Ka'a'Gee Tu First Nation v. Canada (Attorney General) et al., (2012) 406 F.T.R. 229 (FC)

Judgede Montigny, J.
CourtFederal Court (Canada)
Case DateMarch 08, 2012
JurisdictionCanada (Federal)
Citations(2012), 406 F.T.R. 229 (FC);2012 FC 297

Ka'a'Gee Tu First Nation v. Can. (A.G.) (2012), 406 F.T.R. 229 (FC)

MLB headnote and full text

Temp. Cite: [2012] F.T.R. TBEd. MR.022

Chief Lloyd Chicot suing on his own behalf and on behalf of all Members of the Ka'a'Gee Tu First Nation and the Ka'a'Gee Tu First Nation (applicants) v. The Attorney General of Canada and Paramount Resources Ltd. (respondents)

(T-1485-09; 2012 FC 297)

Indexed As: Ka'a'Gee Tu First Nation v. Canada (Attorney General) et al.

Federal Court

de Montigny, J.

March 8, 2012.

Summary:

The Ka'a'Gee Tu First Nation (KTFN) and its Chief applied for judicial review of a decision to approve a recommendation of the third phase of an oil and gas development project proposed by Paramount Resources Ltd. in the Northwest Territories. The project was located in the Cameron Hills, over which the KTFN claimed aboriginal and treaty rights. The KTFN stated that the project negatively impacted their established treaty rights and their asserted aboriginal rights and that the Crown had a duty to consult and accommodate before approving the project. The KTFN claimed that the Crown failed to meet that duty.

The Federal Court, in a judgment reported (2007), 315 F.T.R. 178, allowed the application. The court declared that the Crown breached its duty to consult with the KTFN before deciding to approve the project. The court ordered that the parties engage in a process of meaningful consultation with the view of taking into account the concerns of the KTFN and if necessary accommodate those concerns. The process was to be conducted with the aim of reconciliation in a manner that was consistent with the honour of the Crown and the principles articulated by the Supreme Court of Canada in the Haida and Taku cases. KTFN brought an application alleging that the Crown failed to engage in good faith consultation to address the impacts of the project, as ordered by the court.

The Federal Court dismissed the application.

Indians, Inuit and Metis - Topic 3

Duty owed to Indians by Crown (incl. fiduciary duties, consultation duties and honour of the Crown) - The Ka'a'Gee Tu First Nation (KTFN) sought judicial review of a decision approving the final stage of an oil and gas development project - The KTFN claimed that the project negatively impacted their established treaty rights and alleged title to the area, and that the Crown breached its duty to consult and accommodate - In 2007, the court found that the Crown breached its duty to consult with the KTFN, stating that "the contextual factors in this case, particularly the seriousness of the impact on the Aboriginal people, by the Crown's proposed course of action and the strength of the applicants' asserted aboriginal claim, militate in favour of a more important role of consultation. The duty must in these circumstances involve formal participation in the decision-making process" - The KTFN participated in the decision making process up until the point where the Crown availed itself of the "consult to modify" process provided under the MacKenzie Valley Resource Management Act, which resulted in a substantial revision of certain key recommendations of the Mackenzie Valley Environmental Impact Review Board without consultation with the KTFN or any input from them - The Crown breached its duty to consult - The court ordered that the parties engage in a process of meaningful consultation with the view of taking into account the concerns of the KTFN and if necessary accommodate those concerns - A two year consultation process resulted in agreement on some matters, but the issue of aboriginal title and participation in resource benefits dominated the process without resolution - The KTFN wanted compensation for their asserted aboriginal title interest - The Crown maintained that the title issue was not within the scope of the court-ordered consultation (title subject to the land claims process where other aboriginal groups also claimed title) - The Federal Court held that the Crown did not breach its duty to consult and accommodate, as ordered in 2007 - The Crown correctly identified the scope of the duty of consult, which was limited to the deficiencies in the "consult to modify" stage - Final approval of the project and compensation for alleged title fell outside of the scope of the duty to consult - The rejection of KTFN's monetary claim for alleged title interest did not constitute a failure to consult - The duty to consult related to the process, not the result - The consultation process was carried out by the Crown in good faith and was meaningful and transparent.

Indians, Inuit and Metis - Topic 3

Duty owed to Indians by Crown (incl. fiduciary duties, consultation duties and honour of the Crown) - The Federal Court stated that "the duty to consult is not intended to provide Aboriginal people immediately with what they could be entitled to, if and when they prove their claims or settle them through treaty. Otherwise, there would be no incentive for Aboriginal people to negotiate treaties or seek to prove their claims. The duty to consult, therefore, is not meant to be an alternative to comprehensive land claims settlements, but a means to ensure that the land and the resources that are the subject of the negotiations will not have been irremediably depleted or alienated by the time an agreement is reached." - See paragraph 123.

Indians, Inuit and Métis - Topic 3.1

Judicial review of exercise of Crown's duty to Indians - The Federal Court stated that "a reviewing court owes very little deference to the decision-maker when determining whether the duty to consult is triggered or delineating the scope and extent of the duty in regard to legal and constitutional limits. On the other hand, the question as to whether the Crown discharged its duty to consult and accommodate will be reviewable on the standard of reasonableness. ... First, the duty to consult and accommodate heavily depends on the particular circumstances of each case, and questions of law will therefore often be intertwined with questions of fact. ... Second, perfection is not required when assessing the conduct of Crown officials. As is always the case when the standard of reasonableness is applied, the best outcome is not necessarily the benchmark; as long as it can be shown that reasonable efforts have been made to consult and accommodate and that the result is within the range of possible, acceptable outcomes which are defensible in respect of the facts and law, there will be no justification to intervene. ... Finally, ... the focus should not be on the outcome but rather on the process of consultation and accommodation." - See paragraphs 89, 90 to 92.

Practice - Topic 3603

Evidence - Affidavits - General - Contents of - The Federal Court stated that "an affidvait is not meant to replace or supplement the argument to be made by counsel; its function and purpose is to adduce the facts, and nothing more, relevant to the case at hand." - See paragraph 85.

Cases Noticed:

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. 31].

Canada (Attorney General) v. Quadrini (2010), 399 N.R. 33; 2010 FCA 47, refd to. [para. 85].

Wewayakum Indian Band v. Canada and Wewayakai Indian Band, [2002] 4 S.C.R. 245; 297 N.R. 1; 2002 SCC 79, refd to. [para. 94].

R. v. Marshall (D.J.), Jr., [1999] 3 S.C.R. 456; 246 N.R. 83; 178 N.S.R.(2d) 201; 549 A.P.R. 201, refd to. [para. 94].

R. v. Sparrow, [1990] 1 S.C.R. 1075; 111 N.R. 241, refd to. [para. 94].

Delgamuukw et al. v. British Columbia et al., [1997] 3 S.C.R. 1010; 220 N.R. 161; 99 B.C.A.C. 161; 162 W.A.C. 161, refd to. [para. 94].

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. 96].

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

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. 112].

Little Salmon/Carmacks First Nation et al. v. Beckman et al., [2010] 3 S.C.R. 103; 408 N.R. 281; 295 B.C.A.C. 1; 501 W.A.C. 1; 2010 SCC 53, refd to. [para. 112].

Dene Tha' First Nation v. Canada (Minister of the Environment) et al. (2006), 303 F.T.R. 106; 2006 FC 1354, refd to. [para. 120].

Platinex Inc. v. Kitchenuhmaykoosib Inninuwug First Nation et al., [2006] O.T.C. 712; 2006 CanLII 26171 (Sup. Ct.), refd to. [para. 120].

Musqueam Indian Band v. British Columbia (Minister of Sustainable Resource Management) et al. (2005), 209 B.C.A.C. 219; 345 W.A.C. 219; 251 D.L.R.(4th) 717; 2005 BCCA 128, refd to. [para. 121].

Counsel:

Tim Howard, for the applicant;

Ursula Tauscher and Janell Koch, for the respondent, Attorney General of Canada;

Everett Bunnell, Q.C., and Beth Younggren, for the respondent, Paramount Resources Ltd.

Solicitors of Record:

Mandell Pinder, Vancouver, British Columbia, for the applicant;

Myles J. Kirvan, Deputy Attorney General of Canada, Vancouver, British Columbia, for the respondent, Attorney General of Canada;

Macleod Dixon LLP, Calgary, Alberta, for the respondent, Paramount Resources Ltd.

This application was heard on September 13-16, 2011, at Vancouver, B.C., before de Montigny, J., of the Federal Court, who delivered the following judgment on March 8, 2012.

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