When the Crown contemplates conduct that could have a prejudicial effect on a potential Aboriginal right or title, it has a duty to consult with the relevant Indigenous groups and reasonably take their interests into account.
The starting point of the duty to consult and accommodate is the honour of the Crown and section 35 of the Constitution Act, 1982. Section 35 recognizes and affirms existing Aboriginal and treaty rights, including treaty rights that exist by way of land claims agreements or that may be so acquired. As a result, the Crown must act honourably in defining the rights it guarantees and in reconciling them with other rights and interests.
The Supreme Court of Canada has recognized that Canada’s Indigenous peoples were here when Europeans came and were never conquered. While many bands reconciled their claims with the Crown through treaties, others have yet to do so. The honour of the Crown requires that these rights be determined, recognized and respected, which in turn requires the Crown to participate honourably in the process of negotiation. While the process of negotiation is ongoing, the Crown may be required to consult with and accommodate Indigenous interests (Haida Nation v. British Columbia (Minister of Forests)).
When does the duty to consult arise?
Three elements must be present for the duty to consult to arise:
- The Crown must have real and constructive knowledge of a potential Aboriginal right or claim. The existence of a potential claim is necessary, but not proof that the claim will succeed;
- There must be Crown conduct or a Crown decision. This is not confined to the exercise of statutory powers or to decisions or conduct which have an immediate impact on lands and resources, and extends to “strategic, higher level decisions.”
- There must be a possibility that the Crown conduct or decision may affect the Aboriginal claim or right. There must be a causal link between the Crown conduct and the prejudicial effect.
What is the content of the duty to consult?
The content of the duty to consult varies with the circumstances and is determined on a case-by-case basis. In Haida Nation, the Supreme Court held that the scope of the duty to consult is proportionate to a preliminary assessment of the strength of the case supporting the existence of the right or title, and to the seriousness of the potentially adverse effect upon the right or title claimed.
The duty to consult is thus said to be on a “spectrum”. Where the claim to title is weak, the Aboriginal right limited or the potential for infringement minor, the Crown’s only duty may be to give notice, disclose information and discuss any issues raised in response to the notice. However, where a strong prima facie case for the claim is established, the right and potential infringement is of high significance to the Indigenous groups and the risk of non-compensable damage is high, “deep consultation” may be required. In such cases, consultation may require the opportunity to make submissions, formal participation in the decision-making process, and the provision of written reasons that indicate how the concerns raised by Indigenous groups were considered and taken into account.
Recently, the Federal Court of Appeal confirmed that when deep consultation is required, the Crown’s obligation extends far beyond merely listening to and recording the concerns of Indigenous groups and transmitting those concerns. It must engage in “meaningful two-way dialogue” with Indigenous groups in such a way as to grapple with their real concerns and explore possible accommodation of those concerns (Tsleil-Waututh Nation v. Canada (PG)).
What rights are protected by the duty to consult?
The duty to consult does not provide Indigenous groups with a veto right over development projects (Ktunaxa Nation v. British Columbia). The duty to consult is a procedural duty, meaning that it guarantees a process, not a particular result. The Crown can meet its obligation to consult and accommodate without providing the specific accommodation sought by the Indigenous group in question.
Whose duty is it?
The obligation to consult rests with the federal and provincial governments. In Haida Nation, the Supreme Court held that the duty to consult cannot be delegated to third parties. As a result, resource development companies do not have an obligation to consult. The Crown may delegate procedural aspects of consultation to proponents, but the ultimate legal responsibility for consultation and accommodation rests with the Crown.
In Rio Tinto, the Supreme Court confirmed that administrative tribunals can fulfill the Crown’s duty to consult, assuming they have been expressly or impliedly empowered to engage in consultation and have been given the corresponding powers necessary to fulfill the obligations of the duty to consult in the specific circumstances.
The Supreme Court recently tweaked this position. It held that regulatory bodies such as the National Energy Board (now the Canadian Energy Regulator) may also fulfill the Crown’s duty to consult, as long as the body has been empowered to do so, possesses the powers necessary to fulfill the obligations required, and, importantly, the Indigenous parties have been put on notice that the regulatory body will be undertaking the consultation process (Chippewas of the Thames v. Enbridge and Clyde River v. Petroleum GeoServices).
The duty to consult is complex and fact-specific. If you have questions about your rights during a consultation process, contact Natai Shelsen.