Appendix A: Additional Case Summaries on the Duty to Consult
1. Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73
In Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73 the Haida Nation alleged that the provincial government acted improperly in failing to consult it before transferring a tree farm licence from one forestry company to another. They had claimed, but had not proven, Indigenous rights and title to the lands impacted by this transfer. The Province argued that, until the claims were proven, it had no duty to consult with the impacted groups.
The Supreme Court held that the provincial government had acted wrongfully. The provincial and federal governments have a duty to consult Indigenous peoples when it contemplates action that may adversely affect asserted Indigenous rights or title claims. These rights do not have to be proven for the duty to consult to be triggered. As a result of those consultations, there may be a duty to accommodate the Indigenous rights or claims.
The duty to consult is triggered when the Crown has actual or constructive knowledge of a potential Indigenous claim or Indigenous or treaty rights that may be adversely affected by Crown conduct. The nature and extent of the consultation will depend on the asserted claim’s strength and the extent to which the claim right may be adversely affected by the governmental decision or action.
The court set out the following principles in respect of the duty of consultation:
- consultation must be proportionate to the degree of infringement that will occur;
- there must be flexibility regarding the depth of consultation;
- the honour of the Crown requires a meaningful, good faith consultation process;
- reconciliation is promoted by imposing obligations on the manner and approach of the government;
- the duty to consult rests with the Crown; it is not owed by proponents. However, the Crown may delegate procedural aspects of consultation to proponents.
- written reasons will foster reconciliation by showing affected Indigenous peoples that their rights were considered and addressed, and
- procedural protections may be required for meaningful consultation.
2. Clyde River (Hamlet) v Petroleum Geo-Services Inc., 2017 SCC 40 [Clyde River]
In Clyde River, the SCC considered whether the National Energy Board (NEB) had fulfilled the Crown’s duty to consult. It dealt with offshore seismic testing conducted near Baffin Island. The local Inuit population had treaty rights to harvest marine animals in that area. Some consultation efforts, including community meetings, were held with the impacted persons. The NEB determined that adequate consultation had been conducted and that significant adverse environmental effects were not likely. It approved the project and the impacted community filed the action alleging a breach of the duty to consult.
The Court unanimously ruled that, while the NEB is capable of conducting and discharging the Crown’s consultative duties, it had failed to do in this case. The NEB failed to adequately consult impacted communities or assess the impact on treaty and Indigenous rights of the proposed oil and gas exploration project before approving it. The Court based its decision on a consideration of the principles developed in a number of cases. In Tsilhqot’in, the court ruled that the duty to consult must be fulfilled prior to the action that could adversely affect the right. In Carrier Sekani, the court ruled that the legislation empowers regulatory bodies to fulfill the Crown’s duty to consult; that consultation is “concerned with an ethic of ongoing relationships”, and that the goal of consultation is to identify, minimize, and address adverse impacts.
Adequate consultation could include a number of things depending on the individual case and the circumstances. The SCC listed a number of factors that contribute to adequate consultation, but it is not limited to just these factors. In fact, a combination of these factors is most likely needed to achieve adequate consultation. The Government of Canada should always be striving to do the best that they can to fulfill as many factors as possible.
- The level and depth of consultation must be decided upon.
- A consultative inquiry is to inquire into the impact on the right, and not just on the environmental effects.
- The process needs to be adequately explained to the Indigenous group, specifically about who (which regulatory body, government department, etc.) is fulfilling the Crown’s duty to consult.
- If deep consultation is required, it may entail an opportunity by the Indigenous group to make submissions for consideration—this may also involve provision of resources to do so.
- Opportunity to test the evidence of proponents.
- Formal participation in the decision-making process.
- Provision of written reasons.
- Opportunities for participation and consultation, which include oral hearings and participant funding.
- Procedural safeguards while not always necessary, can be important – such as meaningful responses to questions or concerns, translation of documents, availability of documents in print and not just online since that may be inaccessible.
- The accommodations are legitimate concessions.
3. Chippewas of the Thames First Nation v Enbridge Pipelines Inc, 2017 SCC 41
Chippewas was heard and released concurrently with released Clyde River. In this case, however, the Supreme Court held that consultations between the NEB and the Chippewas of the Thames First Nation were adequate to discharge the duty to consult.
In both cases, the SCC ruled that the NEB is capable and allowed to fulfill the Crown's duty to consult Indigenous groups about development projects in their traditional territories, as long as that consultation is robust.
4. Mikisew Cree First Nation v Canada (Minister of Canadian Heritage), 2005 SCC 69
In Mikisew Cree, the Supreme Court ruled that even if the Crown’s duty of consultation lies at the lower end of the spectrum, the Crown must still provide notice and engage directly with the affected Indigenous communities. This engagement includes “the provision of information about the project, addressing what the Crown knew to be the [First Nation group’s] interests and what the Crown anticipated might be the potential adverse impact on those interests. The Crown must also solicit and listen carefully to the [First Nation’s] concerns, and attempt to minimize adverse impacts on its treaty rights” (para 64). If the Crown makes unilateral decisions without showing that they intend to substantially address any Indigenous concern, then they have failed to discharge their duty of consultation (paras 64-67).
5. Beckman v Little Salmon/Carmacks First Nation, 2010 SCC 53 [Little Salmon]
Little Salmon dealt with a decision by the Director of the Agriculture Branch of the Yukon government to issue an agricultural land grant to a private citizen. The Little Salmon/Carmacks First Nation argued that this grant triggered the duty to consult, and that the consultations undertaken were inadequate. The government argued that a modern treaty can been concluded by the parties and any construct of the duty to consult would be confined within its terms. So long as the terms of that agreement were satisfied, no breach of the duty to consult existed.
The Supreme Court confirmed that the duty to consult still applies when a treaty is in place. The duty is external to any treaty or agreement – it cannot be confined within the terms of a treaty, nor can the Crown contract out of its duty of consultation. This duty is a “doctrine that applies independently of the intention of the parties as expressed or implied in the treaty itself”. The objective of reconciliation can only be achieved if consultation is conducted in a way that upholds the honour of the Crown and manages to maintain the important ongoing relationship between the government and Indigenous community.
6. Rio Tinto Alcan Inc. v Carrier Sekani Tribal Council, 2010 SCC 43 [Rio Tinto]
In Rio Tinto, the Carrier Sekani Tribal Counsel argued they were owed a duty of consultation when the British Columbia Utilities Commission renewed energy agreements for energy from a particular dam. That dam had originally been constructed in the 1950s without any meaningful consultation. The impacted communities argued that the approval was not in the public interest because no consultation had been undertaken with them, and that the proponent was unfairly benefiting from a historic infringement.
The Supreme Court of Canada held that, notwithstanding the historic infringement, the present approval was not enough to trigger the duty to consult.
This case clarified the Haida explanation on triggering the duty to consult. There are three stages that must exist:
- The Crown must have real or constructive knowledge of a potential Indigenous claim or right. While the existence of a potential claim is essential, proof that the claim will succeed is not.
- There must be Crown conduct or a Crown decision. It encompasses immediate impact on lands and resources to “strategic, higher level decisions” that may have an impact on Indigenous claims and rights.
- There must be a possibility that the Crown conduct may affect the Indigenous claim or right. A causal relationship must be shown between the proposed government conduct or decision and a potential for adverse impacts on pending Indigenous claims or rights.
7. Tsilhqot’in Nation v British Columbia, 2014 SCC 44
In response to proposed logging activities, the Tsilhqot'in Nation launched an action seeking, among other things, a declaration that Aboriginal title existed over a portion of their traditional territory.
The Supreme Court of Canada held that Aboriginal title was established over the disputed territory. Aboriginal title confers many rights of exclusive use and occupation to be held collectively by the Tsilhqot’in people. If the Crown wishes to conduct activities on this land, they must either obtain consent of the Tsilhqot’in people, or justify their infringement under section 35 of the Constitution by satisfying three questions:
- Did the government discharge its procedural duty to consult and accommodate;
- Were the government's actions backed by a compelling and substantial objective; and
- Is the governmental action consistent with the Crown's fiduciary obligation to the group?