On January 23, 2017, the Federal Court of Appeal upheld the approval of the Site C Clean Energy Project (Site C) in Prophet River First Nation v Canada (Attorney General)1. The appeal was made by Prophet River First Nation (PRFN), who contended that the Governor in Council (GIC) failed to consider whether their treaty rights were infringed by Site C in accordance with the Sparrow2 framework. The Court concluded that the Sparrow framework had been superseded by the Haida Nation3 framework, which prioritizes consultation rather than the determination of Aboriginal rights.
Understanding Treaty Rights
Aboriginal and treaty rights are constitutionally protected rights. The protection owed to these rights by the Crown depends on where they fall on a spectrum, between claimed but unaffirmed rights and affirmed and recognized rights.4
The treaty rights asserted by PRFN fall between claimed and affirmed rights. While PRFN is a party to Treaty 8 which provides rights including hunting and fishing rights, “the scope of [treaty rights] on Aboriginal peoples’ traditional territories still needs to be delineated.”5 PRFN’s treaty rights would only cover a fraction of the Treaty 8 lands which cover an area larger than Manitoba. According to the test set out in Sparrow, PRFN argued that it was the duty of the GIC to evaluate and conclude on PRFN’s rights, and justify their infringement.6
Sparrow v Haida Nation – an Honourable Evolution
Under the Sparrow test, the impacted Aboriginal right must first be evaluated and proven. Once a right has been established, the Crown must then justify the infringement of the right.7 “[This] approach proved to be complex and often resulted in years of litigation.”8
The 2004 Haida Nation decision provided a new and contrasting framework, intended to restore collaboration and the prominence of the honour of the Crown. The Haida Nation framework “imposed on the Crown a duty to consult and accommodate, if necessary, in the event a project might have a significant impact on claimed Aboriginal rights.”9 Importantly, the Haida Nation framework does away with the intensive and adversarial requirement to prove Aboriginal rights.
The Court found that the Sparrow approach advocated by PRFN was irreconcilable with the process in Haida Nation as it would “considerably weaken the application of the duty to consult,”10 a fundamental attribute of the honour of the Crown.
The Honour of the Crown and Reciprocal Obligations
The Court noted that the Sparrow framework was not necessary in these circumstances since the PRFN’s asserted rights could have been addressed and protected through the Haida Nation framework, with its focus on consultation. One function of consultation is to inform the Crown of the interests and rights of First Nations and to determine how those rights will be impacted. While the Crown has a right under Treaty 8 to take up land from time to time, the honour of the Crown limits how and to what degree Aboriginal rights may be impacted.11
The consultation and accommodation process related to the Project was, from the outset, “set at the deep end of the consultation spectrum.”12 Yet the Court noted that the PRFN did not meaningfully engage in the consultation process. For example, a territorial map was provided which showed the aggregate territories of four First Nations covering more than 121,000 km2 and included a legend suggesting additional, unmarked territories.13 The Crown’s request for a map specific to PRFN was refused.14 Moreover, among the documentation provided during consultation was evidence suggesting that PRFN principally exercised their treaty rights 200 km north of the Project area.15
The process of consultation set out in Haida Nation “require[s] good faith efforts to understand each other’s concerns and move to address them.”16 These are reciprocal duties intended to foster reconciliation through dialogue.17 “The appellants had the duty to provide information for the determination of their traditional territories and the scope of their treaty rights in order to demonstrate that the potential impact of the [Project] was so severe so as to constitute infringement.”18
Had the PRFN engaged more fully in the Crown’s consultations, they could have better informed the Crown. The honour of the Crown would have required the Crown to give additional consideration to this information and, if appropriate, limited its actions accordingly. By acting based on the information it had available and by requesting additional information from PRFN, the Crown satisfied its obligations to act in accordance with the honour of the Crown.
The Court also mentioned that “it is insufficient for the appellants to assert treaty rights by merely alleging preferred areas without any specification with respect to the traditional land use area in which the rights were historically and are currently exercised.”19 While this assertion is consistent with the reciprocal duties discussed above, the wording is in direct contrast with the Sparrow framework20 and is further evidence that the Court is attempting shift to a new legal framework.
Though Prophet River could have been addressed simply on the basis of the evolution from Sparrow to Haida Nation, the Court went on to conclude: (A) that the GIC is not the correct forum for evaluating and assessing treaty rights, as the GIC is not an adjudicative body21 and is “focused rather on a variety of considerations – often referred to as polycentric – and thereby seeks to balance a variety of interests”22; and (B) that a judicial review is not the appropriate forum for determining treaty rights, as the judicial review process “is a summary proceeding and, generally, the only material that is considered by the Court is the material that was before the decision-maker,”23 while an assessment of Aboriginal rights requires “a full discovery, examination of expert evidence, as well as historical testimonial and documentary evidence.”24
This decision provides a unique analysis of the shift from the Sparrow framework to the Haida Nation framework and its implications for Aboriginal peoples and the Crown. Consultation consists of reciprocal obligations, the purpose of which are to inform the Crown and foster dialogue. The results of consultation will determine the Crown’s obligations to Aboriginal peoples pursuant to the honour of the Crown. In addition to restating the present requirements under the Haida Nation framework, the Court’s decision fits in to a larger and consistent theme in Aboriginal jurisprudence: the importance of reconciliation between Aboriginal peoples and the Crown.