Brokenhead Ojibway Nation et al. v. Canada (Attorney General) et al., (2009) 345 F.T.R. 119 (FC)

• Judge: Barnes, J.
• Court: Federal Court (Canada)
• Case Date: January 16, 2009
• Jurisdiction: Canada (Federal)
• Citations: (2009), 345 F.T.R. 119 (FC);2009 FC 484

Brokenhead Ojibway Nation v. Can. (A.G.) (2009), 345 F.T.R. 119 (FC)

MLB headnote and full text

Temp. Cite: [2009] F.T.R. TBEd. MY.026

Brokenhead Ojibway Nation, Long Plain First Nation, Swan Lake First Nation, Fort Alexander First Nation, also known as "Sagkeeng First Nation", Roseau River Anishinabe First Nation, Peguis First Nation and Sandy Bay First Nation, known collectively as the Treaty One First Nations (applicants) v. The Attorney General of Canada, The National Energy Board and TransCanada Keystone Pipeline GP Ltd. (respondents)

(T-225-08)

Brokenhead Ojibway Nation, Long Plain First Nation, Swan Lake First Nation, Fort Alexander First Nation, also known as "Sagkeeng First Nation", Roseau River Anishinabe First Nation, Peguis First Nation and Sandy Bay First Nation, known collectively as the Treaty One First Nations (applicants) v. The Attorney General of Canada, The National Energy Board and Enbridge Pipelines Inc. (respondents)

(T-921-08)

Brokenhead Ojibway Nation, Long Plain First Nation, Swan Lake First Nation, Fort Alexander First Nation, also known as "Sagkeeng First Nation", Roseau River Anishinabe First Nation, Peguis First Nation and Sandy Bay First Nation, known collectively as the Treaty One First Nations (applicants) v. The Attorney General of Canada, The National Energy Board and Enbridge Pipelines Inc. (respondents)

(T-925-08; 2009 FC 484)

Indexed As: Brokenhead Ojibway Nation et al. v. Canada (Attorney General) et al.

Federal Court

Barnes, J.

May 12, 2009.

Summary:

The applicants were seven First Nations known collectively as the Treaty One First Nations. The applicants asserted treaty, treaty-protected inherent rights and indigenous cultural rights over a wide expanse of land in southern Manitoba. The applicants sought declaratory and other prerogative relief in connection with three decisions of the Governor in Council to approve the issuance by the National Energy Board of Certificates of Public Convenience and Necessity for the construction of the Keystone Pipeline Project, the Southern Lights Pipeline Project and the Alberta Clipper Pipeline Expansion Project. All of the Pipeline Projects involved the use or taking up of land in southern Manitoba. The applicants argued that the federal Crown failed to fulfill its legal obligations of consultation and accommodation before granting the necessary approvals for the construction of the Pipeline Projects.

The Federal Court dismissed the applications.

Indians, Inuit and Metis - Topic 3

Duty owed to Indians by Crown - The Federal Court stated that "In determining whether and to what extent the Crown has a duty to consult with Aboriginal peoples about projects or transactions that may affect their interests, the Crown may fairly consider the opportunities for Aboriginal consultation that are available within the existing processes for regulatory or environmental review ... Those review processes may be sufficient to address Aboriginal concerns, subject always to the Crown's overriding duty to consider their adequacy in any particular situation. This is not a delegation of the Crown's duty to consult but only one means by which the Crown may be satisfied that Aboriginal concerns have been heard and, where appropriate, accommodated" - See paragraph 25.

Indians, Inuit and Metis - Topic 3

Duty owed to Indians by Crown - The applicants were seven First Nations known collectively as the Treaty One First Nations - They asserted treaty, treaty-protected inherent rights and indigenous cultural rights over a wide expanse of land in southern Manitoba - The applicants sought declaratory and other prerogative relief in connection with three decisions of the Governor in Council to approve the issuance by the National Energy Board (NEB) of Certificates of Public Convenience and Necessity for the construction of the Keystone Pipeline Project, the Southern Lights Pipeline Project and the Alberta Clipper Pipeline Expansion Project - The Pipeline Projects involved the use or taking up of land in southern Manitoba - The applicants argued that the federal Crown failed to fulfill its legal obligations of consultation and accommodation before granting the approvals for the construction of the Pipeline Projects - The Federal Court dismissed the applications - The consultation duty owed by the Crown to the applicants had been met - The impact of the Pipeline Projects on the applicants' land claim was negligible - There was no evidence to prove that the Pipeline Projects would be likely to interfere with traditional Aboriginal land use or would represent a meaningful interference with the future settlement of outstanding land claims - To the extent that any duty to consult was engaged, it was fulfilled by the notices that were provided to the applicants and to other Aboriginal communities in the context of the NEB proceedings and by the opportunities that were afforded there for consultation and accommodation - See paragraphs 24 to 46.

Indians, Inuit and Metis - Topic 3

Duty owed to Indians by Crown - The applicants were seven First Nations known collectively as the Treaty One First Nations - They asserted treaty, treaty-protected inherent rights and indigenous cultural rights over a wide expanse of land in southern Manitoba - The applicants sought declaratory and other prerogative relief in connection with three decisions of the Governor in Council to approve the issuance by the National Energy Board (NEB) of Certificates of Public Convenience and Necessity for the construction of the Keystone Pipeline Project, the Southern Lights Pipeline Project and the Alberta Clipper Pipeline Expansion Project - The Pipeline Projects involved the use or taking up of land in southern Manitoba - The applicants argued that the federal Crown failed to fulfill its legal obligations of consultation and accommodation before granting the approvals for the construction of the Pipeline Projects - The Federal Court dismissed the applications - The court stated, inter alia, "the process of consultation and accommodation employed by the NEB was sufficient to address the specific concerns of Aboriginal communities potentially affected by the Pipeline Projects including the Treaty One First Nations. The fact that the Treaty One First Nations may not have availed themselves fully of the opportunity to be heard before the NEB does not justify the demand for a separate or discreet consultation with the Crown. To the extent that regulatory procedures are readily accessible to Aboriginal communities to address their concerns about development projects like these, there is a responsibility to use them. First Nations cannot complain about a failure by the Crown to consult where they have failed to avail themselves of reasonable avenues for seeking relief. That is so because the consultation process is reciprocal and cannot be frustrated by the refusal of either party to meet or participate ... This presupposes, of course, that available regulatory processes are accessible, adequate and provide First Nations an opportunity to participate in a meaningful way" - See paragraph 42.

Indians, Inuit and Métis - Topic 3.1

General - Judicial review of exercise of Crown's duty to Indians - The applicants were seven First Nations known collectively as the Treaty One First Nations - The applicants sought declaratory and other prerogative relief in connection with three decisions of the Governor in Council to approve the issuance by the National Energy Board of Certificates of Public Convenience and Necessity for the construction of the Keystone Pipeline Project, the Southern Lights Pipeline Project and the Alberta Clipper Pipeline Expansion Project - The applicants argued that the federal Crown failed to fulfill its legal obligations of consultation and accommodation before granting the necessary approvals for the construction of the Pipeline Projects - The Federal Court held that the question of the existence and content of a Crown duty to consult would be assessed on the basis of correctness - The question of whether any such duty or duties were discharged by the Crown would be determined on a standard of reasonableness - See paragraph 18.

Cases Noticed:

Tzeachten First Nation et al. v. Canada (Attorney General) et al. (2008), 334 F.T.R. 169; 297 D.L.R.(4th) 300; 2008 FC 928, refd to. [para. 17].

Standing Buffalo Dakota First Nation et al. v. Canada (Attorney General) et al., 2008 FCA 222, refd to. [para. 15, footnote 3].

Ahousaht Indian Band et al. v. Canada (Minister of Fisheries and Oceans) (2008), 379 N.R. 297; 297 D.L.R.(4th) 722; 2008 FCA 212, refd to. [para. 17].

Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage) et al., [2005] 3 S.C.R. 388; 342 N.R. 82; 2005 SCC 69, refd to. [para. 19].

Irving Oil Ltd. et al. v. National Harbours Board, [1983] 1 S.C.R. 106; 46 N.R. 91, refd to. [para. 21].

Thorne's Hardware Ltd. v. R. - see Irving Oil Ltd. et al. v. National Harbours Board.

Haida Nation v. British Columbia (Minister of Forests) et al., [2004] 3 S.C.R. 511; 327 N.R. 53; 206 B.C.A.C. 52; 338 W.A.C. 52; 2004 SCC 73, refd to. [para. 22].

Taku River Tlingit First Nation et al. v. Tulsequah Chief Mine Project (Project Assessment Director) et al., [2004] 3 S.C.R. 550; 327 N.R. 133; 206 B.C.A.C. 132; 338 W.A.C. 132; 2004 SCC 74, refd to. [para. 22].

Ka'a'Gee Tu First Nation v. Canada (Attorney General) et al. (2007), 315 F.T.R. 178; 2007 FC 763, refd to. [para. 22].

Ke-Kin-Is-Uqs et al. v. British Columbia (Minister of Forests) et al., [2005] B.C.T.C. 1712; 51 B.C.L.R.(4h) 133; 2005 BCSC 1712, refd to. [para. 25].

Hupacasath First Nation v. British Columbia (Minister of Forests) - see Ke-Kin-Is-Uqs et al. v. British Columbia (Minister of Forests) et al.

Ahousaht Indian Band et al. v. Canada (Minister of Fisheries and Oceans) (2007), 313 F.T.R. 247; 2007 FC 567, affd. (2008), 379 N.R. 297; 297 D.L.R.(4th) 722; 2008 FCA 212, refd to. [para. 43].

Counsel:

Peter W. Hutchins, Jameela Jeeroburkhan, David Kalmakoff and Wina Sioui, for the applicants;

Harry Glinter and Dayna Anderson, for the respondent, The Attorney General of Canada;

Maria Yuzda, for the respondent, The National Energy Board;

Laurent Fortier, for the respondent, TransCanada Keystone Pipeline GP Ltd.;

Steven Mason and Harry Underwood, for the respondent, Enbridge Pipelines Inc.;

Lewis L. Manning, for the intervenor.

Solicitors of Record:

Hutchins, Caron & Associés., Montreal, Quebec, for the applicants;

John H. Sims, Q.C., Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent, The Attorney General of Canada;

National Energy Board, Calgary, Alberta, for the respondent, The National Energy Board;

Stikeman Elliott, LLP, Montreal, Quebec, for the respondent, TransCanada Keystone Pipeline GP Ltd.;

McCarthy Tétrault, LLP, Toronto, Ontario, for the respondent, Enbridge Pipelines Inc.;

Lawson Lundell, LLP, Calgary, Alberta, for the intervenor.

These applications were heard on September 2 to 4, 2008, and January 16, 2009, at Winnipeg, Manitoba, before Barnes, J., of the Federal Court, who delivered the following decision on May 12, 2009.