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Government failed in its duty to consult

Process did not ‘pass constitutional muster’
A recent Ontario Divisional Court decision has determined that the provincial government failed in its obligation to consult indigenous communities before it approved a limestone quarry on their traditional lands.

Government failed in its duty to consult
Cathy Guirguis says a recent Divisional Court decision confirms that meaningful consultation with First Nations is not just a box-ticking exercise.
In Saugeen First Nation v. Ontario, the Divisional Court set aside a licence granted to T&P Hayes Ltd. to develop the quarry, until the Ministry of Natural Resources and Forestry conducts adequate consultations with the Saugeen Ojibway Nation and accommodates its concerns.

The Divisional Court found that the ministry had established a consultation process with the community, but that it did not “pass constitutional muster”.

“Imposing [the ministry’s] view of what is reasonable, without adequate consultation with [Saugeen Ojibway Nation], would be to endorse a version of paternalism entirely inconsistent with the duty to consult: it would be tantamount to saying ‘we know what is best for you and we don’t need to hear from you on that issue,’” Justice David Corbett wrote in the decision.

Lawyers say the decision confirms the law around scope of duty to consult with affected indigenous communities, and reaffirms that such consultations must be done in a meaningful way.

Cathy Guirguis, the lawyer representing the Saugeen Ojibway Nation, says that the government and developers often view consultation with First Nations as a box-ticking exercise that they need to complete before proceeding to make the decision they had already intended to make.

She says this decision shines a light on the duty to consult, and the need for a clear and adequate process in consultations.

“There needs to be the Crown there to keep its word to First Nations and indigenous people, and it needs to be about the protection of constitutional rights,” says Guirguis, a partner with Olthuis Kleer Townshend LLP.

The ruling focused on the consultation process between the ministry and the Saugeen Ojibway Nation, which included more than six years of back and forth correspondence between them.

However, the Divisional Court found that no discussion of the impacts or review of the technical studies of the project took place.

The ministry conducted an initial assessment of its duty to consult in 2009 and decided that it only needed to provide the community with notice and information about the project.

But the Divisional Court ruled that the ministry was obliged to complete further steps to discharge its duty to consult and that these were not met in a timely way.

The ministry argued that the community’s substantive concerns had been heard and addressed. The court, however, found that as a proper consultation process had not occurred, the First Nation’s concerns had not been fully identified, and that a review of the reasonableness of the ministry’s conclusions would be premature.

While the application process started in 2008, the ministry did not provide notice to the First Nation until 2011.

Lawyers say the decision reinforces that the quality of consultations is what matters rather than quantity. While the parties sent various correspondences over a six-year period, it does not mean an effective consultation occurred, lawyers say.

Julie Abouchar, a partner at Willms & Shier Environmental Lawyers LLP, says the case provides guidance to the provincial government as to what its obligations are in consultations with First Nations.

“If anything, the case is a case study of what not to do in consultation,” says Abouchar, who was not involved in the case.

She says the decision helps identify key aspects of the government’s role, which will prove helpful as different government departments can often have varying ideas as to what their obligations are on the duty to consult. It can also vary from project to project, she says.

The Divisional Court also decided that it was reasonable for the Saugeen Ojibway Nation to ask that the government cover its costs of the consultation so that it would not have to spend community resources.

The court found that the ministry had not yet provided $10,914 in funding it had agreed to provide for expert assistance in the consultation. As the First Nation was not able to receive expert advice, the Divisional Court found the ministry had therefore failed to communicate with the community about its concerns regarding the project.

Guirguis says the decision restated important principles and made strong statements about ones that needed more clarity, such as whether the government should fund such consultations.

She noted the community has roughly 500 quarries in its traditional territory and dozens of applications to open new ones at any given time, making it quite expensive to keep up with the level of development.

Jim Blake, a lawyer with McLean & Kerr LLP, who was not involved in the case, says the decision also shows that the province cannot offload the responsibility to consult indigenous communities onto the proponent — the developer or party applying for the project.

“From a legal point of view they cannot escape their duty. That’s really what came through loud and clear here,” he says.

In 2004, the Supreme Court of Canada established a framework for the government’s duty to consult and accommodate in Haida Nation v. British Columbia (Minister of Forests). Since then, the courts have been filling in the details of that framework, lawyers say.

Blake says the Saugeen decision offers an up-to-date precise summary and commentary on the general principles for the Crown’s duty to consult.

“It’s both historical and analytical and instructive, and by golly it’s a play book you can’t live without if you’re involved in this topic,” he says.

Jolanta Kowalski, a spokeswoman for the Ministry of Natural Resources, said the ministry is reviewing the decision, but declined to comment further as the appeal period had not expired.

Lawrence Hansen, the lawyer representing the proponent, was not available for comment.

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