Indigenous Economic Interests Trigger The Crown's Duty To Consult

• Published date: 10 August 2021
• Subject Matter: Environment, Government, Public Sector, Environmental Law, Climate Change, Indigenous Peoples
• Law Firm: Gowling WLG
• Author: Ms Caireen Hanert, Maya Stano and Natalie Gillespie

The Federal Court of Canada recently released the decision of Justice Brown in Ermineskin Cree Nation v Canada (Environment and Climate Change), 2021 FC 758 (the Decision). The Decision considers the significance of economic interests as they relate to Aboriginal and Treaty rights, and is likely to have significant impact on natural resource development across Canada.

Of key interest to both Indigenous communities and project proponents is the Court's decision that the Crown must consult with Indigenous groups who hold economic benefits derived from or through their Aboriginal rights. The Decision expressly recognized that economic benefits negotiated with a project proponent as mitigation for potential impacts on Aboriginal rights trigger the Crown's duty to consult with respect to those economic benefits.

Background

The Ermineskin Cree Nation is a Treaty 6 signatory. The Ermineskin entered into two impact benefit agreements in 2013 and 2019 with Coalspur Mines (Operations) Ltd. (Coalspur) to mitigate the impacts of Coalspur's Vista Phase I and Vista Phase II thermal coal projects and of a limited underground test mine (UTM) in the Nation's traditional territory where the Nation exercised its Aboriginal rights. The Court noted that these agreements "provide valuable economic, community and social benefits to Ermineskin . 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."¹

As with other natural resource projects, a threshold question for Vista Phase II was whether it was subject to a federal impact assessment under the Impact Assessment Act (the Act). The Act applies to physical activities that meet the definition of a designated project set out in the Act. There are two ways that an activity may all within the definition: (i) if it meets the threshold for either area or volume of coal production; or (ii) where the Minister exercises its discretion and issues an order designating an activity as requiring review. In the latter case, the Minister is required to provide reasons for the designation.

Vista Phase II did not meet the threshold for a designated project under the Act. In December 2019, however, the Minister of Environment and Climate Change (the Minister) went through an extensive designation review process to determine whether to exercise its discretion and order that Vista Phase required review under...