March 28, 2012

THE DUTY TO CONSULT – OVERVIEW & HOT TOPICS

BC – AFN Legal & Strategy MeetingMarch 28-29, 2012Merle AlexanderCo-Leader & Partner, Aboriginal Law Group

Overview

• Source• Broad Purpose• Specific Purpose• Application• Hot Topics (8)

Source

• Source of the duty is the honour of the crown:

• Haida: “The government’s duty to consult with Aboriginal peoples and to accommodate their interests is grounded in the honour of the Crown”

• Mikisew: “The duty of consultation…flows from the honour of the Crown…”

Broad Purpose

• The broad purpose of the duty to consult is reconciliation between the Crown and Aboriginal peoples:

“The duty to consult and accommodate is part of a process of fair dealing and reconciliation that begins with the assertion of sovereignty and continues beyond formal claims resolution. Reconciliation is not a final legal remedy in the usual sense. Rather, it is a process flowing from rights guaranteed by section 35 of the Constitution Act, 1982” (Haida)

Specific Purpose

• The specific purpose of the duty to consult depends on the context:

> For asserted but unproven rights, the purpose of the duty to consult is to protect these rights from irreversible harm as the settlement negotiations proceed (Rio Tinto)

> For proven rights, the purpose of the duty to consult is to fill any procedural gaps in the treaty

(Mikisew and Little Salmon)

Application

• The duty to consult arises when• The Crown has real or constructive knowledge of

the potential existence of the Aboriginal right or title; and

• The Crown contemplates conduct that might adversely affect that Aboriginal right or title (Haida)

• Consultation after the fact does not satisfy the duty, it must occur prior to the proposed activities

(Ross River, Solid Gold)

Hot Topic # 1

Does Canadian law support Free Prior Informed Consent?

YES

• Prior – consultation must occur before adverse impacts to protect and preserve Aboriginal Title and Rights

• Informed – minimal standards require communication of applicable and relevant details for informed understanding

…

• Consent – origin of this concept in Van Der Peet • Haida stated where “asserted and unproven”

consent would not be available• If Title or right is “proven and established” by

judicial affirmation or Government-to-Government agreement, consent may be a legal requirement

• Free Prior Informed Consent is supported by Canadian case law, it is a Crown legal position to deny it

Hot Topic # 2

Is the duty to consult purely a legal consideration?

NO

• Grounded in the honour of the Crown, the duty to consult has both a legal and a constitutional character (Kapp), it seeks to:• Provide legal protection to Aboriginal and treaty

rights; and• Further the goals of reconciliation between

Aboriginal peoples and the Crown (Rio Tinto)

…

• Consultation is “[c]oncerned with an ethic of ongoing relationships” (Rio Tinto)

• Relationship between Aboriginal people and the Crown; and

• Relationship between Aboriginal people and their land, which is connected to and gives rise to their identity, spirituality, laws, traditions, and culture

Hot Topic # 3

Does “consent” only mean veto?

NO

• Consent means “mutual consent” – only mutual consent is consistent with the purpose of reconciliation

• Government to government agreements represent a form of mutual consent

• Impact Benefit Agreements where the First Nation supports a project may reflect mutual consent

Hot Topic # 4

Does the UN Declaration on the Rights of Indigenous Peoples apply to the duty to consult?

YES

• On November 12, 2012, Canada issued a Statement of Support endorsing the Declaration

• Declaration has international human rights that are legally binding

Declaration in Canadian Law

• The Declaration describes core principles that should guide harmonious and co-operative relationships between indigenous peoples and states such as equality, partnership, good faith & mutual respect

• Same core principles guide reconciliation and the procedural aspect of Aboriginal Title and Rights – the duty to consult

Hot Topic # 5

Can the procedural/operational aspects of the duty to consult be delegated to a third party?

YES

• While the ultimate legal responsibility for fulfillment of the duty to consult resides in the Crown, its operational aspects can be, and often are, delegated to those third parties directly involved in the day-to-day resource development projects (Solid Gold);

• Furthermore, industry proponents may be liable for their failure to consult (Platinex, Taseko Mines Ltd)

Hot Topic # 6

How do historic and ongoing wrongs fit into the duty to consult?

• In Rio Tinto, the court stated that:

Prior and continuing breaches, including prior failures to consult, will only trigger a duty to consult if the present decision has the potential of causing a novel adverse impact on a present claim or existing right… To trigger a fresh duty of consultation - the matter which is here at issue - a contemplated Crown action must put current claims and rights in jeopardy.

In Accordance With Reality

• In other words:• Historic and ongoing breaches of the duty to consult do not

in and of themselves trigger the duty to consult, BUT• Historic and ongoing activities may increase the

significance or impact of a new activity

• This accords with reality, most development does not happen in isolation but takes place in the context of extensive existing or contemplated development which has already reduced or removed the ability of an Aboriginal people to practically enjoy or exercise their aboriginal rights or aboriginal title

Upheld in West Moberly

• What is the proper approach to assessing the potential impact on Treaty 8 rights given that West Moberly had traditionally hunted a herd of caribou that had been drastically reduced in numbers by past hunting and (more importantly) habitat degradation?

• The Crown and First Coal argued against the Court considering the depleted state of the caribou herd in assessing the application as this would amount to bringing historic matters in through the back door of considering the current state of the herd

Upheld in West Moberly (2)

• The court rejected this argument stating that:

“[To consider the current depleted state] as within the scope of the duty to consult is not to attempt the redress of past wrongs. Rather, it is simply to recognize an existing state of affairs, and to address the consequences of what may result from pursuit of the exploration programs.

… It is fair to say that decisions, such as those under review in this

case, are not made in a vacuum. Their impact on Aboriginal rights will necessarily depend on what happened in the past and what will likely happen in the future. Here it could not be ignored that this caribou herd was fragile and vulnerable to any further incursions by development in its habitat.”

Hot Topic # 7

Do standard public consultation processes satisfy the duty to consult?

NO

• In Mikisew standard public notices and open houses which were given were not sufficient – entitled to a distinct consultation process

• Court also said that a consultation process that does not contemplate accommodation is flawed

• The Joint Review Panel for Northern Gateway, Prosperity, Site C and other projects will not have the legal authority to accommodate and are essentially public stakeholder processes, they will not likely satisfy the duty to consult

Hot Topic # 8

Can courts require parties to negotiate with

each other as part of the duty to consult?

YES

• In Platinex and Solid Gold, the court ordered the parties to negotiate with one another

• Not clear who is supposed to pay for First Nations to participate in such negotiations

Gayasixa - Thank you!