Hupacasath First Nation v. Canada (Minister of Foreign Affairs) et al., (2013) 438 F.T.R. 210 (FC)

• Court: Federal Court (Canada)
• Case Date: August 26, 2013
• Jurisdiction: Canada (Federal)
• Citations: (2013), 438 F.T.R. 210 (FC);2013 FC 900

Hupacasath First Nation v. Can. (2013), 438 F.T.R. 210 (FC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2013] F.T.R. TBEd. SE.002

Hupacasath First Nation (applicant) v. The Minister of Foreign Affairs Canada and The Attorney General of Canada (respondents)

(T-153-13; 2013 FC 900; 2013 CF 900)

Indexed As: Hupacasath First Nation v. Canada (Minister of Foreign Affairs) et al.

Federal Court

Crampton, C.J.

August 26, 2013.

Summary:

The Hupacasath First Nation (HFN) applied for a declaration that Canada was required to engage in a process of consultation and accommodation with First Nations, including HFN, prior to ratifying the Agreement between the Government of Canada and the Government of the People's Republic of China for the Promotion and Reciprocal Protection of Investments.

The Federal Court dismissed the application.

Administrative Law - Topic 3205

Judicial review - General - Crown prerogative - The Hupacasath First Nation (HFN) applied for a declaration that Canada was required to engage in a process of consultation and accommodation with HFN prior to ratifying the Agreement between the Government of Canada and the Government of the People's Republic of China for the Promotion and Reciprocal Protection of Investments (CCFIPPA) - The HFN asserted that Canada's failure to do so would constitute a breach of Canada's constitutional obligation to engage in consultations with HFN before taking any action which might adversely affect it - It also asserted that such action would be contrary to Canada's constitutional obligation to act honourably in all its dealings with Aboriginal peoples - The Federal Court stated that the CCFIPPA's ratification was an exercise of a prerogative power - Given the constitutional nature of the issues, the matter was subject to review on a standard of correctness - See paragraphs 27 and 28.

Courts - Topic 4059.2

Federal Court of Canada - Jurisdiction - Federal Court - Review of exercise of Crown prerogative - [See Administrative Law - Topic 3205 ].

Evidence - Topic 7002

Opinion evidence - Expert evidence - General - Acceptance, rejection and weight to be given to expert opinion - The Hupacasath First Nation (HFN) applied for a declaration that Canada was required to engage in a process of consultation and accommodation with it prior to ratifying the Agreement between the Government of Canada and the Government of the People's Republic of China for the Promotion and Reciprocal Protection of Investments (CCFIPPA) - Canada asserted that the evidence of HFN's expert should be accorded reduced weight because he was a vocal critic of the type of investor state arbitration provisions that were included in the CCFIPPA and because he had frequently and publicly voiced his opposition to ratification of the CCFIPPA - The Federal Court agreed with Canada's position primarily on the basis that the expert's ability "to assist the Court impartially" as required by the Court's Code of Conduct for Expert Witnesses appeared to be somewhat compromised - See paragraphs 34 to 38.

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown (incl. fiduciary duties, consultation duties and honour of the Crown) - The Federal Court reviewed the law respecting the honour of the Crown and Crown's duty to consult with and accommodate Aboriginal peoples - See paragraphs 43 to 51.

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown (incl. fiduciary duties, consultation duties and honour of the Crown) - The Federal Court stated that, in assessing whether the third element of the test for the Crown's duty to consult Aboriginal people was met, "... it is critical to determine 'the degree to which the conduct contemplated by the Crown would adversely affect' the asserted Aboriginal rights ... While a generous and purposive approach to this element is required, '[m]ere speculative impacts' will not suffice. There must be 'an appreciable adverse effect on the First Nations' ability to exercise their aboriginal right' ... Moreover, the claimant 'must show a causal relationship between the proposed government conduct or decision and a potential for adverse impacts on pending Aboriginal claims or rights' ... In this regard, adverse impacts extend to any effect that may prejudice a pending Aboriginal claim or right. This includes high-level management decisions or structural changes to the management of a resource that may adversely affect Aboriginal claims or rights, even if such decisions have no immediate impact on the resource or the land upon which it is situated ... , and even if later opportunities for consultations exist in respect of specific actions that may be taken pursuant to such high level decisions or structural changes ..." - See paragraphs 56 and 57.

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown (incl. fiduciary duties, consultation duties and honour of the Crown) - The Hupacasath First Nation (HFN) applied for a declaration that Canada was required to engage in a process of consultation and accommodation with it prior to ratifying the Agreement between the Government of Canada and the Government of the People's Republic of China for the Promotion and Reciprocal Protection of Investments (CCFIPPA) - The HFN asserted that Canada's ratification of the CCFIPPA's without consulting HFN would contravene the principle of the honour of the Crown or Canada's duty to consult HFN before taking any action that might adversely impact upon its asserted Aboriginal rights - The HFN asserted that the CCFIPPA's ratification was such a high-level management decision or structural change and had a non-speculative potential to adversely affects its asserted Aboriginal rights in an appreciable way even if it had no immediate impact on its lands or the resources situated thereon - HFN added that Canada's agreement to be bound by the CCFIPPA might set the stage for further decisions that would have a direct adverse impact on land and resources by granting Chinese investors enforceable rights which had to be taken into account when any level of government in Canada made any kind of resource management decision - The Federal Court dismissed the application where the evidence adduced did not demonstrate that any adverse impacts that the CCFIPPA might have on HFN's asserted Aboriginal interests would be appreciable and non-speculative - The adverse impacts identified by HFN were speculative, remote and non-appreciable - Additionally, HFN failed to demonstrate the required causal link between the CCFIPPA and those claimed potential adverse impacts - See paragraphs 58 to 146.

Indians, Inuit and Métis - Topic 3.1

General - Judicial review of exercise of Crown's duty to Indians - [See Administrative Law - Topic 3205 ].

Indians, Inuit and Métis - Topic 8735

Practice - Representative actions - On behalf of band and/or nation - The Hupacasath First Nation (HFN) applied for a declaration that Canada was required to engage in a process of consultation and accommodation with First Nations, including HFN, prior to ratifying the Agreement between the Government of Canada and the Government of the People's Republic of China for the Promotion and Reciprocal Protection of Investments (CCFIPPA) - The Federal Court concluded that it was inappropriate to address, in any declaration that might be made, the issue of whether a duty to consult was owed to other First Nations, even if the formidable practical impediments to workable and meaningful consultations with the over 600 First Nations bands could be overcome - That conclusion was reinforced by the fact that Aboriginal rights were both band and fact specific and representatives of Aboriginal groups had to be authorized to speak or to bring claims on behalf of their groups - Moreover, with one exception, no evidence was led on the First Nations' behalf regarding CCFIPPA's potential impact on their Aboriginal interests - See paragraphs 22 to 24.

Practice - Topic 3604

Evidence - Affidavits - General - Who may make (incl. prospective witness) - The Hupacasath First Nation (HFN) applied for a declaration that Canada was required to engage in a process of consultation and accommodation with it prior to ratifying the Agreement between the Government of Canada and the Government of the People's Republic of China for the Promotion and Reciprocal Protection of Investments (CCFIPPA) - Canada sought to strike four affidavits sworn on behalf of four Chiefs who were not members of HFN - Alternatively, Canada sought to strike portions of the affidavits - The Federal Court exercised its discretion in favour of allowing the affidavits to remain on the record notwithstanding that the Chiefs were not authorized to represent HFN, and had focussed on the potential impact of the CCFIPPA on their respective First Nations groups or on First Nations generally - The affidavits might potentially assist the court's understanding of the potential impact of the CCFIPPA on HFN - See paragraphs 29 to 33.

Practice - Topic 3604.3

Evidence - Affidavits - General - Consideration of - [See Practice - Topic 3604 ].

Practice - Topic 3661

Evidence - Affidavits - Striking out - General - [See Practice - Topic 3604 ].

Practice - Topic 3679

Evidence - Affidavits - Use of - Affidavits - Evidence - Admissibility - [See Practice - Topic 3604 ].

Cases Noticed:

R. v. Gladstone (W.) et al., [1996] 2 S.C.R. 723; 200 N.R. 189; 79 B.C.A.C. 161; 129 W.A.C. 161, refd to. [para. 24].

R. v. Van der Peet (D.M.), [1996] 2 S.C.R. 507; 200 N.R. 1; 80 B.C.A.C. 81; 130 W.A.C. 81, refd to. [para. 24].

Quinn et al. v. Bell Pole et al., [2013] B.C.T.C. Uned. 892; 2013 BCSC 892, refd to. [para. 24].

Sechelt Nation v. Bell Pole - see Quinn et al. v. Bell Pole et al.

Black v. Prime Minister (Can.) (2001) 54 O.R.(3d) 215, refd to. [para. 25].

Khadr v. Prime Minister (Can.) et al., [2010] 1 S.C.R. 44; 397 N.R. 294; 2010 SCC 3, refd to. [para. 25].

Hall et al. v. Canada (Attorney General) et al. (2007), 237 B.C.A.C. 292; 392 W.A.C. 292; 281 D.L.R.(4th) 752; 2007 BCCA 133, refd to. [para. 27].

Tzeachten First Nation v Canada (Attorney General) - see Hall et al. v. Canada (Attorney General) et al.

Nlaka'pamux Nation Tribal Council v. Griffin et al. (2011), 306 B.C.A.C. 105; 516 W.A.C. 105; 2011 BCCA 78, refd to. [para. 27].

Nlaka'pamux Nation Tribal Council v. British Columbia (Project Assessment Director Environmental Assessment Office) - see Nlaka'pamux Nation Tribal Council v. Griffin et al.

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 28].

Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.) et al., [2011] 3 S.C.R. 654; 424 N.R. 70; 519 A.R. 1; 539 W.A.C. 1; 2011 SCC 61, refd to. [para. 28].

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. 43].

Carrier Sekani Tribal Council v. British Columbia Utilities Commission et al., [2010] 2 S.C.R. 650; 406 N.R. 333; 293 B.C.A.C. 175; 496 W.A.C. 175; 2010 SCC 43, refd to. [para. 43].

Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council - see Carrier Sekani Tribal Council v. British Columbia Utilities Commission et al.

Hiawatha Indian Band et al. v. Ontario (Minister of the Environment) et al. (2007), 221 O.A.C. 113 (Div. Ct.), refd to. [para. 45].

Manitoba Metis Federation Inc. v. Canada (Attorney General) (2013), 441 N.R. 209; 291 Man.R.(2d) 1; 570 W.A.C. 1; 2013 SCC 14, refd to. [para. 46].

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. 56].

Dene Tha' First Nation v. British Columbia (Minister of Energy and Mines) et al., [2013] B.C.T.C. Uned. 977; 2013 BCSC 977, refd to. [para. 57].

Council of Canadians et al. v. Canada (Attorney General), [2005] O.T.C. 685 (S.C.), affd. (2006), 217 O.A.C. 316 (C.A.), refd to. [para. 63].

Phillips et al. v. Richard, J., [1995] 2 S.C.R. 97; 180 N.R. 1; 141 N.S.R.(2d) 1; 403 A.P.R. 1, refd to. [para. 68].

Ke-Kin-Is-Uqs et al. v. British Columbia (Minister of Forests) et al., [2005] B.C.T.C. 1712; 2005 BCSC 1712, dist. [para. 74].

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

Gitxsan House Chiefs et al. v. British Columbia (Minister of Forests) et al., [2002] B.C.T.C. 1701; 126; 2002 BCSC 1701, dist. [para. 76].

Huu-ay-aht First Nation v. British Columbia (Minister of Forests) et al., [2005] B.C.T.C. 697; 2005 BCSC 697, dist. [para. 77].

Dene Tha' First Nation v. Canada (Minister of the Environment) et al. (2006), 303 F.T.R. 106; 2006 FC 1354, dist. [para. 77].

Kwicksutaineuk Ah-Kwa-Mish First Nation v. Canada (Attorney General) et al. (2012), 409 F.T.R. 82; 2012 FC 517, dist. [para. 77].

Squamish Nation v. British Columbia (Minister of Sustainable Resource Management) et al., [2004] B.C.T.C. 1320; 2004 BCSC 1320, dist. [para. 77].

R. v. Alfred (E.) et al., [1993] B.C.T.C. Uned. C48 (S.C.), refd to. [para. 91].

Toronto Area Transit Operating Authority v. Dell Holdings Ltd., [1997] 1 S.C.R. 32; 206 N.R. 321; 97 O.A.C. 81, refd to. [para. 109].

Tlicho Government v. Mackenzie Valley Environmental Impact Review Board, [2011] Northwest Terr. Cases Uned. 31; 2011 NWTSC 31, refd to. [para. 130].

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; 2008 FCA 212, refd to. [para. 141].

Authors and Works Noticed:

Newcombe, Andrew and Paradell, Lluis, Law and Practice of Investment Treatises (2009), pp. 500 to 506 [para. 126].

Ryan, Margaret Clare, Glamis Gold, Ltd. v. The United States and the Fair and Equitable Treatment Standard (2011), 56:4 McGill L.J. 919, p. 957 [para. 104].

Counsel:

Mark Underhill and Catherine Boies Parker, for the applicant;

Tim Timberg, Judith Hoffman, Mara Tessier, Shane Spelliscy and Pierre-Olivier Savoie, for the respondents.

Solicitors of Record:

Underhill, Boies Parker, Vancouver, British Columbia, for the applicant;

William F. Pentney, Deputy Attorney General of Canada, Vancouver, British Columbia, for the respondent.

This application was heard at Vancouver, British Columbia, on June 5-7, 2013, by Crampton, C.J., of the Federal Court, who delivered the following reasons for judgment on August 26, 2013.