The Court of Appeal of Manitoba has dismissed an application by Pimicikamak Cree Nation and the Cross Lake Band of Indians for an extension of the time to file a notice of appeal and an order consolidating that appeal with another pending appeal of a decision rejecting a judicial review of the Crown’s decision to enter into the Cross Lake Community Settlement agreement.
Manitoba Court of Queen’s Bench Chief Justice Glenn Joyal ruled June 21 that the provincial government did not shirk its responsibility to meaningfully and adequately consult with Pimicikamak and the Cross Lake band regarding a settlement between the Crown, Manitoba Hydro and the Incorporated Community Council of Cross Lake.
Pimicikamak and the Cross Lake band had applied to the court for a judicial review of the Crown’s decision to enter into the Cross Lake Community Settlement Agreement with the Northern Affairs community of Cross Lake, which, while made up almost exclusively of aboriginal persons, considers itself a separate community from the Cross Lake band that is recognized under the Indian Act, and Pimicikamak, a First Nation that includes but is not limited to the Cross Lake band.
In the application for extension of the time to file a notice of appeal, Pimicikamak and the Cross Lake band argued that they should be allowed to file an appeal of a July 8, 2014 preliminary decision striking 11 affidavits from the evidentiary record.
“The applicants submit that their intent was always to appeal the preliminary decision when they received the final decision, that is to say, to appeal the preliminary decision with the final decision,” said Court of Appeal Justice William Burnett in the court’s Nov. 2 decision, noting that the applicants did not appeal the preliminary decision because courts discourage filing separate appeals on rulings within a court proceeding.
The Court of Appeal found that the first ground of appeal in the applicants’ pending appeal of the June 21 final decision was the preliminary decision and that a second appeal to be consolidated with that appeal was unnecessary.
“The preliminary decision of the application judge is subsumed in his final decision and forms part of the pending appeal,” wrote Burnett. “The parties will therefore be at liberty to make any submissions that they feel are appropriate in relation to the preliminary decision at the hearing of the pending appeal. A second notice of appeal is simply not necessary.”
The consultation that the court had been asked to review took place between the province and Pimicikamak and the Cross Lake band between 2007 and 2009 following a nine-year negotiation between the Crown and the community of Cross Lake with regard to settling lawsuits filed by the community (along with the Norway House community council) against the province and Manitoba Hydro in 1992, that were related to allegations of adverse effects of hydro-electric development.
Pimicikamak and the Cross Lake band contended that the agreement between the province, Manitoba Hydro and the community of Cross Lake, which included articles providing land to the community and extending the community boundaries, includes lands of extreme cultural importance to Pimicikamak and the Cross Lake band. The Cross Lake band and Pimicikamak also say that the two-year consultation with the Crown ended without their concerns having been resolved.
Manitoba’s position was that the consultation process was conducted before the final settlement agreement became official and that its duty of consultation requires it to reasonably address or accommodate issues or concerns but that it did not change the settlement agreement based on Pimicikamak and the Cross Lake band’s suggestions because it did not consider them reasonable.
Joyal’s June 21 decision noted that four in-person meetings were held in Winnipeg and another in Cross Lake, in addition to further consultation via letters, phone calls and emails, and that the province made efforts to deal with various representatives from the First Nation during an election dispute when it wasn’t clear exactly who was representing Pimicikamak and the Cross Lake band.
On the final question of whether the province had ruled out accommodation from the beginning of the consultation, Joyal said whether a refusal to adopt and accommodate a suggestion was reasonable or not depends on the reasonableness of the suggestion.
