Queen s University Opinion Letter Team 6 Oil Drum Industries February 15, Kawaskimhon Moot

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1 INTRODUCTION Queen s University Opinion Letter Team 6 Oil Drum Industries February 15, Kawaskimhon Moot Treaty 8 was signed in 1899 by various Aboriginal communities across western Canada, including British Columbia. It confers upon its signatories the right to hunt, fish and trap within its boundaries. 1 Treaty 8 signatories have also acquired subsurface rights since that time. 2 Several parties claim conflicting rights to a certain portion of Treaty 8 land located in British Columbia. More specifically, Treaty 8 is the subject of two principle boundary disputes. The first dispute pertains to the location of its western boundary. The Federal Crown, the Treaty 8 Tribal Association ( Tribal Association ) and Oil Drum Industries ( ODI ) claim that the western boundary of Treaty 8 lies along the Arctic Watershed ( the Watershed ). British Columbia and the Kaska Dene allege that it is located further east along the central range of the Rocky Mountains. The second boundary dispute is between several British Columbia signatories to Treaty 8 and the neighbouring Lheidli T enneh First Nation. As part of its land claim negotiations, the Lheidli T enneh claims land which overlaps the boundary of Treaty 8 ( the Disputed Area ) due to its historical and spiritual connection with the area. However, the Tribal Association claims that Treaty 8 rights apply in the Disputed Area. As a result, the parties disagree over the ownership of the land and the rights within the Disputed Area. 1 Treaty No.8, online: INAC inac.gc.ca/pr/trts/trty8/trty_e.html. 2 As per 2008 Kawaskimhon Moot instructions [Moot Instructions].

2 Our client, ODI, is an oil and gas company that possesses exclusive drilling rights within Treaty 8. ODI is wholly owned by the Tribal Association, a service delivery organization that represents six Treaty 8 First Nations located in northeastern British Columbia. Thus, ODI has a dual interest: an economic interest in the land as the exclusive holder of subsurface rights in Treaty 8 and an interest in advocating for its owners Treaty 8 rights in the disputed area. ODI has requested that we research its legal position in both boundary disputes. If the Watershed is not found to be the western boundary, ODI and the Tribal Association stand to lose a significant portion of their Treaty 8 land base. Consequently, both clients would be unable to exercise their rights in the area. In addition, any overlap into the Treaty 8 boundary by the Lheidli T enneh will have significant legal and economic consequences for ODI and the Tribal Association. ISSUES The two boundary disputes raise several legal issues. An alteration of the western boundary of Treaty 8 could severely reduce the area of land over which Treaty 8 beneficiaries can exercise their rights. In addition, the fact that the Lheidli T enneh land claim will overlap the Treaty 8 boundary has given rise to a division between the various parties over the Disputed Area. The resolution of these disputes is dependent upon the outcome of the following legal questions: 1. HOW WILL THE COURT DETERMINE THE WESTERN BOUNDARY OF TREATY 8? A) What Is The Correct Method Of Treaty Interpretation For Determining Boundary Disputes? 2

3 B) Did British Columbia Cede The Disputed Lands To The Federal Government For The Purposes Of Treaty Making? 2. CAN THE CROWN TAKE UP LAND IN TREATY 8 FOR THE PURPOSE OF SETTLING THE LHEIDLI T ENNEH LAND CLAIM? 3. IF THE CROWN HAS THE AUTHORITY TO TAKE UP LAND FOR THE PURPOSES OF SETTLING THE LHEIDLI T ENNEH CLAIM, WHAT DUTY TO CONSULT DOES THE CROWN OWE TO TREATY 8 MEMBERS? A) Does The Crown Have A Duty To Consult The Tribal Association And ODI? B) What Is The Scope of The Crown s Duty To Consult In This Case? 4. WOULD THE COURT GRANT ODI AND THE TRIBAL ASSOCIATION AN INJUNCTION? A) What Are The General Trends In The Law? B) Could You Meet The Legal Test for An Injunction? STATEMENT OF FACTS Treaty 8 was enacted by the Federal Crown in It spans significant portions of Saskatchewan, Alberta, British Columbia and the Northwest Territories. In exchange for the surrender of some 840,000 square kilometers of land to the Crown, its Aboriginal signatories were promised the right to hunt, trap and fish throughout the surrendered land with the exception of tracts of land taken up from time to time by the Crown for settlement, mining, lumbering, trading or other purposes. 3 Since that time, Treaty 8 signatories have also acquired subsurface rights. 4 There are eight Treaty 8 signatory First Nations in British Columbia. Of the eight, 3 Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69 (QL) at para. 2 (Mikisew). 4 Moot Instructions, supra note 2. 3

4 McLeod Lake is the only First Nation located within the Disputed Area but it is not a member of the Tribal Association. Although McLeod Lake has adhered to Treaty 8 since 2000, it has orally agreed to support the Lheidli T enneh claim in the Disputed Area. The western boundary of Treaty 8 is a matter of legal dispute. The Government of Canada, the Tribal Association and ODI believe that the western boundary of Treaty 8 is located along the Watershed. The following cartographic evidence supports this claim: (1) the original map dated 1898 and attached to the enabling Order in Council, P.C was sent to all involved parties including British Columbia 5 ; (2) another map dated 1900 and attached to the Report of the Treaty Commissioner for Treaty 8 showed a western boundary line consistent with the Watershed 6 ; (3) the Watershed drainage lines indicate that the central range of the Rocky Mountains (the language of Treaty 8) is a natural continental dividing line 7 ; (4) and modern satellite mapping used by the Treasury Board defines the western boundary as the Watershed 8. The Government of British Columbia and the Kaska Dene, however, argue that the central range of the Rocky Mountains lies significantly further east of the Watershed. The Kaska Dene has 5 Indian and Northern Affairs Canada, Treaty 8: Prelude to Treaty Negotiations, online: INAC < B/prec_e.html>. 6 Department of Indian Affairs, Map Showing the Territory Ceded Under Treaty No.8 and the Indian Tribes Therein, online: Library and Archives Canada < 7 Natural Resources Canada, online: < and < 8 Treasury Board of Canada Secretariat, Treaty 8, online: < carte.tbs sct.gc.ca/dfrp rbif/mapcarte/map carte.aspx?language=en&env=www&navtreaty=080>. 4

5 sought a court declaration for this interpretation of the western boundary. 9 The following evidence supports this claim: (1) the central range and the Watershed have distinct meanings. 10 Despite this knowledge, the Government of Canada chose to use the term central range rather than the Watershed to describe the western boundary; (2) a 1913 map by geographer James White entitled Indian Treaties depicts the western boundary of Treaty 8 along the Rocky Mountains 11 ; (3) case law has held that British Columbia never ceded the Treaty 8 lands to the Federal government for Aboriginal use in accordance with the treatymaking provisions of the British Columbia Terms of Union. 12 The Lheidli T enneh is engaged in modern day treaty negotiations with the federal and provincial governments. It filed its initial claim for Aboriginal title and rights in August 2005, however the subsequent Agreement in Principle was not passed at the band member vote. The Lheidli T enneh recommenced negotiations and expects to vote on a Final Agreement by April Under the proposed Lheidli T enneh Final Agreement ( LTFA ), the Lheidli T enneh claims a geographic area equaling 5,600 square kilometers which overlaps the boundary of Treaty Based on the current content of the LTFA, the Lheidli T enneh: Will own the claimed lands in private fee simple 14 9 Willson et al. v. British Columbia (Attorney General), 2007 BCSC 1324 (QL) [Willson]. 10 Ibid, Statement of Claim. 11 Ibid, Schedule C. 12 Chingee v. Canada (Attorney General), 2005 BCCA 446 (QL). 13 Saulteau First Nations v. Canada (Attorney General), 2007 BCSC 492 at para.10 (QL) [Saulteau]. 5

6 Will own all subsurface rights and resources on the claimed land 15 Will share non exclusive hunting and fishing rights with other First Nations in the overlap area 16 Conflicting aboriginal rights are not given priority over Lheidli T enneh rights 17 ANALYSIS OF ISSUES 1. HOW WILL THE COURT DETERMINE THE CORRECT WESTERN BOUNDARY OF TREATY 8? To maximize your Treaty 8 rights, we recommend claiming the westernmost boundary of Treaty 8. By establishing the western boundary along the Watershed, ODI will maintain exclusive drilling rights over a larger area. Also, the Tribal Association will have a larger area to exercise its rights to hunt, fish, and trap. In order for the court to determine the western boundary of Treaty 8, to the court will apply the common law principles of treaty interpretation to the text of the treaty. In addition, the court will have to determine whether British Columbia ceded the Treaty 8 lands to the Federal government for the purposes of treaty making. 14 Lheidli T enneh Final Agreement (October 29, 2006), online: Government of British Columbia p. 49 (par. 6). 15 Ibid, p. 54 (par. 41). 16 Lheidli T enneh Final Agreement Fact Sheets, Lheidli T enneh Lands, online: Government of British Columbia < p Supra note 14 at p. 27 (par ) 6

7 A) What Is The Correct Method Of Treaty Interpretation For Determining Boundary Disputes? Aboriginal treaties are a unique type of agreement that attract special principles of interpretation 18 in which the integrity and honour of the Crown is presumed. 19 The law is clear that treaties should be liberally construed and ambiguities should be resolved in favour of the Aboriginal signatories. 20 It is well established that the meaning of the central range is ambiguous and current litigation supports this conclusion. 21 As a result, the court should consider the Aboriginal interests at stake in the treaty, and confer more weight on those interests. The Aboriginal signatories to Treaty 8 have based the exercise of their rights on the Federal government version of the western boundary since signing. Consequently, if the western boundary of Treaty 8 is found to lie further east, there will be a reduction in the area over which these rights are exercised, thereby negatively impacting Treaty 8 signatories. This outcome would not conform to the obligation to resolve ambiguities in favour of Aboriginal signatories. 18 R. v. Sundown, [1999] 1 S.C.R. 393 at para. 24 [Sundown]; R. v. Badger,[1996] 1 S.C.R. 771 at para. 78 [Badger]; R. v. Sioui, [1990] 1 S.C.R at 1043 [Sioui]; Simon v. The Queen, [1985] 2 S.C.R. 387 at 404 [Simon]. See also: J. [Sákéj] Youngblood Henderson, Interpreting Sui Generis Treaties (1997) 36 Alta. L. Rev. 46; L.I. Rotman, Defining Parameters: Aboriginal Rights, Treaty Rights, and the Sparrow Justificatory Test (1997) 36 Alta. L. Rev Badger, supra note 17 at para Simon, supra note 17 at 402; Sioui, supra note 17 at 1035; Badger, supra note 17 at para Willson, supra note 9. 7

8 The common law has also stated that the goal of treaty interpretation is to reconcile the common intention of both parties at the time the treaty was signed. 22 As such, Treaty 8 must be interpreted based on the common intention and understanding of the parties at the time of signing. The Treaty 8 maps from 1898 and 1900 are historical reflections of the Crown s intention and understanding of the Treaty. Furthermore, it is upon this foundation that the Treaty 8 signatories have built their expectations of the Treaty. In addition, the terms of Treaty 11 support this understanding of the parties common intentions in regards to the Treaty 8 boundary. The text of Treaty 11 explicitly states that the boundary Treaty 11 commences where the boundary of Treaty 8 ends at the 60 th parallel. Moreover, the contemporary map of Treaty 11 affirms the meeting point of these treaties at the 60 th parallel and the Watershed. 23 As a result, it was the common intention and understanding of the parties to Treaty 8 and Treaty 11 that the western boundary of Treaty 8 was located along the Watershed. Lastly, the words of a treaty must be given the sense that they would naturally have held for the parties at the time. 24 A technical interpretation of treaty wording should be avoided 25 but courts cannot alter the terms of the treaty by exceeding what is realistic. 26 British Columbia s interpretation of the central range is extremely literal and it is based on the premise that, at the 22 Sioui, supra note 17 at Rene Fumoleau, As Long As This Land Shall Last: A History of Treaty 8 and 11, (Calgary: University of Calgary Press, 2004). 24 Badger, supra note 17 at paras. 53 et seq.; Nowegijick v. The Queen, [1983] 1 S.C.R. 29 at 36 [Nowegijick]. 25 Badger, supra note 17; R. v. Horseman, [1990] 1 S.C.R. 901 [Horseman]; Nowegijick, supra note Badger, supra note 17 at para. 76; Sioui, supra note 17 at 1069; Horseman, supra note 24 at

9 time Treaty 8 was negotiated, the Federal Crown was well acquainted with the difference between the Watershed and the central range of the Rocky Mountains. In essence, if the Federal government wanted the boundary of Treaty 8 to fall along the Watershed, it should have specified this location. By engaging in this type of analysis, British Columbia is attempting to hold the Federal government to a technical understanding of the words rather than their natural use. As such, the common intention and understanding of the parties (i.e. the Watershed) should prevail over this strict use of language. B) Did the British Columbia Government Cede the Treaty 8 Lands to the Federal Crown for the Purpose of Treaty Making? British Columbia claims that the Federal government s interpretation of the western boundary of Treaty 8 is incorrect because it never ceded this land under the BC Terms of Union. 27 Recent case law supports this position. However, there are three counterarguments to this position: (1) British Columbia informally acquiesced to Treaty 8; (2) British Columbia has created an expectation that Treaty 8 rights can be exercised in areas beyond its interpretation of the western boundary; (3) Despite arguing that it did not consent to Treaty 8 at all, British Columbia does not contest the application of Treaty 8 in the northeast part of the province. 27 Olive Patricia Dickson, Canada s First Nations: A History of Founding Peoples, 3d ed. (Toronto: McClelland & Stewart, 1992)

10 There is strong evidence to support the claim that British Columbia informally acquiesced to Treaty Indeed, British Columbia received Privy Council Order in Council 2749 which contained notification of the Treaty negotiations and a map of the intended boundary. On the map, the western boundary was located along the Watershed. British Columbia failed to respond to this notification. As such, their failure to contest the western boundary is an indirect acquiescence to the federal government treaty negotiations. In addition, British Columbia has created an expectation that Treaty 8 rights can be exercised in the area beyond its interpretation of the western boundary. As a result, British Columbia should be estopped from attempting to redefine the western boundary of Treaty 8. Estoppel protects a party who has reasonably relied upon the expected behaviour of another party if that other party did or said something to create that expectation. British Columbia has had knowledge of the Federal interpretation of the western boundary of Treaty 8 since Since that time, there has been no formal re designation of the western boundary. Consequently, British Columbia has created an expectation that the Treaty 8 rights can be exercised within the western boundary as interpreted by the Federal government. Indeed, Treaty 8 beneficiaries have relied upon the Federal definition of the western boundary for the exercise of their rights for over a century Arthur J. Ray, Treaty 8: A British Columbian Anomaly (1999) 123 B.C. Studies Willson, supra note 9. In this case the chiefs of the Treaty 8 brought an action against the British Columbia government on behalf of the Treaty 8 beneficiaries. They argued that the Watershed is the western boundary of Treaty 8. The fact that this action was brought by Treaty 8 beneficiaries on this particular issue demonstrates their reliance on the Federal interpretation of the western boundary. 10

11 As a result, the retraction of the western boundary to a more eastern point would cause the Treaty 8 beneficiaries to suffer great detriment through the loss of land over which they exercise their rights. Therefore, British Columbia should be estopped from redefining the western boundary. Furthermore, British Columbia has not contested the validity of Treaty 8 in the northeast portion of the province. If British Columbia never ceded Treaty 8 lands to the Federal government, then any portion of Treaty 8 that falls within provincial boundaries would be invalid. However, British Columbia is not alleging that this is the case. Rather, British Columbia alleges the invalidity of only the westernmost portion of the Treaty. This suggests that British Columbia recognizes the authority of the Federal government to make Treaty 8 within the province yet, for unclear reasons, does not want the western boundary to extend as far as it does. 2. CAN THE CROWN TAKE UP LAND IN TREATY 8 FOR THE PURPOSE OF SETTLING THE LHEIDLI T ENNEH LAND CLAIM? Regardless of the outcome of the western boundary dispute, the court must consider whether the Crown retains the authority to alienate the Disputed Area to the Lheidli T enneh and preclude its status as Treaty 8 territory. Treaty 8 rights do not apply to lands "taken up from time to time for settlement, mining, lumbering, trading or other purposes". 30 The court may consider whether the Crown is authorized to take this land and assign it to the Lheidli T enneh under the auspices of 30 Mikisew, supra note 3 at para

12 other purposes. Consequently, an important legal issue is whether other purposes includes the right to take up land to settle other Aboriginal land claims. The common law does not clarify whether this provision includes taking up land for the purpose of settling an Aboriginal land claim. However it is our opinion that the principles of treaty interpretation preclude this option. Both the language of Treaty 8 and case law have failed to define other purposes. Most importantly, there is no judicial decision that directly considers whether this provision can be used to settle land claims. The court has, however, rejected a restrictive reading of this term. 31 This term should be given an ordinary meaning, which does not have to be analogous the other enumerated grounds for taking up lands. 32 This position is based on the Treaty 8 parties clear contemplation that changes could be made to the use of the treaty lands over time. 33 However, using other purposes to settle the Lheidli T enneh land claim would contradict the basic principles of treaty interpretation. As previously discussed, ambiguous or unclear treaty terms, such as other purposes, are interpreted in favour of the Aboriginal signatories. 34 Using other purposes to convey the Disputed Area to the Lheidli T enneh has the effect of restricting and alienating Treaty 8 rights over 5,600 square kilometers of land. As a result, this reading of 31 Ibid. at para Ibid. 33 Ibid. 34 Ibid. at paras

13 Treaty 8 is contrary to the accepted principles of treaty interpretation because it would have a profound detrimental effect on the Treaty 8 signatories. In addition, the court rejects an interpretation of treaties that exceeds what is realistic. 35 A reading of the phrase other purposes which authorizes the Crown to re appropriate significant portions treaty land to another Aboriginal group extends the meaning of this term beyond its realistic parameters and into extremism. There is no clear legal authority in Treaty 8 allowing the Crown to do so, and to imply such significant authority is unrealistic and dangerous. Indeed, an interpretation of Treaty 8 that would allow this to happen sets a dangerous precedent in law because the government could essentially replace all of its historic treaty obligations with modern land claim settlements. As a result, it is highly unlikely that the Crown could take up the Disputed Area and re appropriate it to the Lheidli T enneh under the auspices of other purposes. However, were the government to succeed in this claim, it is our opinion that an extensive duty to consult and accommodate would be triggered. 3. IF THE CROWN HAS THE AUTHORITY TO TAKE UP LAND FOR THE PURPOSES OF SETTLING THE LHEIDLI T ENNEH CLAIM, WHAT DUTY TO CONSULT DOES THE CROWN OWE TO TREATY 8 MEMBERS? Whether or not the LTFA results in overlapping or exclusive rights in the disputed area, the issue to be determined is whether the Crown has a duty to consult with ODI or the Tribal Association 35 Badger, supra note 17 at para. 76; Sioui, supra note 17 at 1069; Horseman, supra note 24 at

14 during its negotiations with the Lheidli T enneh. Establishing a duty to consult is vitally important, as it will allow you to voice your concerns about the LTFA to the Crown, and to potentially have your rights and concerns accommodated. Strategically, ODI should be jointly represented with the Tribal Association on the issue of consultation because it is questionable whether ODI, as a corporation, is owed a duty of consultation by the Crown. Nevertheless, the fact that ODI is wholly owned by a Tribal Association, whose membership is made up of Treaty 8 beneficiaries with substantive Treaty 8 rights, is a strong argument in favour of extending the duty to consult to both of these entities. 36 A) Does The Crown Have A Duty To Consult The Tribal Association And ODI? There is a legal presumption that the Crown has a duty to consult with Aboriginal peoples when it is engaged in treaty negotiations. This duty arises at the moment in time when the Crown has knowledge, real or constructive, of the potential existence of the Aboriginal right or title and contemplates conduct that might adversely affect it. 37 There is little doubt that you satisfy the first step of this test, because the Crown is deemed to have notice of the content of treaties. 38 Courts are more likely to find an adverse effect where there has been a reduction in the territory over which rights holders are entitled to exercise their rights, less secure access to the land, and 36 Native Council of Nova Scotia v. Canada (Attorney General), 2005 FC 1739 at para. 23 (QL). 37 Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73 (QL) at paras. 19 and 35 [Haida]. 38 Mikisew, supra note 3 at para. 34; Badger, supra note

15 increased pressure on the land resources, and environmental degradation or damage. 39 In its current form, the LTFA provisions could have the following adverse effects upon Treaty 8 rights: The LTFA limits the area in which the Treaty 8 members can exercise treaty rights by either conferring fee simple title to the Lheidli T enneh or by subjecting the overlap are to non exclusive, shared rights, thereby increasing pressure on resources; Treaty 8 rights are not given priority over Lheidli T enneh rights; ODI will not be permitted to drill in the overlap area, resulting in economic hardship for Treaty 8 Tribal Association. These adverse effects are on point with the previous court decisions because they highlight a decrease in Treaty 8 land area, ecological degradation and increased pressure on natural resources, and less secure Treaty 8 access to the Disputed Area. Therefore, we believe that you have a strong argument that Crown s contemplation of the LTFA has potentially adverse effects on the ability of Treaty 8 beneficiaries to exercise their rights and gives rise to a duty to consult during treaty negotiations with the Lheidli T enneh. B) What is the Scope of the Crown s Duty to Consult ODI or the Tribal Association? After determining that you are owed a duty of consultation in this matter, the next question is the extent of this duty. The answer to this question will fall along a spectrum ranging from low consultation to deep consultation, depending on the preliminary assessment of the strength of the 39 Mikisew, supra note 3 at para. 34; Hupacasath First Nation v. British Columbia, [2006] 1 C.N.L.R

16 case supporting the existence of the right or title, and the seriousness of the potentially adverse effect upon the right or title claimed 40. Generally speaking, proven or recognized Aboriginal rights give rise to a deeper duty of consultation. Treaty 8 rights fall within this grouping because they are formalized within the treaty document. 41 Thus, the recognition of your rights within Treaty 8 strengthens your case and increases the likelihood that the Crown will owe you a deeper level of consultation. The common law also helps determine the seriousness of the potentially adverse effect upon the right claimed. Adverse effects have been held to be more serious when they: (1) are permanent or long term, 42 (2) are incompatible with the continued long term use of the land for the exercise of the Aboriginal rights, 43 (3) intrude into a geographically large piece of land over which rights are exercised, (4) affect a piece of land that is critical to the Aboriginal people s domestic economy. The adverse effects of the LTFA will be extremely serious in the event that the Lheidli T enneh is given exclusive (fee simple) ownership of the Disputed Area, some 5,600 square kilometers. The fee simple ownership of this land is a permanent arrangement that permits the Lheidli T enneh to exclude Treaty 8 members from the land. This potential exclusion from such a 40 Haida, supra note 36 at para Relentless Energy Corporation v. Davis, 2004 BCSC 1492 (QL)[Relentless Energy]. 42 Halfway River First Nation v. British Columbia (Ministry of Forests), 1999 BCCA 470 (QL)[Halfway]; Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), 2004 SCC 74 (QL). 43 Ibid. 16

17 significant area of land is incompatible with Treaty 8 beneficiaries continued use of the land for the exercise of their rights to hunt, fish, and trap. As such, it necessitates deep consultation. Although the LTFA does provide for shared, non exclusive hunting and fishing rights between the Lheidli T enneh and Treaty 8 in the overlap area, this sharing could result in ecological degradation or the uneven distribution of the rights between the parties. Moreover, because the Tribal Association is not a party to the LTFA, the parties must come to a separate agreement on shared rights. Consequently, we are concerned that the negotiation of this agreement could result in an insufficient rights sharing scheme. This restriction on treaty rights is a serious adverse effect which supports a claim for deep consultation. Finally, the LTFA conveys exclusive subsurface rights in the Disputed Area to the Lheidli T enneh. The disputed area is rich in natural resources such as oil and gas. As a result, ODI will no longer be permitted to excavate oil and gas in the Disputed Area, subject to an agreement with the Lheidli T enneh. ODI s exclusion from the Disputed Area would result in economic hardship resulting from the loss of potential revenue and employment. Accordingly, your case would be strengthened by evidence that you have development projects in the overlap area which are critical to the Tribal Association s domestic economy. 17

18 It is our opinion that ODI and the Tribal Association are entitled to deep consultation. We are confident that the Crown must consult with you in its treaty negotiations with the Lheidli T enneh, based on the Crown s knowledge of your treaty rights and the adverse effect of the LTFA on those rights. Deep consultation will permit you to make submissions for consideration and formally participate in the decision making process. Consequently, you will also be owed a certain level of accommodation. The Crown will have to inform itself of the impact that its project will have on the exercise of your Treaty 8 rights, and attempt to deal with you in good faith and with the intention of substantially addressing your concerns. 44 In brief, this significant level of consultation will maximize your ability to advocate for your rights, and to have these concerns and rights accommodated. 4. WOULD THE COURT GRANT ODI AND THE TRIBAL ASSOCIATION AN INJUNCTION? An injunction is court ordered remedy which restrains a party from continuing on a given course of action. They have been used to stop the sale or transfer of land in cases where Aboriginal bands were not properly consulted. 45 However, the court is reluctant to grant injunctions where there are conflicting interests between Aboriginal parties, and when the opportunity for consultation exists. Treaty 8 members have previously sought an injunction to halt treaty 44 Mikisew, supra note Haida Nation, supra note 36; Musqueam Indian Band v. B.C. (Minister of Sustainable Resource Management), [2005] B.C.W.L.D

19 negotiations between the Lheidli T enneh and the Crown pending consultation with Treaty 8. They were unsuccessful. Based on the following analysis, it is our opinion that you are unlikely to be successful in a further injunction application. A) What Are The General Trends In The Law? The court consistently prefers consultation and accommodation over injunctions. 46 In cases where there is inadequate consultation, the court has ordered new attempts at consultation. Moreover, the court has refused to grant injunctions in cases where there was adequate consultation because substantial progress is usually attained through consultation and accommodation. 47 Thus, in your case, it is likely that the court would find that you are owed a duty of deep consultation in the Disputed Area. In the event that you are inadequately consulted, the court is more likely to order that the Crown consult with you anew instead of ordering an injunction restraining government action. B) Could You Meet The Legal Test For An Injunction? 46 Haida Nation, supra note Snuneymuxw First Nation v. British Columbia, 2004 BCSC 205 at para. 39 [Snuneymuxw]. 19

20 In order to obtain an injunction, the court must find: (1) a serious issue to be tried; (2) that you would suffer irreparable harm for which monetary compensation is inadequate; and (3) that the person against whom the injunction is sought is not unfairly burdened by the injunction. 48 The following evidence suggests that you could satisfy some of the elements of the test. Firstly, the last time that this issue was brought before the court, it was agreed that the potential loss of Treaty 8 rights in the Disputed Area was a serious issue. 49 Secondly, the court has noted that irreparable harm can result from a loss of hunting rights on Treaty 8 lands, as development has continually encroached on those lands and reduced the viable hunting grounds of Treaty 8 to approximately 25% of the original area. Indeed, the court has explicitly stated that, It is no longer realistic to simply tell the defendants to go elsewhere under Treaty #8 to exercise their rights. 50 Consequently, the fact that Treaty 8 members would have to share hunting and fishing rights with the Lheidli T enneh in the overlap area may constitute an irreparable harm given the fact that their treaty rights have eroded over time. These rights are not compensable. Losing rights to hunt, fish, and trap in important areas, and the cultural protections secured under the treaty are not negligible. Fortunately, the court has distinguished between harm and the nature of the harm and recognized that any amount of money may not be enough to truly compensate for 48 RJR MacDonald Inc. v. Canada, [1995] 3 S.C.R. 199; Fletcher v. Bealey (1885) (Ch.D.); Palmer v. N.S. Forest Industries, 1984 NSTD. 49 Saulteau, supra note Relentless Energy, supra note 40 at 23. Citing Musqueam Indian Band v. Canada (Governor in Council), 2004 FC 579 [Musqueam]. 20

21 what is lost. 51 In cases whether the fishing or hunting right has been inextricably linked to culture, the court is more likely to find that a threat to it is an irreparable harm. 52 It is therefore possible that the Tribal Association could meet the test for irreparable harm. Thirdly, the court has found in other cases that, on a balance of convenience, the honour of the Crown was paramount. 53 Therefore you could argue that it is in the public interest that the honour of the Crown be maintained through its meaningful consultation with Treaty 8 members. However, the following arguments weaken your case for an injunction. Firstly, in other cases the court has held that the taking up of lands by the Crown does not constitute irreparable harm when the lands are a small portion of the treaty area and when there is no evidence of long term negative effects on the environment. 54 In your case, 5,600 square kilometers may be insignificant when compared to the original 840,000 square kilometer area of Treaty 8. However, the gradual erosion of the area of Treaty 8 is an effective counter argument to this position. Secondly, it would be difficult for ODI, as a corporation, to prove that monetary compensation for its loss of subsurface rights is insufficient. As a result, ODI would be unable to prove irreparable harm for the purposes of an injunction. However, monetary compensation for ODI in no way compensates the Tribal Association for its loss rights. As previously discussed, the loss of culture is cannot be quantified and may instead qualify as irreparable harm. 51 Saulteau, supra note Snuneymuxw, supra note Musqueam, supra note 48 at Whitefish Lake First Nation v. Alberta Energy and Utilities Board, 2004 CarswellAlta

22 Thirdly, in your last attempt at an injunction, the Court held that the failure to consult did not become an unlawful act until it was too late for the Crown to do so. The Court rejected the application because the Crown could still consult and accommodate Treaty 8 interests at a later stage. The court found that failure to consult prior to the ratification process did not constitute irreparable harm. This judgment will be highly persuasive in any further injunction application. Indeed, it is probable that a subsequent application will be rejected if you attempt to bring it at this same stage of the Lheidli T enneh negotiations. Fourthly, in your last attempt at an injunction the court found that halting LTFA negotiations would result in greater inconvenience to the Lheidli T enneh than it would to deprive you of consultation at that stage of the negotiations. Because the situation has remained unchanged since that time, it is unlikely that the court would find that the unfair burden upon the Lheidli T enneh has been alleviated. Based on the current trend in the law away from injunctions and your previously failed attempt, it is our opinion that it is not in your best interests to apply for an injunction. These factors strongly mitigate against the strength of your evidence. CONCLUSIONS 1. The Western Boundary Dispute 22

23 You have a strong case for your version of the western boundary of Treaty 8 based on the principles of treaty interpretation, and the strength of your evidence. Furthermore, you stand lose a significant portion of lands over which you have treaty rights. Given the strength of your claim and the extent of your interest in the area, we advise that you litigate this issue if negotiations are unsuccessful. 2. Taking Up Land There has not been a legal decision affirming or rejecting the Crown s ability to take up Treaty 8 land for the purpose of settling the Lheidli T enneh land claim. While the principles of treaty interpretation seem to preclude this from happening, the court will have to consider case law that affirmed a non restrictive interpretation of the term other purposes. 3. Consultation and Accommodation You are owed a duty of consultation due to your established treaty rights and the potential adverse effects of the LTFA upon those rights. Based on the common law test, the scope of this duty is significant because the LTFA may result in your alienation from the Disputed Area, your loss of subsurface rights, and restrictions on your right to hunt and fish in the Disputed Area. Based on the strength of your case, we advise you to litigate if you do not feel that the Crown is meeting this duty. 23

24 4. Injunctions It is unlikely that the court would grant you an injunction restraining further LTFA negotiations. We base this opinion on current legal trends, the outcome of your most recent application for an injunction, and the evidence against your claim. As a result, we do not advise you to pursue an injunction remedy. RECOMMENDATIONS Firstly, you have a strong case in the western boundary dispute. It is to your benefit to claim that the western boundary falls along the Watershed. As a result, you should pursue aggressive negotiations on this issue. If these negotiations fail, we strongly advise that you litigate. Secondly, your case for consultation and accommodation is strong. You should relentlessly pursue a deep duty of consultation. We advise you to seek an order for renewed consultation if the Crown fails to discharge this duty to your satisfaction. Finally, we do not recommend that you pursue an injunction. Rather, it is in ODI s best interests to attempt to come to a business arrangement with the Lheidli T enneh on subsurface rights rather than seeking an injunction. Furthermore, it is the best interests of the Tribal Association to seek order for consultation and accommodation by the Crown and to negotiate the best possible shared rights agreement with the Lheidli T enneh in the Disputed Area. 24

THE GENESIS OF THE DUTY TO CONSULT AND THE SUPERME COURT

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