Numbered treaties concluded in the second half of the nineteenth century cover all the Prairie provinces. They gave the aboriginal signatories the right to hunt, trap and fish throughout the territory “saving and except such tracts as may be required or taken up form time to time for settlement, mining, lumbering, trading or other purposes.”
In the 2005 decision in Mikisew Cree First Nation v. Canada, the Supreme Court of Canada decided that taking up land under Treaty 8 was subject to a constitutional duty of consultation. The Court also explained that if no meaningful right to hunt remains over the traditional territory of a Treaty 8 signatory, an action for treaty infringement would be a legitimate First Nation response. The Treaty covers northern Alberta, northeastern British Colombia, northwestern Saskatchewan and the southern portion of the Northwest Territories.
Two more recent court decisions in Canada continued to explore the scope of the obligation to consult with First Nations and the scope of numbered treaty rights issue of infringement and justification.
These directly impact mining operations in the Prairie provinces and across Canada.
Consultation must be meaningful
In the West Moberly First Nations v. B.C. (Chief Inspector of Mines) decision, the Court of Appeal of British Columbia ordered the suspension of mining operation permits because B.C.’s consultation process was not meaningful. West Moberly First Nations argued that the province should be required to consider more than just the immediate effects of the permits sought. It should also assess the impact of earlier projects which seriously affected a local caribou herd, as well as the possible impact of coal mining.
The majority of the Court found that mining exploration would have an impact on Treaty 8 rights and that B.C. should have considered the impact of past projects, given the vulnerability of the caribou herd, which was an important part of the traditional lifestyle of the West Moberly First nations. The question is not one of correcting past wrongs, but of considering the impact of continuing exploration on an already decimated herd.
The majority also decided that although Treaty 8 does not name particular species or hunting grounds, it guarantees that signatory First Nations may continue their traditional activities and these will be respected. The consultation should therefore include the possible harmful effects of proposed activities on the caribou and the ability of West Moberly First Nations to hunt it in its feeding grounds.
Thresholds for infringing aboriginal rights
In June 2012 in William v. British Columbia, the province’s Court of Appeal said that since “Aboriginal rights short of title are the primary means by which the traditional cultures and activities of First Nations . . . are protected, it is essential that these rights be taken seriously.” The court also held that the threshold for proving infringement of an aboriginal right will not be onerous. “Any interference” with an aboriginal right (apart from a trivial interference) will be sufficient to make out infringement. The Court also decided that B.C. was unable to point to any compelling objective to justify the infringement of the aboriginal rights.
The William decision is relevant to the numbered treaties of the Prairies since Crown’s power to take up lands under the terms of those treaties could be limited in specific circumstances. A treaty right to hunt or trap within traditional territory may prevent the Crown from developing the territory’s resources—if the right is rendered illusory, hollow or short-lived.
Advice to mining companies
By law, the duty to consult and accommodate with First Nations only applies to government. But the reality is that mining companies have just as much of a stake in this approach—it is now an expected standard of practice.
To effectively consult and accommodate with First Nations, mining companies should
- Engage early on with First Nations impacted by a project and provide timely information.
- Ensure an effective and efficient consultation process that could be included into an Exploration Agreement (for initial or advanced exploration) or in a Memorandum of Understanding to set out the manner in which the parties agree to move forward address capacity issues and funding for First Nations support community efforts to plan and undertake a Traditional Ecological Knowledge mapping program discuss employment, training and economic development opportunities with First Nations.
- Consider the opportunity of entering into Impact and Benefit Agreements with First Nations to provide certainty for the project.
*The author is chair of Norton Rose’s Aboriginal law team.