Publication
title
Duty to Consult and Accommodate Aboriginal Peoples: Impact on the Mining Industry in Canada
DATE
April 16, 2007
EXPERTISE
In November 2004, the Supreme Court of Canada ruled, in Haida[1] and Taku River,[2] that the federal and provincial Crown has a duty to consult Aboriginal peoples and to accommodate their concerns even before Aboriginal title or rights claims have been decided. One of the objectives of this process of consultation and accommodation is to limit the impact of natural resources development projects on Aboriginal rights claims. As a consequence, discussions between the Crown and Aboriginal peoples could have a huge impact on proponents of resource development projects, particularly in the mining industry.
The duty to consult and accommodate Aboriginal peoples is grounded in the principle of the honour of the Crown, i.e., the Crown's obligation to act honourably in its dealings with Aboriginal peoples. This duty arises whenever 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".[3]
According to the Supreme Court, the extent of the duty to consult depends on the circumstances in each case, in particular the strength of the arguments in support of the existence of the right or title and the seriousness of the potentially adverse effect upon the right or title claimed. The Court also suggests that as the case law develops a clearer definition of precisely what duties arise in different situations will emerge.
The main principles to be adhered to in the consultation process can be summarized as follows: 1) both parties must demonstrate good faith; 2) the Crown must have the intention of substantially addressing Aboriginal concerns as they are raised; 3) the consultation must be meaningful, although there is no obligation to reach an agreement; and 4) the Aboriginal claimants must not frustrate the Crown's reasonable good faith attempts, nor should they take unreasonable positions to thwart the Crown from acting in cases where, despite meaningful consultation, agreement is not reached.
Meanwhile, in Mikisew,[4] a decision handed down in 2005, the Supreme Court stated that the duty to consult and accommodate also applies to those First Nations who signed numbered treaties in Ontario, the Prairies and North-Eastern British Columbia in the 19th and early 20th centuries. Although those treaties recognized the Crown's right to take up lands for development, the Court considered that the Crown had a duty not to act until the First Nations concerned had been consulted and accommodated.
If, following consultation, it becomes apparent that the Crown will have to modify its project, a duty to accommodate may arise. Aboriginal peoples do not have a veto on development projects and the duty to accommodate does not entail a requirement to reach agreement; however, each party must attempt in good faith to understand the other party's concerns and to address those concerns where appropriate. Thus, a balancing of interests and a process of give and take may be necessary.
The Supreme Court has confirmed that the Crown retains sole responsibility for the consequences of its interactions with third parties that affect Aboriginal interests. So even if the Crown delegates certain procedural aspects of the consultation process, for example, to mining companies, the latter cannot be held responsible for the Crown's failure to discharge its duty to consult and accommodate. In practice, however, mining companies will play a decisive role at both the consultation and accommodation stages.
If the consultations do not satisfy the requirements defined by the Supreme Court in Haida and Taku River, the permits and authorizations given by the Crown may be challenged in court and could be cancelled, which would have the effect of delaying a project indefinitely. For example, in Platinex,[5] a 2006 decision currently on appeal, the Ontario Superior Court of Justice issued an interlocutory injunction ordering Platinex Inc., a junior mining company, to halt exploration activities for a period of five months, subject to the First Nation community concerned setting up a consultation committee with the objective of developing an agreement to allow Platinex to carry on its exploration operations.
It is likely that in the coming months and years Canadian courts will be called upon to further clarify the extent of the duty to consult and accommodate and the role of third parties in this process. Meanwhile, mining companies have every interest in participating in Crown consultations with Aboriginal peoples and in identifying possible accommodations. There is also a strong incentive for them to negotiate agreements with Aboriginal peoples affected by resource development projects in order to ensure that such projects can move forward without fear of court challenges.
Pierre-Christian Labeau
[1]. Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511, November 18, 2004.
[2]. Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), 2004 SCC 74, [2004] 3 S.C.R. 550, November 18, 2004.
[3]. Haida, supra note 1, at para 35.
[4]. Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69, [2005] 3 S.C.R. 388, November 24, 2005.
[5]. Platinex Inc. v. Kitchenuhmaykoosib Inninuwug First Nation, 2006 CanLII 26171 (ON S.C.), July 28, 2006.
The purpose of this document is to provide information as to developments in the law. It does not contain a full analysis of the law nor does it constitute an opinion of Ogilvy Renault LLP or any member of the firm on the points of law discussed.
© Ogilvy Renault LLP 2007 - All Rights Reserved
