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Australian Indigenous Law Reporter |
Supreme Court of Canada (McLachlin CJ, Binnie, Major, Bastarache, Lebel, Deschamps, Fish, Albella and Charron JJ)
24 November 2005
2005 SCC 69
Aboriginal law — Aboriginal rights to natural resources — treaty rights — Crown exercising treaty right and ‘taking up’ surrendered land — whether Crown had duty to consult and accommodate Aboriginal peoples — duty of intervener — whether intervener overstepped role in presenting fresh argument — procedural considerations — appeal allowed
The applicant was a First Nation signatory to an 1899 treaty surrendering 840,000 square kilometres of land to the Crown in exchange for reserve land and hunting, fishing and trapping rights therein.
In 2000, the respondent Crown approved the construction of a ‘winter road’ which was proposed to run through the First Nation reserve without the consent of the applicant. At first instance, the Federal Court set aside the approval based on breach of the Crown’s fiduciary duty to adequately consult with the applicant, granting an injunction against constructing the winter road.
The Crown successfully appealed and approval for the road was restored. The Federal Court of Appeal based its decision on a fresh argument brought forth by the Attorney General of Alberta as an intervener on the appeal, that the road could be properly seen as a ‘taking up’ of surrendered land pursuant to the treaty rather than an infringement of it. The applicant appealed to the Supreme Court of Canada, submitting that the Court of Appeal had erred in its reasoning. The applicant also submitted that the Attorney General had overstepped its proper role as an intervener in widening or adding to the points at issue on appeal.
1. The fundamental objective of the modern law of aboriginal and treaty rights is the reconciliation of aboriginal and non-aboriginal peoples and the respective claims, interests and ambitions. In the present case, this relationship was not properly managed. The government’s approach did not advance the process of reconciliation but undermined it. The duty of consultation and the obligation to respect existing treaty rights of aboriginal peoples was breached: [1], [4].
2. The Crown had a treaty right to ‘take up’ surrendered lands for regional transportation purposes. However, both the historical context and the tensions underlying the implementation of the treaty demanded a ‘process’ by which lands may be transferred from one party to another, which was dictated by the Crown’s duty to act honourably. In this context, the Crown was under an obligation to consider the impact its project would have on the applicant’s hunting and trapping rights, and to communicate its findings to them. The Crown should have then attempted to deal with the applicant in good faith, and with the intention of substantially addressing the applicant’s concerns. This duty to consult is triggered at a low threshold, but determining adverse impact is a matter of degree, as is the extent of the Crown’s duty. In the present case, the impacts were clear, established and demonstrably adverse to the continued exercise of the applicant’s hunting and trapping rights over the lands in question: [55], [64]. Delgamuukw v British Columbia [1997] 3 SCR 1010 cited, Haïda Nation v British Columbia (Minister of Forests) [2004] 3 SCR 511 (‘Haïda’) followed.
3. While First Nation people had some reciprocal onus to make their concerns known and reach some mutually satisfactory solution, the consultation process did not reach that stage. Consultation would not have given the applicant a veto over the alignment of the road, but may have permitted road changes that could have substantially satisfied the applicant’s concerns: [65], [66], Haïda followed.
4. A significant element of the treaty was the assurance of ‘continuity’ in traditional patterns of economic activity, which included respecting traditional patterns of activity and occupation. The Crown promised that the applicant’s rights to hunt, fish and trap ‘would continue after the treaty as existed before it.’ This promise was not honoured by dispatching the applicant to territories far from their traditional hunting grounds and traplines: [47], R v Badger [1996] 3 SCR 456 followed.
5. However, a clause cannot be isolated from the treaty as a whole, but must be read in the context of the underlying purpose in which the treaty was made at the time of inception. In the present case, the aim of the treaty was that ‘from time to time’ portions of the surrendered land would be ‘taken up’ by the Crown. The treaty did not promise continuity of nineteenth century patterns of land use, as was made clear both by the historical context in which the treaty was concluded and the period of transition it foreshadowed. Therefore the ‘Sparrow Test’ did not apply as this situation was not the same as those where aboriginal rights have been surrendered and extinguished: [24], [28]–[32], R v Badger [1996] 3 SCR 456 followed, R v Sparrow [1990] 1 SCR 1075 distinguished.
6. It is always open to an intervener to put forward any legal instrument in support of what it submits is the correct legal conclusion on an issue before the court. The intervener can do so provided that the legal instrument does not require additional facts that were not proven in evidence at trial or raise an argument that is otherwise unfair to one of the parties. In the present case, the applicant did not identify any prejudice. If the court had refrained from giving effect to this correct legal analysis just because it came later rather than sooner and from an intervenor rather than a party, it would be intolerable and risked injustice: [40], Lamb v Kincaid (1907) 38 SCR 515 referred to.
See also Hupacasath First Nation v BC (Minister of Forests) reproduced in this edition at p 40 ; and Haïda Nation v British Columbia (Minister of Forests) and Taku River Tlingit First Nation v British Columbia (Project Assessment Director), reproduced in 9(1) Australian Indigenous Law Reporter 46 and 60.
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URL: http://www.austlii.edu.au/au/journals/AILR/2006/9.html