West Moberly First Nations v. British Columbia (Chief
Inspector of Mines) 2014 BCSC 924; Grassy Narrows First Nation v.
Ontario (Natural Resources), 2014 SCC 48
Natural resource projects involving land that is subject to a
historical treaty necessitates a slightly different standard of
accommodation and consultation. These lands have been, effectively,
passed to the Crown in exchange for a host of promises. By no means
is the duty to consult First Nations eradicated where a treaty
exists. Rather, a different set of legal principles and
considerations come into account. Modern-day treaties take the form
of comprehensive land-claims agreements between First Nations and
governments that set out the respective rights, duties, and
obligations with respect to the territory in question. As such, any
question of consultation and accommodation must be framed within
Two recent court cases, West Moberly First Nations v.
British Columbia (Chief Inspector of Mines) and Grassy
Narrows First Nation v. Ontario (Natural Resources) illustrate
the principles at play in consultation and accommodation on treaty
lands. In both cases the lands were subject to a treaty, and
authorization was given by the Crown to proceed with a natural
resource project. The First Nations petitioned the courts to halt
the development, citing a lack of consultation and accommodation on
It is clear from the jurisprudence that there is always a duty
to consult and accommodate, regardless of whether or not the land
is subject to a treaty. The Crown has a duty to look at the
project, and assess its potential impact on the First Nation, and
give adequate consultation and accommodation to the First Nation in
assessing whether to give the green light for development. Even in
the context of a treaty, the Crown cannot contract out of its
fiduciary duty to Aboriginal peoples, and must meet its duties.
This is done to ensure that Aboriginal rights are respected,
including the right to hunt and fish.
The level of accommodation and consultation, however, varies
from project to project, and when ascertaining an appropriate level
of consultation, due regard must be made towards the specific text
of the treaty. In the West Moberly decision, the British
Columbia Supreme Court held that the test to determine if there is
adequate consultation is:
"(1) Whether the Crown acted honourably throughout;
(2) Whether there was meaningful and extensive exchange of
information such that the substance of the matter was fully
explored and understood by all sides."
Further, it is clear that consultation is a two-way exercise
between the Province and the First Nations, and, at times, a First
Nation may have discussions directly with a proponent of a project.
However, these cases make it clear that consultation is not
unlimited; it must be determined, not whether there could have been
another meeting, but whether some important piece of information
was unshared or whether a reasonable request was ignored.
These decisions attempt to clarify the Crown's duty to
consult, and emphasize the importance of having a meaningful
exchange of information that addresses reasonable requests and
concerns. However, they also set some limits. Although there can
always be more meetings and discussions, consultation cannot go on
forever. Consultation must consist of a two-way exchange of
information between the First Nation and the Crown, but that does
not mean that the First Nation has a veto power over any
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.
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Canada is a constitutional monarchy, a parliamentary democracy and a federation comprised of ten provinces and three territories. Canada's judiciary is independent of the legislative and executive branches of Government.
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