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The Duty to Consult Indigenous Groups: 5 FAQs

Published:

June 21, 2021

Author(s):

• Jeffery Callaghan, Lawyer
• Lucia Westin-Eastaugh, Lawyer
• Daniel Vanclieaf, McInnes Cooper Alum

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There is a duty to consult Indigenous groups when the Crown contemplates actions that may adversely affect their rights under section 35 of the Canadian Constitution. But the precise nature and scope of this duty to consult is fraught with confusion and questions for both government and industry. Why is there a duty to consult? Who owes the duty, and to whom is it owed? In what context does the duty to consult arise? And how can it be fulfilled? To help understand, here are the answers to five key frequently asked questions about the legal duty to consult Indigenous groups.

1. What is the source of the Crown’s duty to consult?

The source of the duty to consult Indigenous groups is section 35 of the Canadian Constitution Act, 1982, which states:

35(1) The existing aboriginal and treaty rights of the aboriginal people in Canada are hereby recognized and affirmed.

As the Supreme Court of Canada explained in its 2004 decision in Haida Nation v. British Columbia (Minister of Forests), section 35 protection extends to all Aboriginal and Treaty rights, such as the right to earn a moderate livelihood, whether asserted or affirmed. Until a court confirms an Aboriginal or Treaty right and the Crown’s obligations with respect to such proven rights are clear, consultation serves to seek the input of Indigenous people and account for their Aboriginal or Treaty rights where there is potential for the Crown to affect them before the claims are clearly defined and confirmed. The fundamental goal of section 35 is the reconciliation of pre-existing Indigenous societies with the sovereignty of the Crown. With this objective in mind, Canadian courts have explained that the honour of the Crown is always at stake in its dealings with Indigenous peoples and imposes an obligation to act honourably. It gives rise to the duty to consult Indigenous groups and, in certain circumstances, the duty to accommodate Indigenous interests.

2. Who owes the duty to consult and to whom is it owed?

Ultimately, the Crown owes the duty to consult to Aboriginal communities.

The Crown. The duty to consult belongs to the Crown. Usually this means that the executive branches of both federal, and provincial and territorial, governments owe the duty. Crown corporations and administrative tribunals may owe a duty to consult where they act in place of the Crown. The relevant Crown can also delegate procedural components of the duty to an industry proponent. However, the duty lies ultimately with the Crown: the Crown is responsible for ensuring affected Indigenous groups are adequately consulted with respect to any contemplated actions that may impact their rights.

The Indigenous Group. Aboriginal and Treaty rights are communal rights. This means that the duty to consult in regards to these rights is a duty owed to the community as a whole, and not to any specific individual.

• Band Representatives. In its 2020 decision in Sipekne’katik v. Alton Natural Gas Storage LP, the Nova Scotia Supreme Court confirmed that while the Crown is obliged to consult with the legitimate representatives of the Band, it is the Band’s responsibility to decide who those representatives will be. It is also the Band’s responsibility to communicate with its membership on the content and results of the consultations.
• Individual Communities. Although different Indigenous communities can agree to work together, each community also has the right to be consulted individually. Consultation with one community does not constitute consultation with all communities.
• Transboundary. Notably, the duty to consult can extend to non-Canadian citizens in certain circumstances. In the Supreme Court of Canada’s 2021 decision in R. v. Desautel, the Court determined that Indigenous persons who are not Canadian citizens and who do not reside in Canada can exercise an Aboriginal right that is protected by section 35 of the Canadian Constitution. This means the Crown can owe a duty to consult with non-Canadian citizens. This obligation reflects the fact that the traditional territory of Indigenous groups does not necessary conform to the international boundaries drawn, often without their consultation. However, in recognizing the transboundary nature of the duty to consult, the Court in Desautel confirmed there is no freestanding duty on the Crown to seek out Indigenous groups. It is for the groups involved, whether inside or outside of Canada, to put the Crown on notice of their claims.

3. When does the duty to consult arise?

Canadian court decisions are clear that the duty to consult arises when all three of the following conditions are met:

• The Crown is aware of an existing or a potential Aboriginal or Treaty right.
• The Crown is contemplating executive action.
• The Crown’s contemplated action may adversely affect the Aboriginal or Treaty right.

Existing or Potential Right. In its 2019 decision in Mi’kmaq of PEI v Province of PEI at al (Mi’kmaq of PEI), the P.E.I. Court of Appeal confirmed that the existence of an asserted title claim will not, without more, trigger the duty to consult. While the court confirmed the threshold for triggering the duty is low, it noted that there is still some sort of threshold above and beyond an assertion of title. In addition to the title claim, there must be a specific demonstration of connection to the piece of affected land and specific interaction with the concerned right in order to trigger the duty to consult.

Past v. Future Decisions. The duty to consult is prospective in nature, applying to present action, as opposed to past action or decisions. However, there may be a duty to consult with respect to existing projects where contemplated conduct will generate a novel impact. In Aroland First Nation v. Transcanada Pipelines Limited, the Ontario Superior Court of Justice confirmed that the fact a project has been in operation for many years does not eliminate the need to consult with respect to future decisions in relation to the project. That said, the duty to consult is restricted to present conduct and cannot be solely used as a means of rectifying past or continuing breaches associated with pre-existing operations.

Adverse Impact. In order for the duty to consult to be engaged there must be a potential adverse impact. The Crown’s knowledge of a potential impact may be actual or constructive. However, in the recent cases of Gamlaxyeltxw v. British Columbia (Minister of Forests, Lands & Natural Resource Operations) (Gamlaxyeltxw) and Coldwater Indian Band et al v Canada (Attorney General) (Coldwater), the courts affirmed that where there is no evidence that the Crown’s contemplated action will adversely affect any specific Aboriginal or Treaty right, the duty to consult does not arise. Further, in its 2020 decision in Ross River Dena Council v. Yukon, the Yukon Court of Appeal confirmed that where title has not been confirmed, the fact that persons might enter claimed land is not, without more, an adverse effect giving rise to the duty to consult.

Atlantic Canada. The duty to consult has the potential to arise anywhere in the Atlantic Provinces where First Nations or Inuit assert their right to exercise their title, Aboriginal or Treaty rights. Sometimes the assertions of title overlap, in which case multiple duties to consult may arise. In Gamlaxyeltxw, the British Columbia Court of Appeal confirmed that the existence of a Treaty right with one Indigenous community does not, in and of itself, negate the Crown’s duty to consult another Indigenous community with asserted rights in the same area.

4. What is the scope of the duty to consult?

The extent of the duty to consult will depend on the context, and in particular, the strength of the rights claim and the extent of the impact on those rights. Canadian courts have explained that the duty to consult is to be applied along a spectrum. Where the right being claimed is weak and the potential adverse impact on those rights low, the consultation process will be less onerous than where the right being claimed is strong and the potential adverse impact on those rights profound. The P.E.I. Court of Appeal in Mi’kmaq of PEI confirmed that the depth of consultation will be affected by a specific demonstration of connection to the piece of affected land and specific interaction with the concerned right.

5. How is the duty to consult fulfilled?

The Crown must conduct consultation in good faith, honorably and with a means to achieving meaningful consultation. Beyond that, there are no set requirements as to how a consultation process must be carried out. The specific nature of the consultation largely depends on the circumstances and is typically carried out within regulatory processes, such as those required for approvals of projects before the National Energy Board (as the Supreme Court of Canada considered in Clyde River (Hamlet) v. Petroleum Geo Services Inc. and Chippewas of the Thames First Nation v Enbridge Pipelines Inc.).

Meaningful. In Coldwater, the Federal Court of Appeal held that consultation must be meaningful and not simply a “rubber-stamping exercise”. In discharging the burden of the duty to consult, the Crown must show that it has considered and addressed the rights claimed by Indigenous groups in a meaningful way. The Court also set out a list of examples of what may be required within the consultation process, but emphasized these are merely examples and may not satisfy the duty in all cases, as the scope will vary from case to case. These examples include:

• The opportunity to make submissions for consideration.
• Formal participation in the decision-making process.
• Provision of written reasons to show that Indigenous concerns were considered and to reveal the impact they had on the decision.
• Dispute resolution procedures like mediation or administrative regimes with impartial decision-makers.

Accommodation. In certain contexts, the duty to consult may require that the Crown go beyond simple consultation and actually accommodate those rights affected. Addressing Indigenous concerns may require taking steps to avoid irreparable harm or to minimize the effects of infringement of claimed rights. Yet, the recent case of Gamlaxyeltxw confirmed that the section 35 duty to consult and accommodate regarding claims is a right to a process, not to a particular outcome (language which draws similarities to the Supreme Court of Canada’s 2017 decision in Ktunaxa Nation v British Columbia (Forests, Lands and Natural Resource Operations). Courts are careful to protect the flexible process available to parties carrying out a consultation. When a decision is made subsequent to an attempted consultation, and is challenged, courts review that decision on a reasonableness basis.

Reconciliation. While the consultation burden lies largely with the Crown, the Federal Court of Appeal in Coldwater affirmed that an Indigenous group being consulted cannot behave tactically in order to ensure that discussions fail within the time available for consultation, effectively exercising a veto of the Crown’s proposed actions. The Court held that such actions are not consistent with reconciliation, and specifically that, “the goal is to reach an overall agreement, but that will not always be possible….The process of consultation based on a relationship of mutual respect advances reconciliation regardless of the outcome”. Similarly, in Mi’kmaq of PEI, the P.E.I. Court of Appeal noted the duty to consult is in fact reciprocal: the obligations on the affected Indigenous group include defining the claim with clarity, not frustrating the Crown’s good faith attempts, and not taking unreasonable positions to thwart the Crown from making decisions where despite meaningful consultation agreement is not reached. This interpretation of reciprocal obligations lines up with the theory that the duty of consultation is rooted not only in the Honour of the Crown, but also in the principle of reconciliation, which the Federal Court of Appeal, in Coldwater, explained centers on relationship.

Please contact your McInnes Cooper lawyer or any member of our Aboriginal & Indigenous Law Team @ McInnes Cooper to discuss how the duty to consult Indigenous people might impact you.

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