Canada: Aboriginal Law – The Crown’s Duty To Consult And The Involvement Of Natural Resources Proponents In The Consultation Process

Last Updated: May 20 2013
Article by Anne-Marie Dupont and Simon Ruel

Natural resources proponents are often deeply involved in consultations with Aboriginal communities that may be affected by their projects. How far can the Crown delegate its constitutional duty to consult Aboriginal people to proponents?

The Crown's Duty to Consult and to Accommodate And its Delegation

  • Ever since the Supreme Court developed the concept of the Crown's duty to consult and to accommodate Aboriginal people in the 1990s – and articulated this duty in its historic decision of Haida Nation in 2004, natural resources proponents have often de facto exercised that duty for projects which are likely to affect adversely Aboriginal interests. Reasons may include practicalities – proximity, better knowledge of the project, and also the scarcity of governmental resources to carry extensive consultations on behalf of the Crown.
  • In Haida Nation, the Honourable Chief Justice McLachlin had indicated that: "The Crown may delegate procedural aspects of consultation to industry proponents seeking a particular development; this is not infrequently done in environmental assessments. [...] However, the ultimate legal responsibility for consultation and accommodation rests with the Crown. The honour of the Crown cannot be delegated."
  • What the Supreme Court did not specify, however, is which procedural aspects of consultation may be delegated to third parties, and the permitted scope of this delegation.

Recent Cases

The Ross River Dena Council Decision (Yukon)

  • In late 2012, in Ross River Dena Council v. Government of Yukon, [2012] YKCA 14, the Yukon Court of Appeal found that the government had a duty to consult in granting mineral rights on Crown lands to third parties.
  • The Ross River Dena Council had strong claims to Aboriginal rights in some parts of their traditional territory. The government argued that because the recording of mining claims did not involve discretionary action, no duty to consult Aboriginals existed. Once a claim is recorded, the holder is allowed to undertake certain types of exploration activities without government approval.
  • The court found that the honour of the Crown demanded that it take into account Aboriginal rights before divesting itself of control over public lands.
  • The court further held that "The Crown must ensure that it maintains the ability to prevent or regulate activities where it is appropriate to do so", including engaging into consultations with First Nations before exploration activities are allowed to take place.
  • Implicit in this decision is that the Crown cannot delegate the essential aspects of its duty to consult to proponents – the Crown has to ensure upstream that proper consultation mechanisms are in place, even at the stages of mining claim recording and early exploration.

The Wahgoshig First Nation Decision (Ontario)

  • In Wahgoshig First Nation v. Her Majesty the Queen in Right of Ontario, [2011] ONSC 7708 (appeal dismissed as moot in Wahgoshig First Nation v. Solid Gold Resources Corp, [2013] ONSC 632) the Crown had advised Solid Gold to consult the Wahgoshig First Nation regarding its intended mineral exploration program, and offered to facilitate the process. No consultation took place before Solid Gold started drilling.
  • The Wahgoshig First Nation sought an injunction preventing Solid Gold to carry exploration on Treaty 9 Crown lands, which was granted by the Ontario Superior Court. The court ordered the parties to enter into "[...] bona fide dialogue and information sharing [...], facilitated by the presence of the Crown".

The Long Plain First Nation Decision (Manitoba)

  • In Long Plain First Nation, and al. v. Her Majesty the Queen, [2012] FC 1474, the federal government had argued in the context of a sale of Crown lands located in the City of Winnipeg subject to land claims, that the Aboriginals could take their concerns to the purchaser of the land, the Canada Land Company, a non-agent Crown Corporation.
  • The Federal Court found that the Crown had failed to discharge its duty to consult Aboriginals and set aside the decision to sell the land.

Recent Legislative Changes

  • Ontario recently legislatively addressed the question of Aboriginal consultations at the early exploration stages of mining projects by changes to the Mining Act of Ontario, which came into force on November 1, 2012, and implementing regulations came into effect on April 1, 2013.
  • Under the new scheme, holders of mining claims are required to provide exploration plans to the director of exploration. Under such plans, exploration activities shall be carried in a manner consistent with Aboriginal rights.
  • The aim of the new legislative scheme is to ensure the Crown's compliance with its duty to consult at the exploratory stage of a mining project.
  • However, this does not solve the issue of the respective obligations of the Crown and of proponents in the actual consultation process.


  • Recent case law on the delegation of the duty to consult sends a strong signal that the Crown cannot delegate its duty to consult by the back door.
  • If the Crown delegates aspects of the Aboriginal consultation process, it should guarantee that measures are in place to ensure that appropriate and meaningful consultations take place.
  • In the end, the Crown remains accountable for the consultation process.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions