In November 2004, the Supreme Court of Canada released two seminal decisions: Haida Nation v. British Columbia (Haida)1 and Taku River Tlinglit (Taku River)2, which concretized the duty to consult. In both cases, the BC First Nations asserted that they had aboriginal rights and title to the lands and resources affected by the Crown’s decisions. Neither Nation, however, had proven those rights. Nevertheless, in both cases, it was argued they would be adversely affected and therefore, the Crown had a duty to consult. The Province took the position it did not have to consult unless and until the existence of rights was proven.
The Supreme Court of Canada (SCC) held, in both cases, the duty to consult arises when the Crown has actual or constructive knowledge of the potential existence of Aboriginal rights or title and contemplates conduct that might adversely affect those rights or title.
The SCC confirmed that the Crown’s duty to consult with Aboriginal peoples and accommodate their interests is grounded in the honour of the Crown; it is part of a process of fair dealing and reconciliation that begins with the assertion of sovereignty and continues beyond formal claims resolution.
In their decisions, the SCC articulated a number of key principles which are summarized briefly below:
Asserted Rights Triggers Crown Consultation
The duty to consult arises when a government knows about, or ought to know about the potential existence of an aboriginal right and contemplates a decision that might adversely affect it. The existence of the right need not be proven.
The Duty to Consult is Proportionate
The scope of the duty to consult is proportionate to an assessment of the strength of the claim supporting the right and the seriousness of the effect on that right. What is appropriate consultation will be determined on a case by case basis. Therefore in certain cases, notification and discussion may be adequate; at the other end of the spectrum, deep consultation may be required.
Consultation and Accommodation – Crown Responsibilities.
In Haida, the SCC reversed the BC Court of Appeal’s finding that the duty to consult extended to industry. The SCC made clear that the “Crown alone remains legally responsible for the consequences of its actions and interactions with third parties that affect Aboriginal interests”3 The SCC also distinguished between consultation and accommodation. Accommodation will arise when consultations show a strong likelihood that the asserted right does exist and the impact(s) would be significant. In that event, there is a duty to seek compromise in an attempt to harmonize conflicting interests.
Delegation of Procedural Aspects of Consultation to Third Parties
It is open to the Crown to delegate the procedural aspects of consultation to third parties; however, the Crown alone remains responsible for determining if the duty has been fulfilled.
Government can Design the Consultation Processes
In Taku River, the SCC rejected the argument that the government must develop a separate process for consultation outside of the normal statutory process. Governments may determine how best to integrate consideration of aboriginal interests into their decision-making. Perfection is not required; rather, the standard is reasonableness.
The duty to consult is based in the honour of the Crown and does not arise out of a fiduciary duty. As such, the Crown is entitled to balance other societal interests against aboriginal interests in making decisions. As a result of this “balancing” act, however, consent of the Indigenous group whose rights are potentially and adversely impacted is not required and as such, is not in harmony with Article 32 of the United Nations Declaration on the Rights of Indigenous People (UNDRIP).4
Canada endorsed UNDRIP in 2010 but this international instrument has yet to be implemented through domestic legislation. Indigenous Nations continue to advocate for Free, Prior and Informed Consent (FPIC”) while the Crown continues to grapple with how UNDRIP and in particular, the concept of FPIC fits within the Canadian legal framework. Currently, Canada has tabled Bill C-15 which would affirm and seek to implement UNDRIP, but the Bill falls short of unambiguously adopting UNDRIP or giving it the force of law such that it is binding in Canada. The potential impacts of the Bill are therefore unknown.
Reconciliation requires both the Crown and Indigenous groups to commit to the process, avoid counterproductive tactics and exercise good faith. There is no duty to agree, but the honour of the Crown requires it to act in good faith and genuinely intend to address the concerns raised. Good faith is reciprocal. The Aboriginal groups must also act in good faith and not take unreasonable positions or sabotage the Crowns efforts to compromise.
The Haida and Taku River cases spawned an exponential increase in the volume of consultation activity undertaken prior to proceeding with projects and approvals. The SCC’s decisions have had a profound impact on the way aboriginal concerns in government decision making are taken into account5 Indigenous groups have significant leverage and voice where proposed activities potentially impacting rights are proposed, thereby empowering Nations as partners and as stewards.
Since 2004, there has been a significant number of cases that have considered and refined the scope of the duty to consult. In some instances clarity has been achieved, in other cases, the outcomes raise further questions. Some of these cases which have helped shape the evolution of the duty to consult and the key takeaways are outlined below.
Extension of Duty to Consult to Treaties
In Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage)6, the application of duty to consult was extended from the context of asserted aboriginal rights and title to the interpretation of alleged treaty rights violations. However, it is only communities whose traditional territories or activities potentially affected that are entitled to be consulted, not every Nation within the treaty area.
Delegation to Tribunals
In Rio Tinto Alcan Inc. v Carrier Sekani Tribal Council7, the SCC held that the Crown may delegate its duty to consult to a tribunal, but only if the duty is conferred onto the tribunal by legislation.
The duty to consult as it arose in the context of tribunals was further clarified by the SCC in 2017 in two companion cases.
In Clyde River (Hamlet) v Petroleum Geo-Services Inc8, an Inuit community in Nunavut challenged an approval granted by the National Energy Board (NEB) to conduct offshore seismic testing for oil and gas resources. The Inuit had an undisputed treaty right to harvest marine mammals and that the testing could negatively affect that right. The NEB conducted an environmental assessment and approved the seismic testing. The Court found that the Crown had not satisfied its duty to consult and quashed the NEB approval for seismic testing.
In Chippewas of the Thames First Nation v Enbridge Pipelines Inc9 the First Nation challenged the NEB’s approval of an Enbridge application to modify an existing pipeline in order to reverse flow, increase capacity, and carry heavy crude. The pipeline, first built in 1976, crossed their traditional territory. The First Nation participated in an oral hearing and presented submissions before the NEB, following which the NEB approved the application. The Chippewas of the Thames’ appeal was unsuccessful. The Court concluded that the NEB process satisfied the Crown’s duty to consult.
Despite their different outcomes, the cases provided much-needed clarity on the application of the duty to consult with respect to projects approved by regulatory tribunals. Significantly, the Court clarified:
- The duty to consult does not “disappear” when a project is approved through a regulatory tribunal, rather the tribunal’s approval process triggers the Crown’s duty to consult.
- A tribunal cannot approve a project until the duty is met. If an approval is granted before the duty is met, then the approval is at risk of being quashed by the court.
- Unless the power to decide whether consultation is adequate has been clearly excluded from its powers, tribunals with the power to decide questions of law, must determine whether consultation was sufficient, so long as the issue is put before them.
- The Crown can rely on a tribunal’s process to fulfil the duty to consult if the tribunal has the power to do what the duty to consult requires (i.e. accommodating impacts as conditions of approval).
- If a tribunal’s powers are insufficient, or if the tribunal itself does not provide adequate consultation and accommodation, then the Crown must fulfil its duty before the project is approved.
- Importantly, the Court emphasized that Aboriginal and Treaty rights must be protected as rights, not as an afterthought to the assessment of environmental concerns.
- With respect to cumulative effects, these, as well as historical context may inform the scope of the duty to consult. However, the duty is forward-looking and rooted in the need to avoid the impairment of rights that flow from the implementation of the specific project at issue. It is not about resolving historical grievances or other broader claims that transcend the scope of the proposed project.
Municipalities – No Independent duty to Consult
In Neskonlith Indian Band v Salmon Arm (City) et al10, the British Columbia Court of Appeal ruled municipal governments do not have an independent duty to consult. Most notably, the BC court determined that such a duty would be “completely impractical” because “municipal governments lack the practical resources to consult and accommodate.”
This observation is equally applicable to Indigenous groups who are overwhelmed by the number of requests/notices they receive and the lack of capacity and resources at their disposal to handle them. It also underscores a critical and unresolved area of the jurisprudence in this area – providing the funding necessary to enable authentic participation in the consultation process.
In Saugeen First Nation v Ontario (MNRF)11, the Crown granted approvals relating to the development of a limestone quarry; however, the licenses were set aside on account of inadequate consultation. The court reviewed the general principles of the duty to consult and found the process wanting in this case. In the course of reaching its decision, the Court commented on the importance of funding to the consultation process. Although the Court’s commentary is non-binding, it noted funding was essential to a fair and balanced consultation process, to ensure a level playing field and reasonable efforts should be made, on both sides, to avoid funding brinkmanship. Ultimately, the court determined, decisions on funding are the Crown’s, as part of its design and implementation of a consultation process and its decisions on funding issues will be reviewed on a standard of reasonableness.12
Duty to Consult – Does not Apply to Legislative Process
On October 11, 2018, the SCC unanimously dismissed an appeal brought by the Mikisew Cree First Nation against Canada13 The Mikisew filed an application for judicial review of two omnibus bills introduced in 2012 by the Conservative government that would have significant effects on Canada’s environmental protection regime and potentially negatively affect their rights to hunt, trap and fish under Treaty No. 8. The Mikisew were not consulted about this draft legislation. They maintained that by developing and enacting legislation affecting their Aboriginal rights enshrined by treaty, the federal ministers involved were acting in an executive capacity rather than pursuant to the legislative powers conferred on them by the Constitution Act, 1867.
The SCC concluded that the Federal Court did not have jurisdiction to scrutinize Parliament’s legislative process and further, the Crown’s duty to consult First Nations does not apply to the legislative process.
Reasonableness v. Perfection
In dismissing the Nation’s judicial review application of the Trans Mountain Expansion Project, in Coldwater First Nation v. Canada (Attorney General)14, the Federal Court of Appeal held that a reviewing court is not to act as an “academy of science” in relation to the potential environmental impacts of a project. The decision needs only to be reasonable and concerns must be considered and addressed in a meaningful way. It does not require agreement.
In Public Interest to Achieve Reconciliation
In Redmond v. British Columbia (Forest, Land, Natural Resource Operations and Rural Development)15, the First Nation objected to the building of a small hydro project as it would impact their cultural practices specific to the location of the project. The court held that the decision makers have scope to consider the decision’s overall impact on the public’s interest in achieving reconciliation. While there was no duty to reach an agreement with the Nation, the Crown’s obligation to avoid irreparable harm weighed heavily in favour of disallowing the application and it was therefore dismissed. The decision was not a veto, but rather represented a balancing of interests.
In Morton v. Canada (Fisheries and Oceans)16 the Court considered the issuance of licenses for transfers of live salmon into the marine environment without first screening for certain pathogens and diseases. The Federal Court determined the Minister breached its duty to consult the First Nation and remitted the policy back to the Minister for reconsideration. While there was consultation when the federal licensing regime was initially implemented in 2010, the department diverged from its practice regarding aquaculture licences and failed to take into account the rapidly evolving science on the matter.
Project Funding Decisions – Triggers Duty to Consult.
In Nova Scotia (Aboriginal Affairs) v. Pictou Landing First Nation17, the Nova Scotia Court of Appeal held that the province was required to consult with the First Nation regarding provincial funding for the construction of a new effluent treatment facility. The court held that the Minister was required to consult because the funding agreements made it more likely that the mill would remain open, contaminants would be released into the traditional territory and such funding agreements increased the likelihood of ministerial approval so as to avoid wasting provincial funds.
The area of consultation and accommodation in both law and practice will continue to evolve and become more nuanced as further cases are brought before the courts and as parties become more agile in navigating both the legal issues as well as their relationships. Undoubtedly Indigenous Nations will continue to use the courts to advance and refine the law of consultation on several fronts, including funding for meaningful participation and the role of FPIC particularly in light of the government’s consideration of Bill C-15. As this evolution takes place, outcomes should be predicated on the overarching objectives of reconciliation, respect and recognition of protected aboriginal and treaty rights.
- 2004 SCC 72.
- 2004 SCC 74.
- Haida Nation at para 53.
- Article 32.1 of UNDRIP states: “Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources.” Article 32.2 provides: “States shall consult and cooperate in good faith with the indegenous peoples concerned through their own representative institution in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, unitization or exploitation of mineral, water or other resources.”
- Lori Sterling and Peter Landmann, “The Duty to Consult Aboriginal Peoples-Government Approaches to Unresolved Issues,” in David A. Wright and Adam M. Dodek, eds Public Law at the McLachlin Court: The First Decade (Toronto: Irwin Law, 2011 at 2. Online: https://www.cba.org/cba/cle/PDF/Constit09_Sterling_paper.pdf
- 2005 SCC 69.
-  2 SCR 650 [Rio Tinto].
- 2017 SCC 40.
- 2017 SCC 4.
- 2012 BCCA 379.
- 2017 ONSC 3456.
- Ibid, para 27.
- Mikisew Cree First Nation v. Canada (Governor General in Council) 2018 SCC 40.
- 2020 FCA 34.
- 2020 BCSC 561.
- 2019, FC 143.
- 2019 NSCA 75.