The Lawyers Weekly - April 20, 2012

DONALEE MOULTON

Disagreements are no excuse for curtailing discussion. That’s the conclusion the Federal Court has reached in Sambaa K’e Dene Band v. Duncan, 2012 FC 204, a case that pitted two quarreling aboriginal bands against the federal government.

“The case amounts to a direction to Canada as to how to deal with the duty to consult in circumstances of competing land claims,” said John Lojek, a lawyer in Calgary who represented the First Nations applicants. “The case is a clear and well-reasoned ruling against the desired process used by Canada to deal with overlapping land claims.

“The court regarded the actions
of Canada as effectively running
roughshod over one group’s
potential and claimed aboriginal
rights in favour of reaching a
treaty with another.”
In this case, three First Nations
have such claims to land in the
southwestern corner of the North-
west Territories. Two of those, the
Sambaa K’e Dene Band (SKDB)
and the Nahanni Butte Dene Band
(NBDB), sought a judicial review
of a decision from the Minister of
Indian Affairs and Northern
Development postponing consul-
tations with them until an agree-
ment was inked between the fed-
eral government and the Acho
Dene Koe First Nation, the third
group with land claims to the area
in question.

The two bands requesting the judicial review contended that by delaying discussion with them until after an agreement in principle was entered into between Canada and the Acho Dene Koe First

Effectively, the court held that a confidentiality clause in a framework agreement does not trump the duty to consult.

“

John Lojek, lawyer

Nation, the federal government failed to comply with its legal and constitutional duty to consult. The court agreed.

Although the government acknowledged it had a duty to consult, it asserted that it did not need to do this until after an agreement in principle was signed with the Acho Dene Koe First Nation. However, that agreement changed the landscape, Justice Anne Mactavish concluded in her 59-page decision.

“Decisions have already been made by Canada, without consultation with either the SKDB or the NBDB, which will likely have a significant impact on each of their treaty rights and aboriginal claims,” she said.

The government tried to dismiss this concern by arguing that an agreement in principle was not legally binding. Further, Lojek said, the government said it “did not want to engage in ‘ping-pong’ back-and-forth negotiations” between the three First Nations.

Justice Mactavish reviewed the principles associated with the duty to consult with a focus on six leading cases, including:

n;Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511, which established the standard of review to be applied to Crown decisions relating to this duty.

n Squamish Indian Band v. British Columbia (Minister of Sustainable Resource Management), 2004 BCSC 1320, 34 B.C.L.R., which determined that if it is to be meaningful, consultation cannot be postponed until the last and final point in a series of decisions.

“The court confirmed that,
once important preliminary deci-
sions have been made, there may
well be ‘a clear momentum’ to
move forward with a particular
course of action even thought pre-
liminary decision are not legally
binding,” Lojek said “The court
confirmed that the non-binding
nature of preliminary decision
does not necessarily mean that
there can be no duty to consult.”
For its part, Canada relied
heavily on Cook v. Canada (Min-
ister of Aboriginal Relations and
Reconciliation), 2007 BCSC
1722, 80 B.C.L.R., and asserted
that the record currently before
the court was insufficient. The
government argued there was
simply not enough information
to allow for an assessment of the
strength of the applicants’ aborig-
inal rights or title at this stage of
the process.

“The Court distinguished Cook based on the finding that the SKDB and the NBDB have established a reasonably strong prima facie case based upon their

Duty easier said than done

asserted aboriginal rights to the
land in question,” Lojek said.
“The court went on to say that
such a reasonably strong prima
facie case served to elevate the
content of the Crown’s duty to
consult from what would other-
wise have been the case had the
duty been based exclusively on
the [bands’] claims to Treaty
rights to hunt, fish and trap.”
The government also put
forth the argument that the
confidential nature of its nego-
tiations with the Acho Dene
Koe First Nation prohibited it
from consulting until after the
agreement in principle was
signed. The court also rejected
this argument.

Madam Justice Mactavish
pointed out that the government
of Canada would be in no different
position to consult with the Acho
Dene Koe First Nation before or
after conclusion of an agreement
in principle since confidentiality
applied throughout, said Lojek.
“Effectively, the court held that a
confidentiality clause in a frame-
work agreement does not trump
the duty to consult.”
In addition, the court pointed
to the government’s shift in pos-
ition; originally it said it would
consult with all groups. “Such
action was regarded by the court
as ‘moving the goalposts,’ which
undermined the reconciliation
process,” Lojek said. n

MEDIATION
ARBITRATION
APPRAISAL

YORKSTREET uses a team approach to resolve disputes between corporate interests, including natural resource developers, and First Nations.

Duty
Continued From Page 14

First Coal’s advanced exploration program involved 173 test holes, construction of a network of roads and removing 50,000 tonnes of coal. The proposal would test new technology in which a series of trenches dug at right angles to mountainside coal seams and accessed by launch vehicles replaced open pit and underground mining. The proposed location was in a core area for WMFN’s traditional seasonal round. The caribou herd had been depleted and in its view the permit did not adequately protect and restore these caribou.

In this case, First Coal, WMFN
as well as three relevant govern-
ment ministries engaged in con-
sultation for almost two years.
WMFN proposed a set of accom-
modation measures, and the
Crown took steps to mitigate the
impacts, although not the ones
requested by WMFN.

Juli Abouchar is a partner at Willms & Shier Environmental Lawyers LLP. She helps to resolve environmental, aboriginal and energy law disputes.

Paul Iacono, John Beaucage and Charles Harnick bring together years of experience in mediation, as well as an understanding of the impasses that exists on both sides of the table. They all have years of political and business experience along with proven mediation skills.