Canada: Aboriginal Consultation: Recent Highlights - May 2013

We enclose an update of some recent noteworthy cases and developments concerning aboriginal law and the duty to consult.


Métis Nation of Alberta Region 1 v Joint Review Panel, 2012

The Joint Review Panel held that it did not have statutory authority to consider the adequacy of Crown consultation in relation to the proposed project. The duty to consult with First Nations rests with the Crown and, as there was no contemplated Crown conduct before the panel, the Joint Review Panel's approval and conditions for the project could not direct the Crown's conduct with respect to consultation. In any event, discussing the adequacy of Crown consultation was premature, given that consultation was ongoing and had not been deemed complete by the Crown. The Alberta Court of Appeal dismissed the First Nations' application for leave to appeal, holding that the Joint Review Panel had discretion to decide not to consider the adequacy of consultation and in any event, it was inappropriate to review the panel's decision before completion of the hearing. (Read the decision.)

The Supreme Court of Canada dismissed the First Nations' leave to appeal application on April 11, 2013.

Cold Lake First Nations v Alberta (Energy Resources and Conservation Board)

The Cold Lake First Nation sought leave to appeal an ERCB decision that held it did not have jurisdiction to determine whether the Crown discharged its duty to consult and accommodate the First Nation in relation to adverse impacts on treaty rights. The Alberta Court of Appeal dismissed the leave application on the basis that the issue was now moot as the First Nation had subsequently withdrawn its objection to the development. The court noted, however, that as there was ongoing consultation between the First Nation and the province, the issue would come before the ERCB in the future in the context of an actual dispute. (Read the decision.)

Cold Lake First Nation v Alberta (Minister of Tourism, Parks and Recreation)

The Alberta Court of Queen's Bench held that Alberta breached its duty to consult by unilaterally terminating a negotiation process regarding the expansion of a recreational area into traditional First Nations territory. Specifically, Alberta had concluded consultation arbitrarily and had failed to take into account the First Nation's government election, which prevented the First Nation from properly commenting on the proposed expansion before construction was commenced. The appeal of this decision is scheduled to be heard by the Court of Appeal in June 2013. (Read the decision.)

Alberta Consultation Policy/Proposed Legislation

The province of Alberta has released drafts of its proposed updated First Nations consultation documents for review and comment. The proposed documents include an updated First Nations Consultation Policy, First Nations Consultation Corporate Guidelines and a First Nations Consultation Matrix.

Bill 22, the Aboriginal Consultation Levy Act, has received first reading. The proposed legislation would establish a Consultation Levy Fund from the levies paid by proponents with respect to provincially regulated activity. The Consultation Levy Fund would be used to make grants to First Nations to assist in developing capacity to participate in and meet the costs of required Crown consultation.

British Columbia

Behn v Moulton Contracting Ltd.

The issue in this case was whether certain individual members of a First Nation had standing to argue that logging licenses were issued in breach of a constitutional duty to consult and therefore void. The individual First Nation members raised the alleged breach of aboriginal and treaty rights as a defence to the tort action brought against them by the logging company.

The Supreme Court of Canada confirmed that as the duty to consult exists to protect the collective rights of Aboriginal Peoples, the individual First Nation members could not assert a breach of this duty based on the pleadings and absent authorization from the First Nation. The court left open, without deciding, whether the individuals could challenge the legality of the authorizations on the basis that they breached individual as opposed to collective rights to hunt and trap under Treaty No. 8. Finally, the court held that the defence alleging a breach of the duty to consult was an abuse of process as no attempt had been made to legally challenge the authorizations by way of judicial review or injunction at the time they were issued. (Read the decision.)

Neskonlith Indian Band v Salmon Arm (City)

The British Columbia Court of Appeal upheld the dismissal of a petition brought by the Neskonlith Indian Band to quash a development permit issued by the City of Salmon Arm to a shopping centre developer. The band had argued that the city had a duty to consult prior to issuing the permit. The Court of Appeal held that municipalities, as creatures of statute, do not generally have any authority or duty to consult with and accommodate First Nations unless such duty or authority is contained in specific legislation. (Read the decision.)

Adams Lake Indian Band v British Columbia (Lieutenant Governor in Council)

The province of British Columbia was found to have discharged its duty to consult with the Adams Lake Indian Band in relation to the incorporation of Sun Peaks Mountain Resort Municipality. The British Columbia Court of Appeal found that the decision to incorporate was a discrete issue that could be separated from larger outstanding land claims issues. (Read the decision.)

The Supreme Court of Canada dismissed the First Nation's leave to appeal application on April 11, 2013.

Halalt First Nation v British Columbia (Minister of Environment)

The British Columbia Court of Appeal allowed an appeal by the minister of environment from a decision that concluded the province failed to adequately consult and accommodate the Halalt First Nation before issuing an environment certificate for a well project. The court held that the First Nation was not entitled to be consulted with respect to its aboriginal title claim in the environmental assessment. In addition, the Crown is not required to consult First Nations about proposed future plans to modify or extend a project. Consultation is only required with respect to the aspects of the project to be approved at any particular point in time. (Read the decision.)

Taseko Mines Limited v Phillips

The Xeni Gwet'in and Tsilhqot'in First Nations sought an interim injunction to prevent Taseko Mines from proceeding with mining exploration work until there had been a hearing of the First Nations' application for judicial review of the Crown's decision to issue the underlying permits. Taseko sought its own injunction after an attempt to carry out the work was stopped by a First Nation blockade. The First Nations' application for an injunction was granted while Taseko's was dismissed. The question of whether the Crown had satisfied its duty to consult was a serious question to be tried. Without an injunction, the First Nations would lose their right to be consulted deeply in relation to the exploration program. (Read the decision.)


Keewatin v Ontario (Natural Resources)

The Ontario Court of Appeal held that the province of Ontario did not require the federal government's approval to "take up" lands under a harvesting clause of Treaty 3 of October 3, 1873, which granted the Ojibway the right to hunt and fish throughout the surrendered lands, except on those tracts "required or taken up for settlement, mining, lumbering or other purposes by [the] Government of the Dominion of Canada."

Overturning the trial judge's decision, the Court of Appeal emphasized that the Ojibway's treaty partner is the Crown, not any particular level of government, and that since ownership of the treaty lands had devolved to Ontario, so had the power to take up lands and responsibility for discharging the Crown's treaty obligations. The Court of Appeal also held that subsection 91(24) of the Constitution Act, 1867 did not include a supervisory power over the taking up of treaty lands, as it would render illusory provincial jurisdiction over the disposition of management of public lands and forests within the province. (Read the decision.)

Mining Act modernization

On April 1, 2013, new regulations under Ontario's Mining Act took effect. The Exploration Plans and Exploration Permits regulation sets out new requirements for notification of surface rights owners, aboriginal consultation and rehabilitation in respect of exploration activities.

The regulatory scheme is graduated, with higher-impact activities, such as line cutting, mechanized drilling and pitting and trenching, requiring an exploration permit, which is subject to the approval of the Ministry of Northern Development and Mines (MNDM). Prior to granting a permit, the MNDM must consider comments from aboriginal communities and other stakeholders on the permit application and the consultation conducted by the proponent. The MNDM has the authority to order further consultation, to temporarily put a pending application on "hold," or to deny a permit altogether.

Low-impact activities, on the other hand, require the submission of an exploration plan, which the MNDM provides to affected aboriginal communities for their comment and review. Prior consultation is encouraged, but not required. Such low-impact activities may commence 30 days after circulation of the plan unless the director of exploration requires that a permit be obtained for one or more of the activities, which the director has the discretion to require if, for example, there are significant issues raised by aboriginal communities in response to the plan. The regulation also sets forth a dispute resolution mechanism for disputes between aboriginal communities and the proponents related to a permit application.

Mining Act modernization also comprised a number of amending regulations, which came into effect on November 1, 2012. The Assessment Work regulation was amended to make aboriginal consultation costs eligible for assessment work credits (provided that geoscience assessment work has been performed and is reported at the same time). Amendments to the Mine Development and Closure regulation require that aboriginal consultation be conducted in accordance with a written direction from the director of mine rehabilitation, prior to a proponent submitting a certified closure plan. The direction will include which aboriginal communities are to be consulted, whether a proposed plan for consultation is required to be prepared, and when interim reports are required. As with the exploration regulations, the amendments also impose a dispute resolution process to govern disputes between proponents and affected aboriginal communities.


Ross River Dena Council v Yukon

The Ross River Dena Council appealed a decision concluding that mere notice of newly recorded quartz mining claims within their traditional territory satisfied the Crown's duty to consult. The Quartz Mining Act only required a party seeking to acquire mineral rights to physically stake a claim and record it with the Mining Recorder. The Court of Appeal held that the statutory regime for acquiring quartz mining claims failed to provide a mechanism for consultation with First Nations, and therefore it was necessary for the Crown to augment the statutory requirements to ensure that adequate consultation had taken place. (Read the decision.)

Federal Court

Sambaa K'e Dene Band v Duncan

The Federal Court held that the Crown breached its duty to consult with two of three First Nations bands who had overlapping claims in the Northwest Territories. The federal minister of Indian affairs had postponed consultation with the two bands until an agreement in principle was reached between the Crown and the third band. The Federal Court held that the Crown had a duty to consult in good faith with all three bands given their overlapping land claims. (Read the decision.)

Ka'a'Gee Tu First Nation v Canada (Attorney General)

This case dealt with an application for judicial review of the Crown's decision to terminate a court-ordered consultation process with the Ka'a'Gee Tu First Nation in relation to an oil and gas development in the Northwest Territories. The application was dismissed, as the court held that First Nations are not entitled to use the re-opening of the consultation process by court order to renegotiate issues that go beyond the scope of the order. (Read the decision.)

Gitxaala Nation v Canada (Minister of Transport, Infrastructure and Communities)

The Gitxaala First Nation applied for an order quashing a safety review of the Northern Gateway Pipeline Project, used by the Joint Review Panel in assessing environmental risk of the project. The First Nation took the position that the Crown had breached its duty to consult by excluding the First Nation from participating in preparing this report. The Federal Court refused to quash the safety review report and stated that the Joint Review Panel's process was sufficient to allow the First Nation to address any weaknesses in the report. In addition, it was premature for the court to interfere before the Joint Review Panel had considered the report and come to its conclusions regarding the approval of the project. (Read the decision.)

The authors wish to thank Erin Greenan and Tina Sun, articling students, for their help in preparing this legal update.

Norton Rose Group

Norton Rose Group is a leading international legal practice. We offer a full business law service to many of the world's pre-eminent financial institutions and corporations from offices in Europe, Asia, Australia, Canada, Africa, the Middle East, Latin America and Central Asia.

Knowing how our clients' businesses work and understanding what drives their industries is fundamental to us. Our lawyers share industry knowledge and sector expertise across borders, enabling us to support our clients anywhere in the world. We are strong in financial institutions; energy; infrastructure, mining and commodities; transport; technology and innovation; and pharmaceuticals and life sciences.

We have more than 2900 lawyers operating from 43 offices in Abu Dhabi, Almaty, Amsterdam, Athens, Bahrain, Bangkok, Beijing, Bogotá, Brisbane, Brussels, Calgary, Canberra, Cape Town, Caracas, Casablanca, Dubai, Durban, Frankfurt, Hamburg, Hong Kong, Johannesburg, London, Melbourne, Milan, Montréal, Moscow, Munich, Ottawa, Paris, Perth, Piraeus, Prague, Québec, Rome, Shanghai, Singapore, Sydney, Tokyo, Toronto and Warsaw; and from associate offices in Dar es Salaam, Ho Chi Minh City and Jakarta.

Norton Rose Group comprises Norton Rose LLP, Norton Rose Australia, Norton Rose Canada LLP, Norton Rose South Africa (incorporated as Deneys Reitz Inc), and their respective affiliates.

On January 1, 2012, Macleod Dixon joined Norton Rose Group adding strength and depth in Canada, Latin America and around the world. For more information please visit

Norton Rose will join forces with Fulbright & Jaworski L.L.P on June 1, 2013, creating Norton Rose Fulbright a global legal practice with significant depth of expertise across the USA, Europe, Asia, Australia, Canada, Africa, the Middle East, Latin America and Central Asia.

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.

In association with
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
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.