Canadian Power – Key Developments In 2019, Trends To Watch For In 2020: Aboriginal Law

The following is a chapter from our Power Group's fifth annual Canadian power industry retrospective Canadian Power - Key Developments in 2019, Trends to Watch for in 2020. A form to request a PDF copy of the publication is available at the end of the article.

Aboriginal law is a continually evolving area in the context of Canadian energy and resource development. This trend continued in 2019, with numerous notable decisions from lower and appeal courts concerning the Crown's duty to consult. There were also significant steps taken by the federal and B.C. governments to increase Indigenous participation in environmental assessment and regulatory regimes and enhance the consideration of Aboriginal rights and interests in these processes. This trend is expected to continue in 2020, as several significant cases on a range of Aboriginal law issues are currently proceeding through the courts.

Developments In The Duty To Consult

No change to consultation obligations in the context of asserted Aboriginal title claims

In 2019, two notable cases addressed the required scope and standard of consultation in the context of asserted but unproven Aboriginal title claims. In May, the Supreme Court of Yukon considered the distinction in consultation obligations between asserted title versus established title in Ross River Dena Council v. Yukon1. This case arose from Yukon's issuance of hunting licenses and seals and the Court considered whether Ross River Dena Council ("RRDC"), by virtue of its asserted claim for Aboriginal title, was entitled to consultation that addressed the suite of ownership rights of established Aboriginal title as set out by the Supreme Court of Canada ("SCC") in Tsilhqot'in Nation. This suite of ownership rights includes the right to use, possess, and manage the land, the right to the economic benefits of the land, and the right to decide how the land will be used.

The Court found that the ownership rights only apply to established Aboriginal title and that RRDC was at the claim stage of asserting Aboriginal title, not at the final resolution or shortly before a finding of Aboriginal title. The Court concluded that deep consultation (and accommodation) was owed and had occurred and there was no requirement for the Yukon to literally apply and assess the Tsilhqot'in Nation incidents of established Aboriginal title in its deep consultation with RRDC on wildlife matters. This case is important in clarifying the scope of consultation for asserted Aboriginal title claims and how this differs from established Aboriginal title. The Court also notably reiterated that the duty to consult does not grant the RRDC a veto over any development nor was there an obligation to obtain the RRDC's consent for any developments in this area due to their asserted Aboriginal title claim.

In November 2019, the Prince Edward Island Court of Appeal issued its first judicial review decision concerning the duty to consult in Mi'kmaq of P.E.I. v. Province of P.E.I. et al.2 This case confirms that mere assertions of Aboriginal rights, including title, are insufficient to trigger a duty to consult if there is no evidence that the Crown decision will have an adverse impact on the asserted rights. The decision also demonstrates the need for Indigenous groups to provide information to support their assertions of Aboriginal title when contested, to show how the Crown decision will adversely affect their rights, and the risks of not doing so.

In this case, the Province of P.E.I. intended to sell a Crown owned golf course and resort to a private party. Prior to completing the sale, the Province consulted with the P.E.I. Mi'kmaq, who claim Aboriginal title to all of P.E.I. The Mi'kmaq sought judicial review on the basis that the Province did not satisfy its duty to consult. Despite the fact that Aboriginal title is the strongest form of Aboriginal right, the Court held that the duty to consult was not triggered as there was no evidence of a causal connection between the transfer of ownership of the property from the Crown to the private sector and a potential adverse impact on the Mi'kmaq's claim for Aboriginal title. The land at issue had been used as a golf course since 1983, and the purchaser intended to continue to use the property in the same way. While the conveyance could result in a change in use in the future, the Court found that this was a speculative concern. The Court also found that the claim to Aboriginal title was weak as there was no evidence beyond assertions to establish sufficiency of occupation at the time of the Crown sovereignty and no use of the property, either historic or present day, to be protected pending proof of the Mi'kmaq claim. The land was not shown to be unique and there was no historic association, structures or sites or present use that needed to be protected. There was also no evidence of a shortage of Crown land that could be used in the event of a future settlement of the claim and it was concluded that this would result in a de...