Enge v. Canada (Indigenous and Northern Affairs)

Enge v. Canada (Indigenous and Northern Affairs)

The Court held Enge had authority and standing to bring the representative judicial review; Canada owed the NSMA a duty to consult which was triggered by the NWTMN AiP and by the NSMA’s credible prima facie claim; Canada breached that duty by failing to share and act on a proper preliminary assessment of the claim and by misapprehending the extent of potential adverse impact (including potential extinguishment of harvesting rights north of Great Slave Lake); consequently declarations were issued requiring mid-to-deep consultation and consideration of accommodation before any Final Agreement is concluded.

Citation
2017 FC 932
Parties
Applicant; President of North Slave Métis Alliance; Representative Plaintiff: William Enge; Respondent; Federal Crown: Minister of Indian Affairs and Northern Development (Canada); Respondent; Territorial Government: Government of the Northwest Territories; Respondent; Local Métis Council: Fort Smith Métis Council; Respondent; Local Métis Council: Hay River Métis Government Council; Respondent; Local Métis Council: Fort Resolution Métis Council; Respondent; Regional Métis Organization: Northwest Territory Métis Nation (NWTMN)
Court
Federal Court
Jurisdiction
Canada
Judgment Date
19 October 2017
Procedural Posture
Representative Proceeding; Judicial Review of Crown Decision to Enter Into Agreement in Principle / Federal Court Judgment and Reasons (decision)
Outcome
Application for judicial review granted in part; declarations issued that Canada breached duty to consult and that no Final Agreement contemplated by the NWTMN AiP may be concluded until meaningful consultation/accommodation with NSMA occurs
Legal Topics
Duty to Consult, Adequacy of Consultation, Accommodation, Representative Standing (rule 114), Extinguishment of Aboriginal Rights, Powley Métis Identity
Source Language
English
Aboriginal Law Administrative Law Constitutional Law Indigenous Rights Land Claims/agreement in Principle Negotiations Duty to Consult Adequacy of Consultation Accommodation +3 more

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Parties

William Enge

Applicant; President of North Slave Métis Alliance; Representative Plaintiff

Minister of Indian Affairs and Northern Development (Canada)

Respondent; Federal Crown

Government of the Northwest Territories

Respondent; Territorial Government

Fort Smith Métis Council

Respondent; Local Métis Council

Hay River Métis Government Council

Respondent; Local Métis Council

Fort Resolution Métis Council

Respondent; Local Métis Council

Northwest Territory Métis Nation (NWTMN)

Respondent; Regional Métis Organization

Procedural Posture

Representative Proceeding; Judicial Review of Crown Decision to Enter Into Agreement in Principle / Federal Court Judgment and Reasons (decision)

Legal Issues

  1. 1 Whether applicant had standing to bring a representative proceeding under Rule 114
  2. 2 Whether Canada owed a duty to consult the NSMA regarding the NWTMN AiP
  3. 3 Whether the duty to consult was triggered by Canada’s conduct and the AiP

Ratio Decidendi

The Court held Enge had authority and standing to bring the representative judicial review; Canada owed the NSMA a duty to consult which was triggered by the NWTMN AiP and by the NSMA’s credible prima facie claim; Canada breached that duty by failing to share and act on a proper preliminary assessment of the claim and by misapprehending the extent of potential adverse impact (including potential extinguishment of harvesting rights north of Great Slave Lake); consequently declarations were issued requiring mid-to-deep consultation and consideration of accommodation before any Final Agreement is concluded.

Court Disposition

Application for judicial review granted in part; declarations issued that Canada breached duty to consult and that no Final Agreement contemplated by the NWTMN AiP may be concluded until meaningful consultation/accommodation with NSMA occurs

Orders

  • Declaration that Minister has constitutional duty to consult and, if necessary, accommodate NSMA members regarding potential adverse effects of the NWTMN AiP and any Final Agreement
  • Declaration that Minister breached duty by inadequately consulting and failing to meaningfully address proposed accommodations prior to approving the AiP on July 31, 2015