This case was heard in the Supreme Court of Newfoundland and Labrador, Court of Appeal, and was an appeal of the decision in The Labrador Métis Nation v. Her Majesty in Right of Newfoundland and Labrador, 2006 NLTD 119 (CanLII).

The main issue in this case was whether the Crown had a duty to consult with the Indigenous peoples of southern Labrador about the environmental impacts that would be caused by building the Trans Labrador Highway. To prove that the Crown had a duty to consult, the respondents (the Labrador Métis Nation and Carter Russel) had to prove that they had Aboriginal rights that were protected by section 35 of the Constitution Act, 1982. Section 35 recognizes and affirms the existing Aboriginal and treaty rights of the Aboriginal peoples of Canada. It also defines Aboriginal people as being Indian, Métis, or Inuit. In this case, the respondents argued that they had an Aboriginal right to be consulted because they were Métis. To prove that they were Métis for the purposes of section 35, the respondents needed to prove a number of things in accordance with the test developed in R v Powley 2003 SCC 43 (CanLII). The Powley test refined the test established in R v Van der Peet, 1996 CanLII 216 (SCC) by making the test appropriate for establishing Métis rights specifically. In this case, the main issue was whether the respondents could prove that there was an historic Métis community in southern Labrador that continued to exist in the present day. 

The trial judge had found that the Crown did in fact have a duty to consult with the respondents about the Trans Labrador Highway project. In the current case, the Crown argued that it did not have a duty to consult with the respondents because the respondents could not prove they had Aboriginal rights as Métis people. 

There were five issues raised during this appeal. First, the Crown argued that the respondents were required to ethnically identify themselves before a duty to consult would arise. The Court rejected this argument on the basis that a “definitive and final self-identification” is too high a standard to meet. The Court decided that all that was required for the duty to consult to arise was that the respondents had put forward a credible claim. Second, the Crown argued that because the respondents had made their claim based on Inuit rights rather than Métis rights, the judge had erred in identifying the respondents as Métis. While the Court recognized this as an error, it decided it was not significant enough that the Court should overturn the trial judge’s decision because the respondents also had sufficient Aboriginal rights as Inuit people to trigger a duty to consult. Third, the Crown argued that the respondents had failed to establish a credible claim to an Aboriginal right. The Court decided that the trial judge had correctly applied R v Van der Peet by finding that the respondents had proved their activity was a continuation of a “practice, custom or tradition” that was essential to the distinctive culture of the Indigenous group to which they belonged. Fourth, the Crown argued that the respondents were not parties that could enforce a duty to consult. The Court found that both respondent parties could enforce a duty to consult. Mr. Russel could enforce this duty because he had a credible claim to membership in an Indigenous community with an Aboriginal right relevant to the issue in this case. The Labrador Métis Nation’s claim was also valid as it was representing Indigenous persons who had granted it the right to advance the claim on their behalf. Fifth and finally, the Court concluded that the claim advanced by the respondents was at least strong enough to trigger a low-level duty to consult, which was what the respondents had requested by asking for access to the applications and permits made under the highway plan to comment on them and review them. 

The Crown’s appeal was dismissed. a cross-appeal by the respondents was allowed (the Court allowed the respondents to bring their own appeal), and the appellants were ordered to pay costs.

This case was later appealed again in Her Majesty in Right of Newfoundland and Labrador, as represented by the Minister of Environment and Conservation and the Minister of Transportation and Works v. Labrador Métis Nation, a body corporate under the laws of the Province of Newfoundland and Labrador and Carter Russell, of Happy Valley Goose Bay, Labrador, 2008 CanLII 32711 (SCC).

View the Decision on CanLII: https://www.canlii.org/en/nl/nlca/doc/2007/2007nlca75/2007nlca75.html

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