AN OVERVIEW OF THE DUTY TO CONSULT IN CANADA: FROM HAIDA TO FRONTENAC

• Jurisdiction: Derecho Internacional

International Mining and Oil & Gas Law, Development and Investment
(Apr 2009)
CHAPTER 10A
AN OVERVIEW OF THE DUTY TO CONSULT IN CANADA: FROM HAIDA TO FRONTENAC
Neal Smitheman
Tracy A. Pratt
Fasken Martineau DuMoulin. LLP ¹
Toronto

Neal Smitheman is a partner at the law firm of Fasken Martineau DuMoulin LLP, he is a commercial/criminal litigator with specialties in a number of areas including Aboriginal Law. Neal is the Chair of the Aboriginal Law Group at the firm in Toronto. Neal is currently representing a number of mineral exploration companies in Northern and Southern Ontario which involve, among other things, significant land claims and Abori al Treaty Rights and entitlement. Neal was also recently successful in negotiating an MOU that provides for participation by the First Nation in the governance of an equity in a junior mining company. Recently, Neal was retained to represent a municipality in its dispute with a First Nations group concerning a significant land claim and treaty rights case.

The Supreme Court of Canada set out the principles governing the duty to consult with First Nations in the leading decisions of Haida v. British Columbia ("Haida");²Taku River Tlingit First Nation v. British Columbia ("Taku");³ and Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage) ("Mikisew").⁴ These principles are as follows:

(1) Based on the "honour of the Crown", the duty to consult with aboriginal peoples lies with the Crown, and not with third parties;

(2) The duty to consult is owed by the Crown both in cases of established and unestablished aboriginal treaty or rights claims;

(3) The duty to consult arises where there is knowledge of the potential existence of an aboriginal or treaty right and where the Crown contemplates conduct that may adversely impact such right;

(4) The exact extent of the duty will vary based on the facts of each situation and will be proportionate to the strength of the asserted aboriginal or treaty right and the degree of potential impact on it; and

(5) The duty to consult does not amount to an aboriginal "veto" power over development projects.

The Crown's failure to fulfill its duty to consult can lead to significant delays and complications for third parties engaged in resource development. In the recent Ontario cases of Platinex and Frontenac, the Court was called upon to apply the duty to consult law in the context of disputes between resource development companies and First Nation communities.

The trilogy of decisions in Platinex Inc. v. Kitchenuhmaykoosib Inninuwug First Nation⁵ demonstrates the degree of participation that the courts may request of third parties. Although

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the Supreme Court clearly articulated in Haida, Taku and Mikisew that third parties are under no duty to consult with First Nations, Platinex demonstrates that courts may request and in practice, mineral exploration and other companies will likely have an integral and significant role to play during the consultation/accommodation process.

In Frontenac, the Crown's alleged failure to consult led to a blockade and occupation of private lands by aboriginal "protestors". Their actions prevented an exploration company from gaining access to lands it was authorized to explore under Ontario's Mining Act.⁶ Although an injunction was granted to the company by the motions judge, the subsequent Ontario Court of Appeal decision on the sentencing for contempt of that injunction may make it more difficult for resource development and other companies to use injunctions to stop aboriginal obstructions. Also of concern is the Court of Appeal's apparent unwillingness to endorse appropriate sentences/penalties to deter contemnors' conduct in an injunction context.

Duty to Consult: Haida, Taku and Mikisew

Haida and Taku were heard together by the Supreme Court of Canada on March 24 and 25, 2004. The Court held that the federal and provincial Crown have a duty to consult aboriginal peoples and to accommodate their concerns both in cases of established and un-established aboriginal treaty or rights claims.

In Haida, a forestry company was granted an exclusive right by the provincial government to harvest trees in an area over which the Haida Nation claimed aboriginal rights and title. The provincial Crown renewed the tree farm license and transferred the license to a successor of the original forestry company (Weyerhaeuser). The Haida challenged the government's decision to renew and transfer the license on the basis that the Crown and Weyerhaeuser owed a legal duty to consult with the Haida prior to authorizing logging over land to which aboriginal title is claimed.

In Taku, the dispute related to ministerial approval of a Project Approval Certificate in relation to a mining project. The development company Redfern Resources Ltd. sought approval from the government to reopen a mine on the Taku River system and to construct an access road through a wilderness area in Northwestern British Columbia. The proposed road would traverse land claimed by the Taku River Tlinglit First Nation (Taku Tlinglit) as their traditional territory and the subject of on-going treaty negotiations.

The Court in Haida stated that the government's duty to consult with aboriginal peoples and to accommodate their interests is grounded in the honour of the Crown. The Crown's honour and the goal of reconciliation suggest that the duty arises when the Crown has knowledge, real or constructive, of the potential existence of the aboriginal right or title and contemplates conduct that might adversely affect it.⁷ The Crown's duty also extends to cases where aboriginal rights have yet to be proven. As per McLachlin C.J:

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I conclude that consultation and accommodation before final claims resolution, while challenging, is not impossible, and indeed is an essential corollary to the honourable process of reconciliation that s. 35 demands. It preserves the Aboriginal interest pending claims resolution and fosters a relationship between the parties that makes possible negotiations, the preferred process for achieving ultimate reconciliation. ⁸

While the Supreme Court in Haida confirmed that the Province owed a duty to consult and seek a workable accommodation with the Taku Tlingit and the Haida, the Court circumscribed and limited the scope of the duty and the steps necessary to achieve adequate consultation and workable accommodation. The Court confirmed that the duty to consult does not require an agreement to be reached nor does it give aboriginal peoples a veto. Although consultation must be meaningful, "[t]here is no duty to reach agreement."⁹

With respect to the concept of accommodation, Binnie J. stated in Mikisew as follows:

Had the consultation process gone ahead, it would not have given the Mikisew a veto over the alignment of the road. As emphasized in Haida, consultation will not always lead to accommodation, and accommodation may or may not result in an agreement. There could, however, be changes in the road alignment or construction that would go a long way towards satisfying the Mikisew objections. We do not know, and the Minister cannot know in the absence of consultation, what such changes might be. ¹⁰

The duty to consult arises where there is knowledge of the potential existence of an aboriginal or treaty right and where the Crown contemplates conduct that may be affect it. The extent of this duty is proportionate to the strength of the claim as well as the potential impact on it. McLachlin J. (in Haida and relied upon in Mikisew) used the concept of a spectrum to frame this analysis (at paras. 43-45) as follows:

At one end of the spectrum lie cases where the claim to title is weak, the Aboriginal right limited, or the potential for infringement minor. In such cases, the only duty on the Crown may be to give notice, disclose information, and discuss any issues raised in response to the notice....

At the other end of the spectrum lie cases where a strong prima facie case for the claim is established, the right and potential infringement is of high significance to the Aboriginal peoples, and the risk of non-compensable damage is high. In such cases deep consultation, aimed at finding a satisfactory interim solution, may be required. While precise requirements will vary with the circumstances, the consultation required at this stage may entail the opportunity to make submissions for consideration, formal participation in the decision-making process, and provision of written reasons to show that Aboriginal concerns were

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considered and to reveal the impact they had on the decision. This list is neither exhaustive nor mandatory for every case. ...

Between these two extremes of the spectrum just described, will lie other situations. Every case must be approached individually. Each must also be approached flexibly, since the level of consultation required may change as the process goes on and new information comes to light. The controlling question in all situations is what is required to maintain the honour of the Crown and to effect reconciliation between the Crown and the Aboriginal peoples with respect to the interests at stake. ... ¹¹

Mikisew was an example where the level of consultation required was on the low end on the spectrum since the Crown action was not likely to have a significantly adverse impact on aboriginal rights.

The Mikisew Cree First Nation was a signatory to Treaty No. 8 in 1899. Treaty No. 8 encompassed 840,000 square kilometres of what is now northern Alberta and parts of British Columbia, Saskatchewan and the Northwest Territories. In exchange for surrendering this land, the First Nation was promised reserves and other benefits including the rights to hunt, trap and fish throughout the land surrendered to the Crown saving and excepting "such tracts as may be required or taken out from time to time for settlement...