Case Brief: Ermineskin Cree Nation v. Canada (Environment & Climate Change), 2021 FC 758
By John Gailus and Sayre Potter
What this case is about
Ermineskin Cree Nation (“Ermineskin”) is an Indian band and a signatory to Treaty 6. Ermineskin’s traditional territories encompass an area that is approximately 25,000 acres in size known as the Bear Hills or Maskwacheesihk in Alberta.
In 2012, Coalspur Mines (Operations) Ltd. (“Coalspur”) proposed a coal-mining project called Vista Coal Mine, occupying approximately 1,435 hectares of land on Ermineskin’s traditional territory. Phase I of the project was approved in 2014 with production beginning in 2019.
In October 2019, Ermineskin and Coalspur entered into an updated Impact Benefit Agreement (“2019 IBA”). The 2019 IBA was the result of consultations regarding the Phase II expansions of the Vista Coal Mine and the construction of a small-scale, limited Underground Test Mine (the “Project”). The 2019 IBA provided the parties with mutually beneficial opportunities to compensate for any adverse impacts on Ermineskin’s Aboriginal and Treaty rights. Additionally, the 2019 IBA gave Ermineskin the opportunity to participate in ongoing environmental monitoring of Coalspur’s activities.
Pursuant to subsection 9(1) of the Impact Assessment Act, S.C. 2019, c. 28, the Minister of Environment and Climate Change has the discretion to designate a project and subject it to federal decision-making and impact assessments. The Minister had previously declined to designate the Project in 2019. However, after receiving a request from other First Nations and special interest groups, the Minister reversed its decision and issued a Designation Order on July 30, 2020, subjecting the Project to a federal environmental assessment. The Minister never notified Ermineskin of the designation request or its decision to move forward with the Designation Order. As a result of the Designation Order, Ermineskin risks losing the economic, community and social benefits that it had gained under the 2019 IBA with Coalspur.
Ermineskin sought judicial review to quash the Designation Order. It claimed that the Crown had not consulted with Ermineskin prior to issuing the Designation Order. Given Ermineskin’s economic interest in the project through the 2019 IBA, it claimed that the Designation Order constituted Crown conduct which had the potential to delay, lessen, and eliminate any economic interest that Ermineskin had in the project.
What the Court said
The Federal Court agreed with Ermineskin that the Designation Order constituted Crown conduct that triggered the duty to consult. The Federal Court considered the three ‘elements’ developed in jurisprudence that must be met to trigger the Crown’s duty to consult: (i) the Crown’s knowledge, actual or constructive, of a potential Aboriginal claim or right; (ii) the existence of contemplated Crown conduct; and (iii) the potential that the contemplated conduct may adversely affect an Aboriginal claim or right.
Given that Ermineskin is a signatory to Treaty 6, the Federal Court held that the first element was satisfied. Furthermore, Ermineskin sought participation in and information regarding the provincial and federal assessment process which was further proof of the Minister’s knowledge of Ermineskin’s claim.
It was undisputed that the Designation Order constituted conduct that may adversely affect an Aboriginal claim or right. However, the Minister disagreed that there was a potential for the Crown’s conduct to adversely affect an Aboriginal claim or right. The Court disagreed. Relying on the Supreme Court’s decision in Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43, the court confirmed that adverse effects on Aboriginal and Treaty rights can extend to decisions which do not immediately impact land or resources, including high-level policy decisions or changes to resource management. Structural changes to resource management have the potential of causing a direct impact on land and resources in the future. The Project’s location on Ermineskin’s traditional territory has the potential to adversely impact Ermineskin’s hunting, trapping, fishing, and gathering rights.
The 2019 IBA negotiated between Coalspur and Ermineskin was meant to mitigate any adverse impacts on Ermineskin’s Aboriginal rights and provide Ermineskin with economic interests in the project as compensation. The economic interests that Ermineskin had in Coalspur’s coal-mining expansion, generated through the 2019 IBA, were closely related to and derivative to their Aboriginal [and Treaty] rights. The Federal Court found that the Designation Order threatened any social, economic and community benefits that Ermineskin had previously secured under the 2019 IBA as compensation for any impacts the project may have on its Aboriginal rights. As a result, the Minister had a duty to consult with Ermineskin before using its discretion to designate the Phase II expansion and delay the Project. While the Minister did consult with the First Nations who brought forward the request to designate the Project, he failed to consult with Ermineskin. Ultimately, Ermineskin was frozen out of the process despite its economic interests in the project and the project’s location on its traditional territory.
Why this case is important
This decision confirms that the Crown’s duty to consult extends to situations where a First Nation has negotiated compensation for Aboriginal and Treaty rights through an Impact Benefits Agreement. The economic and community benefits arising from these agreements are entitled to protection through the Crown’s duty to consult given that they are closely related to underlying Aboriginal or Treaty rights as an accommodation measure. Additionally, the decision confirms that the Crown cannot satisfy its duty to consult by simply consulting with First Nations who oppose a development project. It must consult with those who support a project as well, if their rights might be adversely impacted.