The Supreme Court of Canada recently refused leave to appeal in two noteworthy Aboriginal law cases, meaning that the lower court decisions continue to have precedential value and remain the current state of the law. The first, Buffalo v. Canada, 2016 FCA 223, found that provincial limitation periods apply to all Aboriginal claims, including those which stem from infringements based on treaty rights. The second, relating to two closely related decisions, Prophet River First Nation, et al. v. B.C. Minister of the Environment, et al., 2017 BCCA 58 and Prophet River First Nation, West Moberly First Nations v. Canada (Attorney General), 2017 FCA 15 [Prophet River], affirmed that ministers of the Crown, when making administrative, as opposed to adjudicative, decisions on projects with impacts on Aboriginal interests, need not determine the adequacy of consultation or whether the project constitutes an unjustifiable infringement before making their decisions. Instead, the courts found that it was either the role of an adjudicative body or, ultimately, the role of the court to assess the adequacy of consultation, and solely the role of the court to determine whether there had been an infringement of the treaty rights at issue.
Aboriginal treaty rights and limitation periods
The Buffalo decision affirmed the barring of claims related to the indirect impact of the made-in-Canada energy price policy on royalties upon oil that was produced on the Pigeon Lake Reserve between 1973 and 1985. The Ermineskin Cree Nation and the Samson Cree Nation surrendered their mineral interests in reserve to the Federal Crown in 1946. The First Nations brought actions against the Crown in 1989 and in 1992, alleging that the Crown breached its fiduciary and treaty duties by applying price restrictions and export taxes to oil produced on the Pigeon Lake Reserve starting in the 1970s.
The Federal Court reached its decision on the basis that both First Nations were aware of the facts giving rise to their claims more than six years before filing their statements of claim, thus contravening both the Federal Courts Act and the Alberta Limitations Act.
The First Nations alleged that neither of the Acts were applicable or operable to the Aboriginal claims in question. The Court, however, held that neither of the Acts extinguish the constitutionally protected Aboriginal or treaty rights, but rather operate to impose time limits on when the legal proceedings can be commenced, and thus applied to the First Nations’ claims.
This Supreme Court of Canada’s refusal to grant leave to this case provides clarity to the questions surrounding how federal and provincial limitation periods apply to claims based on alleged infringements of Aboriginal and treaty rights, limiting the scope of liability that may arise from historical claims.
The Governor in Council’s duty to consider Aboriginal treaty rights
The Prophet River decisions centered around the Site C hydroelectric project being constructed on the Peace River, located in the area covered by Treaty 8. Under parallel provincial and federal environmental assessment processes, the Site C project was approved by the responsible ministers, both provincially and federally. The two First Nations groups argued that the provincial and federal Crown ministers that approved the project failed to consider their constitutionally protected treaty rights when approving the $9-billion site.
The First Nations groups unsuccessfully brought applications for judicial review in the British Columbia Supreme Court and the Federal Court regarding the provincial and federal approvals, respectively, alleging in part that the Crown failed, in each instance, to determine whether the significant adverse environmental effects from the project constituted an infringement of their treaty rights and, if so, whether that infringement was justified. The First Nations challenged these findings to the respective courts of appeal, each of which affirmed the lower courts’ findings and dismissed the First Nations’ claims.
In refusing leave, the Supreme Court of Canada left intact the Courts’ finding that the respective ministers were not required to consider whether the anticipated environmental effects amounted to an infringement of the appellants’ treaty rights because they did not have the statutory grant of authority to do so. Instead, the processes themselves were required to comply with the Crown’s obligations to the First Nations, and any question of whether consultation was adequate or that the project unjustifiably infringed the First Nations’ treaty rights could be assessed by the Courts, not the ministers.
Practically speaking, these decisions reinforce the need for the Crown and project proponents to engage in constitutionally appropriate, good faith consultation and accommodation with First Nations groups, as the courts remain the ultimate arbiter of whether the Crown’s duties in that regard have been discharged.