Part B: Legal Framework of Indigenous Law in Canada
Indigenous communities have found constitutional footing to advance their stewardship interests, flowing from their unique relationship with the Crown. It is this body of law that this Report considers next. After laying out the key concepts in Indigenous law and the Constitutional framework for Indigenous rights in Canada, this Report delves deeper into “the duty to consult” - a valuable tool that Indigenous groups have wielded to advance their land stewardship obligations.
a. Indigenous Law in Canada
Indigenous persons in Canada have a unique relationship with the Canadian government. At the time of European arrival and settlement, Indigenous persons were already here, and they were never conquered (R v Van der Peet,  2 SCR 507 at para 30 [Van der Peet]; Tsilhqot’in Nation v British Columbia 2014 SCC 44 at para 69 [Tsilhqot’in], Royal Proclamation (1763), R.S.C. 1985, App. II, No. 1 [Royal Proclamation]). As such, the Crown’s assertion of sovereignty over what is now Canada is subject to pre-existing Indigenous rights (R v Sparrow,  1 SCR 1075 [Sparrow], Royal Proclamation). Some of their pre-existing rights were surrendered and codified in treaties, while others were not. Some of these rights were unilaterally extinguished by the Crown prior to 1982, but many remain (Haida Nation v British Columbia (Minister of Forests),  3 SCR 511 at para 25 [Haida]).
These existing rights and treaties must be reconciled with the Crown’s exercise of sovereignty over lands in Canada (Haida at para 17). Finding a just settlement of Indigenous rights and title claims takes place within a broader need to reconcile the relationship between Indigenous persons and the Canadian government, which has a “long history of grievances and misunderstanding“ (Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage),  3 SCR 388 at para 1 [Mikisew Cree]). This goal of reconciliation–from a legal, historical and cultural standpoint–has become the cornerstone of Indigenous law in Canada.
This distinctive relationship was codified in 1982 with the addition of section 35 of the Constitution Act, 1982. Section 35 recognizes and affirms existing aboriginal and treaty rights that had not been extinguished prior to 1982:
35(1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.
(2) In this Act, “aboriginal peoples of Canada” includes the Indian, Inuit and Métis peoples of Canada.
(3) For greater certainty, in subsection (1) “treaty rights” includes rights that now exist by way of land claims agreements or may be so acquired.
(4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons.
Section 35 provides a constitutional framework by which the process of reconciliation can take place (Sparrow at 1105). It has subsumed the pre-existing core precepts of Indigenous law and elevated those principles to a constitutional status. As such, s. 35 is treated as having procedural and substantive components (Mikisew Cree at para 57):
- Substantively, it protects existing and unextinguished Indigenous rights and title claims. The Crown is entitled to restrict or infringe Indigenous rights only where those actions are properly justified (Sparrow at 1109-1111).
- Procedurally, the Crown must act honourably in all its dealings with Indigenous persons, which necessitates a duty to meaningfully consult with Indigenous communities when contemplated Crown action has the potential to adversely impact an Indigenous community.
The honour of the Crown is a standard of conduct imposed on federal and provincial governments in all their dealings with Indigenous persons (Royal Proclamation; Sparrow). It is used as an interpretive tool to fill in gaps in historical treaty interpretation, and it guides all dealings between the government and Indigenous persons today (Haida at para 32).
The honour of the Crown imposes considerable obligations on government conduct and treatment of Indigenous persons in Canada. In particular, it creates a proactive obligation on the Crown to meaningfully consult with Indigenous groups when contemplating conduct that could negatively impact potential or established Indigenous or Treaty rights (Haida at para 35; Dwight G Newman, Revisiting the Duty to Consult Aboriginal Peoples (Saskatoon: Purich Publishin Ltd, 2014) at 51 [Newman]). Where necessary, the duty requires the Crown to modify their actions to accommodate Indigenous interests (Haida at para 47).
b. The Duty to Consult
The modern framework for the duty to consult is enshrined in the landmark Haida decision. In that case, the British Columbia provincial government issued a tree farm licence to a private logging company. The Haida Nation claimed title to the land, but their claim was not yet proven in Court. The province moved forward with transferring the tree farm licence with knowledge of the unproven claim, and over the objections of the Haida people. It did not consult with the Haida people before taking action.
The Supreme Court of Canada held that the Crown (as represented by the province) acted improperly. The province had knowledge of a credible but as-yet unproven claim regarding the land at issue, and they were obligated to respect those potential rights. While the province may move forward with development despite unproven claims, it was not honourable for the province to “unilaterally exploit a claimed resource during the process of proving and resolving the Aboriginal claim to that resource” (Haida para 27). The Haida people were owed a duty of meaningful consultation, and possibly, an accommodation of their interests.
Meaningful consultation is not a guarantee of a favourable outcome (Tsilhqot’in at para 78). Following meaningful consultation, the Crown may still proceed with a course of action of the objection of impacted Indigenous communities (Mikisew Cree at para 66). The Crown must, however, undertake consultation with an open mind and a genuine effort to incorporate other viewpoints, respond to and mitigate concerns, and reconcile differing interests.
The duty is a process of good faith discussions, the extent and content of which will vary depending on the circumstances, but which always must be undertaken:
- “with the intention of substantially addressing the concerns of the aboriginal people whose lands [or rights] are at issue” (Mikisew Cree at paras 57, 59; Delgamuukw v British Columbia,  3 SCR 1010 at para 168]; and
- “willingness on the part of the Crown to make changes based on information that emerges during the process” (Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), 2004 SCC 74 at para 29 [Taku River]).
Discussions undertaken as part of the duty to consult may reveal an obligation to accommodate the interests of Indigenous groups (Mikisew Cree at para 54). The duty to accommodate will exist when there is a strong prima facie claim, and the proposed activity in question is likely to cause significant adverse effects (Haida at para 47).
While the duty to accommodate appears to provide substantive guarantees, Courts have ruled it can be satisfied by engaging in negotiation, compromise and compensation (Alastair Neil Craik, "Process and Reconciliation: Integrating the Duty to Consult with Environmental Assessment" (2016) Osgoode Legal Studies Research Paper Series 122 at 10 [Craik]). The Federal Aboriginal Consultation and Accommodation Guidelines take the position that “[t]he primary goal of accommodation is to avoid, eliminate, or minimize the adverse impacts on potential or established Aboriginal or Treaty rights, and when this is not possible, to compensate the Aboriginal community for those adverse impacts” [emphasis added]. Canada, Aboriginal Affairs and Northern Development Canada, Aboriginal Consultation and Accommodation: Updated Guidelines for Government Officials to Fulfill the Duty to Consult (Policy Guidelines) (Ottawa: Aboriginal Affairs and Norther Development Canada, 2011), online: <http://www.aadnc-aandc.gc.ca/DAM/DAM-INTER-HQ/STAGING/texte-text/intgui_1100100014665_eng.pdf> at 53).
c. Triggering the Duty to Consult
The duty to consult is triggered “when the Crown has knowledge, real or constructive, of the potential existence of the Aboriginal right or title and contemplates conduct that might adversely affect it” (Rio Tinto Alcan Inc v Carrier Sekani Tribal Council, 2010 SCC 43 [Rio Tinto]). The threshold is low and can be broken down into three elements:
- Crown knowledge, actual or constructive, of a potential Aboriginal claim or right;
- contemplated Crown conduct; and
- potential that the contemplated conduct may adversely affect the Indigenous claim or right. (Rio Tinto at para 31)
- Knowledge: The Crown has actual knowledge when there are ongoing negotiations, pending court claims, or express treaties to that effect (Mikisew Cree at para 34). Actual knowledge of a “credible but unproven claim” will trigger the duty to consult (Haida at para 37). Constructive knowledge exists where “lands are known or reasonably suspected to have been traditionally occupied by an Aboriginal community or an impact on rights may reasonably be anticipated” (Rio Tinto at para 40; Newman at 45).
- Conduct: The duty is triggered when the Crown contemplates an action or decision that may adversely impact Indigenous rights. This is interpreted broadly. It is not limited to “decisions or conduct which have an immediate impact on lands and resources.” It also encompasses “strategic, higher level decision[s]” (Rio Tinto at para 69).
- Adverse Effect: The contemplated action must have the potential for an “appreciable” adverse impact on an Indigenous right or claim to trigger the duty (R v Douglas, 2007 BCCA 265, 278 DLR (4th) 653 at para 44). There must be a “demonstration of a causal connection between the proposed Crown conduct and a potential adverse impact on an Aboriginal claim or right” (Rio Tinto at para 51). Abstract or theoretical effects, or ones that would require a series of remote causal chain of events, do not trigger the duty (see, for example, Hupacasath First Nation v. Canada (Attorney General), 2015 FCA 4 [Hupacasath]).
d. Content of the Duty to Consult
Once the duty to consult is triggered, context shapes what the duty looks like in a particular case. In some cases, the duty to consult is little more than a duty of notice. In others, it will require extensive meetings, and ultimately, accommodation of Indigenous interests.
Haida explained that the content of a consultation is dependent on the asserted claim’s strength and the extent to which the claim may be adversely affected by the governmental decision or action:
39 The content of the duty to consult and accommodate varies with the circumstances…In general terms, however, it may be asserted that the scope of the duty is proportionate to a preliminary assessment of the strength of the case supporting the existence of the right or title, and to the seriousness of the potentially adverse effect upon the right or title claimed.
The content of the duty is a spectrum. What the consultations look like will depend on where particular case falls on that spectrum. As explained in Haida:
43 …At one end of the spectrum lie cases where the claim to title is weak, the Aboriginal right limited, or the potential for infringement minor. In such cases, the only duty on the Crown may be to give notice, disclose information, and discuss any issues raised in response to the notice…
44 At the other end of the spectrum lie cases where a strong prima facie case for the claim is established, the right and potential infringement is of high significance to the Aboriginal peoples, and the risk of non-compensable damage is high. In such cases deep consultation, aimed at finding a satisfactory interim solution, may be required. While precise requirements will vary with the circumstances, the consultation required at this stage may entail the opportunity to make submissions for consideration, formal participation in the decision-making process, and provision of written reasons to show that Aboriginal concerns were considered and to reveal the impact they had on the decision. This list is neither exhaustive, nor mandatory for every case. The government may wish to adopt dispute resolution procedures like mediation or administrative regimes with impartial decision-makers in complex or difficult cases.
45 Between these two extremes of the spectrum just described, will lie other situations. Every case must be approached individually. Each must also be approached flexibly, since the level of consultation required may change as the process goes on and new information comes to light. The controlling question in all situations is what is required to maintain the honour of the Crown and to effect reconciliation between the Crown and the Aboriginal peoples with respect to the interests at stake. Pending settlement, the Crown is bound by its honour to balance societal and Aboriginal interests in making decisions that may affect Aboriginal claims. The Crown may be required to make decisions in the face of disagreement as to the adequacy of its response to Aboriginal concerns. Balance and compromise will then be necessary.
This spectrum approach is premised on the ability to craft meaningful consultations that respond to the particular situation on the ground. This individualized approach is one that has reconciliation as a goal.
e. Duty to Consult and Land Stewardship
The duty to consult is a powerful tool for Indigenous communities to advance their land stewardship interests. Indeed, it has been argued that the procedural duty has become even more valuable than the substantive protections demanded by s 35 (Newman at 17). Even though the right does not guarantee substantive outcomes, there is evidence that the doctrine can lead to “major modification to protects or even cancellation of projects that would have unacceptably severe impacts on Aboriginal communities” (Newman at 105).
There are several features of the duty to consult that are especially valuable in the context of Indigenous land stewardship obligations.
- First, it is preventative. The duty “offers some core protection to Aboriginal rights, even where they have not yet been definitely established” (Newman at 17). Its preventative nature requires engagement before harm occurs, and before Indigenous title is proven. This protects a resource from being depleted while parties argue over it in Court. A preventative obligation allows the duty to consult stand independently from substantive proof.
- Second, it is a proactive obligation. The duty rests with the Crown – it is not incumbent on impacted communities to approach the government first. This has mandated the development of comprehensive federal and provincial frameworks to meet their obligation. As discussed in more detail below, it has also lead to the development of participant funding programs and community engagement initiatives aimed at effecting meaningful consultation with Indigenous communities.
- Third, it imposes a high standard of conduct on the Crown. The honour of the Crown does not accept narrow, legalistic or “sharp” interpretation of consultation. Judges have demonstrated a willingness to enforce this high standard, leading to a number of important successes for Indigenous groups (see, for example, Mikisew Cree, Haida, Clyde River (Hamlet) v Petroleum Geo‑Services Inc, 2017 SCC 40 [Clyde River]).
- Fourth, it is flexible enough to meet differing needs. Context guides the form and substance of consultation. This creates space for creative solutions, including joint management of projects between Indigenous groups and the Crown, Indigenous lead development, and investment in Indigenous communities (see, for examples, case studies in MacDonald-Laurier Institute, Learning to Listen: Snapshots of Aboriginal Participation in Environmental Assessment, by Bram Noble (Ottawa: MacDonald-Laurier Institute, July 2016), online: <http://www.macdonaldlaurier.ca/files/pdf/Noble_StewardshipCaseStudies_F_web.pdf>[Learning to Listen] at 10-23).
There are, however, a number of problems that exist within the duty to consult framework. Some of these challenges are considered below.
f. Challenges with the Duty to Consult
1. The Duty to Consult does not redress past wrongs
The duty to consult cannot be used to remedy past wrongs. Given the significant environmental degradation that has already occurred in Indigenous communities, this is a painful shortcoming for many Indigenous communities. This question was at issue in the Rio Tinto decision, where an Indigenous group argued they were owed a duty of consultation when the provincial utilities commission renewed energy agreements in relation to a dam. That dam had originally been constructed in the 1950s without any meaningful consultation, and it had negatively impacted their rights. The impacted communities argued that it should not have been approved because they were not consulted, and because the proponent was unfairly benefiting from a historic infringement. The Supreme Court of Canada disagreed. Notwithstanding the historic infringement, the current approval did not trigger the duty to consult because it did not impact on the Indigenous community (Rio Tinto at para 83):
The claimant must show a causal relationship between the proposed government conduct or decision and a potential for adverse impacts on pending aboriginal claims or rights. Past wrongs, including previous breaches of the duty to consult, do not suffice (Rio Tinto at para 45).
The frustration within Indigenous communities is amplified by the cumulative impacts of development. The consultation process is triggered by specific decisions or actions. While the impact of that one decision may be limited, when considered cumulatively with past developments, the impact can be profound (Brokenhead Ojibway Nation v Canada (Attorney General), 2009 FC 484 (Canlii) at para 28). The forward-looking nature of the duty to consult limits the ability to re-examine prior developments, and how they cumulatively impact Indigenous rights, title, and the environment.
2. The Limits of Process
The duty to consult does not guarantee development plans will be changed, and it does not give Indigenous communities a veto power over development. This was at issue in the Taku River decision. In that case, a mining company sought permission from the British Columbia government to re-open an old mine. The Taku River Tlingit First Nation objected to a portion of the plan dealing with land over which they had a strong prima facie title claim. They participated in an environmental assessment process, during which they raised their concerns. Ultimately, the Province approved the mining company’s plan with some accommodation for the concerns raised. The Taku River Tlingit First Nation opposed this result, and launched a court action challenging the decision. They were not successful. The Supreme Court of Canada explained that “[w]here consultation is meaningful, there is no ultimate duty to reach agreement” (Taku River at para 2).
The inability to translate the duty to consult into tangible results significantly hampers Indigenous stakeholders engaged in consultation. It has led some to criticize the process as an empty one (Newman at 105).
3. Determining Consultation Partners
The duty to consult is a community right (Behn v Moulton Contracting Ltd, 2013 SCC 26 at para 30 [Behn]). As such, consultations are often held, or at least coordinated, with the governing leadership of potentially impacted communities. This assumes that Indigenous communities operate on the same structure as their non-Indigenous counterparts, and that there is always agreement within an Indigenous community regarding the proper parties to consultation. This is particularly contentious when the burden of development is borne disproportionately by a subset of community members.
Such was the case in Behn. There, the plaintiffs were a family that stood to disproportionately suffer the negative consequences of a logging contract. The contract was granted after consultations were conducted, but the Behn family argued that they were owed a right of individual consultation. The Supreme Court of Canada disagreed and the case was dismissed.
Identifying consultation partners is increasingly complicated when dealing with large scale and complex projects such as interprovincial pipelines. Indeed, during the approval process for the Mackenzie gas pipeline, an Indigenous consultation partner was not even notified, much less consulted in the creation of a coordinated plan for proceeding with the project among regulators (see Craik at 39, discussing Dene Tha' First Nation v Canada (Minister of Environment), 2006 FC 1354 (CanLII) at para 3).
4. Difficulty Moving Beyond Legal Necessities
There is a difference between legally acceptable consultation and good consultation (Newman at 114). Since the Haida decision, the Crown has struggled to shift its perspective from one based on legal necessities and towards genuine reconciliation. This difficulty has led to a series of missteps and miscalculations that have increasingly driven Indigenous communities to Court for their rights to be adjudicated (see, for example Clyde River, discussed below). This increasing legalisation further hinders the reconciliatory goals of consultation, and has bred distrust in an already fraught relationship. As put by the Supreme Court of Canada in Mikisew Cree:
 The fundamental objective of the modern law of aboriginal and treaty rights is the reconciliation of aboriginal peoples and non-aboriginal peoples and their respective claims, interests and ambitions. The management of these relationships takes place in the shadow of a long history of grievances and misunderstanding. The multitude of smaller grievances created by the indifference of some government officials to aboriginal people’s concerns, and the lack of respect inherent in that indifference has been as destructive of the process of reconciliation as some of the larger and more explosive controversies.
If the goal is reconciliation, all parties need to move beyond checking the appropriate boxes and towards long term good faith relationship building.
g. Evolution of the Duty to Consult: International Law Considerations
The duty to consult is continually evolving. Canada’s recent decision to adopt the UNDRIP without qualification will shape the next phase of this evolution.
The UNDRIP is an international general declaration. It is not a legally binding document in its own right. The provisions of the UNDRIP become part of Canada’s laws in two ways:
- They are explicitly incorporated into domestic laws through legislation.
- The provisions guide and influence the development of the common law (judge made decisions).
As a full supporter of the UNDRIP, Canada has confirmed that it is “committed to a renewed, nation-to-nation relationship with Indigenous peoples based on recognition of rights, respect, co-operation and partnership” (Canada, Indigenous and Northern Affairs Canada, “United Nations Declaration on the Rights of Indigenous Peoples” (Ottawa: Indigenous and Northern Affairs Canada, 2017) online: <https://www.aadnc-aandc.gc.ca/eng/1309374407406/1309374458958>). It is now embarking on the process of harmonizing Canada’s laws with those concepts espoused in the UNDRIP.
The UNDRIP outlines the rights of Indigenous peoples in respect of a wide range of matters including culture, religion, identity, education, health, language, and community. Many articles of the UNDRIP are relevant to land stewardship and the duty of consultation.
Under the UNDRIP, Indigenous peoples have the right to:
- Participate in decision-making in matters which would affect their rights (Article 18)
- Maintain and develop their own Indigenous decision-making institutions (Article 18)
- Control and Protect Indigenous knowledge (Article 31)
The UNDRIP affirms that all States shall:
- establish and implement… ‘a fair, independent, impartial, open and transparent process, giving due recognition to Indigenous peoples’ laws, traditions, customs and land tenure systems, to recognize and adjudicate the rights of Indigenous peoples pertaining to their lands, territories and resources… Indigenous peoples shall have the right to participate in this process’ (UNDRIP at Article 27).
- ‘consult and cooperate in good faith with the Indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources’ (UNDRIP at Article 32(2) [emphasis added])
Article 32(2)’s direction regarding “free, prior and informed consent” is a significant and highly politicized shift from Canada’s current law. Canadian courts and lawmakers have, thus far, rejected the notion that the duty of consultation requires Indigenous consent before proceeding with a project (Haida at para 48).
It remains to be seen how Canada will incorporate Article 32(2) into law. While the federal government has “recognize[d] [the UNDRIP] as a full box of rights for Indigenous Peoples in Canada” that will “breath[e] life” into s 35, many remain skeptical regarding the government’s approach to Article 32(2) (The Honourable Carolyn Bennett Minister of Indigenous and Northern Affairs, “Announcement of Canada’s Support for the United Nations Declaration on the Rights of Indigenous Peoples” delivered at the United Nations Permanent Forum on Indigenous Issues (10 May 2016) online: < http://www.metisnation.ca/wp-content/uploads/2016/05/Speech-Minister-Bennett-UNPFII-NEW-YORK-MAY-10-FINAL.pdf> at 7).
There are, however, indications that Canada’s Court are inching towards consent, in exceptional circumstances. In 2014 (prior to Canada’ adoption of the UNDRIP), the Supreme Court of Canada heard a substantive title claim under s 35 in Tsilhqot’in Nation v British Columbia 2014 SCC 44 [Tsilhqot’in Nation]. For the first time outside a reserve context, the Court declared Aboriginal title over the lands in question (over 1900 square kms). This granting of title conferred many rights. As the Court explained:
 Aboriginal title confers ownership rights similar to those associated with fee simple, including: the right to decide how the land will be used; the right of enjoyment and occupancy of the land; the right to possess the land; the right to the economic benefits of the land; and the right to pro-actively use and manage the land.
 The right to control the land conferred by Aboriginal title means that governments and others seeking to use the land must obtain the consent of the Aboriginal title holders. If the Aboriginal group does not consent to the use, the government’s only recourse is to establish that the proposed incursion on the land is justified under s. 35 of the Constitution Act, 1982 [emphasis added].
In other words, where Indigenous title exists, the government cannot merely consult with impacted groups before proceeding with development. They must either obtain consent for development, or justify their intrusion onto those lands under the much more stringent threshold for substantive breaches under s 35 ((1) fulfilling the duty to consult and accommodate; (2) possessing a compelling and substantial objective; and (3) demonstrating their action is consistent its fiduciary obligation to the group (Sparrow)) (Tsilhqot’in Nation para 80).
While Tsilhqot’in Nation discusses the need for Indigenous consent in the case of established title, it retained the Crown’s authority to act without consent. Thus, prior to adopting the UNDRIP, Canada’s lawmaking powers were unwilling to compromise on decision making power. It remains to be seen how the adoption of the UNDRIP will impact this dynamic.
As Canada seeks to implement the principles embodied in the UNDRIP into Canadian law, there are significant opportunities to strengthen environmental protections through Indigenous land stewardship. The UNDRIP’s adoption and implementation will provide arguments and opportunities for increased participation and advancement of Aboriginal land stewardship into the future.
h. Conclusion on the Duty to Consult
Indigenous land stewardship interests find concrete constitutional footing under the duty of consultation and accommodation. While it has limits, the proactive and preventative nature of the duty lends itself to protecting environmental interests. As well, its evolution provides promise for a heightened role for Indigenous groups in final decision making power.
This Report next turns to consider the practical realities of the duty to consult when it interacts with environmental interests. This necessitates a consideration of the mechanism by which the government seeks to satisfy its duty—the environmental assessment process. As explained below, while environmental assessment began as a technical tool for evaluating environmental impacts of development, it has since developed a role as the “critical tool on the front lines of conflict and reconciliation between Indigenous groups, governments and developers” (Learning to Listen at 2).