, other than returning the matter to the Federal Court, would be for this Court to transform itself into a court of first instance and to make fresh findings of fact and determinations of law based on those findings. That is not our role. Consequently, I am satisfied that we are not in a position to conduct effective appellate review in these circumstances.
53 I note in passing that following the Judge's decision there have been jurisprudential changes in aboriginal law resulting from the Supreme Court's decisions in Rio Tinto Alcan Inc. v. Carrier Skenai Tribal Council, 2010 SCC 43, [2010] 2 S.C.R. 650, and Beckman v. Little Salmon/Carmacks First Nation, 2010 SCC 53, [2011] 1 C.N.L.R. 12, ("Beckman"), where the Court discusses when the duty to consult is triggered and how modern land claim agreements, such as those before us in the present matter, shape that duty. In particular, the Judge who redetermines the issues may wish to consider the Crown's argument about the effect of the release provisions in the Crown's respective agreements with the respondents in light of what the Supreme Court said in Beckman about the weight to be given to provisions in properly negotiated, sophisticated land agreements.
54 For these reasons, I would therefore allow the appeal with costs, I would set aside the Judge's decision and I would refer the matter back to the Chief Justice of the Federal Court or to a judge, other than Campbell J., designated by the Chief Justice for redetermination of the issues in the light of these Reasons.
[7] I will proceed with the mandate of the Federal Court of Appeal having reheard this matter in early December 2012. It must be noted that, by Order of Prothonotary Lafrenière dated September 13, 2012, additional evidence was filed that was not before the Court of Appeal or Justice Campbell. That evidence included documents obtained by the Applicants from the Government of Canada under the provisions of the Access to Information Act, RSC 1985, c.A-1.
[8] At paragraph 52 of its Reasons the Court of Appeal declined to make “fresh findings of fact” preferring instead to send the matter back to this Court. I will, therefore, determine this matter de novo. I will, however, be guided by the determinations of the Court of Appeal and those determinations of Justice Campbell accepted by the Court of Appeal.
DETERMINATIONS BY THE FEDERAL COURT OF APPEAL
[9] The Federal Court of Appeal made a number of factual determinations based on the record before them at the time. Those determinations are, in the most part, accepted by the parties. It is to be remembered that there has been additional evidence filed as a result of Prothonotary Lafrenière’s Order, supra. I repeat the determinations as found at paragraphs 3 through 24 of the unanimous Reasons of the Court of Appeal as written by Nadon JA:
3 In 1871, the aboriginal bands of Manitoba and Canada signed Treaty No. 1. Pursuant thereto, the aboriginal bands agreed to give up their title to the land that now comprises the province of Manitoba in exchange for Canada setting aside a certain amount of land for their exclusive use: 160 acres per family of five. This provision has come to be known as the "per capita provision". For reasons which are not relevant to the determination of this appeal, Canada did not fulfill its end of the bargain.
4 The land claims of five of the respondents were found to be valid by Canada. Hence, in the 1990s, Canada signed treaty land entitlement ("TLE") agreements with these respondents to rectify its failure to fulfill the per capita provision: in 1994 with the Long Plain First Nation ("Long Plain"), in 1995 with the Swan Lake First Nation ("Swan Lake"), in 1996, with the Roseau River Anishinabe First Nation ("Roseau River") and in 1997, the Brokenhead Ojibway Nation ("Brokenhead") negotiated its claim through the Treaty Land Entitlement Committee of Manitoba Inc. ("TLEC"). That year, TLEC executed the Manitoba Treaty Land Entitlement Framework Agreement (the "Framework Agreement") with Canada. Pursuant thereto, Brokenhead signed its separate TLE Agreement in 1998. In 2008, Peguis First Nation ("Peguis") signed its Agreement with Canada.
5 Each of these agreements entitled the aforementioned bands to acquire private land and to acquire provincial "Crown land" - defined as land that is owned by or under the administration and control of Manitoba and is situated within the Province of Manitoba - on a priority basis to fulfill their treaty land entitlement. The right to acquire land on a priority basis essentially amounts to a right of first refusal with respect to the category of land to which the right relates. The nature and extent of this priority is described in the respondents' agreements with Canada. The priority does not, however, give any of the respondents an entitlement to acquire the land because all of the agreements specify that land will be transferred only on a willing buyer/willing seller basis.
6 The type of arrangement made with each of the respondents varies. With respect to the respondents Long Plain, Swan Lake and Roseau River, their agreements provide for a specific amount of funding from Canada so as to allow them to purchase land to meet their outstanding entitlements. These agreements do not provide for the acquisition of surplus federal land and make no mention, other than in the case of the Agreement with Roseau River, of land under the administration and control of Canada. As to Roseau River's Agreement, it provides at clause 4.12 that it may purchase land under the administration and control of Canada at fair market value.
7 With respect to the respondents Brokenhead and Peguis, their agreements allow them to select a specified amount of unoccupied provincial Crown land and "other land", which includes surplus federal land, and stipulate that Canada will provide an amount of funding for their use in the purchasing of that land. The agreements with Brokenhead and Peguis further provide that these respondents are entitled to notice from Canada whenever the federal Crown intends to dispose of certain "surplus federal land" - defined for Brokenhead in the Framework Agreement at subclause 1.01(88), and for Peguis at subclause 1.01(82). Both provisions are identical and read as follows:
"Surplus Federal Land" means any "federal real property", as defined in the Federal Real Property Act, excluding any "real property" as defined in the Federal Real Property Act to which the title is vested in a "federal crown corporation" as defined in section 83 of the Financial Administration Act, that is:
(a) within the Province of Manitoba;
(b) determined by a "minister", as defined in the Federal Real Property Act, who has the "administration", as defined in the Federal Real Property Act, of that "federal real property", to no longer be required for the program purposes of that "minister's" department;
(c) determined by that "minister" to be available for sale; and
(d) made available by that "minister" to any "other minister" of Canada for a transfer of administration in accordance with any then existing policies or directives of the Treasury Board of Canada;
8 Both of these agreements set out the process for the respondents to acquire surplus federal land. However, to repeat, the agreements do not provide the respondents with an entitlement to acquire the land, but allow them to acquire such land on a willing buyer/willing seller basis. As an example of this is clause 3.05(2) of the Framework Agreement which provides that "Other Land", which includes surplus federal land, may be purchased by a First Nation "on a 'willing buyer/willing seller' basis".
9 There are no agreements with the last two respondents. The claim of the respondent Sagkeeng First Nation ("Sagkeeng") remains outstanding, with Canada awaiting further submissions and evidence in respect of the claim. As to the claim of the respondent Sandy Bay Ojibway First Nation ("Sandy Bay"), Canada and the Indian Claims Commission have rejected it on the ground that Sandy Bay's treaty land entitlement has already been fulfilled.
The Barracks:
10 The Barracks are comprised of two units. One unit covers 159.62 acres of land and includes the operational section of an armed forces base centrally-located within the city of Winnipeg. The other unit covers 61.78 acres of land and includes the married quarters area of the base. Canada says that a decision has been made only with respect to the operational section of the base.
11 On April 12, 2001, a news release from the Department of National Defence ("DND") announced that the Barracks were being closed. At some point following this announcement, the Department of Indian and Northern Development ("DIAND") received notice from DND that the Barracks would be declared surplus.
12 Shortly after the closure announcement, Brokenhead and Long Plain expressed interest in the Barracks.
13 Effective July 1, 2001, Treasury Board enacted the Policy which governs the disposal of surplus federal real property. The Policy divided surplus property disposal into two categories: routine and strategic. All property falls into the first category unless it has an especially high market value or is "sensitive" - in which case it becomes "strategic". The respondents did not seek judicial review of the Policy.
14 In November 2001, Treasury Board decided that the Barracks would be disposed of through the "strategic" process. As a result of this designation and pursuant to the Policy, the Barracks were no longer available to those of the respondents who were entitled to purchase that land on a priority basis. The end result of the strategic disposal process is that the property will be assessed and then transferred to CLC, a federal non-agent Crown corporation which disposes of property for the federal government. The respondents also did not challenge this decision.
15 In August 2002, Long Plain informed Canada that it remained interested in the Barracks. In September 2002, Canada informed Long Plain that disposal of the Barracks would take place pursuant to the strategic disposal process.
16 On December 4, 2002, DIAND sent a letter to each of the respondents notifying them that the Barracks would be dealt with as a strategic disposal and that, as a result, their interest therein would not be considered on a priority basis.
17 In response to DIAND's letter, Brokenhead and Long Plain indicated to Canada that they remained interested in the Barracks.
18 In January 2003, Brokenhead initiated the dispute resolution provisions of the Framework Agreement, arguing that the Barracks should not have been removed from the scope of its Agreement with Canada.
19 In March 2003, DIAND asked Long Plain and Brokenhead - the two respondents that had expressed interest in the Barracks - for specific information with regard to the amount of land each was interested in acquiring, the proposed purchase price for that land and the proposed use for any land purchased.
20 Brokenhead and Long Plain subsequently continued to express interest in the Barracks and held several meetings with DIAND. After February 2004, Canada received no further communication from any of the respondents with respect to the Barracks until September 2007.
21 On November 1, 2006, Treasury Board issued the Directive amending the Policy, which provided that Canada should consider the possible effects of declaring a property to be strategic on any relevant aboriginal rights or claims.
22 On September 5, 2007, the respondents wrote to DIAND, advising that they were laying claim to the Barracks as part of their unfulfilled treaty land entitlements. More particularly, the respondents' claim was premised upon a claim of aboriginal title, not only to the Barracks, but to the entire city of Winnipeg. However, by the time of the hearing before the Judge, the respondents' claim was not as broad in that they asserted only a right to be consulted by Canada in respect of reserve land promises made to them pursuant to the per capita provision in Treaty No.1.
23 In November 2007, Treasury Board approved the transfer of the Barracks to CLC for development and disposal outside of the scope of the agreements.
24 On January 25, 2008 the respondents commenced an application for judicial review of the November 2007 Treasury Board decision to transfer the Barracks to CLC, seeking a declaration that Canada had a legal duty to consult and accommodate them before disposing of the Barracks.
DETERMINATIONS BY JUSTICE CAMPBELL
[10] The Federal Court of Appeal, at paragraph 35, accepted as adequate paragraphs 1 to 16 of Justice Campbell’s Reasons. They wrote at paragraph 35:
35 The beginning of the Judge's Reasons is adequate. He first describes the background context of the case: at paragraphs 1 to 6. He then establishes that correctness is the proper standard of review: at paragraph 7. Next, he reviews some of the relevant jurisprudence pertaining to the honour of the Crown, the principle of reconciliation, and the duty to consult: at paragraphs 8 to 16. However, with respect, the remainder of the Judge's Reasons is rife with uncertainty and contradiction. I see at least eight problems, six of which bear on the adequacy of his reasons and two of which reveals a different kind of error.
[11] Therefore, I repeat what Justice Campbell wrote at paragraphs 1 to 16 of his Reasons:
1 CAMPBELL J.:— The present Application is an effort by the Applicant Manitoba First Nations to have the Government of Canada recognize, and act upon, its Treaty obligations to them with respect to land. In order to achieve these objectives the First Nations must establish that: a Treaty right to land currently exists; the right is currently in the process of being implemented; and there are legal expectations upon Canada with respect to the conduct of the implementation which have not been met. I find that the First Nations are wholly successful in meeting these objectives. The following paragraphs provide a brief summary of my reasons for arriving at this conclusion.
2 In 1871 the Aboriginal People of Manitoba and the Government of Canada came to a land agreement: Treaty No. 1. Among other features, the Aboriginal People were expected to give up title to land to make way for immigration, and in return Canada promised to set aside a certain amount of land for their exclusive use. This promise created a Treaty right to land. The Aboriginal People kept their side of the bargain, but Canada did not. This fact is the single most important feature of the contemporary land dispute which is at the centre of the present Application.
3 To properly fulfill the compensation-by-land expectation placed on Canada by the Treaty, modern agreements have been negotiated with certain Manitoba Treaty First Nations. The agreements provide for a process whereby First Nations may select certain lands or purchase certain lands with funds supplied by Canada. By agreement, lands so acquired will, in turn, be made into reserves. These agreements are the fulfillment of the Treaty right to land and are currently being implemented. The Supreme Court of Canada has clearly stated the tone and terms that should govern the implementation of this Treaty process. The present Application focuses on the legal expectations placed upon Canada to consult with the Applicant First Nations before any of its decision-making might or does have an adverse effect on the Treaty right to land.
4 The expectation to consult concerns Canada's decision-making with respect to the disposition of a large and valuable tract of "surplus" land it owns in the core of Winnipeg known as the Kapyong Barracks. Canada has a particular obligation to consult with two of the Applicant First Nations, Brokenhead and Peguis, because each has a right to acquire Federal surplus land. For the reasons which follow, I find that, in its decision-making, Canada has not met the legal expectations placed upon it to so consult, and, as a result, I find that the decision-making with respect to Kapyong Barracks is invalid.
I. The Treaty Right to Land
5 The following features of Treaty No. 1, signed on August 3, 1871 by the Treaty Commissioners and the Aboriginal People concerned, state the specific and solemn land promise that Canada is obligated to fulfill:
[2nd paragraph] Whereas all the Indians inhabiting the said country have pursuant to an appointment made by the said Commissioner, been convened at a meeting at the Stone Fort, otherwise called the Lower Fort Garry, to deliberate upon certain matters of interest to Her Most Gracious Majesty, of the one part, and to the said Indians of the others, and whereas the said Indians have been notified and informed by Her Majesty's said Commissioner that it is the desire of her Majesty to open up to settlement and immigration a tract of country bounded and described as hereinafter mentioned, and to obtain the consent thereto of her Indian subjects inhabiting the said tract, and to make a treaty and arrangements with them so that there may be peace and good will between them and Her Majesty, and that they may know and be assured of what allowance they are to count upon and receive year by year from Her Majesty's bounty and benevolence.
[...]
[5th paragraph] The Chippewa and Swampy Cree Tribes of Indians and all other the [sic] Indians inhabiting the district hereinafter described and defined do hereby cede, release, surrender and yield up to her Majesty the Queen and successors forever all the lands included within the following limits, [...]
[6th paragraph] [...].To have and to hold the same to Her said Majesty the Queen and Her successors for ever; and Her Majesty the Queen hereby agrees and undertakes to lay aside and reserve for the sole and exclusive use of the Indians the following tracts of land, that is to say: For the use of the Indians belonging to the band of which Henry Prince, otherwise called Mis-koo-ke-new is the Chief, so much of land on both sides of the Red River, beginning at the south line of St. Peter's Parish, as will furnish one hundred and sixty acres for each family of five, or in that proportion for larger or smaller families; for the use of the Indians of whom Na-sha-ke-penais, Na- na-we-nanaw, Ke-we-tayash and Wa-ko-wush are the Chiefs, so much land on the Roseau River as will furnish one hundred and sixty acres for each family of five, or in that proportion for larger and smaller families beginning from the mouth of the river; and for the use of the Indians of which Ka-ke-ka-penais is the Chief, so much land on the Winnipeg River above Fort Alexander as will furnish one hundred and sixty acres for each family of five, or in that proportion for larger and smaller families, beginning at a distance of a mile or thereabout above the Fort; and for the use of the Indians of whom Oo-za-we-kwun is the Chief, so much land on the south and east side of the Assiniboine, about twenty miles above the Portage, as will furnish one hundred and sixty acres for each family of five, or in that proportion for larger and smaller families, reserving also a further tract enclosing said reserve to comprise an equivalent to twenty-five square miles of equal breadth, to be laid out round the reserve, it being understood, however, that if, at the date of execution of this treaty, there are any settlers within the bounds of any lands reserved by any band, her Majesty reserves the right to deal with such settlers as She shall deem just, so as not to diminish the extent of land allotted to the Indians.
[Emphasis added]
(Applicant's Record, Vol. 1, pp. 50 - 51)
Decades ago, Canada formally admitted that its land promise in Treaty No. 1 was not kept. Specifically to rectify this breach, Manitoba First Nations entered into Land Entitlement Agreements with Canada and the Province of Manitoba. One method of rectifying the breach set in place by the Agreements was the provision by Canada of some $109,000,000 to be used by First Nations to purchase land to fulfill the requirements of the per capita land promise in the Treaty. As will be fully described below, of interest to the Applicant First Nations, and in particular to Brokenhead and Peguis, is the purchase of surplus lands owned by Canada in Winnipeg, being the Kapyong Barracks.
6 The Applicant First Nations argue that Canada's outstanding obligation to fulfill its promise and the existence of the Land Entitlement Agreements represent a current Treaty right to land:
The Applicant First Nations do not dispute that aboriginal title was affected by Treaty 1. The First Nations agreed to share their lands, to open them up for peaceful immigration and settlement. This commitment has been honoured throughout the years since the treaty was made, and has never been disputed. The Treaty relationship is a living one which endures perpetually. It follows as a matter of course that the Crown's outstanding Treaty Land obligations would require the Crown to consult with them with respect to its disposal of lands which the Crown has declared surplus and which become available as Crown lands to fulfill the Crown's outstanding obligations.
(Reply of the Applicant First Nations to the written submissions of the Respondents in respect of questions posed by Justice Campbell, para. 23)
However, Canada argues as follows:
Treaty No.1 extinguished Aboriginal title to all the lands to which it relates, including the Kapyong Barracks. The various contemporary Treaty Land Entitlement Agreements fulfill the federal Crown's obligations in respect of the historically unfulfilled per capita treaty land provisions of Treaty No.1.
(Written Submissions of the Respondents in respect of Questions posed by Justice Campbell, para.11)
7 It is agreed that the standard of review for determining whether a Treaty right to land exists is correctness. There is no dispute that the Treaty promised Aboriginal People that they would receive land. I find that there is no question that this promise created a right which endures to today. That is, while certain lands were ceded by the Treaty, nevertheless, certain lands were promised to which the Aboriginal People had, and still have, a right. I find that the Agreements are only a vehicle whereby Canada's obligation to meet this outstanding right is to be fulfilled; the obligation is not fulfilled until the per capita obligation is, in fact, met and the right endures until that time. It is not disputed that the Agreements have not yet resulted in the acquisition of land to meet Canada's per capita promise. As a result, I find that Treaty No. 1, including the Treaty right to land which it creates, is still very much in the implementation stage.
II. The Legal Expectations of the Conduct of the Treaty Agreement Process
8 There is a significant body of law which provides guideposts for Canada to follow in its past and continuing relationship with the Applicant First Nations with respect to their Treaty right to land.
9 Chief Justice McLachlin in Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511, at paragraph 20, speaks to the legal expectations of unresolved Treaty rights:
Where treaties remain to be concluded, the honour of the Crown requires negotiations leading to a just settlement of Aboriginal claims: R. v. Sparrow, [1990] 1 S.C.R. 1075, at pp. 1105-6. Treaties serve to reconcile pre-existing Aboriginal sovereignty with assumed Crown sovereignty, and to define Aboriginal rights guaranteed by s.
35 of the Constitution Act, 1982. Section 35 represents a promise of rights recognition, and "[it] is always assumed that the Crown intends to fulfill its promises" (Badger, supra, at para. 41). This promise is realized and sovereignty claims reconciled through the process of honourable negotiation. It is a corollary of s. 35 that the Crown act honourably in defining the rights it guarantees and in reconciling them with other rights and interests. This, in turn, implies a duty to consult and, if appropriate, accommodate.
A. The Honour of the Crown
10 In Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), [2005] 3 S.C.R
388, the Supreme Court of Canada was asked to review the Crown's duty to consult in the context of Treaty 8 and the transfer of lands in Alberta. On this issue, at paragraph 51, Justice Binnie gave this direction:
The duty to consult is grounded in the honour of the Crown, and it is not necessary for present purposes to invoke fiduciary duties. The honour of the Crown is itself a fundamental concept governing treaty interpretation and application that was referred to by Gwynne J. of this Court as a treaty obligation as far back as 1895, four years before Treaty 8 was concluded: Province of Ontario v. Dominion of Canada (1895), 25 S.C.R. 434, at pp. 511-12 per Gwynne J. (dissenting). While he was in the minority in his view that the treaty obligation to pay Indian annuities imposed a trust on provincial lands, nothing was said by the majority in that case to doubt that the honour of the Crown was pledged to the fulfillment of its obligations to the Indians. This had been the Crown's policy as far back as the Royal Proclamation of 1763, and is manifest in the promises recorded in the report of the Commissioners. The honour of the Crown exists as a source of obligation independently of treaties as well, of course. In Sparrow, Delgamuukw v. British Columbia [1997] 3 S.C.R. 1010, Haida Nation and Taku River, the "honour of the Crown" was invoked as a central principle in resolving aboriginal claims to consultation despite the absence of any treaty.
[Emphasis added]
In addition, at paragraph 33, Justice Binnie recognizes that Treaty implementation is a process within which the Crown is obligated to act honourably:
Both the historical context and the inevitable tensions underlying implementation of Treaty 8 demand a process by which lands may be transferred from the one category (where the First Nations retain rights to hunt, fish and trap) to the other category (where they do not). The content of the process is dictated by the duty of the Crown to act honourably. Although Haida Nation was not a treaty case, McLachlin C.J. pointed out, at para. 19:
The honour of the Crown also infuses the processes of treaty making and treaty interpretation. In making and applying treaties, the Crown must act with honour and integrity, avoiding even the appearance of "sharp dealing" (Badger, at para. 41). Thus in Marshall, supra, at para. 4, the majority of this Court supported its interpretation of a treaty by stating that "nothing less would uphold the honour and integrity of the Crown in its dealings with the Mi'kmaq people to secure their peace and friendship."
[Emphasis added]
11 It is important to note that the Yukon Court of Appeal in its decision on Little Salmon/Carmacks First Nation v. Yukon (Minister of Energy, Mines and Resources), 2008 YKCA 13, at paragraph 67 relied on Justice Binnie's reasons to conclude that "the honour of the Crown and a duty to consult and accommodate applies in the interpretation of treaties and exists independent of treaties."
B. Reconciliation
12 The Treaty Commissioner for Saskatchewan sees Treaty implementation as part of a process of reconciliation. The Commissioner's following comment, cited by the Applicant First Nations, is a helpful observation in understanding the importance of a non-litigious engagement between Aboriginal People and government when making decisions which directly affect Aboriginal Treaty rights:
In law, as both the Haida and Mikisew cases emphasize, reconciliation is a "process," and that process does not end with the making of a treaty. The process carries on through the implementation of that treaty and is guided by a duty of honourable dealing. The very nature of the treaties is to establish mutual rights and obligations. Fulfilling treaties is not a one-way street. Accordingly, the honour of Treaty First Nations is also at stake in the treaty implementation process. As the Supreme Court of Canada has stated, "At all stages, good faith on both sides is required."
("Treaty Implementation: Fulfilling the Covenant", Office of the
Treaty Commissioner, Saskatoon, 2007, pp. 127 - 128)
(Reply of the Applicant First Nations to the written submissions of the Respondents in respect of questions posed by Justice Campbell, para. 35)
13 It is fair to say that the negotiation of Land Entitlement Agreements under Treaty No. 1 was a process of reconciliation between the interests and ambitions of Aboriginal People and the Federal and Manitoba Crown. The Applicant First Nations rely on Justice Binnie's direction, at paragraph 1, in Mikisew Cree First Nation with respect to this intended reconciliation in challenging Canada's conduct by the present Application:
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. The management of these relationships takes place in the shadow of a long history of grievances and misunderstanding. 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.
(Reply of the Applicant First Nations to the written submissions of the Respondents in respect of questions posed by Justice Campbell, para. 17)
C. Duty to Consult
14 Chief Justice McLachlin in Haida Nation at paragraph 35 defines the test for when the duty to consult arises:
But, when precisely does a duty to consult arise? The foundation of the duty in the Crown's honour and the goal of reconciliation suggest that the duty arises when the Crown has knowledge, real or constructive, of the potential existence of the Aboriginal right or title and contemplates conduct that might adversely affect it.
[Emphasis added]
15 The Supreme Court of Canada first addressed the scope and content of consultation in Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010 where at paragraph 168 it stated that "consultation must be in good faith, and with the intention of substantially addressing the concerns of aboriginal peoples whose lands are at issue." Subsequent jurisprudence such as Haida Nation adds to this statement by finding that consultation might range from, at the lower end of the spectrum, giving notice of a decision that might affect a right, to meaningful consultation at the higher end, depending on the infringement on the right in question.
16 In Haida Nation at paragraph 46, Chief Justice McLachlin describes meaningful consultation:
Meaningful consultation may oblige the Crown to make changes to its proposed action based on information obtained through consultations. The New Zealand Ministry of Justice's Guide for Consultation with Maori (1997) provides insight (at pp. 21 and 31):
Consultation is not just a process of exchanging information. It also entails testing and being prepared to amend policy proposals in the light of information received, and providing feedback. Consultation therefore becomes a process which should ensure both parties are better informed ... .
genuine consultation means a process that involves:
- gathering information to test policy proposals;
- putting forward proposals that are not yet finalized;
- seeking Maori opinion on those proposals;
- informing Maori of all relevant information upon which those proposals are based;
- not promoting but listening with an open mind to what Maori have to say;
- being prepared to alter the original proposal;
- providing feedback both during the consultation process and after the decision-process..
THE PARTIES
[12] In this application, as originally filed, there were seven Applicants:
a. Brokenhead First Nation
b. Long Plain First Nation
c. Peguis First Nation
d. Roseau River Anishinabe First Nation
e. Sagkeeng First Nation
f. Sandy Bay Ojibway First Nation
g. Swan Lake First Nation
[13] On October 7, 2011 Brokenhead First Nation filed a Discontinuance. It is no longer a party to this Application. By Order dated December 3, 2012, I removed their name from the style of cause.
[14] The Applicants Peguis, Roseau River, and Sandy Bay filed a common memorandum. Long Plain filed a separate memorandum incorporating by reference much of the memorandum of the first three. Neither Sagkeeng nor Swan Lake filed any memorandum.
[15] At the hearing one Counsel spoke on behalf of Long Plain and Sandy Bay; another spoke on behalf of Roseau River; another spoke on behalf of Peguis; and, another spoke on behalf of Swan Lake and Sagkeeng.
[16] The Respondents, although many, can simply be referred to as Canada. They are The Queen and various Ministers of the Federal Government responsible for certain Ministries; namely, Indian Affairs and Northern Development, Treasury Board, National Defence, and Canada Lands Company. They are commonly represented by the Deputy Attorney General of Canada, who filed a single written memorandum on behalf of all of them. Counsel appeared on behalf of all of them at the hearing.
[17] In effect we have, at the end of the day, claims made and actively pursued by six First Nations bands - Long Plain, Peguis, Sagkeen, Sandy Bay, Roseau River and Swan Lake - against various Ministries of the Government of Canada collectively referred to as Canada.
WHAT IS THE PROPERTY AT ISSUE?
[18] The property at issue is often referred to as the Kapyong Barracks. This property is actually two pieces of real property, both located in the City of Winnipeg, Manitoba. The larger piece comprises 159.62 acres of land and includes operational premises previously used by the Canadian Armed Forces. The smaller piece comprises 61.78 acres of land and includes married quarters previously occupied by members of the Canadian Armed Forces and