INTRODUCTION TO THE LAW OF ABORIGINAL RIGHTS AND THE DUTY TO CONSULT
In Canada, most major resource projects undertaken to develop natural resources occur on public lands (also referred to as Crown lands) administered by federal, provincial or territorial governments, depending on their location. In respect of most, if not all, of these Crown lands, there is potential for the existence of aboriginal rights in respect of the lands or at least claims to such rights. Section 35(1) of the Constitution Act, 1982 provides that "existing aboriginal and treaty rights of aboriginal peoples of Canada are hereby affirmed".
Aboriginal and treaty rights cover a very broad range of rights and have a number of different sources. Delgamuukw v British Columbia1 defined the concepts of aboriginal rights and aboriginal title at common law. Aboriginal title is a communal right in land to use land for various activities, that may include practices, customs and traditions related to the cultures of aboriginal societies, but may also be for modern purposes or uses, so long as such uses are not inconsistent with the aboriginal groups' attachment to the land and its use by future generations of aboriginal peoples.2 Aboriginal title provides the exclusive right to use and occupy lands.3 Aboriginal title also includes mineral rights to lands, as well as the right to exploit minerals,4 as long as such exploitation does not destroy the value of the land for traditional uses that form the basis of the establishment of such aboriginal title.5
Aboriginal title is established by proving exclusive occupation of specified lands at the time the Crown first asserted sovereignty over such lands. In the event that exclusive occupation cannot be shown, aboriginal rights to engage in particular activities over specified lands may still be established. In order to prove such aboriginal rights, the activities in respect of the land had to be practiced at the time of first European contact with the aboriginal group.6 In most cases, this will be earlier than the time of the assertion of Crown sovereignty over such lands.
Aboriginal rights, including aboriginal title, can only be extinguished by or surrendered to the federal government or Crown.7 The provinces or territories cannot, either expressly or through their actions, extinguish aboriginal rights or title.8 The most common form of extinguishment and possibly the only form of extinguishment available since the enactment of Section 35(1) of the Constitution Act, 1982, is through treaty or land claims settlement processes. Through these processes, common law aboriginal rights and title can be surrendered to the federal Crown by way of agreement, in return for more traditional forms of fee simple title to specified reserve lands or settlement lands, the continued right to exercise traditional practices over specified areas of surrendered lands and, in most cases, various forms and amounts of compensation.
One of the most challenging aspects of new project developments undertaken by the natural resource industry is to reconcile aboriginal and treaty rights, whether existing or asserted, with the use and occupation of public lands necessary to conduct a project's operations. Generally speaking, all levels of government involved in authorizing these operations have preferred to see industry project proponents come to terms with any aboriginal groups whose rights could be affected by the project's operations. This reconciliation takes place at a practical level and most often results in agreements directly between affected aboriginal groups and industry. However, success in reaching agreements often depends on the existence of a formal reconciliation process that is available and can be resorted to in the absence of industry being able to come to terms with affected aboriginal groups. Further, in some cases, industry is not able to complete agreements with some aboriginal groups, which then requires resorting to processes whereby the government engages aboriginal groups in these more formal reconciliation processes to facilitate project development in the face of opposition from aboriginal groups.
Canadian courts have developed the principle of the honour of the Crown, which must be met if a government intends to authorize resource development activities that could adversely affect aboriginal rights or their exercise. The courts have developed a considerable body of law addressing the government or Crown "duty to consult" with aboriginal groups regarding impacts which government approvals of industry activities could have on aboriginal rights.
In the case of Haida Nation v British Columbia (Minister of Forests)9 and Taku River Tlingit First Nation v British Columbia (Project Assessment Director),10 the Supreme Court provided guidance regarding the content of the Crown's duty to consult and, when required, accommodate aboriginal rights, even though such rights may be asserted but not proven. In these cases, the Supreme Court considered challenges to decisions by the Government of British Columbia to replace tree farm licences (in Haida) and to issue a Project Approval Certificate to reopen a mine and construct an access road (in Taku River). In both of these cases, the aboriginal groups involved had asserted, but not yet proven, claims to rights and title in the areas where the forestry and mining activities were to be conducted.
In Haida and Taku River, the Court held that the Crown's duty to consult arises not only where there is a prima facie infringement of an aboriginal right which has been proven to exist, but also where there is the potential for adverse effects on asserted, but not yet proven, aboriginal rights. Where an aboriginal right is asserted but remains unproven, the Crown must manage resources in claimed areas in a manner consistent with the honour of the Crown.11 This may require the Crown to consult with affected aboriginal groups and, in some circumstances, accommodate their interests. The affected aboriginal groups do not have a veto over the uses to which the lands under claim can be put, but a balancing of interests is still required. Aboriginal groups may express their position on proposed projects or land uses. The Crown must consider these positions and potentially accommodate them, where appropriate,12 but it is not bound to follow the recommendations or desires of the aboriginal groups involved.13
In Haida, the Court held that the duty to consult arises when "... the Crown has knowledge, real or constructive, of the potential existence of the Aboriginal right or title and contemplates conduct that may adversely affect it."14 Given that the Crown's obligation to consult with aboriginal groups arises when the government has knowledge of the potential existence of the aboriginal right or title claimed, and is contemplating action that may adversely affect such interests, the Court in Haida stated that the aboriginal group should clearly outline its claims, focusing on the types of rights they assert and the alleged impacts on them. Although no duty was imposed on aboriginal groups to provide detailed information on the nature of the claims they assert, good faith in the consultation process is required, not only on the part of the government, but also on the part of the aboriginal groups involved. Aboriginal groups must not take unreasonable positions to impede decision-making processes which, despite meaningful consultation, may still not result in agreement or consent on the part of the aboriginal group.
The scope of consultation required will depend on the circumstances of each case. In the Haida case, the Court identified a spectrum where at one end, minimal consultation would be required if the claim to the aboriginal right is weak or the potential for adverse effects is minor. In such cases, the duty to consult may be limited to providing notice of a proposed activity and information to the aboriginal group regarding the anticipated government action, while addressing any specific questions that the aboriginal group raises in response to the notice.15 At the other end of the spectrum, significant consultation is required where a strong prima facie case is established for an asserted right and the potential for impacts on the right could be highly significant to the aboriginal group. In these circumstances, significantly deeper consultation is required. Even where deep consultation is required, achieving an agreement or consent is not necessary in order for the honour of the Government or Crown to be met.16
In Haida, the Supreme Court also found that accommodation may be required.17 The type of accommodation described by the Court was a process of attempting to avoid irreparable harm to the interests of aboriginal groups and minimize impacts of future activities pending resolution of claims of aboriginal groups. The scope of accommodation can be very broad. Accommodation, for example, can require changes to the project's scope or design and can commonly include conditions attached to operations in order to mitigate the potential for impacts on the exercise of aboriginal rights.
It often falls to the industry proponent to seek and suggest ways to accommodate aboriginal interests. The role of industry in the consultation process is also addressed in the Haida and Taku River decisions. The Court found that industry had no independent duty to consult aboriginal groups and accommodate their interests. The Court found that the government alone was legally responsible for consultation and where required, accommodation. The ultimate fulfillment of these obligations could not be delegated to industry. However, the Court did find that procedural aspects of consultation could be delegated to industry proponents. The Court specifically referred to environmental assessments as examples of situations where procedural requirements of consultation could be delegated to industry.18
THE ROLE OF REGULATORY PROCESSES OF ADMINISTRATIVE TRIBUNALS IN FULFILLING THE DUTY TO CONSULT
The use of the regulatory processes of administrative tribunals suffered an early setback in the evolution of the case law defining the duty to consult.
The Effect of Consultation Obligations being based on a Fiduciary Relationship
Quebec (Attorney General) v Canada (National Energy Board)19 (hereinafter referred to as the "Grand Council of Crees case") has become better known for its findings on the constitutional division of powers between the federal and provincial governments, than it has for its findings in respect of Crown consultation obligations. The case dealt with an electricity export license application by Hydro-Québec. The National Energy Board ("NEB") conditioned the license it issued on the requirement of conducting federal environmental assessments in respect of upstream generation projects that had not yet been built. Hydro-Québec appealed the validity of these conditions. They were struck down by the Quebec Court of Appeal and reinstated by the Supreme Court of Canada. The case is best known for giving the federal government a very broad jurisdiction to consider environmental issues related to provincially regulated facilities. The case is less well-known for the Crown consultation issues raised by the Grand Council of Crees which challenged the issuance of the export license. In addition to administrative law arguments, the Grand Council of Crees argued as follows:
The appellants claim that, by virtue of their status as aboriginal peoples, the Board owes them a fiduciary duty extending to the decision-making process used in considering applications for export licenses. The appellants' argument is that the fiduciary duty owed to aboriginal peoples by the Crown, as recognized by this Court in R. v. Sparrow, supra, extends to the Board, as an agent of government and creation of Parliament, in the exercise of its delegated powers. The duty applies whenever the decision made pursuant to a federal regulatory process is likely to affect aboriginal rights.20
The Supreme Court of Canada rejected the Grand Council of Crees' argument. First, the Supreme Court of Canada found that the NEB could not owe the appellants a fiduciary obligation. The Supreme Court went on to state that even if the NEB did owe a fiduciary obligation resulting from a prima facie infringement of aboriginal rights, that obligation was met by the process followed by the NEB. The Supreme Court stated as follows:
Therefore, I conclude that the fiduciary relationship between the Crown and the appellants does not impose a duty on the Board to make its decisions in the best interests of the appellants, or to change its hearing process so as to impose superadded requirements of disclosure. When the duty is defined in this manner, such tribunals no more owe this sort of fiduciary duty than do the courts. Consequently, no such duty existed in relation to the decision-making function of the Board.
Moreover, even if this Court were to assume that the Board, in conducting its review, should have taken into account the existence of the fiduciary relationship between the Crown and the appellants, I am satisfied that, for the reasons set out above relating to the procedure followed by the Board, its actions in this case would have met the requirements of such a duty. There is no indication that the appellants were given anything less than the fullest opportunity to be heard. They had access to all the evidence that was before the Board, were able to make submissions and arguments in reply, and were entitled to cross-examine the witnesses called by the respondents Hydro-Quebec. This argument must therefore fail for the same reasons as the arguments relating to the nature of the review conducted by the Board.21
The findings of the Supreme Court of Canada regarding Crown consultation in the Grand Council of Crees case has not received any significant judicial attention in subsequent Supreme Court cases. It did, however, have a significant impact on the federal Crown consultation process. The decision affected the approach the NEB took in its Memorandum of Guidance on Consultation with Aboriginal Peoples issued on March 4, 2002 (the "MOG"). The MOG required applicants to bring evidence before the NEB that appropriate Crown departments or agencies had carried out their constitutional consultation obligations. The NEB did not rely upon its process as satisfying Crown consultation obligations. It did not do so because it continued to proceed on the basis that Crown consultation was premised upon the Crown's fiduciary obligations to aboriginal people and, as a quasi-judicial tribunal, it could not be held responsible for the satisfaction of such obligations. Notwithstanding the Supreme Court of Canada's indication that the NEB process would have met Crown consultation obligations if the NEB were found to have the duty to consult, the approach taken by the NEB through the MOG made it difficult, if not impossible, to argue that the NEB process could be made to assist in the satisfaction of the Crown's consultation obligations.
The MOG put project proponents in a very difficult position. Not only was the NEB regulatory process found to be incapable of satisfying Crown consultation obligations, but the NEB insisted that evidence of Crown consultation precede the start of its regulatory process. Since federal government departments are not necessary parties to the NEB's regulatory process, and often do not participate in it, project proponents had no way of obtaining necessary evidence of Crown consultation. Even if evidence of consultation existed, however, there is no procedure available to proponents to compel its disclosure to the NEB.
The development of the consultation case law soon undermined the NEB's MOG, starting with the decision of the Supreme Court of Canada in Osoyoos Indian Band v Oliver (Town).22 The Osoyoos case dealt with an irrigation canal that had been constructed across the Osoyoos Band's reserve lands. An application had been made to federal cabinet pursuant to subsection. 35(3) of the Indian Act23 to expropriate the canal lands. Section 35 of the Indian Act states as follows:
35(1) Where by an Act of Parliament or a provincial legislature Her Majesty in right of a province, a municipal or local authority or a corporation is empowered to take or to use lands or any interest therein without the consent of the owner, the power may, with the consent of the Governor in Council and subject to any terms that may be prescribed by the Governor in Council, be exercised in relation to lands in a reserve or any interest therein.
(2) Unless the Governor in Council otherwise directs, all matters relating to compulsory taking or using of lands in a reserve under subsection (1) are governed by the statute by which the powers are conferred.
(3) Whenever the Governor in Council has consented to the exercise by a province, a municipal or local authority or a corporation of the powers referred to in subsection (1), the Governor in Council may, in lieu of the province, authority or corporation taking or using the lands without the consent of the owner, authorize a transfer or grant of the lands to the province, authority or corporation, subject to any terms that may be prescribed by the Governor in Council.
(4) Any amount that is agreed on or awarded in respect of the compulsory taking or using of land under this section or that is paid for a transfer or grant of land pursuant to this section shall be paid to the Receiver General for the use and benefit of the band or for the use and benefit of any Indian who is entitled to compensation or payment as a result of the exercise of the powers referred to in subsection (1).
Under British Columbia law, there were powers of expropriation under the Water Act. Instead of allowing the expropriation to proceed under these powers pursuant to subsection (1), federal cabinet granted the lands for the canal to the Province of British Columbia pursuant to subsection (3).
Many years later, and after Indian bands had been given the power of property taxation pursuant to section 83 of the Indian Act, the Osoyoos Band Council directed the property assessor to assess taxes against the canal lands and improvements. The Town of Oliver objected to the assessment arguing that, following the federal government's expropriation and grant of reserve lands to the Province of British Columbia, the canal lands were no longer reserve lands and therefore could not be made subject to the Osoyoos Band's tax bylaw pursuant to section 83 of the Indian Act. The Town argued that the grant made pursuant to subsection 35(3) of the Indian Act was a grant of fee simple title which fully extinguished all aboriginal rights to the land, such that they were no longer reserve lands subject to taxation.
The Property Assessment Review Board referred two questions to the Court by way of reference. The first question was whether section 35 of the Indian Act permitted the federal government to make any grant that fully extinguished all aboriginal rights in reserve lands. Secondly, if the federal government had the right to grant full fee simple title to extinguish the bands rights, the question was whether it had done so in that case.
The Supreme Court of Canada split 5-4 with Iacobucci J. delivering the judgment of the majority and Gonthier J. authoring the dissenting judgment. Both the majority and dissenting opinions concluded that section 35 of the Indian Act allowed the federal cabinet to extinguish all band rights in lands expropriated under that section. They disagreed, however, as to whether the grant made in that case resulted in such an extinguishment. The majority interpreted the grant as merely providing a right-of-way or easement over reserve lands. The dissent was of the view that the grant was one of fee simple title fully extinguishing all aboriginal interests. The two different conclusions were based on the application of two different rules of construction of the grant. The majority was of the view that reserve lands were, for all intents and purposes, subject to aboriginal title. Once the majority accepted that reserve lands are subject to aboriginal title, it found that the federal Crown had a fiduciary obligation to affect that title as little as possible in order to achieve the public interest behind the expropriation. In this case, the majority looked to the provincial expropriatory scheme under the Water Act and held that, had the expropriation proceeded pursuant to subsection 35(1) of the Indian Act through the exercise of these expropriatory powers, all that could have been taken was an easement. The majority suggested that the federal government had no greater powers under subsection 35(3) to expropriate the full fee simple interest. Further, although under normal rules of construction the grant appeared to be of full fee simple, there was some ambiguity.24 In the event of such ambiguity, the majority found that any uncertainty should be resolved in favour of the federal Crown meeting its fiduciary obligations by restricting the grant to an easement.
The dissenting opinion strongly disagreed with the conclusion that reserve lands were subject to aboriginal title. Gonthier J. believed that, since neither aboriginal title nor aboriginal rights were in issue, no fiduciary obligation was owing. Since there was no allegation of failure of consultation or fiduciary breach, the normal rules of construction applied. The minority believed that a full fee simple had been granted extinguishing all aboriginal interests in the reserve lands, which took the canal out of the reserve. The canal was therefore not subject to the Bands' taxation bylaw.
The majority held that it is possible to use lands which are the subject of proven aboriginal title for the purposes of a utility right-of-way. The majority found that there are no significant differences between reserve lands and aboriginal title lands. They found that reserve lands were subject to underlying aboriginal title.
The majority made it clear that, in making a decision on whether there is a public interest in a project sufficient to justify expropriation, there is no fiduciary obligation owed by the Crown. The Crown's fiduciary obligation only arises in a subsequent phase when the Crown decides the extent of the rights that are needed to fulfill the public interest undertaking. Iacobucci J. states as follows:
The intervener the Attorney General of Canada submits that when Canada's public law duty conflicts with its statutory obligation to hold reserve lands for the use and benefit of the band for which they were set apart, then a fiduciary duty does not arise. The Attorney General argues that the existence of a fiduciary duty to impair minimally the Indian interest in reserve lands is inconsistent with the legislative purpose of s. 35 which is to act in the greater public interest and that the opening phrase of s. 18(1) of the Indian Act, "Subject to the provisions of this Act . . .", effectively releases the Crown from its fiduciary duty in respect of s. 35 takings. In addition, the Attorney General contends that a fiduciary obligation to impair minimally the Indian interest in reserve lands is inconsistent with the principles of fiduciary law which impose a duty of utmost loyalty on the fiduciary to act only in the interests of the person to whom the duty is owed. Thus, the Attorney General submits that the holding in Guerin, supra, that the surrender of an Indian interest of land gives rise to a fiduciary duty on the part of the Crown to act in the best interests of the Indians does not extend to the context of expropriation, and that the duty of the Crown to the band in the case of an expropriation of reserve land is similar to its duty to any other land holder -- to compensate the band appropriately for the loss of the lands.
In my view, the fiduciary duty of the Crown is not restricted to instances of surrender. Section 35 clearly permits the Governor in Council to allow the use of reserve land for public purposes. However, once it has been determined that an expropriation of Indian lands is in the public interest, a fiduciary duty arises on the part of the Crown to expropriate or grant only the minimum interest required in order to fulfill that public purpose, thus ensuring a minimal impairment of the use and enjoyment of Indian lands by the band. This is consistent with the provisions of s. 35 which give the Governor in Council the absolute discretion to prescribe the terms to which the expropriation or transfer is to be subject. In this way, instead of having the public interest trump the Indian interests, the approach I advocate attempts to reconcile the two interests involved.
This two-step process minimizes any inconsistency between the Crown's public duty to expropriate lands and its fiduciary duty to Indians whose lands are affected by the expropriation. In the first stage, the Crown acts in the public interest in determining that an expropriation involving Indian lands is required in order to fulfill some public purpose. At this stage, no fiduciary duty exists. However, once the general decision to expropriate has been made, the fiduciary obligations of the Crown arise, requiring the Crown to expropriate an interest that will fulfill the public purpose while preserving the Indian interest in the land to the greatest extent practicable.
The duty to impair minimally Indian interests in reserve land not only serves to balance the public interest and the Indian interest, it is also consistent with the policy behind the rule of general inalienability in the Indian Act which is to prevent the erosion of the native land base: Opetchesaht Indian Band v. Canada,  2 S.C.R. 119, at para. 52. The contention of the Attorney General that the duty of the Crown to the Band is restricted to appropriate compensation cannot be maintained in light of the special features of reserve land discussed above, in particular, the facts that the aboriginal interest in land has a unique cultural component, and that reserve lands cannot be unilaterally added to or replaced.
As the Crown's fiduciary duty is to protect the use and enjoyment of the Indian interest in expropriated lands to the greatest extent practicable, the duty includes the general obligation, wherever appropriate, to protect a sufficient Indian interest in expropriated land in order to preserve the taxation jurisdiction of the band over the land, thus ensuring a continued ability to earn income from the land. Although in this case the taxation jurisdiction given to bands came after the Order in Council of 1957, the principle is the same, namely that the Crown should not take more than is needed for the public purpose and subject to protecting the use and enjoyment of Indians where appropriate. (emphasis added)25
The Osoyoos case is important because it started to address the impediment imposed by the fiduciary obligation of the Crown, which had stood in the way of the Court in the Grand Council of Crees finding that the NEB's process could assist in the meeting of the Crown's consultation obligation. The Osoyoos case found that the public's interest determination process involved in assessing whether lands subject to aboriginal rights are required does not involve fiduciary obligations on the part of the Crown. If the Crown's decisions or determinations regarding the public interest are not subject to fiduciary obligations to aboriginal groups, then they should be free of fiduciary considerations.
Crown-Aboriginal Consultation Obligations Arise From the Honour of the Crown
The Haida case subsequently added a further degree of separation between the evolving Crown consultation duty and any fiduciary obligation the Crown might owe to aboriginal groups. In Haida, the Supreme Court held that the Crown's consultation obligation was not premised on any fiduciary obligation owed by the Crown to the Haida. Chief Justice McLachlin stated as follows:
Here, Aboriginal rights and title have been asserted but have not been defined or proven. The Aboriginal interest in question is insufficiently specific for the honour of the Crown to mandate that the Crown act in the Aboriginal group's best interest, as a fiduciary, in exercising discretionary control over the subject of the right or title.26
The Chief Justice further elaborated upon this point as follows:
The Crown may delegate procedural aspects of consultation to industry proponents seeking a particular development; this is not infrequently done in environmental assessments. Similarly, the terms of T.F.L. 39 mandated Weyerhaeuser to specify measures that it would take to identify and consult with "aboriginal people claiming an aboriginal interest in or to the area" (Tree Farm Licence No. 39, Haida Tree Farm Licence, para. 2.09(g)(ii)). However, the ultimate legal responsibility for consultation and accommodation rests with the Crown. The honour of the Crown cannot be delegated. It is also suggested (per Lambert J.A.) that third parties might have a duty to consult and accommodate on the basis of the trust law doctrine of "knowing receipt". However, as discussed above, while the Crown's fiduciary obligations and its duty to consult and accommodate share roots in the principle that the Crown's honour is engaged in its relationship with Aboriginal Peoples, the duty to consult is distinct from the fiduciary duty that is owed in relation to particular cognizable Aboriginal interests.
As noted earlier, the Court cautioned in Wewaykum against assuming that a general trust or fiduciary obligation governs all aspects of relations between the Crown and Aboriginal Peoples. Furthermore, this Court in Guerin v The Queen,  2 W.C.R. 335, made it clear that the "trust-like" relationship between the Crown and Aboriginal Peoples is not a true "trust", noting that "[t]he law of trusts is a highly developed, specialized branch of the law" (p. 386). There is no reason to graft the doctrine of knowing receipt onto the special relationship between the Crown and Aboriginal Peoples.27
Haida went on to introduce principles of administrative law to the discharge of the Crown's duty to consult with aboriginal groups. The Chief Justice stated as follows:
Transposing this passage to pre-proof claims, one may venture the following. While it is not useful to classify situations into watertight compartments, different situations requiring differing responses can be identified. In all cases, the honour of the Crown requires that the Crown act with good faith to provide meaningful consultation appropriate to the circumstances. In discharging this duty, regard may be had to the procedural safeguards of natural justice mandated by administrative law.28
The Court went on to suggest that, where deep consultation was required, it was open to the government to adopt administrative regimes of independent tribunals as part of satisfaction of its duty regarding consultation. The Court stated as follows in Haida:
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-compensation, aimed at finding a satisfactory interim solution, may be required. While precise requirements will vary with the circumstances, the consultation required at this stage will 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 decisionmakers in complex or difficult cases.29
Haida was immediately followed by the Supreme Court's decision in Taku River, where the court found that British Columbia's environmental assessment process, as conducted in that case, met the Crown's consultation obligation.
In Taku River Talingit First Nation v British Columbia (Project Assessment Director)30, the Supreme Court of Canada held that British Columbia's Environmental Assessment Act process, as carried out in that case, met the Crown's consultation obligation. Chief Justice McLachlin concluded that:
The Province was not required to develop special consultation measures to address TRTFN's concerns, outside of the process provided for by the Environmental Assessment Act, which specifically set out a scheme that required consultation with affected Aboriginal Peoples.31
In order to understand the conclusions reached by the Supreme Court of Canada in the Taku case, it is necessary to understand what the BC Environmental Assessment Process involved at the time. The Supreme Court of Canada described the process as it existed at the time of the Taku case. What follows is a summary of the Supreme Court of Canada's description of the British Columbia Environmental Assessment Act process.
Redfern was the proponent of a mining project that constituted a reviewable project and applied for a Project Approval Certificate. This application triggered the requirement of establishing a Project Committee. When establishing a Project Committee, it was mandatory to invite a number of groups to nominate members to the Committee. Among these groups, a First Nation whose traditional territories were in the vicinity of the project, had to be invited. This was consistent with the legislation's requirement that there be an opportunity for First Nations to participate in environmental assessments.
A Project Committee was established and the Taku had a representative on this Committee. The Taku were also represented on a number of working groups and technical subcommittees which were formed under the Project Committee to look at specific issues, including a subcommittee to deal with aboriginal concerns.
Pursuant to the environmental assessment process, it was possible to refer a project to the Minister at an early stage for a decision or to order a project report to be prepared for the project. In this case, the latter was ordered and Redfern was required to produce a project report. Redfern submitted a project report. The Project Committee concluded that the report contained numerous deficiencies and required Redfern to address these deficiencies. During the course of the environmental assessment process, it became clear that the Taku's main concern related to a road proposed as part of the mine development and its potential impacts on wildlife and traditional land uses. The Taku thought that the road proposal should be assessed as part of an overall land use planning strategy and their treaty negotiations. The Taku were told that these matters were outside of the scope of the certification process and could only be the subject of later negotiations with the government. This caused them to discontinue their participation in Project Committee work for a number of months.
While Redfern addressed deficiencies in its project report, the BC Director of Assessment engaged a consultant, acceptable to the Taku, to perform traditional land-use studies. This consultant produced a report which was reviewed by the Taku and found to be deficient leading to the preparation of an addendum. Three years after the filing of the proponent's application, the Environmental Assessment Office started to prepare a Project Committee Recommendations Report. Although portions of the report were submitted to the Project Committee to review as they were produced, the Executive Director of Environmental Assessment only gave the Project Committee a very short period of time to review and sign off on the completed report. The majority of the Project Committee did so. The Taku refused to sign off and issued a minority report which, along with the majority report, was sent to the Minister. Under the BC environmental assessment process, the Minister could issue a Project Approval Certificate, refuse to do so or refer the application to the Environmental Assessment Board for a public hearing. After three and half years of environmental assessment, the Minister decided to issue a Project Approval Certificate without a public hearing.
In finding that the Crown had met its consultation obligation, Chief Justice McLachlin made the following observations:
It is clear that the process of project approval ended more hastily than it began. But was the consultation provided by the Province nonetheless adequate? On the findings of the courts below, I conclude that it was.
. . .
The Act permitted the Committee to set its own procedure, which in this case involved the formation of working groups and subcommittees, the commissioning of studies, and the preparation of a written recommendations report. The TRTFN was at the heart of decisions to set up a steering group to deal with Aboriginal issues and a subcommittee on the road access proposal. The information and analysis required of Redfern were clearly shaped by TRTFN's concerns. By the time that the assessment was concluded, more than one extension of statutory time limits had been granted, and in the opinion of the project assessment director, "the positions of all of the Project Committee members, including the TRTFN had crystallized" (Affidavit of Norman Ringstad, at para. 82 (quoted at para. 56 of the Court of Appeal's judgment)). The concerns of the TRTFN were well understood as reflected in the Recommendations Report and Project Report, and had been meaningfully discussed. The Province had thoroughly fulfilled its duty to consult.
. . .
The TRTFN in this case disputes the adequacy of the accommodation ultimately provided by the terms of the Project Approval Certificate. It argues that the Certificate should not have been issued until its concerns were addressed to its satisfaction, particularly with regard to the establishment of baseline information.
With respect, I disagree. Within the terms of the process provided for project approval certification under the Act, TRTFN concerns were adequately accommodated. In addition to the discussion in the minority report, the majority report thoroughly identified the TRTFN's concerns and recommended mitigation strategies, which were adopted into the terms and conditions of certification. These mitigation strategies included further directions to Redfern to develop baseline information, and recommendations regarding future management and closure of the road.32
As a result of the Haida and Taku cases, the NEB withdrew its MOG on August 3, 2005. In doing so the Board indicated that these decisions suggested to it that the MOG might "not accurately reflect the most recent developments in the law". The Board did not, however, elaborate and suggested that prior to the issuance of any future guidance document, it would engage in consultation with aboriginal Peoples, industry and government. The NEB's August 3, 2005 memorandum suggests that the Board intends to do what it can to ensure that appropriate consultation takes place as part of its existing process. The memorandum states as follows:
The Board is committed to ensuring that appropriate consultation is carried out in respect of projects where there is a potential impact on the rights or interests of Aboriginal Peoples. Where there is a potential for infringement of Aboriginal rights or interests in the area of the proposed project, applicants will be expected to meet the information requirements set out in the generic information request on consultation dated 3 April 2002 (copy attached) and the Filing Manual, which is available on the Board's Web site (neb-one.gc.ca). The Board will continue to require applicants to file information to identify any Aboriginal groups that may be affected by a proposed project, details of meetings with those individuals or groups, details of concerns expressed and the degree to which those concerns have been or will be addressed by the proponent. The Board may also require additional information in any process where there is a possibility of infringement of Aboriginal rights or interests.
Through its Aboriginal Engagement Program the Board will continue in its efforts to better understand Aboriginal issues and concerns, including the evolving participation needs of Aboriginal Peoples potentially affected by the Board decisions. The Board will continue to reflect this understanding in NEB program and process improvements. The Board is committed to continuing communications with aboriginal people about its mandate and to ensuring that aboriginal people have an opportunity to express their views on projects that come before the Board.
1 , 3 S.C.R. 1010.
2 Ibid., at p. 1080, para. 111.
3 Ibid., at p. 1083, para. 117.
4 Ibid., at p. 1086, para. 122.
5 Ibid., at p. 1089, para. 128.
6 Ibid., at pp. 1096-97, paras. 141 – 142.
7 Ibid., at pp. 1081-82, para. 113.
8 Ibid., at p. 1117 – 18, para. 175.
9  3 S.C.R. 511.
10  3 S.C.R. 550.
11 Haida, supra note 9, at page 526, para. 27.
12 Ibid., at pages 524-525, paras. 20 and 25.
13 Ibid., at page 520, para. 10.
14 Ibid., at page 529, para. 35.
15 Ibid., at p. 530, para. 37.
16 Ibid., at p. 535, para. 48.
17 Ibid., at p. 534-535, para. 47.
18 Ibid., at p. 537, para. 53.
19  1 S.C.R. 159.
20 Ibid., at pp. 182 – 183, para. 36.
21 Ibid., at pp. 184-185, paras. 41-42.
22  1 C.N.R.L. 271.
23 R.S.C. 1985, c. I-5.
24 Osoyoos, supra note 22, at pp. 781-782, para. 81.
25 Ibid., at pp. 771-773 , paras. 51-55.
26 Haida, supra note 9, at p. 523, para. 18.
27 Ibid., at p. 538, para. 54.
28 Ibid., at p. 532, para. 41.
29 Ibid., at p. 533, para. 44.
30 Supra note 10.
31 Ibid., at p. 570, para. 40.
32 Ibid., at pp. 570 – 572.
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