In 2014 there were over twenty court decisions across Canada related to the duty of federal, provincial and territorial governments to consult with and accommodate First Nations.
The Supreme Court of Canada released two significant decisions: Tsilhqot'in Nation v. British Columbia1, and Grassy Narrows First Nation v. Ontario (Natural Resources)2. Although these judgments addressed broader Aboriginal law issues, both articulated important principles that will significantly influence the interpretation of the duty to consult and accommodate in the future, both in the courts and in practice.
In the lower courts there were a number of notable developments in this growing body of the common law. Key themes of 2014 included the relationship between the duty to consult and First Nation economic interests, the legislative process, delegation of consultation responsibilities, and the application of broader administrative law principles. Courts also expressed concern about the imbalance between the Crown agents and First Nations to adequately resource consultation processes.
Tsilhqot'in addressed the duty to consult and accommodate in relation to proven Aboriginal title lands. In such cases, the duty is at the highest end of the spectrum and puts a heavy burden on the Crown to justify title infringement when a First Nation doesn't consent to development. In situations where title has been proven, the honor of the Crown elevates to a fiduciary duty. If title is proven after a permit is issued, the permit may be revoked. The Court stated that provincial governments can infringe Aboriginal title lands, but there must be express legislative authority to do so, and further, that there are inherent limits to infringement.
In Grassy Narrows, the Court similarly found that a province can infringe Treaty rights, but it must demonstrably uphold the honour of the Crown at all times. The court also expressed an inherent limit on infringement- it can't go beyond a point that leaves the First Nation with no meaningful ability to practice its traditional ways of life.
In the cases of Squamish Nation v. British Columbia (Community, Sport and Culture Development)3 and Ehattesaht v. British Columbia (Forests, Lands and Natural Resource Operations)4the British Columbia Supreme Court found that potential adverse impacts to a First Nation's economic interests triggered the duty to consult and accommodate. While the Court has previously recognized a duty to consult with respect to economic interests,5 the Squamish and Ehattesaht cases represent a solid reinforcement of this principle in the common law duty to consult.
In the case of Courtoreille v. Canada (Aboriginal Affairs and Northern Development),6the Federal Court of Canada found that Canada had a duty to consult with the Mikisew Cree First Nation when it introduced legislation that has the potential to adversely impact Mikisew's Treaty 8 rights. Prior to the Courtoreille decision, the Supreme Court of Canada 'left for another day' the question of whether the duty to consult applies to the legislative action.7 While the Federal Court in Courtoreille did not quash the impugned legislation, the decision is a notable advancement in the law establishing the Crown's duty to consult and accommodate with potentially affected First Nations before enacting legislation.
Crown conduct in delegating consultation duties was the subject of judicial review in the cases of Wabauskang First Nation v. Minister of Northern Development and Mines et al.8 and Fort McKay First Nation v. Alberta (Minister of Environment and Sustainable Resource Development).9In both cases the courts found some delegation to be acceptable but also expressed that the Crown must be integrally involved in the consultation process: the roles of the parties need to be clearly defined and mere 'oversight' of a delegated process will not suffice to discharge the Crown's duty. In the case of Council of the Innu of Ekuanitshit v. Canada (Attorney General),10 the Federal Court of Appeal found that Canada could rely on the findings of a Joint Review Panel conducting an environmental assessment of a project to assess its duty to consult and accommodate.
An interesting theme in 2014 judgments is the express application of the larger body of administrative law principles in judicial reviews of alleged breaches of the duty to consult and accommodate. Notwithstanding the constitutional dimension of the honour of the Crown and its supporting doctrine of the duty to consult, the Supreme Court of Canada previously recognized the relevance of administrative law principles to the law on the duty to consult.11 In the cases of Fort McKay and Taku River Tlingit First Nation v. BC (Minister of Environment),12 the courts applied administrative law principles in assessing whether or not the Crown acted honorably and fairly in carrying out its duties to consult. The doctrines of legitimate expectation, good faith and procedural fairness were also evident in the decision of the Yukon Supreme Court in The First Nation of Nacho Nyak Dun v. Yukon (Government of).13 In that case the Court found that where the parties had agreed to a process of collaborative decision making, the government was barred from 'going off on a frolic of its own' at the end of the process.
Another theme in 2014 was a growing recognition by the courts of the imbalance of resources between the Crown and First Nations to engage in a meaningful consultation process. The courts in Fort McKay and Wabauskang acknowledged this concern and its impact on procedural fairness and the honour of the Crown. The courts also noted the serious problem that First Nations may at times be 'inundated' with consultations related to multiple development projects in their traditional territories. This will be an important theme to watch for in 2015 decisions.
5 See Da'naxda'xw/Awaetlala First Nation v. British Columbia (Environment), 2011 BCSC 620 at para 139. http://www.canlii.org/en/bc/bcsc/doc/2011/2011bcsc620/2011bcsc620.html
7 See Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43, at para 44. http://www.canlii.org/en/ca/scc/doc/2010/2010scc43/2010scc43.html
11 See Beckman v. Little Salmon/Carmacks First Nation, 2010 SCC 53, at paras 45 to 47. http://www.canlii.org/en/ca/scc/doc/2010/2010scc53/2010scc53.html
12 2014 BCSC 1278 http://www.canlii.org/en/bc/bcsc/doc/2014/2014bcsc1278/2014bcsc1278.html
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