Federal Court Recognizes The Crown's Duty To Consult On Economic Benefits Linked To Aboriginal Rights

• Published date: 28 July 2021
• Subject Matter: Environment, Government, Public Sector, Environmental Law, Climate Change, Indigenous Peoples
• Law Firm: Osler, Hoskin & Harcourt LLP
• Author: Mr Martin Ignasiak, Sean Sutherland, Coleman Brinker and Maeve O'Neill Sanger

On July 19, 2021, Canada's Federal Court released its decision in Ermineskin Cree Nation v Canada (Environment and Climate Change), 2021 FC 758 (the Decision). In the Decision, Justice Brown found that the Minister of Environment and Climate Change Canada (Minister) unlawfully failed to consult with Indigenous groups before designating the Vista Test Underground Mine (the VTUM) and Vista Phase II thermal coal projects of Coalspur Mines (Operations) Ltd. (Coalspur) under the Impact Assessment Act (the Designation). As a result, Justice Brown quashed the Designation.

The Decision expressly recognizes that the Crown must consult with Indigenous groups that hold economic benefits derived from, or closely related to, Aboriginal rights - including negotiated benefits that would be adversely affected by Crown conduct that may cause project delays or refusals. The Federal Court's recognition of the Crown's duty to consult on these economic effects has important implications for project proponents and Indigenous groups that enter into benefit agreements grounded in Aboriginal rights.

The Decision

Background

Ermineskin is a Treaty 6 signatory that exercises constitutionally protected Aboriginal rights in traditional territories near the VTUM and Vista Phase II.¹

In 2013 and 2019, Ermineskin entered into benefit agreements with Coalspur respecting the potential impacts of the existing Vista Phase I and Vista Phase II on Ermineskin's Aboriginal rights. As recognized by Justice Brown, these agreements were entered into after consultation and provided "valuable economic, community and social benefits to Ermineskin", and were "intended to compensate Ermineskin for potential impacts caused by natural resource development on the ability of Ermineskin members to exercise Aboriginal rights within their Traditional Territory."²

Designation processes

The Impact Assessment Act applies to physical activities that either fall within a category of project within the project list established pursuant to regulation or are "designated" by the Minister on the basis that either the carrying out of that physical activity may cause adverse effects within federal jurisdiction or adverse direct or incidental effects, or public concerns related to those effects, warrant the designation. Once a project is designated, the proponent is prohibited from doing any acts or things connected with carrying out the projects that may have effects on federal jurisdiction until the federal assessment...