Lawyers in Canada: Davis LLP - Legal Advisors Since 1892

No Aboriginal Right for Lax Kw'alaams Indian Band to Commercial Fishery says BC Court of Appeal

The BC Court of Appeal released its decision on December 23rd on Lax Kwa'aams' appeal from the Supreme Court's decision that it did not have a commercial right to fish all species within their "Claimed Territory." Unlike other Aboriginal fishing cases, this case arises not from an alleged regulatory offence, but in an action brought by Lax Kw'alaams for declarations that it has aboriginal rights to harvest all species of Fisheries Resources and to sell them on a commercial scale.

At trial, Lax Kw'alaams claimed that each of the Allied Tsimshian Tribes, was a "distinctive Aboriginal society engaged in a sophisticated economy based predominantly on harvesting, managing, processing, consuming and trading all species of fish, shellfish and aquatic plants...that were available to the Tribes from time to time within their Tribal Territories." It claimed that wealth creation in Coast Tshimshian society depended on trade and that Fisheries Resources were a necessary trade item. Finally, it asserted Aboriginal rights to "harvest, manage and sell on a commercial scale Fisheries Resources and Fish Products...for the purpose of sustaining their communities, accumulating and generating wealth, and maintaining their economy." The trial judge found that while the Coast Tsimshians traded in prestige goods, including eulachon grease, trade in other fish and related products had been incidental, low volume, foods for social and ceremonial purposes; and was not, "equivalent to a modern right to fish commercially all species in their Claimed Territories." In the result, their claims were dismissed.

It severed its title claim in these proceedings.

The appeal was framed for the most part as issues of law turning on the characterization of the right being sought and on the trial judge's assessment of the relevant "practices" of the Coast Tsimshian in relationship to their "way of life" prior to European contact. The Court of Appeal held that the while the trial judge may have mis-described the right in part, as not limited to a species of a specific resource, her delineation of the right as tied to a particular practice - trade in "prestige" goods such as eulachon grease - was not in error. Further it found that while it would have been erroneous for the trial judge to deny Lax Kw'alaams claim solely on the ground that it did not occupy or use the Nass River fisheries exclusively, it found no basis to interfere with her findings that "the Coast Tsimshian did not carry on any significant trade in fish and fish products, except eulachon grease, that could be said to be integral to their distinctive society and that could be said to be the precursor of a modern commercial fishery." It also found no errors in law or exercise in discretion on the trail judge's treatment of lesser/included rights, separate claims to harvest Fish Resources for FSC purposes, application of the principled approach in catagorizing trading-based rights and alleged breaches by the Crown.

First Nations Certainty of Land Title Act Introduced to Help First Nations Develop Commercial Real Estate on Reserves

On December 10, 2009, the Government of Canada introduced the First Nations Certainty of Land Title Act (the "Act") to amend the First Nations Commercial and Industrial Development Act, which was developed in consulation with five First Nations: the Squamish Nation in British Columbia; the Fort McKay First Nation and Tsuu T'ina Nation in Alberta; the Carry the Kettle First Nation in Saskatchewan; and, the Fort William First Nation in Ontario.

The First Nations Certainty of Land Title Act would permit the registration of on-reserve commercial real estate developments in a system that replicates the provincial land titles or registry system. This would help make the value of on-reserve properties, including housing, stores, offices, and other buildings, comparable to equivalent properties off reserve land.

The Act is optional legislation triggered only at the request of a First Nation.

Nisga'a Nation Passes Legislation to Establish Private Property Rights

The Nisga'a Nation has passed a historic law allowing Nisga'a citizens to own their own property. It is the first time in Canada that an aboriginal group has approved legislation to allow for private property rights.

This was possible because under the 2000 Nisga'a Final Agreement, the Nisga'a gained certain self-government rights and freedom from Indian Act regulation. The Indian Act prevents Indian Band members from having fee simple title to their homes located on reserve land and from mortgaging or granting security over their residential property. All reserve land property is owned by the Federal Government.

The Nisga'a Landholding Transition Act gives Nisga'a citizens the opportunity to own their residential property. A Nisga'a citizen who obtains fee simple title to their residential home under the Act will be able to mortgage their property as security for a loan, or to transfer, bequeath, lease or sell their property, to any person. However, the property will always remain Nisga'a lands and be subject to Nisga'a laws.

"This is a significant step toward true self government. It is a process for increasing economic prosperity for our people," said Nelson Leeson, president of the Nisga'a Nation, in a statement, on the Nisga'a Lisims government website.

The Nisga'a Nation is home to about 6,400 Nisga'a citizens.

BC Hydro Releases Q&A on First Nations Consulation with Respect to Power Calls

On November 18, 2009 BC Hydro released Questions and Answers (Q&A) on its website regarding BC Hydro's role with respect to First Nations consultation. The Q&A stems from uncertainty in the nature and scope of consultation required as a result of BC Court of Appeal decisions in Carrier Sekani Tribal Council v. British Columbia Utilities Commission, (2009 BCCA 67) and Kwikwetlem First Nation v. British Columbia Utilities Commission (2009 BCCA 68).

The Q&A is directed to Independent Power Producers (IPPs) to "help in understanding BC Hydro's role regarding First Nations consultation for current and future power acquisition activities."

In the Q&A, BC Hydro describes a shift in assessing IPPs consultations with First Nations, from a risk assessment standpoint in evaluating IPPs proposals (ie. will consultations affect securing of land tenure), to adequacy of consultations prior to submissions of Electricity Purchase Agreements (EPA) to the BCUC under section 71 of the Utilities Commission Act.

One question begging to be answered from this is: how will this affect IPPs in the Clean Power Call, the Bioenergy Call, or future power calls? For the current Clean Power Call, BC Hydro's response is that "further information or action may be required from or by those proponents to enable BC Hydro to complete that assessment."

For the Bioenergy Call Phase II, since the call is in its early stages, BC Hydro intends to incorporate new requirements with respect to First Nations consultation into call documents and timelines, and will update the website accordingly.

For the Standing Offer Program (ongoing acquisition process for projects up to 10 megawatts), this program requires proponents to apply with permits already in place, but BC Hydro notes that it will still assess the adequacy of consultation before offering an EPA to an applicant.

For future power calls, it appears as though BC Hydro will build in this new assessment approach into each call. When assessing the adequacy of consultation, BC Hydro will "seek to identify what, if any, other agencies have already assessed the adequacy of consultation", and this evidence may satisfy their requirements, or they may require "additional evidence to support an IPP proposal".

The factors BC Hydro will consider when assessing First Nations consultation may include:

• Information on how the IPP determined which First Nations to consult.
• Information on the potential degree of impact from a project on aboriginal rights and title, and information on how this assessment was reached.
• Information on the level of consultation and potential avoidance, mitigation or accommodation required for each impact and how this was, or will, be undertaken by the IPP as evidenced by consultation reports, logs, impact benefit agreements, letters of support, correspondence and any other material submitted demonstrating consultation.

What is clear from this Q&A is that the BC Hydro has recognized that the ground rules with respect to First Nations consultation have changed as a result of the Carrier Sekani and Kwikwetlem cases and they are attempting to respond to this in a way that addresses this issue with respect to current power calls and future power calls, to provide some level of clarity for IPP proponents, First Nations and other interested stakeholders.

BC Supreme Court recognizes Aboriginal Right for Nuu-chah-nulth Nations Bands to Fish and Sell Fish Commercially

Today, in Ahousaht Indian Band and Nation v. Canada (Attorney General), 2009 BCSC 1494, Madam Justice Garson of the BC Supreme Court has ruled that the plaintiffs in the action (the Ehattesaht, the Mowachaht/Muchalaht, the Hesquiaht, the Ahousaht, and the Tla-o-qui-aht - five Nuu-chah-nulth Nations aboriginal bands whose territories are located on the west coast of Vancouver Island) have the aboriginal right to fish any species of fish within their respective traditional territories (to a seaward boundary extending nine miles) and to sell fish commercially. Justice Garson found that these rights stem from ancestral practices, which translate into broader modern entitlements to fish and to sell fish, beyond the small-scale sale of fish in commercial markets, however, limited.

The plaintiffs had asserted an aboriginal right to commercially fish all species of fish in their traditional territory and aboriginal title to a portion of the seabed. They claimed that the fisheries regulatory regime unjustifiably infringed their aboriginal rights and title because it failed to recognize and accommodate their aboriginal rights and title. Justice Garson did not consider the aboriginal title claim.

Justice Garson declined to quantify limits on the scope of the right to sale, instead commenting that while it does encompass a right to sell fish in the commercial marketplace, it "does not extend to a modern industrial fishery or to unrestricted righs of commercial scale" and that "like other rights, such a right may be subject to infringement or restriction by government where such infringement is justified." Such limits, she found, are more appropriately addressed at the infringement and justification stages of the analysis as part of the reconciliation process (citing Newbury J.A. comments in Cheslatta Carrier Nation v. British Columbia, 2000 BCCA 539, 80 B.C.L.R. (3d) 212 on the rule against courts exercising jurisdiction on such matters as follows "As Cory, J. stated in R. v. Nikal [1996] 1 S.C.R. 1013 ...[t]he government must ultimately be able to determine and direct the way in which these rights should interact. Absolute freedom in the exercise of even a Charter or constitutionally guaranteed aboriginal right has never been accepted, nor was it intended."

Justice Garson went on to find that the plaintiffs established that the Fisheries Act, its regulations and policies, prima facie infringes their aboriginal rights, with the exception of their rights to harvest clams and to fish for food, social or ceremonial purposes. However, unlike other fishing rights cases, she found that "there is no single or isolated regulatory provision in issue in these proceedings. Rather, it is the "cumulative effect of Canada's fishing regime that I have found restricts Nuu-chah-nulth with respect to their ability to fish and their methods of fishing, including location, time, gear and species."

She declined however to rule on Canada's justification defence and chose not to make any declaration of unjustified infringement. Instead, she granted the parties two years to consult and negotiate a regulatory regime for Nuu-chah-nulth that recognizes their aboriginal rights - or some other manner in which the plaintiffs' aboriginal rights to fish and to sell fish can be accommodated and exercised - without jeopardizing Canada's legislative objectives and societal interests in regulating the fishery. If these consultations and negotiations are not successful, Justice Garson ruled that Canada has leave to apply at a subsequent trial to tender further evidence on justification and the plaintiffs would also have leave to tender further evidence in this regard.

Overall, the case is being treated as a victory for the plaintiffs, in that they have established their aboriginal right to fish for and sell any species of fish found within their traditional territory and Canada must accommodate this right in its regulation of the fisheries.

Following the decision, members of the plaintiff Nuu-chah-nulth Nations bands gathered on the courthouse steps for a press conference, attended by many media personnel, onlookers, lawyers and general public to celebrate the recognition of their aboriginal right to fish and sell fish commercially.

BC Supreme Court rules against Nlaka'pamux Nation Tribal Council - Finds that EAO fulfilled duty to consult

On September 17, 2009, in Nlaka'pamux Nation Tribal Council v. Griffin 2009 BCSC 125, the Honourable Mr. Justice Sewell of the BC Supreme Court ruled against the Nlaka'pamux Nation Tribal Council (NNTC) in a case involving the proposed expansion of the Cache Creek landfill (Expansion) and NNTC's Petition against a section 11 Order (Order) issued by the British Columbia Environmental Assessment Office (EAO) on October 22, 2008.

At issue in this case was how the EAO should have fulfilled its duty to consult the Nlaka'pamux Nation with respect to its review of the Expansion project under the Environmental Assessment Act (EAA), taking into account, a division of opinion within the Nation.

NNTC argued that the decision by Mr. Griffin, the EAO Project Assessment Director, to exclude it as the representative of the Nlaka'pamux Nation, meant that there was not and could not be adequate consultation with the Nlaka'pamux Nation on any decision to issue an EA Certificate. However, one circumstance the EAO had to consider was that the two First Nations Bands that would be most affected by the Expansion, Ashcroft Indian Band (Ashcroft) and Bonaparte Indian Band (Bonaparte), supported the project, while the NNTC, where Ashcroft is a member, opposed it. Ashcroft and Bonaparte were included in the Order and Terms of reference, while NNTC was not. Bonaparte is a member of the Secwepemc Nation.

The government on the other hand, argued that the only truly effective consultation with NNTC was on a government to government basis and that this basis for consultation was in place through an amendment made to the section 11 Order. The amendment added a paragraph to the effect that the EAO may engage in additional consultations with an aboriginal entity, whether or not it is named as a "First Nation" in the Order. The government also argued that the NNTC was well aware that they were not included in the Terms of Reference, and Ashcroft argued that the NNTC did not speak on behalf of the people of the Ashcroft Band.

On reviewing the Petition on a standard of reasonableness, Justice Sewell held that the EAO properly defined the scope and content of consultation appropriate when issuing the Order, given the particular circumstances it had to consider and that it satisfied its obligations to consult, pursuant to the Constitution Act and the EAA. One of the main circumstances to consider in this case was the divergence of opinion between NNTC and Ashcroft, and the authority of NNTC to speak on behalf of all Nlaka'pamux people.

In addressing this point, he commented (at para 73):

"What is the government to do when faced with a diversity of putative representation on behalf of a First Nation? In my view, the government must discharge its duty to consult by taking reasonable steps to ensure that all points of view within a First Nation are given appropriate consideration. As I indicated above, government also has a duty to carry out its statutory mandate under applicable legislation. It must therefore balance its obligations to consult with its obligation to carry out its statutory duty in an effective manner."

Justice Sewell saw no objection in principle to EAO consulting with a specific Band, if the government also undertook appropriate consultation with the First Nation (which he believed it would). Given this, Sewell found that "it cannot be said that the NNTC has been denied an appropriate and effective opportunity to be consulted and accommodated with respect to the environmental assessment of the Expansion project."

In sum, this case could be said to stand for the proposition that in situations where there are numerous First Nations Bands and organizations involved, with some having a divergence of position, as long as the Crown (and parties delegated to by the Crown) properly define the scope and content of consultation with the First Nations parties involved (given the circumstances existing) the duty to consult and accommodate may be fulfilled. Separate consultation protocols by the government can be the right approach, particularly "where there is a clear divergence of opinion between the putative representative of the Nation and the representatives of the Band."

As a side note, with respect to the landfill, the province approved a one-year annex to the landfill in early September, while the long-term Expansion project remains with the EAO for consideration.

2nd Anniversary of the UN Declaration on the Rights of Indigenous Peoples - Canada not signed on

Two years ago, on September 13, 2007, the General Assembly of the United Nations adopted the Declaration on the Rights of Indigenous Peoples, after 143 Member States voted in favour of it. Notably, 11 countries abstained, and four: Australia, Canada, New Zealand and the United States - voted against it.

The Declaration is a non-binding "principles" based document which emphasizes the rights of the world's estimated 370 million indigenous people and prohibits discrimination against them. It also promotes their full and effective participation in all matters that concern them, and their right to remain distinct and to pursue their own visions of economic and social development.

Assembly of First Nations National Chief Shawn Atleo is quoted as stating that "September 13 is a landmark day for the world's Indigenous peoples, but a black mark on Canada's international reputation."

At the time of signing the Declaration, Ambassador John McNee of Canada is quoted as saying that Canada was disappointed to have to vote against the Declaration, but it had "significant concerns" about the language in the document, including that the provisions on lands, territories and resources "are overly broad, unclear and capable of a wide variety of interpretations" and "could put into question matters that have been settled by treaty."

Ontario announces two programs to enhance Aboriginal participation in the new green economy

Last week, Ontario announced the early closure of 4 of OPG's coal-fired generating units. The Ministry of Energy and Infrastructure described the announcement as the first of its 10 steps to "transition the province to electricity generated from green energy which will open investment and opportunities in Ontario's green economy." The Ministry announced steps 2 and 3 last Friday.

The latest steps, which will facilitate the participation of Aboriginal communities in Ontario's new green economy, are the creation of the following:

1) An Aboriginal Loan Guarantee Program

This $250 million program will offer loan guarantees for up to 75% of an Aboriginal corporation's equity interest in a renewable power project. The guarantees will make it easier for Aboriginal communities to take on equity participation in renewable generation and transmission projects. Aboriginal equity participation can make projects more lucrative. Under the OPA's FIT program, projects with greater than 20% Aboriginal equity participation are eligible for a FIT price adder.

While details of the program have yet to be announced, the Ministry indicated that projects would have to undergo a "extensive due diligence process." Projects will have to meet "stringent" eligibility criteria, including the following:

• Agreements in place to sell or transmit electricity at a pre-determined cost (e.g. power purchase agreements for generation or regulated rates for transmission projects);
• Experienced proponents and business partners with track records in construction and infrastructure operation;
• Secured commercial financing arrangements; and
• Aboriginal communities would be required to create wholly-owned corporations to take on all aspects of the project, such as signing contracts and entering partnership agreements.

The Ontario Financing Authority will manage the program.

2) An Aboriginal Energy Partnerships Program

The AEPP will support Aboriginal communities that wish to participate in Ontario's new green economy by providing the following:

• Support for Community Energy Plans. A Community Energy Plan will allow Aboriginal communities to determine local interests, needs and opportunities for renewable energy development, conservation, grid connection and reducing reliance on diesel in remote communities;
• Support through funding project pre-feasibility and feasibility studies, development of business cases, resource assessment, environmental and technical studies as well as other soft costs for First Nation and Métis energy projects; and
• Support to establish the Aboriginal Renewable Energy Network, an online based centre for sharing of knowledge and best practices related to First Nation and Métis green energy projects.

The Ontario Power Authority will manage this program.

Chiefs reject proposed Recognition and Reconciliation Act

At British Columbia's All Chiefs Assembly, a gathering of 250 chiefs (elected and hereditary) met with native elders to discuss the BC government's proposed Recognition and Reconciliation Act, and formally rejected the proposed legislation on Friday (August 28, 2009). The Chiefs issued a statement to the media, quoting Grand Chief Edward John as stating that "The Province of British Columbia cannot and does not have jurisdiction over our Indigenous Title and Rights and as such the proposed legislation is dead.

Under the proposed Recognition and Reconciliation Act, First Nations bands would not need to prove their aboriginal title in court, and a system would be established for joint decision-making and resource-sharing on Crown land within a band's traditional territories. In addition, it would provide for the creation of a new system of native governance to replace the 203 bands in the province with 30 Indigenous Nations based on pre-contact native society.

Haida Signs MOU for an Option to Invest in Naikun Offshore Wind Energy Project

Haida Enterprise Corporation ("HEC"), the business arm of the Haida Nation, has signed a Memorandum of Understanding with the NaiKun Wind Energy Group Inc. ("Naikun") for an option to purchase an up to 40% stake in the Naikun Wind energy project off BC's north coast. HEC and the Haida Nation plan to seek federal support for their participation, and consider the initiative to fit with the new Federal Framework for Aboriginal Economic Development.

The $2-billion project will be financed with 70 per cent debt and 30 per cent equity. The Haida equity share is $240 million. NaiKun and Enmax Green Power Inc. currently each own 50 per cent of the project company.

The Naikun project is a proposed 396 MW Phase 1 offshore wind energy project located in the traditional territory of the Haida Nation, in the Hecate Strait (the "Project"). Naikun submitted a proposal for the Project on November 24, 2008 into BC Hydro's Clean Power Call ("Clean Power Call"), and its Environmental Assessment application for Phase 1 to British Columbia's Environmental Assessment Office (EAO) was accepted on May 20, 2009.

Final evaluation of proposals and Electricity Purchase Agreements (EPAs) with BC Hydro were scheduled for Mid-April through June 2009 for the Clean Power Call. Evaluation and execution of EPAs has been delayed, due in part to the British Columbia Utilities Commission's (BCUC) decision on BC Hydro's long-term acquisition plan (LTAP), which we have blogged on a previous post. BCUC's decision has created some uncertainty with respect to the Clean Power Call and how much power will ultimately be purchased by BC Hydro, and when. Despite BCUC's decision, the Government of BC has stated that they remain committed to moving forward with the Clean Power Call, and firmly committed to the BC Energy Plan and that development of clean energy resources in the province remains a priority.

Whether the Clean Power Call proceeds as designed or not, HEC and the Haida Nations involvement with the Project has provided optimism for the Haida Nation and Naikun for a successful wind-energy future off the coast of BC, and ultimately for a signed EPA with BC Hydro.