IBA Economic Value An Aboriginal Right Entitled To Protection Through Honour Of The Crown

• Published date: 09 August 2021
• Subject Matter: Environment, Government, Public Sector, Litigation, Mediation & Arbitration, Environmental Law, Trials & Appeals & Compensation, Climate Change, Indigenous Peoples
• Law Firm: Willms & Shier Environmental Lawyers LLP
• Author: Julie Abouchar and Charles Birchall

Introduction

On July 19, 2021, the Federal Court of Canada released its decision in Ermineskin Cree Nation v Canada (Environment and Climate Change), 2021.¹ This decision is significant as it holds that economic benefits stemming from an Impact Benefit Agreement ("IBA") are Aboriginal rights which must be considered by the Crown when meeting its duty to consult obligations.

The Court found the federal government was required to consult Ermineskin Cree Nation ("Ermineskin") prior to its decision to designate the Vista Coal Mine Phase II Expansion Project and the Underground Test Mine ("the Project"). The key impact on Aboriginal rights was the potential loss of valuable economic, community and social benefits from the Project due to the delay associated with the Designation Order. The Court held that the federal government did not fulfill its duty to consult and quashed the Designation Order.²

Brief Overview

Ermineskin is a band under the Indian Act with traditional territory of approximately 25,000 acres. Ermineskin is a signatory to Treaty 6 and a member of the Four Nations of Maskwacis.³

Phase I of the Vista Coal Mine was approved in 2014. Coalspur Mines (Operations) Ltd. ("Coalspur") and Ermineskin entered into an IBA in 2013 regarding Phase I. In 2019, Coalspur and Ermineskin entered into a second IBA in relation to Phase II of the Project. The two IBAs are intended to provide economic, community and social benefits.⁴ In addition, the IBAs compensate for the potential impacts caused by the Project on the ability of Ermineskin members to exercise their Aboriginal and Treaty rights on their traditional territory. Phases I and II (collectively "the Projects") take place entirely on the traditional territory of Ermineskin and entail a taking up of lands covered by Treaty 6.⁵

In 2019, the Minister of Environment and Climate Change Canada (the "Minister") determined the Vista Coal Mine Phase II Expansion Project did not require federal designation. However, seven months later, the Minister reversed this decision and designated the Project for impact assessment ("Designation Order").⁶ Ermineskin sought judicial review of the Designation Order.

Ermineskin submitted that the delay caused by the Designation Order adversely impacted their economic opportunities in relation to the Project and the 2019 IBA, and therefore adversely impacted their Aboriginal and Treaty rights.⁷ As a result, the Crown owed a duty to consult before issuing the Designation Order...