Duty to consult

What is the duty to consult?

The duty to consult is a constitutional obligation that the Crown (federal, provincial, and territorial governments) has towards Aboriginal peoples.[1] The duty arises when the Crown knows or should know of a potentially existing Aboriginal or treaty right, and the Crown is contemplating conduct that might negatively affect that right.[2] In some instances, where the duty is triggered, the Crown will be obligated to accommodate the Aboriginal peoples.[3]

The courts are tasked with determining whether the government has fulfilled its duty to consult in any given case.[4] Where the government does not fulfill its duty, potential remedies can include a court ordering the government to stop the threatening activity, awarding damages, or ordering the government to carry out consultation with the groups affected prior to proceeding further.[5]

Where does the duty come from?

The Supreme Court of Canada established the duty to consult in the case of Haida Nation v British Columbia (Minister of Forests) in 2004.[6] The duty is rooted in the honour of the Crown – the constitutional principle that the Crown must act honourably in its dealings with Aboriginal peoples.[7] “This principle is in turn enshrined in section 35(1) of the Constitution Act, 1982, which recognizes and affirms existing aboriginal and treaty rights”.[8]

The honour of the Crown and section 35(1) require honourable negotiations leading to the just settlement of Aboriginal claims.[9] According to the Supreme Court, this implies that there is a constitutional duty to consult.[10]

Who owes the duty?

Only the Crown has a duty to consult with Aboriginal peoples.[11] The Crown can rely on regulatory agencies such as the National Energy Board to fulfill its duty, but only “procedural aspects” of consultation can be delegated to private parties.[12] For example, an energy delivery company seeking government approval on a pipeline can provide, obtain, and discuss information about the proposed project with affected Aboriginal communities – that would be considered “procedural aspects” of consultation.[13] Regardless of private or third party involvement, ultimately it is the Crown that is legally responsible for ensuring that affected Aboriginal communities are adequately consulted with or accommodated.[14]

The level of consultation varies case by case

The government has a duty to consult with Aboriginal peoples even before a right or title is proven.[15] This protection is necessary because negotiating treaties or proving Aboriginal rights is a lengthy process, potentially taking decades, and activities such as mining or logging could diminish the value of the Aboriginal interests in the meantime.[16]

The level of consultation or accommodation required falls on a spectrum based on two factors:[17]

The strength of an Aboriginal group’s claim to a right or title; and
The seriousness of the negative effects on the right or title.

The stronger the claim to a right or title is and the greater the negative effects are on their interests, the more consultation and potentially, accommodation is required between the Crown and Aboriginal groups.[18]

For example, on the lower end of the spectrum, the Crown may only be required to notify, give information, and discuss issues with the affected group.[19] On the higher end, the Crown may be required to allow the affected group to propose ideas for consideration or to participate in the decision-making process.[20] The Crown may have a duty to accommodate if the consultation with the Aboriginal group suggests a need for the Crown to adjust its plans, for example by changing the location of a proposed road.[21] Every case is approached individually and flexibly.[22]

The duty to consult does not create a veto power

The Crown’s duty to consult does not give Aboriginal groups a veto on government decisions.[23] The duty is fulfilled as long as the government has made a reasonable effort to provide meaningful consultation.[24]

For example, in the case of Taku River Tlingit First Nation v British Columbia (Project Assessment Director), the Supreme Court of Canada determined that the province of British Columbia fulfilled its duty to consult and accommodate with the Taku River Tlingit First Nation (“TRTFN”), despite being unable to reach an agreement about a road building project.[25] The proposed road ran across traditional TRTFN territory and had potentially negative impacts on the wildlife and also affected the TRTFN’s ability to use the resources in the area.[26]

The Supreme Court concluded that the province fulfilled its duty because the environmental assessment process required by British Columbia’s Environmental Assessment Act provided meaningful consultation with the affected group.[27] The Act gave the TRTFN a large role in the environmental assessment process, their concerns were presented to the Ministers who approved the project, and the ultimate approval contained measures to address their concerns.[28]

The legal framework for the duty is still developing

The legal framework for the duty to consult continues to evolve as case law develops. Meanwhile legal uncertainties still remain.[29] For example, there is still uncertainty regarding what degree of consent is required within Aboriginal communities during the consultation process, which can be a problem when there is internal conflict within a community, for example.[30] Also, it is unclear what the effect of Canada and Alberta implementing the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) – which references the need to obtain “free and informed consent prior to the approval of any project affecting [Indigenous peoples’] lands or territories and other resources” – will be on the duty.[31] The duty to consult is a relatively recent development in law and will only continue to develop as cases arrive before the courts.

Critiques of the duty to consult

The duty to consult is a controversial doctrine which has numerous critics. One common critique is that the scope of the duty is too vague, and that the SCC’s cautious approach in outlining its parameters, in favour of a flexible assessment, allows governments to act and then later argue that they have satisfied their obligations without any objective criteria.[32]

Another criticism holds that the duty to consult is an ineffective tool for achieving reconciliation between the Canadian state and Indigenous Peoples. Reconciliation requires “building new relationships of mutual benefit and respect between the Aboriginal peoples and the Crown,”[33] and some have argued that while the duty to consult may influence certain aspects of Crown decision making, it often reduces the obligation to a “technical exercise” which ignores the importance of relationship building.[34]

[1] R v Kapp, 2008 SCC 41 at para 6.

[2] Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73 at para 35 .

[3] Ibid at para 47.

[4] Peter W Hogg, Constitutional Law of Canada, vol 1, 5th ed (Scarborough: Thomson, 2007) (loose-leaf 2010 supplement) at 28.8(j) .

[5] Rio Tinto Alcan Inc v Carrier Sekani Tribal Council, 2010 SCC 43 at para 37.

[6] Hogg, supra 4 at 28.8(j).

[7] Haida, supra note 2 at para 16. Beckman v Little Salmon/Carmacks First Nation, 2010 SCC 53 at para 42.

[8] Clyde River (Hamlet) v Petroleum Geo-Services Inc, 2017 SCC 40 at para 19 .

[9] Haida, supra note 2 at para 20. Taku River Tlingit First Nation v British Columbia (Project Assessment Director), 2004 SCC 74 at para 24 .

[10] Haida, supra note 2 at para 20.

[11] Ibid at para 53.

[12] Ibid; Clyde River, supra note 8 at paras 21-22.

[13] British Columbia, Environmental Assessment Office, Guide to Involving Proponents when Consulting First Nations in the Environmental Assessment Process, December 2013 at 4.

[14] Haida, supra note 2 at 53.

[15] Hogg, supra 4 at 28.8(j).

[16] Ibid.

[17] Haida, supra note 2 at para 39.

[18] Ibid.

[19] Ibid at para 43.

[20] Ibid at para 44.

[21] Ibid at para 47.

[22] Ibid at para 45.

[23] Ibid at para 48.

[24] Ibid at paras 42, 62.

[25] Taku, supra note 9 at para 22.

[26] Taku River Tlingit First Nation et al v Ringstad et al, 2000 BCSC 1001 at para 4.

[27] Taku, supra note 9 at para 2.

[28] Ibid at para 22.

[29] Malcolm Lavoie, “The Northern Gateway Pipeline and the purpose of ‘duty to consult’” (27 July 2016), The Fraser Institute Blog, online: <www.fraserinstitute.org/blogs/the-northern-gateway-pipeline-and-the-purpose-of-duty-to-consult>.

[30] Martin Olszynski, “The Duty to Consult and Accommodate: An Overview and Discussion” (June 2016), online: <law.ucalgary.ca/files/law/duty-to-consult-and-accomodate-olszynski.pdf> at 48.

[31] Ibid at 25.

[32] Derek Inman, Stefaan Smis & Dorothee Cambou, “’We Will Remain Idle No More’: The Shortcomings of Canada’s ‘Duty to Consult’ Indigenous Peoples” (2013) 5:1 Goettingen J Intl L 253 at 284-285.

[33] Rachel Ariss, Clara MacCallum Fraser & Diba Nazneen Somani, “Crown Policies on the Duty to Consult and Accommodate: Towards Reconciliation” (2017) 13:1 McGill J Sust Dev L 1 at 7.

[34] Ibid at 50-51.

Accommodating UNDRIP: Bill C-262 and the future of Duty to Consult

Introduction

In May 2018, Bill C-262, An Act to ensure that the laws of Canada are in harmony with the United Nations Declaration on the Rights of Indigenous Peoples, passed in the House of Commons and moved on to be considered by the Senate.

The Bill, only 4 pages in length, requires the Government of Canada to take “all measures necessary to ensure that the laws of Canada are in harmony with the United Nations Declaration on the Rights of Indigenous Peoples,” and to develop and implement, in cooperation with Indigenous peoples, a national action plan.[1]

The United Nations Declarations on the Rights of Indigenous Peoples (UNDRIP) was adopted by the United Nations (UN) General Assembly in 2007 with a vote of 144 in favour, 11 abstentions, and 4 votes against. Along with Australia, New Zealand, and the United States, Canada voted against, citing concerns over the compatibility of UNDRIP with Canadian law, in particular the language of “free, prior, and informed consent”.[2] The government feared that the language of UNDRIP would give Indigenous groups a “veto” power and would endanger already settled land claims.[3]

The government has since reversed its course. In 2016, the Minister of Indigenous and Northern Affairs, Carolyn Bennett, announced that Canada fully accepted, without qualification, UNDRIP. She stated that “We (Canada) intend nothing less than to adopt and implement the declaration in accordance with the Canadian Constitution.”[4]

Canadian law recognizes that the Crown has a duty to consult and accommodate Indigenous groups when its actions may affect the rights of that Indigenous group. The duty exists on a spectrum. According to the Supreme Court of Canada, gaining the consent of the Indigenous group affected is only required for “very serious issues”.[5]

What (if any) effect would Bill C-262, particularly the language of “free, prior and informed consent” in UNDRIP, have on the laws of Canada in relation to duty to consult?

The Duty to Consult in Canadian Law

The Crown has a duty to consult and accommodate Indigenous groups when a group’s Aboriginal (existing or potential) or treaty rights may be affected.[6] The duty to consult is triggered where the Crown has actual or constructive knowledge of a potential or existing right that may be affected by its conduct or decision making.[7]

The duty to consult exists on a spectrum, depending on the circumstances of the claim.[8] The Court said in the case Haida Nation v British Columbia (Minister of Forests) (2004) that the government may be required to do as little as give notice to the group affected where the claim is weak, or the infringements on rights are minimal.[9] The Court said that consent would be required only for very serious issues. In a case decided later in the same year as Haida, Taku River Tlingit First Nation v British Columbia (Project Assessment Director), the Court clarified that the Crown is able to fulfill its duty to consult and accommodate even when no agreement has been reached with the Indigenous group, so long as it consults and accommodates in accordance with its fiduciary duty.[10]

The fiduciary obligation of the Crown is to give priority to the claims of Indigenous groups and to take a group’s existing and potential Aboriginal and treaty rights seriously.[11]

UNDRIP

UNDRIP is a list of rights created by the Working Group on Indigenous Populations at the UN and adopted by the United Nations General Assembly (the assembly in which all member states of the UN have one seat and one vote).[12] The UN describes UNDRIP as “minimum standards for the survival, dignity and well-being of the indigenous peoples.”[13]

UNDRIP is a declaration. Unlike a treaty or a covenant, declarations are not signed or ratified by states. Declarations are aspirational and do not legally bind those who support them.[14]

UNDRIP indicates that the state must obtain “free, prior, and informed consent” before adopting legislative or administrative measures that may affect the rights of Indigenous people.[15] It also addresses compensation and redress for land acquisitions by the Crown; forced removals; and the taking of cultural, intellectual, religious, and spiritual property without free, prior, and informed consent.[16]

The term “free, prior, and informed consent,” does not have a settled definition. In particular, whether “free, prior, and informed consent” is equal to a veto power has been a point of contention.[17]

Article 46 of UNDRIP states that nothing in UNDRIP authorizes or encourages, “any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States.”[18] Hence, the right to self-determination contained in UNDRIP does not imply a right to separate from the state in which the Indigenous group exists to establish an independent nation-state.

Further, Article 46 states that the human rights and fundamental freedoms of all shall be respected, and that limitations on rights “shall be non-discriminatory and strictly necessary solely for the purpose of securing due recognition and respect for the rights and freedoms of others and for meeting the just and most compelling requirements of a democratic society.”[19] This means that the rights contained in UNDRIP may be infringed upon in circumstances where they must be balanced against society’s needs as a whole.

Impact

The approval of Bill C 262 by the Senate itself will not automatically impact the Crown’s existing obligations to consult and accommodate Indigenous people. If the legislation is passed, an Indigenous group would need to bring a new case to the court dealing with the duty to consult. The court will then determine what the Crown’s obligations are considering the new legislation and whether ‘free, prior and informed consent’ displaces, or changes, or even makes no change to the duty to consult.

Assembly of First Nations Chief Perry Bellegarde has said that the right to give consent implies the corresponding right to withhold consent.[20] NDP MP Romeo Saganash who introduced the Bill, however, says that the language of free, prior, and informed consent in UNDRIP does not mean that there is a veto for Indigenous groups.[21] He points out that, “the need to balance the specific collective and inherent rights of Indigenous Peoples with the human rights of all people,” is specifically addressed in Article 46 of UNDRIP.[22] When read in its totality, Saganash argues, it is clear that there is no veto.[23] Saganash maintains that the purpose of the Bill is to make reconciliation a priority for the ruling government and to repudiate colonialism.[24]

There are a variety of ways to interpret international laws in the domestic context.[25] In case of international human rights law, the Canadian courts generally use the values in the human rights document in question to aid them in their contextual approach to interpreting laws.[26] This may push the required consultation and accommodation down the spectrum in favour of Indigenous groups. However, chances are that the duty to consult will not be displaced, should Bill-262 become law. The tradition of balancing the rights of the Indigenous group with the well-being of all of society is present in both current Canadian law and the language of article 46 of UNDRIP.

If free, prior and informed consent is a veto power, then that veto power is likely to be available to Indigenous groups in a situation that would be deemed by the courts to require consent. In the Haida case (2004), the courts recognized consent to be necessary only in the most serious cases. [27] The courts have not yet ruled in any case that the infringement of rights is so serious as to require the consent of an Indigenous group, so it is difficult to imagine what kinds of cases may meet the threshold if the bill becomes law.

Conclusions

If Bill C-262, An Act to ensure that the laws of Canada are in harmony with the United Nations Declaration on the Rights of Indigenous Peoples, becomes law, there will likely be limited changes to the current Canadian law regarding the duty to consult.

Canadian law recognizes a duty to consult Indigenous groups when their rights may be affected. The duty exists on a spectrum from notifying the group, to, gaining the group’s consent. If Bill C-262 becomes law, the place on the spectrum that a particular case falls may be more favourable to the Indigenous group.

The courts in Canada have not found the need for consent in any cases so far. If Bill C-262 becomes law, it is difficult to say what threshold would need to be met for consent to be required.

[1] Bill C-262, An Act to ensure that the laws of Canada are in harmony with the United Nations Declaration on the Rights of Indigenous Peoples, 1^st Sess, 42^nd Parl, 2018, cl 4, 5 (as passed by the house of commons 30 May 2018).

[2] Gloria Galloway, “Ottawa drops objections to UN resolution on indigenous consent,” The Globe and Mail (24 April 2017) online: < https://www.theglobeandmail.com/news/politics/ottawa-drops-objections-to-un-resolution-on-indigenous-consent/article34802902/>.

[3] Gloria Galloway, “Ottawa drops objections to UN resolution on indigenous consent,” The Globe and Mail (24 April 2017) online: < https://www.theglobeandmail.com/news/politics/ottawa-drops-objections-to-un-resolution-on-indigenous-consent/article34802902/>; CBC News, “Canada endorses indigenous rights declaration,” CBC News (12 November 2010) online: < https://www.cbc.ca/news/canada/canada-endorses-indigenous-rights-declaration-1.964779>.

[4] “Fully Adopting UNDRIP: Minister Bennett’s Speech At The United Nations” Northern Public Affairs Magazine (11 May 2016) online: <http://www.northernpublicaffairs.ca/index/fully-adopting-undrip-minister-bennetts-speech/>.

[5] Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73 at para 24, [2004] 3 SCR 511 .

[6] Haida Nation, supra note 2 at para 35; Mikisew Cree First Nation v Canada (Minister of Canadian Heritage), 2005 SCC 69 at para 34, [2005] 3 SCR 388. See also Beckman v Little Salmon/Carmacks First Nation [2010] 3 SCR 103, in which the majority found that the duty to consult is an implied term in regard to all rights in modern, comprehensive treaties that specifically call for consultation with regards to particular rights and not others.

[7] Haida, supra note 2 at para 35; Rio Tinto Alcan Inc v Carrier Sekani Tribal Council, 2010 SCC 43 at para 31, [2010] 2 SCR 650.

[8] Haida, supra note 2 at para 37.

[9] Haida, supra note 2 at paras 43-45.

[10] Taku River Tlingit First Nation v British Columbia (Project Assessment Director), 2004 SCC 74 at para 22, [2004] 3 SCR 550.

[11] R v Sparrow, [1990 1 SCR 1075 at 1119, 56 CCC (3d) 263.

[12] “United Nations Declaration on the Rights of Indigenous Peoples,” UNDESA Division For Inclusive Social Development Indigenous Peoples, online: <https://www.un.org/development/desa/indigenouspeoples/declaration-on-the-rights-of-indigenous-peoples.html>.

[13] Ibid.

[14] Government of Canada Glossary of Terms – human rights, sub verbo “declaration”.

[15] UNDRIP, supra note 9, art 29.

[16] UNDRIP, supra note 9, art 10-11, 28.

[17] For a discussion of the various interpretations of the term “Free, prior, and informed consent,” see Cathal M Doyle, Indigenous Peoples, Title to Territory, Rights and Resources: The Transformative Role of Free Prior and Informed Consent (New York: Routledge, 2015).

[18]UNDRIP, supra note 9, art 46.

[19] UNDRIP, supra note 9, art 46.

[20] Jorge Barrera, “Status Indians to disappear in 50 years unless First Nations move beyond Indian Act: Perry Bellegarde,” CBC News (11 June 2018) online: < https://www.cbc.ca/news/indigenous/status-indian-act-perry-bellegarde-afn-campaign-1.4701123>.

[21] Romeo Saganash, “Act on Declaration of Indigenous Rights, It’s the Next Step to Reconciliation,” The Tyee (28 May 2016), online: < https://thetyee.ca/Opinion/2016/05/28/Next-Step-Reconciliation/>.

[22] Romeo Saganash, “Act on Declaration of Indigenous Rights, It’s the Next Step to Reconciliation,” The Tyee (28 May 2016), online: < https://thetyee.ca/Opinion/2016/05/28/Next-Step-Reconciliation/>.

[23] Romeo Saganash, “Act on Declaration of Indigenous Rights, It’s the Next Step to Reconciliation,” The Tyee (28 May 2016), online: < https://thetyee.ca/Opinion/2016/05/28/Next-Step-Reconciliation/>.

[24] See Romeo Saganash, “UN Declaration on the Rights of Indigenous Peoples: Crucial Need for a Principled Legislative Framework,” (18 April 2016), online: < http://romeosaganash.ndp.ca/documents>.

[25] For a discussion, see: Azeezah Kanji, “Applying International Law in Canadian Courts: A Pocket Guide for the Perplexed” Canadian Lawyers for International Human Rights (1 January 2015), online: <http://claihr.ca/2015/01/01/applying-international-law-in-canadian-courts-a-pocket-guide-for-the-perplexed/>.

[26] Baker v Canada, [1999] 2 SCR 817 at paras 69-70, 174 DLR (4th) 193.

[27] Haida Nation, supra note 2 at para 24.

Federal Bill C-8 Legislates Matrimonial Property Rights on First Nations Reserves

Bill C-8, An Act respecting family homes situated on First Nation reserves and matrimonial interests or rights in or to structures and lands situated on those reserves,[1] was introduced in the House of Commons on February 2, 2009, and is currently being debated at second reading. The proposed legislation would give First Nations authority to enact laws related to the interests and rights of spouses and common-law partners in family real property. In the interim, federal provisional rules would apply until a First Nation has its own laws in force.[2]

The division of powers set out in the Constitution Act, 1867, authorizes the provinces to legislate in respect of private property and the federal Parliament to legislate in respect of First Nations’ reserve lands.[3] Applying this division of jurisdiction in the 1986 decision Derrickson v Derrickson, the Supreme Court of Canada found that the provisions of British Columbia’s Family Relation’s Act could not be applied pursuant to a divorce to determine the division of matrimonial real property on Aboriginal reserves because the matter falls under federal jurisdiction.[4] Bill C-8 is the second parliamentary attempt to fill this legislative gap.[5]

Aboriginal communities throughout Canada have expressed various concerns over the bill. A press release from the Native Women’s Association of Canada (NWAC) and the Assembly of First Nations (AFN) states that “[a]ll Bill C-8 does is force families into provincial courts. This is not a solution. For many families it’s unaffordable and it will also force families in remote communities to endure long waiting periods before their case can be heard.”[6] Furthermore, it is claimed that the bill “ignores community-based approaches already developed by many First Nations to deal with matrimonial reservation property.”[7]

Constitutional objections to the bill are based upon a perceived failure of the federal government to adequately consult First Nations peoples during the drafting of the bill. The Nishnawbe Ask Nation of James Bay, Ontario claims that the bill “directly affects reserve land rights of nearly all first nations in Canada. Therefore the federal government is under a constitutional fiduciary duty to consult, accommodate, and seek the consent of First Nations.”[8]

The federal government’s duty to consult and accommodate First Nations peoples was first established in Haida Nation v British Columbia.[9] The duty arises when the Crown knows, or reasonably ought to know, that there exists a potential Aboriginal right that may be adversely affected by government action.[10] However, in clarifying this duty, the Alberta Court of Appeal in R v Lefthand found that the when a executive legislative body is obliged to consult with Aboriginal bands, it is not bound to follow the recommendations of the band council.[11] “The right to be consulted is not a right to veto.”[12]

The federal government contends that during 2006-07 there was “a comprehensive consultation process” that engaged the Native Women's Association of Canada and the Assembly of First Nations.[13] In contrast, The Nishnawbe Ask Nation claims that, “to date there has been no serious effort to consult First Nations.”[14] The NWAC, the AFN, and the Union of BC Indian Chiefs (UBCIF) support the claim that there has been insufficient consultation.[15]

Further Reading

Daina Young, “R. v. Lefthand: Limits on Duty to Consult” Centre for Constitutional Studies (undated).

Daina Young, “R. v. Douglas: The Duty to Consult” Centre for Constitutional Studies (undated).

[1] 2nd Sess, 40th Parl 2009.

[2] Supra note 3 at sections 7 and 17.

[3] Constitution Act, 1867 ss 91(24), 92(13).

[4] [1986] 1 SCR 285.

[5] Bill C-8 is the reincarnation of Bill C-47 which died on the order paper when the 39th Parliament was dissolved.

[6] Native Women’s Association of Canada, “NWAC, AFN and AFN Women’s Council Unite to Oppose Bill C8 on Matrimonial Real Property” (14 May 2009).

[7] Nishnawbe Ask Nation, “NAN Grand Chief Demands Withdrawal of Federal Legislation on Matrimonial Real Property” (15 May 2009)

[8] Ibid.

[9] 2004 SCC 73.

[10] Ibid at para 35.

[11] 2007 ABCA 206 at para 39.

[12] Supra note 8 at para 48.

[13] Indian and Northern Affairs Canada.

[14] Supra note 6.

[15] The Union of BC Indian Chiefs, ”UBCIC Opposes Conservative's Bill C-8 Matrimonial Real Property” (19 May 2009).