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Speaker's Corner: Call for clarity on Crown’s duty to consult

The Crown’s duty to consult indigenous peoples — where a decision has the potential to adversely impact existing or asserted aboriginal or treaty rights — finds its root in s. 35 of the Constitution Act, 1982, which states, “The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.”

Since the adoption of the language in 1982, indigenous peoples, resource industries and governments across Canada have all sought clarity about what is meant by the duty to consult.

In Haida Nation v. British Columbia (Minister of Forests), the Supreme Court of Canada enunciated the foundational principles behind this duty, in 2004. In the case, the SCC stated the duty to consult is grounded in the concept of the honour of the Crown — a common law concept wherein there is an assumption that the Crown would negotiate and carry out its duties honourably.

The honour is derived from the Crown’s assertion of sovereignty in the face of prior aboriginal occupation, and it is part of a nation-to-nation relationship. A key component of the process of reconciliation is the duty that flows from the honour. As such, honour is not a merely abstract or lofty goal with no consequences, but, instead, it has real implications for decisions of the Crown that impact aboriginal or treaty rights.  

As stated in Haida, “It is not mere incantation, but rather a core precept that finds its application in concrete practices.” Such honour does not reside in, or extend to, third-party private actors and, as the court stated in Haida, the honour of the Crown cannot be delegated. The duty to consult that finds its basis within this honour ultimately rests with the Crown, and it is triggered where the Crown has real or constructive knowledge of a potential claim or right and there is the potential that the contemplated conduct of the Crown may adversely impact this claim or right.

While the honour of the Crown cannot be delegated, the Crown may delegate procedural aspects of the duty to consult. In our opinion, this makes a great deal of practical sense to a certain extent. The delegation of procedural elements of consultation to project proponents means that those with the greatest knowledge of a proposed project will be engaged directly in the process of consultation with those whose interests will be impacted most by the project. It can also facilitate the building of positive relationships and working toward what will hopefully be mutually beneficial undertakings. Involvement of proponents is also consistent with the direct call to the corporate sector in the 2015 “Truth and Reconciliation Commission of Canada” report to: “Commit to meaningful consultation, building respectful relationships, and obtaining the free, prior, and informed consent of Indigenous peoples before proceeding with economic development projects.” This represented a call for a broader commitment, supplementary to the Crown’s duty. For project proponents, consultation and negotiation are part of a practice rather than a duty — a practice that is grounded in good business sense, efficiency, relationship building and respect. While these are overall positive principles, they are different in nature and from the solemnity of a duty grounded in the honour of the Crown.

Where delegation does occur, there is a potential for erosion of the nation-to-nation negotiating and reconciliation process that the duty is intended to encourage. There are further risks of the consultations being of an inconsistent quality and greater complexity, all leading to confusion over who actually bears the responsibility for the consultation. At face value, delegation of the duty may threaten meaningful consultation.

In Wabauskang First Nation v. Minister of Northern Development and Mines et al., the Ontario Divisional Court confirmed that the Crown had fulfilled its duty to consult, but it articulated areas of improvement. The Court specifically noted the need to define roles between the province, the project proponent and Wabauskang First Nation, to establish protocols and to agree upon the matters for discussion and the nature of confidentiality.

But more clarity is needed. Amendments to Ontario’s Mining Act formally delegate elements of the consultation process to claims, lease and licence holders, with some ministry oversight and support by, for example, requiring the submission of aboriginal consultation plans for exploration permits. Clearly defined roles for all involved will be needed for this to be effective.

Confusion over roles led to the dispute in Northern Superior Resources Inc. v Ontario, in which a mining company unsuccessfully sought to assert that the Crown owed a duty to third parties in the context of consultation. There, the negotiations and relationship between the third-party mining company and the First Nation had deteriorated. Once aware of the breakdown, government offered facilitation assistance. The mining company took the position that the breakdown of the relationship between it and the First Nation was caused by the Crown’s breach of a duty owed to the mining company to consult with the First Nation. This decision — where a duty to a third party was not recognized by the court — demonstrates the confusion and uncertainty around the consultation process itself.

Unfortunately, this is a confusion that will likely proliferate with further delegated consultation (whether formal or informal) and the uptake of the commitment for project proponents to engage directly in consultations. Ultimately, when triggered, there is a duty, grounded in honour, that rests only with the Crown and cannot be delegated. The challenge now remains in how to translate the duty into meaningful, feasible, efficient and effective consultation processes.

Izaak de Rijcke is a lawyer in Ontario and Yukon and is a certified specialist in real estate law. Megan E. Mills is a lawyer working as a researcher and writer in Guelph, Ont.

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