Labrador Métis Nation: Supreme Court of Canada Refuses to Hear Government Application

On May 29, 2008, the Supreme Court of Canada (SCC) refused to hear an application from the government of Newfoundland and Labrador, which sought leave to appeal the Newfoundland and Labrador v. Labrador Métis Nation and Carter Russell, 2007 NLCA 75 [Labrador Métis]; a ruling that was handed down by the Supreme Court of Newfoundland and Labrador Court of Appeal on December 12, 2007. The SCC’s refusal to grant leave arguably amounts to a victory for the Labrador Métis Nation, albeit in the context of the Newfoundland and Labrador Court of Appeal decision. Among other issues, the case involved two fundamental components of Aboriginal rights jurisprudence which this brief commentary will address: the identification of Aboriginal peoples – specifically Métis – for the purpose of recognising communal Aboriginal rights, and the corresponding honour of the Crown and duty to consult.

The case revolved around Phase III construction of the Trans Labrador Highway that consists of a 250-kilometre stretch extending between Cartwright Junction and Happy Valley Goose Bay. Approximately 6000 persons of mixed Inuit and European descent from 24 communities in southern and central Labrador authorised the Labrador Métis Nation (LMN) to pursue a land claim in the Phase III area and simultaneously sought to enforce their right to consult with the Newfoundland and Labrador government until resolution of the claim. Carter Russell claimed a right to represent those of Inuit descent in the relevant Labrador area. In October 2004, the LMN requested from the Minister of Transportation and Works and the Minister of Environment and Conservation greater consultative involvement in Phase III in order to review and comment on “applications for water crossings and other relevant permit requirements.” These requests were denied, with the Ministers asserting that they were not required by law to allow greater consultative involvement, nor was it standard practice to do so in such instances. Subsequently, on May 18, 2005, the LMN applied for and was granted certiorari quashing the decisions of the Ministers.

At the Newfoundland and Labrador Court of Appeal, Barry J.A. relied on several central Supreme Court of Canada decisions that ultimately supported the existence of communal Métis rights and found for the Crown’s duty to consult in this instance. The Court of Appeal dealt with five central issues, four of which are addressed in this commentary:

(i) Must claimants ethnically identify themselves before the Crown can be compelled to consult and accommodate them?
(ii) Did the applications judge err in identifying the respondents as Métis when the parties had made their submissions on the basis of Inuit rights?
(iii) Did the applications judge err in concluding that the respondents had a credible but unproven claim?
…
(v) What may be said on the scope of the duty to consult?
(Labrador Métis at para. 33).

With regard to the first issue, the Court of Appeal held that it is not necessary for Aboriginal claimants to self-identify before the Crown’s duty to consult and accommodate is triggered. In this particular instance, it was sufficient for the claimants to demonstrate that they belong to Aboriginal people within section 35(1) of the Constitution Act, 1982 (at para. 36).

However, one of the difficulties in this case stemmed from confusion over whether the claimants were Métis or Inuit for the purposes of applying the “integral to the distinctive culture” test as outlined by the Supreme Court of Canada in R. v. Van der Peet, [1996] 2 S.C.R. 507. As per Van der Peet, “in order to be an [A]boriginal right an activity must be an element of a practice, custom or tradition integral to the distinctive culture of the [A]boriginal group claiming the right” (at para. 46). In the Labrador Métis ruling, the Newfoundland and Labrador Court of Appeal held that the Aboriginal claimants had indeed established that they have “genetic, cultural and land use continuity with their Inuit forebears, have a regional consciousness of a regional community, and occupy and use, for traditional hunter/gatherer purposes, lands and waters threatened with adverse effects by construction of the [Trans Labrador Highway]” (at para 36). Yet, it was not possible to determine whether or not the contemporary LMN communities were “the result of an ethnogenesis of a new culture of [A]boriginal peoples, that arose between the period of contact with Europeans and the date of the effective imposition of European control… If so, the members of the LMN communities could be, in law, constitutional Métis” (ibid. at para. 37). In this latter instance, then, the test established by the Supreme Court of Canada in R. v. Powley, [2003] 2 S.C.R. 207 would apply, wherein the Van der Peet integral to the distinctive culture test was modified to recognise the fact that Métis communities evolved post-European-contact but pre-European control (Powley at para. 18).

The Newfoundland and Labrador Court of Appeal held that the applications judge erred in employing this Métis analysis, since the case had been argued on the basis of an Inuit-based claim (at para. 42). Nevertheless, because fishing rights were at issue in the Labrador Métis case (rights which are both Inuit and Métis-based), employing either the Van der Peet or Powley test would result in the same outcome, that is, fishing rights flow from either type of claim. The Court of Appeal further held that the claimants successfully demonstrated historical continuity with a relevant section 35 Aboriginal community, and thereby had a credible, but still unproven claim.

The last issue involves the honour of the Crown and the scope of the duty to consult and accommodate Aboriginal peoples. In this instance, the Supreme Court of Canada ruling, Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511 and Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), [2004] 3 S.C.R. 550, are most relevant. The following is quoted at length due to its salience:

Put simply, Canada’s Aboriginal peoples were here when Europeans came, and were never conquered. Many bands reconciled their claims with the sovereignty of the Crown through negotiated treaties. Others, notably in British Columbia, have yet to do so. The potential rights embedded in these claims are protected by s. 35 of the Constitution Act, 1982. The honour of the Crown requires that these rights be determined, recognized and respected. This, in turn, requires the Crown, acting honourably, to participate in the processes of negotiation. While this process continues, the honour of the Crown may require it to consult and, where indicated, accommodate Aboriginal interests (Haida at para. 25).

By extension, the Supreme Court of Canada in Taku River held that “the honour of the Crown grounds the Crown’s duty to consult and if indicated accommodate Aboriginal peoples, even prior to proof of asserted Aboriginal rights and title” (at para. 24).

When applied to the Labrador Métis case, the Court of Appeal found that a “preliminary evidence-based assessment” of the strength of the Aboriginal claim (as per Haida at paras. 37, 39), indicated that the claim was strong enough to attract more than simply a duty of notice. A prima facie connection with pre-contact Inuit culture, alongside the maintenance of a traditional Inuit lifestyle, established the continuity of Aboriginal rights including subsistence hunting and fishing (Labrador Métis at para. 51). The claimants had requested copies of applications and permits in order to review and comment on them, amounting to a low level of consultation, according to the Court of Appeal. Ultimately, the Court of Appeal held that the Crown’s obligation to consult was indeed triggered, and consequently, dismissed the appeal of the Newfoundland and Labrador government.

In dismissing the Newfoundland and Labrador government’s application for leave to appeal, the Supreme Court of Canada has left the last word to the Newfoundland and Labrador Court of Appeal. Despite Justice Minister Jerome Kennedy’s comments to the contrary, this is arguably a landmark case with respect to scope of Aboriginal consultation, particularly as it applies to Métis. Granted that the Labrador Métis case did not resolve definitively whether the claimants were Inuit or Métis, the Court of Appeal still held, as noted above, that the LMN community members could be “constitutional Métis” after “further historical, archaeological, anthropological and other information is obtained and as the law provides further guidance on these complex issues” (at para. 39). Either way, the ramifications of this ruling represent the first instance where the honour of the Crown and the Crown’s corresponding obligation to consult with Métis has been addressed at an appellate court. At the very least, the appellate court ruling lays the foundation for future cases concerning the duty to consult Métis.