Sarah D. Pinsonnault
Articles du même auteur
28 Jan 2015

Canada’s Duty to Consult the First Nations is not Triggered by Speculations

Par Sarah D. Pinsonnault, avocate

By Sarah D. Pinsonnault

In Hupacasath First Nation v. Canada (Attorney General), 2015 FCA 4,
the matter under review is the Agreement entered into between the Government of
Canada and the Government of the People’s Republic of China for the “Promotion
and Reciprocal Protection of Investments” (“Agreement”). The Agreement is one
of many foreign investment promotion and protection agreements Canada has signed
with other nations that aim at intensifying the economic cooperation between
both States. The Appellant, a band under the Indian Act, purports that the Agreement might affect Aboriginal
rights and interests it has asserted over certain lands on Vancouver Island,
British Colombia. Accordingly, it claims that the Attorney General of Canada
(“Canada”) failed in its duty to consult with it before entering into the
Agreement with China. The Federal Court of Appeal aligned itself with the Federal
Court’s overall conclusions and ruled that there was no evidence that the
Agreement would cause Canada to make decisions that do not respect Aboriginal
rights and, in principle, Canada’s duty to consult “is triggered not by
imaginings but by tangibilities”.

Regarding the aims behind Canada’s duty to consult, the Federal Court of
Appeal cited the Supreme Court of Canada in Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council,
[2010] 2 SCR 650, 2010 SCC 43
that identified these aims as follows: (i) “the need to protect
Aboriginal rights and to preserve the future use of the resources claimed by
Aboriginal peoples while balancing countervailing Crown interests”, and (ii) the
need to “recognize that actions affecting unproven Aboriginal title or rights
or Agreement rights can have irreversible [adverse] effects that are not in
keeping with the honour of the Crown” (par. 82).

With that in mind, the Federal Court of Appeal detailed the three
elements (once again established by the Supreme Court of Canada in the aforementioned Rio Tinto decision) that
must be present in order to give rise to a duty to consult, those essentially
being: (i) knowledge by the Crown of a potential Aboriginal claim or right
to the resource or land to which it attaches, (ii) Crown conduct or decision that
may adversely impact the claim or right in question, and (iii) causal
relationship between the latter and a potential for adverse impacts on pending
Aboriginal claims or rights (par. 84).

With respect to the matter at hand, it was the third element (i.e. the causal
relationship between the effects of the Agreement on the Appellant and its
asserted rights and interests) that was the most contentious. On that note, the
Federal Court (as paraphrased by the Federal Court of Appeal) concluded as
[…] [T]he potential adverse effects the Agreement may have upon the appellant’s
Aboriginal rights are “non-appreciable” and “speculative” and so a duty to
consult with the appellant does not arise. Put another way, the appellant had
not demonstrated a causal relationship between the Agreement and potential
adverse impacts on asserted Aboriginal claims or rights.”
The Appellant argued that the Federal Court erred in requiring it to
provide concrete evidence, given that what it alleged to be the adverse effects
of the Agreement were a matter of “logic and common sense”:
The appellant adds that the Federal Court overlooked a “chilling effect” that
will arise when the Agreement takes effect. It says that the Agreement inhibits
Canada’s ability or willingness to take steps to regulate or prevent the use of
lands and resources by Chinese investors that are the subject of the
appellant’s rights and title claims. The appellant suggests that Canada will
fear the monetary awards imposed for non-compliance under the Agreement and
will exercise its regulatory and other powers less aggressively.
The appellant adds that the Federal Court wrongly required the appellant to
provide actual evidence of a chilling effect as opposed to reliance on “logic
and common sense” to make inferences from known facts. The appellant notes that
a chilling effect is not susceptible to easy proof.”
The Federal Court of Appeal however deemed the above “pure guesswork”
and ruled that it did not trigger the duty to consult. After all, the duty to
consult only arises when there exists a “possibility” that the Crown’s conduct
may affect the Aboriginal claim or right; mere “speculations” do not suffice:
Once the Agreement comes into effect, it may be expected to increase Chinese
investment into Canada. It may be that some of that new investment finds its
way into resource development companies. Might those companies eye resources on
Aboriginal lands or lands claimed by Aboriginal peoples for development? Maybe.
Or maybe not. We just don’t know.

Bearing in mind the aims the duty to consult is meant to fulfil [sic], I cannot say
that imposing a duty to consult in this case would further those aims at all.
There is no apprehended, evidence-based potential or possible impact on
Aboriginal rights. The imposition of a duty here is not necessary to preserve
the future use of the resources claimed by Aboriginal peoples. Any adverse
impact on rights stemming from the Agreement, if any, can be addressed later
when they rise beyond the speculative and trigger the duty to consult. The
appellants have failed to show that anything will be evasive of review before
any harm is caused, if ever it is caused.”
For these reasons and others, the appeal was dismissed.

To read this decision in its entirety and other elements discussed
therein, click here.

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