The science of government being therefore so practical in itself, and intended for such practical purposes, a matter which requires experience, and even more experience than any person can gain in his whole life, however sagacious and observing he may be, it is with infinite caution that any man ought to venture upon pulling down an edifice which has answered in any tolerable degree for ages the common purposes of society, or on building it up again, without having models and patterns of approved utility before his eyes. – Edmund Burke, Reflections

In the Rio Tinto case1 decided in 2010, the Supreme Court of Canada, despite the negative and harmful social and economic consequences of Haida Nation already evident to all with a will to see, as evidenced by Mikisew, discussed above, and the Frontenac VenturesCaledonia and Platinex cases discussed below, reconfirmed and even extended the principles of devolutionary power sharing between Canada’s Crowns and Canada’s Indian bands.

The court in Rio Tinto summarized  Haida Nation as:

(setting) the framework for dialogue prior to final resolution of claims by requiring the Crown to take contested or established Aboriginal rights into account before making a decision that may have an adverse impact on them…The duty is prospective, fastening on rights yet to be proven…

Employing terminology of the highest academic and judicial orders of vagueness and uncertainty, thus ensuring future decades of taxpayer-funded, remunerative litigation for Indian industry lawyers, the court described the duty to consult as embodying a “generative” constitutional order which sees section 35 of the constitution “as serving a dynamic and not simply static function.” The court then described, in further headache-inducing terms, the concept of consultation as being “…concerned with an ethic of ongoing relationships…” and seeking “…to further an ongoing process of reconciliation by articulating a preference for remedies that promote ongoing negotiations….”

Confirming this writer’s assertion that Haida Nation, properly understood and followed, presages a massive diminution of Crown sovereignty by entrenching small, technically illiterate, reserve-based Indian bands as virtual co-equals and co-managers in relation to the majority of proposed new developments in rural and wilderness Canada, the court in Rio Tinto, in discussing what government action would engage the duty to consult, wrote that such action would not be confined to government exercise of statutory powers. As the court said:

…government action is not confined to decisions or conduct which can have an immediate impact on lands and resources. A potential for adverse impact suffices. Thus the duty to consult extends to “strategic, higher level decisions” (italics added) that may have an impact on Aboriginal claims and rights. Examples include the transfer of tree licenses which could have permitted the cutting of old-growth forest… the approval of a multi-year forest management plan for a large geographic area… the establishment of a review process for a major gas pipeline… and the conduct of a comprehensive enquiry to determine a province’s infrastructure and capacity needs for electricity transmission….

As Rio Tinto confirms, all proposed “state-authorized developments” which have the mere potential to adversely impact Aboriginal interests” trigger the duty to consult.

Rio Tinto did contain one important element of judicial restraint and common sense. It pointed out, as Haida Nation had stated, but which has seemingly been negligently overlooked by at least one provincial Crown, Ontario, (see the discussion in this regard in The Solid Gold Resources case-Ontario’s Sovereignty Giveaway, below) and has been consistently ignored or overlooked by the Indian industry in its generally Crown-supported stampede to cash in on the decision, that the duty to consult in treaty areas of Canada only arises on the part of the Crown in the context of proposed or contemplated Crown or Crown-authorized actions. It does not apply retroactively, to past actions, such as the long-past Crown- authorized construction of a hydro dam, (the subject matter of Rio Tinto), or past  Crown actions like the past grant of a forestry or mining lease or permit, the exercise of rights under which require no further  Crown involvement or consents.

The Supreme Court giveth, and, from the perspective of those outside the Indian industry, more usually in this area of law,  it taketh away.

In Saik’us First Nation and Stellat’en First Nation vs. Rio Tinto Alcan Inc, the Supreme Court, by refusing to grant Rio Tinto’s application for leave to appeal the decision of the British Columbia Court of Appeal,2has opened the door to Indian bands, at least in areas of Canada where claims for aboriginal title can be made, to make legal claims for civil damages, (for example, damages for claims like nuisance and interference with riparian rights), against private corporations and other private entities. Previously these claims could only be made by Indian bands against the Crown.

Now in addition to the consult and accommodate miasma, the private sector, and private sector lenders, have this to contend with!  Another decision from the Supreme Court which will have very harmful effects on future economic development. Another danegeld weapon handed to Indian bands by the Supreme Court. (see Dancing With Danegeld, below)

Overall, Rio Tinto, like Haida Nation, represents ill-considered and harmful judicial activism, disastrous for the concept of fair, predictable and responsible economic development in Canada, disastrous for the concept of necessary and legitimate Crown sovereignty, on which the welfare of all Canadians depends, and disastrous for the basic and cherished concept of equality under the law.

About all that’s left for the Supreme Court to hand over to Indians is the right to be consulted before governments pass any further laws that may adversely impact potential aboriginal interests. And distressingly, the court in Rio Tinto didn’t discount the possibility of doing that in a future case! As the court casually and shockingly wrote in that regard, “…We leave for another day the question of whether government conduct includes legislative action….”

That day has arrived. Emboldened by these highly activist and destabilizing court decisions, Indians are indeed now claiming that they have to be consulted in advance by any government planning to pass legislation affecting what they perceive to be their rights. For example, Ontario is finally showing signs, however meek and tardy, of finally starting to crack down on the illegal sale of Indian-made cigarettes, on which no taxes are collected and remitted to the government. But the Indian smugglers and tax cheats are protesting. According to a 2011 Law Times article:3

The Association of Iroquois and Allied Indians [sic] is furious. It claims there’s a constitutional burden on Ontario to consult with First Nations on any legislative change that might affect their rights.

In other words, these Indian bands, which have been openly flouting the laws for years with their tax-haven reserve “smokeshacks” -selling illegal cigarettes in bulk, receiving all the benefits Indians receive from the Canadian taxpayer while at the same time deliberately depriving government treasuries of millions of dollars of tobacco duty revenue, and thusly intentionally hurting nearby legal tobacco vendors – are saying that it is now the law that Ontario and Ottawa must now “consult” with them before these governments take steps enforce the general tax law of the land and end this essentially criminal behavior.

In late 2012, two Alberta Indian bands, one of them being the Mikisew Cree (one hopes their budget for social programs is as big and rich as their budget for expensive litigation), launched the Courtoreille case,4 a court challenge to the constitutional validity of the federal government’s 2012 “omnibus” legislation, that, amongst other things, reduced federal oversight over certain aspects of fish and wildlife management, shortened  federally-authorized environmental review processes and mandated greater transparency on the part of Indian bands in their handling of federal grant money, the bands arguing  that the federal government had wrongly failed to consult and accommodate them before passing it, as their treaty and section 35  rights allegedly had the potential to be “adversely impacted” by it.

In its December 2014 decision the Court gave the applicant Indian bands a very portentous and profound half a loaf. The Court ruled that the Crown ought to have given the potentially affected Indian bands advance notice of the introduction of the legislation to Parliament and an opportunity to make submissions. The decision was appealed and, in December of 2016, thankfully overturned by the Federal Court of Appeal, 5which declared that “importing the duty to consult to the legislative process offends the separation of powers doctrine and the principle of parliamentary privilege.” This case was appealed to the Supreme Court of Canada, which mercifully, and in a rare show of good sense in this area of law, dismissed the appeal, confirming the reasoning of the Federal Court of Appeal. (Of course the losing Mikisew Indian band was not ordered to pay the legal costs of Canada.) The very idea behind Courtoreille represents an oblivious ignorance of or reckless disregard for the crucial importance of Crown sovereignty that can only have detrimental effects on the peace, order and good government of Canada.

And now, with the Tsilcot’in decision, relating to all non-treaty areas of Canada, for the lucky Indian bands in those areas, their consent is required for almost anything planned by government, failing which the government must show, after a long and expensive court proceeding, that whatever it wanted to do has a “compelling and substantive” public interest objective, a difficult onus indeed.

Practically speaking, those lucky Indian bands in those areas of Canada rule the roost now.

Such is the Pandora’s box-type, absurd, selfish, destructive, disloyal and irresponsible behaviour and sense of entitlement that has been created and continually ramped up amongst Indian elites as the result of these and many other similar very harmful court decisions.

The Meech Lake and Charlottetown Accords, which, amongst many other radical things, purported to create special legislative, consultation and veto rights for Indians, were, for principled reasons, hugely unpopular with ordinary Canadians. The Charlottetown Accord, a frightening pastiche of provisions, all representing a shockingly irresponsible and reckless constitutional devolution of Crown power to special interest groups, which our out-of-touch political elites tried to force down the throats of ordinary Canadians, was massively rejected in a national referendum. Yet despite this popular sentiment Mr. Bob Rae and his elitist ilk pushed through the enactment of section 35 of our constitution, when as he admitted, they didn’t even know what it really meant.

And also despite this, and in the absence of any solid precedent for doing so, the overly-activist  Supreme Court, outwardly supported by these same passive and enabling political elites, has now given to Canadian Indian bands that de facto (in B.C. and other non-treaty areas of the country, by Tsilhcot’in, de jure)  legislative, consultation and veto power that ordinary Canadians clearly indicated by the Charlottetown Accord vote they found civically offensive and harmful to our national welfare.

  1. Rio Tinto Alcan Inc. v Carrier Sekani Tribal Council, 2010 S.C.J No. 43.
  2. 2015 BCCA 154
  3. Law Times, June 13, 2011
  4. Courtoreille v Canada (Aboriginal Affairs and Northern Development) 2014 FC 1244
  5. 2016 FCA 311

By: Peter Best