Treaties, Aboriginal Rights and Judicial Review

Canadian courts have recently begun to recognize a "duty to consult" Aboriginal peoples in respect of government decisions that may affect their rights. Precisely when this duty is triggered, and against which organs of government, is an important question. In Hupacasath First Nation v. Canada (Foreign Affairs), 2013 FC 900, the claim was that the duty applied to the ratification of an international treaty -- an issue usually considered beyond the pale as far as judicial review is concerned.
 
The applicant claimed there was a duty to consult it in respect of the pending ratification of the Agreement between the Government of Canada and the Government of the People’s Republic of China for the Promotion and Reciprocal Protection of Investments. This is a classic bilateral investment treaty. In part, it protects the interests of Chinese investors in Canada. The applicants fear that the protection of the interests of Chinese investors under international arbitration law will diminish the protections given to Aboriginal rights by Canadian constitutional law.

A preliminary question was whether the duty to consult could apply at all to the ratification of a treaty. Formally at least, Canada has a dualist system. Unless implemented by domestic legislation, a treaty has an effect only on the international plane. Crampton C.J. summarized the government's position as follows:

This position is based primarily on its assertions that (i) the ratification of the CCFIPPA will not alter Canadian domestic law or require existing laws or regulations to be changed, and (ii) the authority of arbitral tribunals established under the CCFIPPA will not extend into the domestic sphere. In this latter regard, the Respondents note that the remedial powers of such tribunals will be restricted by the CCFIPPA to awarding monetary damages or restitution of property, solely against Canada and China. As a result, in the event a measure passed by HFN were found by an arbitral tribunal to be in breach of Canada’s obligations under the CCFIPPA, the tribunal would have no power to enjoin the measure and it would be Canada, not HFN, that would be responsible for paying damages or providing restitution. Put differently, any awards issued by arbitral panels under the CCFIPPA will have no binding effect upon HFN.

On the merits, Crampton C.J. held that the effects on Aboriginal interests were too speculative to ground an application of the duty to consult. In principle, though he did not decide the point conclusively, he considered that the duty to consult could be triggered by the ratification of a treaty:

[68]           In my view, the fact that the arbitration provisions in the NAFTA, or similar provisions in other FIPAs, may not attract section 96 of the Constitution or breach the Charter does not preclude the possibility that the ratification of such agreements may trigger the application of the constitutional principle of the honour of the Crown and a duty to consult with First Nations prior to such ratification. One reason why this is so is that the duty to consult is triggered where there is simply a non-speculative possibility of appreciable impacts on asserted Aboriginal rights, whereas Charter rights are only triggered when there is a more serious risk that the alleged violation will occur (Phillips v Nova Scotia (Westray Mine Inquiry), 1995 CanLII 86 (SCC), [1995] 2 SCR 97, at para 108; Council of Canadians – OSCJ, above, at para 62). Absent other legal considerations that have not been addressed in this proceeding, the question may need to be determined on the basis of the facts and evidence in each case, namely, whether they establish the three elements required to trigger the duty to consult. In any event, given the conclusions that I have reached below regarding the facts and evidence in this case, it is not necessary to make a definitive determination on the Respondents’ position that the CCFIPPA cannot, as a matter of law, trigger the duty to consult.

[69]           However, I will note in passing that the Respondents’ position on this point is inconsistent with provisions that are included in a number of final agreements that Canada has entered into with First Nations, which require it to consult with those First Nations prior to consenting to be bound by a new international treaty which would give rise to new international legal obligations that may adversely affect a right of the First Nations. (See for example Maa-nulth First Nations Final Agreement, December 9, 2006, at para 1.7.1; Lheidli Final Agreement, October 29, 2006, at para 11; Tla’amin Final Agreement, at para 24; Yale First Nation Final Agreement, at para 2.8.1;  and Tsawwassen Final Agreement, clauses 30 and 31 in Chapter 2; see also Land Claims and Self Government Agreement Among The Tlicho and The Government of the Northwest Territories and The Government of Canada, at para 7.13.2). (emphasis added)

Notably, the applicants did not attack Canada's decision to enter into the treaty, conceding that this was a question of high policy beyond the purview of judicial review (see para. 25). 

Nonetheless, this decision undercuts the position that some questions, solely by virtue of their subject-matter, cannot be brought before the courts.