Lawyers say that by approaching their engagement with indigenous communities in the right way, they can help to ensure that issues around the duty to consult don’t become exacerbated.
“Environmental assessments tend to be the logical place in which you are addressing issues associated with the duty to consult . . . and, often, obviously, the issues are somewhat overlapping,” says Patrick Duffy, partner at Stikeman Elliott LLP in Toronto.
“That’s something that the court has encouraged by saying that you can use existing processes to satisfy that duty.”
Duffy notes that looking at traditional knowledge of local indigenous people is now required as part of the assessment process by a number of statutes, including the federal environmental assessment process under the Canadian Environmental Assessment Act, 2012.
“There is a guide that has been published by the Canadian Environmental Assessment Agency specifically dealing with incorporation of traditional knowledge into environmental assessments,” says Duffy.
“I’ve dealt with it personally quite extensively in the Northwest Territories before the Mackenzie Valley environmental review board.”
Duffy says that traditional knowledge can be helpful in supplementing scientific knowledge, such as with population trends among the caribou in the NWT, where it was able to fill a void that the scientific data was lacking.
“The two worked fairly harmoniously in that case,” says Duffy. “I think there’s a valuable role for traditional knowledge to be played.”
Recently, the Supreme Court of Canada ruled in Clyde River (Hamlet) v. Petroleum Geo-Services Inc. [2017 SCC 40] and Chippewas of the Thames First Nation v. Enbridge Pipelines Inc. [2017 SCC 41] that the National Energy Board can be a vehicle by which the Crown can achieve the s. 35 duty to consult.
Michael Fortier, partner with Torys LLP in Toronto, notes that it’s not a bright-line test as to whether these tribunals can discharge the duty to consult.
“It depends on the strength of the rights of the indigenous group and the potential harm and the magnitude of significance of that harm,” says Fortier.
“It’s a balancing act, but what you’re seeing more proponents do is default to the higher end of the spectrum because they want to avoid the discussion about did you get it exactly right.”
Duffy notes that lawyers need to be conscious of any legal requirement for accessing such knowledge, as well as knowing when to take it into account even if it’s not specifically required, as it can help to fulfil the duty to consult.
He says lawyers also need to know how to appropriately deal with the nature of the evidence and how it is presented as part of an environmental assessment process.
Duffy says the message is that the Crown doesn’t need to create a new body to fulfil the duty to consult but that existing processes can be adapted to deal with the concerns.
“Aggressive cross-examination is not appropriate in that sort of setting, so lawyers need to learn to adapt themselves to be cognizant of that and to be appreciative that we shouldn’t be rigid in applying our structures that we’ve developed,” says Duffy.
He also warns that the delegated process such as with the National Energy Board may not fulfil the duty entirely, as issues may fall outside of the scope of the process, which means that the Crown will still need to consult on those issues.
When a process that involves indigenous participation is underway, lawyers need to ensure that there is a duty to consult on the project and whether the framework that has been established is sufficient or adequate to address and discharge that duty.
“The reason why that’s so significant is because the administrative aspects of a duty can be delegated, but the obligation belongs to the Crown and the Crown discharges the duty,” says Raivo Uukkivi, partner with Cassels Brock & Blackwell LLP in Toronto.
Uukkivi says the challenge is whether the process is set up in a way that adequately engages and discharges the duty, including the question of accommodations that may be required in order to address concerns that are raised.
He says that when acting for a private-side actor in an environmental assessment process, such as the proponent for a mining project, if the duty to consult
is not discharged, the consequence could be delays and frustration of the entire project.
“When I look at how we’re going to work through the environmental assessment process, it’s very much on the front of our minds to make sure that [in] the process there is adequate engagement and, quite frankly, private-side actors are quite good at identifying that as an issue and addressing it in a meaningful way,” says Uukkivi.
He says proponents can sometimes be better than government in engagement because they have a financial incentive to ensuring that the process goes smoothly.
Fortier says he tells his clients to build a relationship with the affected indigenous communities rather than treating the duty to consult as a checklist.
“That can be a mechanical exercise, as opposed to taking a step back and really focusing on the relationship aspect,” says Fortier.
“If it’s all seen in a relationship aspect, then your approach becomes significantly different.”
He says that for a project to be successful in the long run, the relationship is really required.
“Oftentimes, the transactional mindset gets you to getting your permit,” says Fortier.
“A relationship aspect naturally flows that a permit is just one part of it.
There’s the ongoing use, plus the decommissioning, so the relationship aspect puts you onside to deal with all of these parts.”
Fortier says that, with a relationship, the outcomes are far better because there is trust and an ability to deal with a changeover of players on both sides.
“It works to the duty consult and also goes into free, prior and informed consent,” says Fortier.