The duty to consult requires “meaningful” consultation

Sep 26, 2017

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What is the duty to consult?

The duty to consult arises as part of the “process of honourable negotiation” required of the Crown by s.35 (1) of the Constitution, which states that “[t]he existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.”

As a result of the recognition of aboriginal and treaty rights, the government cannot disregard the interests of aboriginal peoples when dealing with their lands and must consult with the affected groups before exploiting the land. As the Supreme Court has noted:

The Crown, acting honourably, cannot cavalierly run roughshod over Aboriginal interests where claims affecting those interests are being seriously pursued.”[1]

The goal of consultations is vindication of First Nations’ rights and reconciliation with First Nations.[2] The duty to consult and accommodate applies to both the federal and provincial governments.

When does the duty arise?

Generally speaking, consultation will be required where the government is, or should be, aware Aboriginal interests recognized by the Constitution and consider conduct that could negatively affect those interests.[3]

The general process to be followed

As noted by the Divisional Court the recent decision of Saugeen First Nation v. Ontario, the general process to be followed by the government is:

Step 1:            the Crown determines whether a duty to consult arises.

Step 2:            the Crown makes a preliminary assessment of the scope of the duty to consult.

Step 3:            the Crown then consults with the First Nation.

Step 4:            a duty to accommodate may arise during consultation.

These general principles were reviewed and applied in Saugeen where the court set aside a license granted for a quarry development on aboriginal lands. The license was set aside until the Ministry of Natural Resources and Forestry (MNRF) conducts adequate consultations. The affected Nation in this case was the Saugeen Ojibway Nation (SON) and, as the court found, the Nation was not provided consultation adequate to discharge the government’s duty to consult and accommodate.

Although the consultation process between the MNRF and the SON involved over six years of correspondence between the parties, the court found that there had been no discussion or review of technical studies related to the project.

The court further found that the ministry had established a consultation process with the community, but that it did not “pass constitutional muster”[4] and that the MNFR had imposed its own view of what is reasonable consultation. The court held that this was an error, and that:

Consultation is a process involving a First Nation. Imposing MNRF’s view of what is reasonable, without adequate consultation with SON, 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.”[5]

The ministry argued it had consulted and 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 were not fully identified or accommodated. As a result, the MNRF failed in its obligation to consult indigenous communities before it approved the quarry.

Final Thoughts

The decision clarifies the law surrounding the duty to consult, which has been evolving since the Supreme Court established general principles of the duty in its 2004 decision, Haida Nation v. British Columbia (Minister of Forests).  The decision also reaffirms the law that “Consultation must be meaningful,” and the government “must act with honour and integrity, avoiding even the appearance of ‘sharp dealing’.”

[1] Haida Nation v. BC (Minister of Forests), [2004] 3 SCR 511 (“Haida Nation”), at para. 27.

[2] Saugeen First Nation v. Ontario (MNRF), 2017 ONSC 3456, at para 12.

[3] See for example: Haida at para 35.

[4] Saugeen at para 6.

[5] Saugeen at para 128.

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